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A2398
HAND-BOOK
OF
CRIMINAL PROCEDURE
±1:^
By WM. L. CLARK, Jr.
Author of Clark's Hand-Book of Criminal Law and Clark's Hand-Book of the
Law of Contracts
St. Paul, Minn.
WEST PUBLISHING CO.
189s
BY
WEST PUBLISHING COMPANY.
TABLE OF CONTENTS.
INTRODUCTION.
(Pages 1-8.)
CHAPTER I.
JUEISDICTION.
Cectlon
1-2. In General— Courts of Criminal Jurisdiction
3. Jurisdiction as Determined by Locality of Crime, or Venue.
Page
4r-S
9-18
CHAPTER II.
APPREHENSION OF PERSONS AND PROPERTY.
4. Arrest in General 19-21
5. Arrest by Wai-rant 21-22
6. Issuance of Warrant— Complaint 22-20
7. Sufficiency of Warrant 26-32
8. Execution of Warrant 32-34
9. Warrant as Protection to Officer 3-t-37
10-12. Arrest Without a Warrant 38-46
13. Assisting Officer 47-48
14. Hue and Cry 48
15. Time of Arrest -49
16. Notice of Purpose and Authority 49-50
17. Use of Force 51-52
18. Breaking Doors, etc ' 53-55
19. What Constitutes Arrest 55-56
20. Duty after Arrest 56-57
21. Authorized Arrest in Unauthorized Manner 58
22. Fugitives from Justice 59
■23-25. International Extradition 59-61
26-29. Interstate Extradition 61-66
30-33. Searches and Seizures of Property 66-71
34. Taking Property from Prisoner. 71
CEiM.PEOO. (iii)
IV TABLE OF CONTENTS.
CHAPTER III.
PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT.
Section Pag&
35. Preliminary Examination 72-85
36. Bail— In General 83-8&
3T-38. Riglit to Release on Bail 85-88
39. Sufficiency of Bail 88-9a
40. Remedy on Denial of Bail 90
41. The Bail Bond or Recognizance 91-95
42. Release of Sureties 96-97
43. Breach of Bond or Recognizance, or Forfeiture of Bail. . 98-100
44. Commitment 100-103
45. Habeas Corpus 103
CHAPTER IV.
MODE OF ACCUSATION— TIME OP PROSECUTION— NOLLE PROSEQUI
OR WITHDRAWAL.
46. In General of Mode of Accusation 104-105
47-48. Indictment and Presentment— The Grand Jury 105-127
49. Information 127-130
50. Coroner's Inquisition 130-131
51. Complaint 131-132
52-53. Time of Prosecution 132-134
54. Nolle Prosequi, or Withdrawal of Accusation 135-136
CHAPTER V.
PLEADING— THE ACCUSATION. \
55. Form of Indictment— In General 138-141
56. The Commencement 141-145
57. The Statement '. 145
58. Name and Description of Defendant 145-150
59. Statement of Offense — In General 150-153
60. Stating Ingredients of Oifense 153-156
61. Facts to be Stated, and not Conclusions of Law. .. .156-159
62. Identifying Offense 159-162
63. Mode of Averment— Argument and Inference 162-163
64. Unnecessary Matter 163-164
65. Facts Necessarily Implied from Facts Stated 164-165
TABLE OF CONTENTS. V
Section PaKe
66. Facts Judicially Noticed 165
67. Conclusions of Law from Facts Stated 165-166
68. Matters of Evidence 166
69. Matters of Defense 166-168
70. Facts Particularly within Knowledge of Defendant. . 168
71. Facts not Known 168-169
72. Disjunctive or Alternative Allegations 169-171
73. Repugnancy 171-172
74. Englisli Language 172
75. Abbreviations 172-173
76. Use of Videlicet or Scilicet 173-174
77. Clerical or Grammatical Errors 174-175
78. Inducement 176
79. Innuendo 176-178
fiO. Surijlusage 178-185
CHAPTER VI.
PLEADING— THE ACCUSATION (Continued).
81. Allegation of Intent 186-192
82. Allegation of Notice, Request, and Knowledge 192-195
83. Technical Terms and Phrases 195-203
84. Aggravating Circumstances— Second or Third Offense 203-205
«5-89. Setting Forth Writuigs 205-213
90. Setting Forth Spoken Words 213-214
91. Description of Real Property 214^-216
92. Description of Personal Property 216-227
93. Ownership of Property 227-231
94. Name and Description of Third Persons 231-236
CHAPTER VII.
PLEADING— THE ACCUSATION (Continued).
S5. Statement of Time 237-245
96. Statement of Place 245-251
97. Repeating Time and Place 251-255
CHAPTER Vni.
PLEADING— THE ACCUSATION (Continued).
98. Indictments on Statutes 256-277
VI
TABLE OF CONTENTS.
CHAPTER IX.
PLEADING— THE ACCUSATION (Continued).
Section Page
99-103. Duplicity 278-285
104-110. Joinder of Counts— Election 286-300
111-113. Joinder of Parties 300-309
114. Conclusion of Indictment 309-314
115-116. Amendment 315-319
117. Aider by Verdict 319-322
118. Formal Defects Cured by Statute 322-325
CHAPTER X.
PLEADING AND PROOF— VARIANCE— CONVICTION OF MINOR OF-
FENSE,
119-121. Pleading and Proof— Variance 326-350
122. Conviction of Minor Offense 351-361
123. Conviction of Higher Ofeense 361
MOTION
124-126.
127-128.
129.
130.
131.
132.
133-135.
136-138.
139.
140.
141.
CHAPTER XI.
TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS OF
DEFENDANT.
Motion to Quash 362-366
The Arraignment and Pleas 366-372
Confession— Plea of Guilty— Nolo Contendere 372-374
Plea to the Jurisdiction 375
Plea in Abatement 375-379
Demurrer 879-381
Pleas In Bar 382
Pleas of Autrefois Acquit and Convict, or Former Jeop-
ardy 382-407
lllea of Pardon 407
Agreement to Turn State's Evidence 408
Plea of Not Guilty— General Issue 408-409
CHAPTER Xn.
TRIAL AND VERDICT.
142-143. Time of Trial— Continuance 410-418
144. Place of Trial— Change of Venue 418-421
TABLE OF CONTENTS.
vu
Section Page
145. Right to Public Trial 421^22
146-147. Custody and Restraint of Defendant : 422-423
148. Presence of Defendant 423-427
149. Insanity of Defendant 427^28
150. Furnishing Copy of Indictment and List of Jurors and Wit-
nesses 428-429
151. Bill of Particulars 429-430
152. Loss of Indictment or Information 430
153. Presence of Judge. 430^31
154. Separate Trial of Joint Defendants 431^32
155. Consolidation of Indictments 432
156-157. Counsel 432-434
158. The Petit Jury— Right to Jury Trial, and Waiver 434-437
159. Number of Jurors 437-438
160. Selecting and Summoning Jurors 438
161-166. Qualification and Exemption of Jurors— Challenges 438-455
167. Swearing the Jury 455-456
168. Opening of the Case by Counsel 456
169. View by Juiy 457
170. Misconduct of Prosecuting Attorney *. 458-459
171. Misconduct of Judge 459^60
172-173. Summing up and Argument of Counsel 460-464
174-176. Instructions or Charge of the Court to the Jury 464^473
177. Demurrer to Evidence 473
178-180. Custody, Conduct, and Deliberations of Jury 474-480
181-185. The Verdict 480-491
CHAPTER Xni.
PROCEEDINGS AFTER VERDICT.
186. Motion in Arrest of Judgment 492-494
187. Judgment and Sentence 494r-496
188. Cruel and Unusual Punishment 496-497
189. New Trial ^ 497-499
190. Writ of Error 500
CHAPTBE, XIV.
EVIDENCE.
191. Facts In Issue .501-502
192-194. Facts Relevant to Facts in Issue 502-506
195. Facts Necessary to Explain or Introduce Relevant Facts. .506-507
Viii TABLE OF CONTENTS.
Section I'^'S*
196. Motive 507-509
197. Preparation for Act 509
198. Subsequent Conduct or Condition of Defendant 510-511
199. Statements Accompanying Acts f>ll
200. Statements in tlie Presence of Defendant 511-512
201. Conduct and Complaint by Person Injured 512-513
202. Res Gestae 513-516
203. Other Crimes 516-520
204-206. Acts and Declarations of Conspirators 520-522
207. Hearsay 523
208. Declarations of Persons otlier than Defendant 523-524
209-210. Dying Declarations 525-527
211. Admissions and Declarations by Defendant 527
212-214. Confessions 528-532
215. Evidence Given in Former Proceeding 532-533
216. Opinion Evidence 534^-535
217. Expert Testimony 535-536
218. Character 536-538
219. Evidence Wrongfully Obtained 538
220-222. Presumption of Innocence— Burden of Proof 538-542
223. Witnesses — Competency— Examination 542-553
CHAPTER XV.
HABEAS COEPUS.
224-228. In General 554-562
HANDBOOK
OP
CRIMINAL PROCEDURE.
INTRODUCTION.
Criminal procedure is the method fixed by law for the apprehen-
sion and prosecution of a person who is supposed to have committed
a crime, and for his punishment if convicted. The term is really
included in the broader term "criminal law," but the latter refers
more particularly to that branch of the law which declares what
acts are crimes, and prescribes the punishment for committing
them. "In the nature of things," says Mr. Bishop, "there is a differ-
ence between a right and the means by which it is enforced; an
obligation, and the legal steps by which the delinquent is made
to atone for its violation; the law defining a crime, and the course
of the court in punishing it. Out of this distinction grows the law
of judicial procedure. It is that division of legal things under
which are regulated the steps by which a legal right is vindicated
or wrong punished." ^ The term "criminal procedure" includes
pleading, evidence, and practice.
The term "pleading" is sometimes popularly used to signify the
oral advocacy of a cause in court by counsel, but in its technical
sense, and with respect to criminal procedure, it signifies the pe-
culiar science or system^ of rules and principles according to which
the written allegations in a criminal prosecution — that is, the ac-
cusation on the part of the state, and the responsive allegations on
the part of the accused — are framed, so as to produce a proper issue
for trial, and the word "pleadings" signifies these allegations them-
selves.
» 1 Bish. Cr. Proc. § 1.
CRIM.PROC. — 1
2 INTRODUCTION.
The term "evidence'' strictly signifies the matter presented at the
trial of an issue, such as the testimony of witnesses, documents, etc.,
for the purpose of proving or disproving the fact alleged; or, as
it is put by Greenleaf, it "includes all the means by which an al-
leged matter of fact, the truth of which is submitted to investiga-
tion, is established or disproved." ^ In its broader sense, however,
it is used to signify, not only the probative matter, but the weight
and effect of this matter or proof; and, farther than this, to signify
the rules of law governing the admissibility or competency of the
matter offered, and the order in which it should be introduced.*
The term "practice" is usually employed as excluding both plead-
ing and evidence, and to designate all the incidental acts and steps
in the course of bringing matters pleaded to trial and proof, and
procuring and enforcing judgment on them. As applied to crim-
inal procedure, the term includes the rules which direct the course
of the proceedings by which the accused is brought before the court,
the conduct of the trial, and the proceedings after trial.
Prevention of Offenses.
The state never punishes for an offense until it is committed,
and it is only of proceedings to punish offenders that this work is
to treat; but it is well to mention the fact that there are circum-
stances under which the law will interfere to prevent a threatened
offense. This interference consists in obliging those persons whom
there is probable ground to suspect of future misbehavior to stipu-
late with and to give full assurance to the public that such offense
as is apprehended shall not happen, by finding pledges or securities
for keeping the peace or for their good behavior.* The person of
whose conduct the law is apprehensive is bound, with or without
sureties, in a. bond or recognizance to the state. This is taken by
some court or judicial officer. The bond or recognizance is of the
following nature:' The person bound acknowledges himself to
be indebted to the state in the sum specially ordered, with a con-
dition that the recognizance or bond shall be void if he appear in
court on a day named, and in the meantime keep the peace either
generally, or particularly, also, with regard to the person who
seeks the security; or, as is more usual, the obligation may be
» 1 Greenl. Bv. c. 1, i 1. * 4 Bl. Comm. 251.
» Post, p. 501. » Harris, Cr. Law, 301.
INTRODUCTION. d
to keep the peace for a certain period, an appearance in court not
being required. If it be for good behayior, then on condition that
he demean and behave himself well, either generally or specially,
for the time therein limited. If the condition is broken in the
one case by any breach of the peace, in the other by any misbe-
havior, the recognizance or bond becomes forfeited or absolute, and
the party and his sureties become absolutely debtors to the state
in the amount of the penalty. The mode of procedure is very gen-
erally regulated by statute in the different states.
4 JUEISDICTION. t^^* ^
CHAPTER I.
JURISDICTION.
1-2. In General— Courts of Criminal Jurisdiction.
3. Jurisdiction as Determined by Locality of Crime, or Venue.
JURISDICTION IN GENERAL— THE COURTS.
1. There can be no valid prosecution for crime unless
the court in -which it is carried on is legally created and
constituted, and has jurisdiction of the offense and of the
person of the defendant.
2. Jurisdiction cannot be conferred by the consent of
the defendant.
We have in another work considered the right of the state to
punish for acts. This right depends upon whether the act is an
offense against the state, and there is no question of procedure.
The jurisdiction of a particular court within a state to take cog-
nizance of an act which is an offense against the state, and which
the state has a right to punish, is a question of procedure, and it is
with this question that we are now to deal.
The state punishes for offenses through the instrumentality of
courts which it has created and invested with authority for this pur-
pose. No court can try and punish for any offense unless it is a
legal court; that is, unless it is legally created and legally con-
stituted. If the statute attempting to create a court is clearly
unconstitutional, or otherwise clearly insufficient, there is no legal
court, and, if a court purporting to have been so created assumes
jurisdiction of an offense, its proceedings and judgment are an
absolute nullity.^ So if a statute creating a court provides that it
1 It has been held that where a court has been established by an act of
the legislature which is apparently valid, and has gone into operation under
such act, public policy demands that it shall be regarded as a de facto court,
and that its judgments and proceedings shall not be open to collateral attack.
Ch. 1] JURISDICTION IN GENERAL. 5
shall be constituted in a certain way, or shall sit at a certain place
or time only, or shall be presided over by a certain number of judges,
a court illegally constituted, as where it sits at some other place
or time than that prescribed, or is presided over by less than the
prescribed number of judges, is in fact no court at all, and its pro-
ceedings and judgments are void.^ The court must be presided
over by an authorized judge; but he need not be a judge de jure
to render its judgments valid. If he is a judge de facto, and no
objection is taken before judgment, its judgment will be valid.'
And, generally, the judgments and proceedings of a de facto officer
or court, where no objection was interposed to the jurisdiction, are
valid.* If the court or judge is neither a de jure nor a de facto
court or judge, the judgments are a nullity, and may be attacked
at any time.^
Not only must the court be legally created and constituted, but
it must have jurisdiction of the particular offense which it under-
takes to punish. If it is not authorized to take cognizance of the
offense at all, its judgment or action is a nullity for all 'purposes,
and may be attacked at any time.*
If the court has no jurisdiction by law to take cognizance of an
offense, jurisdiction cannot be conferred upon it by the defendant
in\
:'s/
There is much conflict on this question, and It would be beyond the scope
of our work to go into it. The question is discussed at length, and the author-
ities are collected, in 1 Blacli, Judgm. §§ 170-173, 254-258.
2 Jackson v. Com., 13 Grat. (Va.) 795; In re Ten-ill, 52 Kan. 29, 34 Pac. 457;
State V. Roberts, 8 Nev. 239; Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707;
1 Black, Judgm. §§ 173-178. It has been held that the fact that more than
the prescribed number of Judges sit does not render the court illegal. Mc-
Farlan v. People, 13 IlL 9.
3 State V. Bloom, 17 Wis. 521; Spradling v. State, 17 Ala. 440; 1 Black,
Judgm. §§ 175, 176.
*Id.; State v. Peyton, 32 Mo. App. 522; State v. Davis, 111 N. C. 729, 16
S. B. 540; 1 Black, Judgm. §§ 173-176.
Old.
8 Com. v. Knowlton, 2 Mass. 580; Com. v. Johnson, 8' Mass. 87; Forsythe v.
U. S., 9 How. 571; State v. Ridley (N. 0.) 19 S. E. 149; Cropper v. Com., 2
Rob. (Va.) 842; Rice v. State, 3 Kan. 141; State v. Grant, 34 S. C. 109, 12 S.
B. 1070; State v. Cooper, 104 N. C. 890, 10 S. B. 510; Morris v. State, 84 Ga.
7, 10 S. E. 368.
JURISDICTION.
[Ch. 1
consent. Consent of the parties cannot supply want of jurisdic-
tion.''
The court must also have jurisdiction of the person of the de-
fendant.'
If the court is legally created and constituted, and it has jurisdic-
tion of the offense and of the defendant's person, mere errors in
the proceedings will not affect its jurisdiction, so long as it keeps
within that jurisdiction. As said by the supreme court of the
United States in a .late case, the "court has jurisdiction to render a
particular judgment only when the offense charged is within the
class of offenses placed by the law within its jurisdiction, and when,
in taking custody of the accused, and in its modes of procedure,
and in rendering judgment, it keeps within the limitations pre-
scribed by the law, customary or statutory. When it goes outside
these limits, its action, to the extent of the excess, is void. Proceed-
ing within these limits, its action may be erroneous, but is not
void." «
If a court has jurisdiction of the offense charged, its jurisdiction
is not ousted by proof of a less offense, of which it could not have
taken jurisdiction. On indictment for grand larceny, for instance,
the defendant may be convicted of petit larceny, though the court
would have had no jurisdiction of a charge of petit larceny.^"
State Courts.
The courts in the various states are created, and their jurisdiction
is conferred and defined, by statutes, which must be consulted.
Justices of the peace are given jurisdiction to examine persons
T People v. Campbell, 4 Parker, Or. R. (N. Y.) 386; People v. Granice, 50
Cal. 547; Batchelder v. Currier, 45 N. H. 460; Mills v. Com., 13 Pa. St. 627;
State V. Tolleston Club, 53 Fed. 18; Hager v. Falk, 82 Wis. 644, 52 N. W. 432.
sAs to effect of illegality of arrest on jurisdiction, see post, p. 5a Irregu-
larities in obtaining jurisdiction of the defendant's person are waived if he
pleads to the indictment, and raises no objection. Post, p. 82; State v. Fitz-
gerald, 51 Minn. 534, 53 N. W. 799; Ledgerwood v. State, 134 Ind. 81, 33 N.
B. 631.
= In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323.
10 People V. Rose (Super. Buff.) 15 N. Y. Supp. 815 j People v. Fahey, 64
Cal. 342, 30 Pac. 1030; Ex parte Bell (Cal.) 34 Pac. 641; State v. Fesperman,
108 N. C. 770, 13 S. B. 14; Winburn v. State, 28 Fla. 339, 9 South. 694.
Ch. 1] JUKISDICTION IN GENEBAL. 7
accused of crime, and to admit them to bail, or commit them, to
await trial in the higher court having jurisdiction to try and punish
the offense. They are also given power to conserve the peace, and
for that purpose to bind over to keep the peace, and for good be-
havior, those persons whose conduct renders such a step proper.^^
They are also generally given exclusive and final jurisdiction of
petty offenses, like vagrancy, disorderly conduct, etc., or are given
concurrent jurisdiction with the higher court of certain offenses.
In some cases the accused is given the right to appeal from the
justice's decision to the higher court, where he has a trial de novo.
Other inferior courts, such as the police courts in the larger cities,
have been created, and are given the same jurisdiction as justices
of the peace.^^
A coroner's court or inquest is held to inquire by a jury, generally
of six men, into the cause of a death supposed to have been caused
by violence.^'
In all the states there is in each county a court of general orig-
inal jurisdiction to try and punish for all offenses other than trifling
offenses within the exclusive jurisdiction of justices of the peace.
In some states it is called the "circuit court"; in others, the
"district court"; in others, the "superior court", etc. In some states
there are other courts between this and justices of the peace, such
as county and corporation courts.
In every state there is a court having jurisdiction, on appeal or
writ of error, to review the judgment of the trial court.
Federal Courts.
The federal courts are the commissioners' court; the district and
the circuit courts, the circuit courts of appeal, and the supreme
court. The jurisdiction of the federal courts arises solely out of
the constitution and the acts of congress. They have only such
jurisdiction as is thus conferred.
United States commissioners are charged, generally, with such
functions in the federal government as devolve upon justices of the
"Ante, p. 2.
12 See, as to justice's jurisdiction, Com. v. Harris, 8 Gray (Mass.) 470; Com.
V. O'Connell, Id. 464.
18 Post, p. 130.
8 JURISDICTION. [Cb. 1
peace in the state goTemment. They are appointed and removable
by the circuit courts.^*
The district courts of the United States have jurisdiction, ex-
clusive of the state courts, and concurrent with the circuit courts
of the United States, of all offenses against the United States, not
capital, committed within their respective districts or on the high
seas.^"
The circuit courts of the United States have exclusive jurisdiction
of all capital offenses against the United States, and, concurrently
with the district courts, of other offenses against the United
States.^"
The circuit courts of appeals have appellate jurisdiction of crimes
on writ of error to the circuit or district court.^'
The supreme court of the United States has appellate jurisdiction
in the following cases : (1) On writ of error to the district or circuit
court to review convictions of a capital or otherwise infamous ^'
crime; ^* (2) to review a decision of the circuit court of appeals
in a case certified to it by the latter, or caused by the supreme court
to be certified;^" (3) where the judges of a circuit court differ in
opinion, and certify the case to the supreme court; "^ (4) on writ of
error to the state court of highest resort in certain cases; "^ (5) by
writ of habeas corpus, aided by writs of certiorari, where a person
is without authority detained in custody under color of the au-
thority of the United States.'''
" Rev. St. U. S. §§ 627, 1014, et seq.
IB Rev. St. U. S. § 5G3.
18 Rev. St. U. S. § '629. par. 20.
IT 26 Stat 827.
18 An "infamous crime" is any crime pmilshable by death or imprisonment
In the penitentiary. Post, p. 107.
i» 26 Stat. 827.
20 26 Stat 828.
^1 Rev. St U. S. § 651.
2 2 Rev. St V. S. §§ 709, 710.
28 Rev. St U. S. §§ 763, 764.
Ch. 1] VENUE.
JUHISDICTION AS DETERMINED BY LOCALITY 0¥ CRIME,
OR VENUE.
3. As a rule, prosecutions must be instituted and car-
ried on in tlie county in which the crime -was committed,
and it is generally deemed to have been committed in
the county in -which it -was consummated. There are a
fe-w exceptions to the rule, even at common la-w, and
many exceptions have been made by statute. The county
in -which the oflfense -was committed is called the "venue."
We have in another work considered the question of locality of
crime as determining the jurisdiction or right of the state to punish
at all.^* The question as determining -what court within the state
has jurisdiction remains to be considered.
It has always been the rule of the common law that an offense/
must be prosecuted in the county in which it was committed,^?
though there have been exceptions. The chief reason of the rule
was that the accused was entitled to a jury from the county in
which the offense was committed.
Formerly, where an offense was commenced in one county and
consummated in another, the offender could not be tried at all.^°
If a mortal blow was given in one county, and the party died of
the blow in another, it was doubted whether he could be punished;
for it was supposed that a jury of the first county could not take
cognizance of the death, and a jury of the second county could not
take cognizance of the blow.^^ Most of the courts, however, have
held that there is jurisdiction in such casss, considering that the
crime is committed where the blow or poison is given, and
2« Clark, Cr. Law, 357.
SB 1 Chit Cr. Law, 189; 4 Bl. Oomm. 303; 2 Hawk, P. C. c. 25, §§ 35, 51;
Rex V. Jones, 6 Oar. & P. 137; Hughes v. State, 35 Ala. 351; State v. Jones,
8 N. J. Law, 307, 9 N. J. Law, 357. And see the cases hereafter referred to.
2 6 1 Chit Cr. Law, 177; 1 Hale, P. C. 651, 652; 2 Hawk. P. C. c. 25, §§ 36,
40; Cro. Car. 488.
2T 1 East, P. C. 361; 2 Hawk. P. C. c. 25, § 36; Green v. State, 66 Ala. 40.
10 JURISDICTION. [Ch. 1
that the prosecution must be in that county."' A few courts
have held that it is not committed until death occurs, that the
death is the consummation of the crime, and that the prosecution
must be in the county of the death.^" These questions, in so far
as homicide is concerned, were set at rest in England by St. 2 &
3 Edw. VI. c. 24, which is old enough to have become a part of
our common law. This statute provided that in cases of striking
and poisoning in one county, and death ensuing in another, the
offender may be indicted, tried, and punished in the county where
the death ensued. And similar statutes have been enacted in some
of our states.'" In other states he must be prosecuted in the
county where the poison or blow was given.'^ In others it is pro-
vided that the prosecution may be in either county."^
These statutes, fixing the county in which offenses may be prose-
cuted, even though they allow prosecution in a county other than
that in which the-offense was committed, are constitutional. ''
Larceny is committed where the property is taken and carried
away. But at common law, if a person steals goods in one county,
and carries them into another, he may be prosecuted in either; for
it is considered that the possession of the stolen goods by the thief
is a larceny in every county into which he carries them, because, the
legal possession still remaining in the owner, every moment's con-
tinuance of the trespass and felony amounts to a new taking and
2 8 1 Hale, P. C. 426; 1 East, P. C. 361; Green v. State, 66 Ala. 40; Rex
v. Hargrave, 5 Car. & P. 170; Riley v. State, 9 Humph. (Tenn.) 646; State v.
Carter, 27 N. J. Law, 499; People v. Gill, 6 Cal. 637; State v. Gessert, 21
Minn. 369.
2 9 See Com. v. Macloon, 101 Mass. 1, and authorities there cited.
so Com. v. Parker, 2 Picli. (Mass.) 550; Stoughton v. State, 13 Smedes &
M. (Miss.) 255.
81 Stout V. State, 76 Md. 317, 25 Atl. 299.
8 2 State V. Pauley, 12 Wis. 537; State v. Stewart, 60 Wis. 587, 19 N. W.
433; Hicks v. Territory (N. M.) 30 Pac. 872.
8 8 Com. V. Parker, 2 Pick. (Mass.) 550. And see Dula v. State, 8 Yerg.
(Tenn.) 511; Archer v. State, 106 Ind. 426, 7 N. E. 228; Tippins v. State, 14
Ga. 422; Steerman v. State, 10 Mo. 503; State v. Pauley, 12 Wis. 537; Tyler
V. People, 8 Mich. 320; Com. v. Macloon, 101 Mass. 1; State v. Johnson, 38
Ark. 568; Green v. State, C6 Ala. 40; Hanks v. State, 13 Tex. App. 288;
Ham V. State, 4 Tex. App. 645; Adams v. People, 1 N. Y. 173.
Ch. 1] VENUE. 11
asportation.'* The rule is expressly so declared by statute in some
states.
The offense of obtaining property by false pretenses is committed,
not where the pretenses are used, but where the property is ob-
tained.^"
It has been held that the crime of embezzlement is committed
where the property is appropriated," but by the weight of au-
thority this is not always so. It was said by the Ohio court, in a
late case, that "if the entire transaction constituting the embezzle-
ment occurred in one county only, the venue, as matter of course,
should be laid therein; but, if the transaction extended to differ-
ent counties, the authorities generally hold that the jurisdiction of
the county in which the act of conversion occurred is not exclusive";
S4 4 Bl. Comm. 305; 2 Hale, P. O. 163; 1 Chit. Or. Law, 178; 2 East, P. C.
771, 772; Com. v. Cousins, 2 Leigh (Va.) 708; Com. v. De Witt, 10 Mass. 154;
People v. Gardner, 2 Johns. (N. Y.) 477; State v. Hunter, 50 Kan. 302, 32
Pac. 37; People v. Staples, 91 Cal. 23, 27 Pac. 523; Massie v. Com., 90 Ky.
485, 14 S. W. 419; Tippins v. State, 14 Ga. 422; Crow v. State, 18 Ala. 541;
Com. V. Rand, 7 Mete. (Mass.) 475; State v. Douglas, 17 Me. 193. Some courts
apply the doctrine where goods are stolen in one state and brought into an-
other. Com. V. Andrews, 2 Mass. 14; Rex v. Peas, 1 Root (Conn.) 69; State
T. Bartlett, 11 Vt 650; State v. Underwood, 49 Me. 181. But see People v.
Gardner, 2 Johns. (N. Y.) 477; People v. Schenck, Id. 479; Simmons v. Com.,
5 Bin. (Pa.) 617; State v. Brown, 1 Hayw. (N. C.) 100; Twombley v. Hum-
phrey, 23 Mich. 480, and cases there cited; Stanley v. State, 24 Ohio St. 172;
State V. Le Blanch, 31 N. J. Law, 82; Simpson v. State, 4 Humph. (Tenn.)
456; Beall v. State, 15 Ind. 378; State v. Reonnals, 14 La. Ann. 278.
8 5 Rex v. Burdett, 4 Barn. & Aid. 179; Stewart v. Jessup, 51 Ind. 413; Com.
v. Van Tuyl, 1 Mete. (Ky.) 1; People v. Adams, 3 Denio (N. Y.) 190; Norris
V. State, 25 Ohio St 217; Connor v. State, 29 Pla. 455, 10 South. 891; Sims
V. State, 28 Tex. App. 447, 13 S. W. 653. And see State v. ShaefCer, 89 Mo.
271, 1 S. W. 293; Com. v. Wood, 142 Mass. 459, 8 N. E. 432. As to procuring
goods by means of an innocent agent in another county, see post, p. 14.
That the venue is in the county where the goods were delivered to a carrier
consigned to the defendant, see Norris v. State, supra.
86 People V. Murphy, 51 Cal. 376. And see State v. New, 22 Minn. 78. In
the latter case the question was not decided, but, conceding it to be neces-
sary to show the appropriation In the county of the prosecution, it was held
that where it is shown that money was received by an employe from his em-
ployer in that county, and that he failed to account for it, and there Is noth-
ing to show that he carried it out of that county, it will be assumed that the
misappropriation was in that county, without express proof to that effect
12 JURISDICTION. [Ch. 1
and the court held that where a contract of employment was made in
L. county, by which the defendant was authorized to sell goods for
his employers in S. county, and to account therefor in S. county,
and goods were sent from his employers' place of business in L.
county, to the defendant in S. county, and were sold in S. county
by the defendant, and the proceeds converted to his own use, part
in S. county, and part in another state, the defendant could be pros-
ecuted in L. county.^^
The venue of robbery is the county in which the property is taken.
Where, for instance, a person is seized in one county, and carried
into another, and there forced to surrender money, the venue of
the robbery is in the latter county.^* If a person robs another in
one county, and carries the goods into another county, it would only
be larceny in the latter, for the other essentials of robbery are not
committed there.*®
The place of prosecution for forgery is in the county where the
instrument was forged. An indictment will not lie at common law
in another county, in which the offender is found with the instru-
ment, or in which he utters it.*" But, according to some of the
cases, possession of the instrument in one county may raise a pre-
sumption that it was forged there, if there is nothing to show the
contrary.*^ In some states, by statute, the prosecution may be in
any county where the instrument was forged or used or passed.*^
The uttering of a forged instrument in another county, by means of
an innocent agent, like the post oflflce, for instance, will be presently
considered.**
8T State v. Bailey, 50 Ohio St. 636, 36 N. B. 233; citing Cohen v. State, 20
Tex. 224; State v. Small, 26 Kan. 209; 1 Blsh. Cr. Proc. § 61; Campbell v.
State, 35 Ohio St. 70; Rex v. Taylor, 2 Leach, 974; Reg. v. Murdock, 8 Bng.
Law & Eq. 577; Reg. v. Rogers, 3 Q. B. Div. 28. And see State v. Haskell,
33 Me. 127.
8 8 Sweat V. State, 90 Ga. 315, 17 S. B. 273.
80 1 Hale, P. C. 507, 508; 2 Hale, P. C. 163.
40 2 East, P. C. 992; Com. v. Parmenter, 5 Pick. (Mass.) 279; Spencer v.
Com., 2 Leigh (Va.) 751.
*i Spencer v. Com., supra; U. S. v. Britton, 2 Mason, 464, Fed. Cas. No. 14,-
650. Contra, Com. v. Parmenter, supra.
42 Mason v. State, 32 Tex. Cr. R. 95, 22 S. W. 144, 408.
4 3 Post, p. 15.
Ch. 1] VENUE. 13
It would seem that the offense of sending a threatening letter
is committed in the county in which it is dispatched, as where it
is sent by mail, though it is receiyed in another county, since the
sending of it completes the offense; and so it has been held.** But
there are authorities to the effect that if a person, by an innocent
agent, like the post oflQce, sends a threatening letter into another
county, where it is delivered, the venue may be laid in the latter
county.*"
Prosecutions for libel must be in the county of publication.*' As
we shall see, if a person authorizes the publication of a libel by
either an innocent or a guilty agent, he is guilty of a publication
in any county in which the libel is published; *^ and it has been
held that if a person composes a libel in one county, with intent to
publish it in another, and afterwards does so publish it, he may be
indicted in either.**
At common law, prosecutions for bigamy must be in the county
where the bigamous marriage was entered into; and such is the
law in many of our states.** But by a statute in England, which
is old enough and applicable enough to be a part of our common
law, it was provided that persons guilty of bigamy may be tried in
any county in which they are arrested. ^^ In some states the
statute punishing bigamy makes the offense continuous, so that the
parties may be punished in any county in which they are found in
a bigamous state."^
*4 Landa v. State, 26 Tex. App. 580, 10 S. W. 218. This Is not like the utter-
ing of a forged instrument, for there is no utterance of a forged Instrument
until the instrument is transferred. Post, p. 15.
*o Post, p. 15.
*8 Rex V. Johnson, 7 East, 68; Rex. v. Watson, 1 Camp, 215, 216; Com. v.
Blanding, 3 Pick. (Mass.) 304.
*7 Rex v. Johnson, 7 East, 65. And see Rex v. Brisac, 4 East, 164; Com.
V. Blanding, 3 Pick. (Mass.) 304. Post, pp. 14, 16.
*8 Rex v. Burdett, 4 Barn. & Aid. 95.
*8 1 Hale, P. C. 693; People v. Mosher, 2 Parker, Cr. R. (N. Y.) 195; Finney
V. State, 3 Head (Tenn.) 544; Walls v. State, 32 Ark. 565; Beggs v. State,
55 Ala. 108; Brewer v. State, 59 Ala. 101; Brown v. State (Tex. Cr. App.)
27 S. W. 137.
BO 2 Jac. I. c. 11.
61 State V. Johnson, 12 Minn. 476 (Gil. 378); State v. Palmer, 18 Vt. 570; Com.
V. Bradley, 2 Cush. (Mass.) 553.
14 JURISDICTION. [Ch- 1
By the weight of authority, if a nuisance is erected in one county,
and affects the public in another, the offender may be prosecuted in
either county."'
The venue of abduction for the purpose of concubinage is in the
county where the woman was induced or forced to go away; '^ and
the same is true of the crime of inveigling a person with intent to
cause him to be sent out of the state.''*
Crimes Committed while Personally Absent — Innocent Agent — Principal and
Accessary.
It is not always necessary that a person shall be present in a
county in order to commit a crime there. If a person while in one
county commits a felony or other crime through an innocent agent
in another, he himself commits the crime in the latter."' Thus, if
a person in one county should by means of an innocent agent, and
this innocent agent may be the post office, obtain goods in another
county by false pretenses, he himself, as principal, commits the
offense in the latter county, and may be there punished."" If a man
stands in one county, and, by throwing or shooting across the line
into another, assaults or kills a person standing in the latter county,
he is guilty of the homicide or assault in the latter county."'' So,
if a person, while in one county, causes a libel to be published by
52 2 Hawk. P. 0. c. 25, § 37; Scott v. Brest, 2 Term R. 241; Scurry v. Free-
man, 2 Bos. & P. 381; Com. v. Lyons, 3 Pa. Law J. 167; State v. Lord, 16
N. H. 357; Rex v. Burdett, 4 Barn. & Aid. 175, 176. But see, contra. State
V. Eldred, 46 Wis. 530.
53 State V. Johnson, 115 Mo. 480, 22 S. W. 463.
B* In re KeUy, 46 Fed. 653.
BBl Hale, P. C. 430, 431, 615, 617; Anon., J. Kel. 53 (poisoning); People v.
Rathbun, 21 Wend. (N. Y.) 509; People v. Adams, 3 Denio (N. Y.) 207; Reg.
T. Michael, 9 Car. & P. 356.
66 People V. Adams, supra; People v. Rathbun, supra; Johns v. State, 19
Ind. 421; State v. Chapin, 17 Ark. 561.
BTi Hale, P. C. 475; 1 East, P. C. 3G7. And see People v. Adams, 3 Denio
(N. Y.) 207. On this principle, It was held by the Georgia court in a late
case that the offense of shooting at another took effect and was committed
in Georgia where a person standing on the South Carolina shore of the Sa-
vannah river aimed and fired a pistol at another, who was at the time in
Georgia, though the ball missed him, and struck the water near his boat
Simpson v. State (Ga.) 17 S. E. 984.
Ch. 1] VENUE. 15
an innocent agent in another, he may be prosecuted in the latter."'
The offense of uttering a forged instrument is committed where it
is transferred or received by the person to whom it is uttered, and,
therefore, if a forged instrument is mailed in one county to a per-
son in another, where it is received, or is otherwise transferred in
another county through an innocent agent, it is uttered in the lat-
ter,''° and it has been held that the offense is not committed partly
in each county.'" The same rule has been applied to the sending
of threatening letters, by an innocent agent like the post office, into
another county; °^ but it would seem that, since the sending com-
pletes the offense, the offense is committed where the letter is
mailed, and so it has been held."''
There is much doubt in the older authorities as to whether a per-
son, who in one county is accessary to a felony perpetrated by a
guilty agent in another, can be prosecuted in the latter as an acces-
sary."' The subject was covered in England by a statute (2 & 3
Edw. VI. c. 24), providing that where a felony is committed in one
county, and any other person shall be accessary in another, the lat-
ter may be indicted where his particular criminality existed as if
the felony had been committed there."* This statute is old enough
to have become a part of our common law. It will be noticed, how-
ever, that it merely permits the prosecution in the county in which
the accessary acts, and does not say that he may not be indicted
in the other county. The Texas court, in an able judgment, has
held that the courts of a county in which a crime is committed have
jurisdiction to try and punish an accessary, though all the acts con-
stituting him an accessary were committed in another county.'"
58 Com. V. Blandlng, 3 Pick. (Mass.) 304. The same is true where it is pub-
lished by a guilty agent. Post, p. IG.
0 9 People V. Rathbun, 21 Wend. (N. Y.) 509; State v. Hudson, 13 Mont 112,
32 Pac. 413; Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680.
«o State V. Hudson, supra; People v. Rathbun, supra.
61 1 Chit. Cr. Law, 191; Rex v. Girdwood, 1 Leach, Crown Cas. 142: 2
East, P. C. 1120.
6 2 Landa v. State, 26 Tex. App. 580, 10 S. W. 218.
6 3 2 Hale, P. C. 62, 63.
«4 1 East, P. C. 362.
en Carlisle v. State, 31 Tex. Cr. R. 537, 21 S. W. 358.
16 JURISDICTION. [Ch. 1
And in New York there is a similar decision, though perhaps based
particularly on the fact that by statute in that state accessaries
are made guilty as principals.*"
It seems to be well settled that, in misdemeanors, persons who
take such a part in the crime as would render them liable as acces-
saries were the crime a felony, but who are liable as principals be-
cause it is a misdemeanor, may be prosecuted in the county where
the crime was committed, though they were acting in another coun-
ty.'^ A person, therefore, who, while in one county, causes a
libel to be published, by means of a guilty agent in another, may
be punished in the latter."*
Offenses Committed Near the Boundary Line.
Because of the necessity to charge the offense to have been com-
mitted in the county in which the prosecution is instituted, and to
prove its commission as laid, it was found that, in prosecutions for
crimes committed near the boundaries of two or more counties, the
defendant often escaped punishment for defect of the proof in
this respect. It has therefore been provided by statute in most
jurisdictions that, in an indictment for a felony (in some states for
other offenses) committed on the boundary or boundaries of two
or more counties, or within a certain distance (500 yards, for in-
stance) therefrom, it shall be sufficient to allege that the crime
was committed in either or any of said counties, and the crime may
be inquired of, tried, and determined in the county within which it
shall be so alleged to have been committed."^
Offenses Partly in One County and Partly in Another.
It is sometimes provided by statute that, where a crime is com-
mitted partly in one county and partly in another, the offender may
be indicted, tried, and punished in either. Under such a statute, if a
man promises in one county to marry a woman, and on the same
0 8 People V. Wiley, 65 Hun, 624, 20 N. Y. Supp. 445.
67 Rex v. Brisac, 4 East, 164; Com. v. Gillespie, 7 Serg. & E. (Pa.) 469; 1
Blsh. Cr. Proc. § 57.
6 8 Hex V. Brisac, supra; Rex v. Jolmson, 7 East, 65; Rex v. Burdett, 4
Barn. & Aid. 95.
6 9 1 Chit. Cr. Law, 184; People v. Davis, 56 N. Y. 95; State v. Stewart, 60
Wis. 587, 19 N. W. 433; Buckrlce v. People, 110 111. 29.
Ch. 1] VENUE. 17
day takes her into another county, and there seduces her under
such promise, he may be prosecuted in either county.'" And where
a conspiracy to take the life of a person is formed in one county,
and in pursuance thereof he is there seized and bound, and is car-
ried into another county and there killed, the murder may be prose-
cuted in either country.'^ And the same is true where an assault
is committed — that is, a blow or poison given — in one county and
death results in another.'^
These statutes do not change the rule that a person who, while
absent, commits a crime through an innocent agent, must be prose-
cuted where the crime was committed. It does not apply, therefore,
where a forged instrument is mailed in one county, and received
in another, but in such a case the prosecution for uttering the in-
strument must be in the latter.' '
Locality of Crime against United StatesJ*
There are various provisions in the constitution of the United
States and acts of congress securing the right to be tried where the
offense was committed. Thus it is declared that trials shall be
held "in the state where the said crimes shall have been committed ;
but, when not committed within any state, the trial shall be at such
place or places as the congress may by law have directed"; '" and
that persons accused of crime shall have the right to trial by a jury
of the state and district wherein the crime shall have been commit-
ted, which district shall have been previously ascertained by law.''
And there are various provisions by act of congress." ~ Crimes com-
mitted on the high seas, or elsewhere out of the jurisdiction of any
particular state or district, are to be tried in the district where the
offender is first found, or into which he is first brought.'*
TO People v. Crotty (Sup.) 9 N. Y. Supp. 937.
11 Archer v. State, 106 Ind. 426, 7 N. E. 225.
'2 Archer v. State, supra; Green v. State, 66 Ala. 40.
Ts state V. Hudson, 13 Mont 112, 32 Pac. 413.
T 4 As to locality as determining right to prosecute at all, see Clark, Cr. I^aw,
357.
75 Const U. S. art 3, § 2.
TB Amend. Const V. S. art. 6.
TT See Rev. St TT. S. §§ 661, 662, 729.
T8 Eev. St U. S. § 730.
CBIM.PKOC. — 3
18
JUKISDICTION. [Ch. 1
Change of Venue.
In most, if not in all, the states, there are statutes providing for
a change of the place of trial to another county, where certain
grounds are shown.'"' This is called a "change of venue."
»» Post, p, 418.
Ch. 2] AEEEST. 19
CHAPTER II.
APPREHENSION OF PERSONS AND PROPERTY.
4.
Arrest in General.
5.
Arrest by Warrant
6.
Issuance of Warrant— Complaint
7.
Sufficiency of Warrant
8.
Execution of Warrant
9.
Warrant as Protection to Officer.
10-12.
Arrest Without a Warrant
13.
Assisting Officer.
14.
Hue and Cry.
15.
Time of Arrest
16.
Notice of Purpose and Authority.
17.
Use of Force.
18.
Breaking Doors, etc
19.
What Constitutes Arrest
20.
Duty after Arrest
21.
Authorized Arrest in Unauthorized Manner.
22.
Fugitives from Justice.
23-25.
International Extradition,
26-29.
Interstate Extradition.
30-33.
Searches and Seizures of Property.
34.
Taking Property from Prisoner.
ABREST.
4. An arrest is the taking of a person into custody to
answ^er for a crime. It may be made —
(a) By virtue of a warrant issued by a competent au-
thority.
(b) Under some circumstances, ■without a warrant.
When a crime has been committed, the first thing to be done is
to secure the body of the offender so that he may be forthcoming
for his trial, or, in other words, to arrest him. The arrest may be
made in two ways. It may be made by virtue of a warrant of arrest,
issued by a competent authority, and directing the apprehension of
20 APPKEHENSION OF PEESONS AND PROPERTY. [Ch. 2
the offender; or it may, under some circumstances, be made with-
out a warrant. We shall deal first with arrests by warrant, ex-
cluding, however, those questions which relate to arrests generally.
We shall then deal in the same way with arrests without a war-
rant, and, finally, with those questions which relate to arrests gen-
erally, whether by or without a warrant. At the outset, for the pur-
pose of showing the importance of the subject, it may be well to
state shortly the rights and liabilities of parties with reference to
arrests.
Rights and Liabilities of Parties — Lawful Arrest.
If an arrest is authorized, and is attempted or made in a pronoi'
manner, the person making it, whether he be, as we shall presently
explain, an officer or a private person, merely performs his duty,
and he incurs no liability whatever.^ On the contrary, the law
throws its protection around him. The person sought to be ar-
rested, if he resists, is criminally liable for the mere resistance,*
and also both civilly and criminally liable for assault and battery,
if he goes so far.* If he, or a person assisting him, in his resistance,
kills the person making the arrest, the homicide is murder.* If a
person unlawfully departs from custody after he has been law-
fully arrested, he is guilty of a misdemeanor known as an "es-
cape"; " and if he breaks from his place of imprisonment, or forcibly
escapes, he is guilty of a misdemeanor or a felony, according to cir-
cumstances, known as a "prison breach." « If third persons inter-
fere in aid of the person sought to be arrested, the bare interference
constitutes a misdemeanor.^ If they use force, they are also guilty
of an assault and battery, and, if the person making the arrest
is killed, they are guilty of murder.* If they procure the escape of
1 state v. Hull, 34 Conn. 132; State v. Pugh, 101 N. 0. 737, 7 S. E. 757;
Clark, Cr. Law, 211.
2 People V. Haley, 48 Mich. 495, 12 N. W. 671; Clark, Cr. Law, 325.
8 People V. Haley, supra.
* Rex V. Ford, Russ. & R. 329; Mockabee v. Com., 78 Ky. 380; People v.
Pool, 27 Cal. 572; Roberts v. State, 14 Mo. 138; Clark, Cr. Law, 161.
0 State V. Leach, 7 Conn. 452; Clark, Cr. Law, 327.
8 State V. Murray, 15 Me. 100; Com. v. Filburn, 119 Mass. 297; Clark, Cr.
Law, 328.
T Clark, Cr. Law, 325.
8 Clark, Cr. Law, 161 ; note 4, supra.
Ch. 2] ARREST BY WARRANT. 21
the prisoner after his arrest, they are guilty of a misdemeanor or
felony known as a "rescue." '
Same — Unlawful Arrest.
On the other hand, if an arrest or attempt to arrest is illegal,
either because there is no authority to arrest at all, or because the
arrest is made in an unlawful manner, as, for instance, by the use
of unnecessary violence, the person arresting, whether he be an
oflScer or a private person, and whether the arrest is attempted or
made with or without a warrant, is guilty of an assault and battery
or false imprisonment, and is both civilly and criminally liable
therefor.*" An unlawful attempt to arrest or a false imprisonment
may be lawfully resisted by any necessary force short of taking life
or inflicting grievous bodily harm.** Even when life is taken in
resisting, the attempt to arrest or the imprisonment is deemed
sufiScient provocation to reduce the homicide to manslaughter.*"
Within certain limits, not very clearly defined, third persons, par-
ticularly relatives, may interfere to prevent an unlawful arrest or
imprisonment.**
Habeas Corpus.
If a person is illegally arrested or detained in custody, he may
obtain his release by petition to the proper court or judge for a
writ of habeas corpus. This remedy will be considered in a sep-
arate chapter.
AREEST BY WARRANT.
5. A warrant is a -writ or precept, issued by an author-
ized magistrate, addressed to a proper officer or person,
requiring him to arrest the body of an offender, or sus-
pected offender, therein named, and bring him before a
proper magistrate, to be dealt with according to law^.
» Clark, Cr. Law, 329.
10 State V. Parker, 75 N. C. 249; Bums v. State, 80 Ga. 544, 7 S. E. 88;
Slomer v. People, 25 111. 70; Clark, Cr. Law, 211, 218.
11 Massie v. State, 27 Tex. App. 617, 11 S. W. 638; Drennan v. People, 10
Mich. 169; Clark, Cr. Law, 109, 213.
12 Yates V. People, 32 N. Y. 509; Drennan v. Pfeople, 10 Mich. 169; Reg. v.
Thompson, 1 Moody, Crown Cas. 80; Drew's Case, 4 Mass. 391; RafCerty v.
People, 69 III. Ill, 72 111. 37; Clark, Or. Law, 109.
18 Clark, Cr. Law, 147, 157.
22 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
In all of the states, either by statute or at common law, warrants
of arrest may be issued by any justice of the peace, or other magis-
trate who is given similar powers, on a proper complaint being made
before him, for the arrest of a person who has committed a crime
within his jurisdiction, or is reasonably suspected of having com-
mitted it. Warrants are generally issued by justices of the peace
or police magistrates, but they may also, at common law as well
as by statute in most states, be issued by a judge of any court of
record.
If possible, a warrant should be obtained in all cases, but, as we
shall presently see, there are cases in which an arrest may be made
without a warrant, even when there is time and opportunity to ob-
tain one. Generally, in cases of misdemeanor, a warrant is neces-
sary. We shall best consider the necessity for a warrant in treat-
ing of arrests without a warrant.
SAME— ISSUANCE OF WARRANT— COMPLAINT.
6. To authorize the issuance of a -wrarrant before indict-
ment, there must be made before the proper magistrate a
proper complaint, on oath or affirmation, shovdng that a
crime has been committed, and that there is probable cause
to suspect the accused. After indictment, the usual prac-
tice is to issue a bench -warrant.
An arrest under an insuflScient warrant is in effect an arrest
without any warrant at all, and if a warrant is necessary it is
illegal. All the consequences of an illegal arrest or attempt to ar-
rest follow. The sufaciency of a warrant, therefore, is an important
question. The requisites are generally prescribed by statute, but
in many respects the statutes are merely declaratory of the com-
mon law. We will deal with the question with reference to the
common law, but will call attention to any important changes which
have been made by statute.
Where an indictment has been found against a person, a justice
of the peace or other competent authority can issue a warrant for
the arrest of the accused, on the production to him of a properly au-
thenticated copy thereof. The general practice, however, is for the
Ch. 2] ARREST BY WARRANT. 23
judge or clerk of the court in wMcli the indictment is pending to is-
sue a bench warrant, directing the accused to be arrested and
brought before some proper magistrate.
It was 9,t one time thought that a warrant of arrest could not be
issued until after indictment/* but it has long been" settled to
the contrary.^' A warrant may issue to bring a person before a
magistrate for examination, and determination of the question
whether he should be held to await action by the grand jury. But,
to enable a magistrate to issue a warrant in the first instance, —
that is, before indictment, — it is necessary, not only under the con-
stitution and by statute in most jurisdictions, but also at common
law, that a proper complaint under oath or aflflrmation shall be
laid before the magistrate, in order that he may determine that a
crime has been committed, and that there is probable cause to sus-
pect the accused. Without such a showing, a warrant should
never be issued.^* The constitutions of the United States and of
most of the states declare that the people shall be secure from un-
reasonable arrests, and that no warrant shall issue to arrest any
person without describing him as nearly as may be, nor without
probable cause supported by oath or affirmation. This is substan-
tially a declaration of what has always been the common law.
Sufficiency of the Complaint.
A form for a complaint made before a justice of the peace to pro-
cure the issuance of a warrant is given below.*
At common law as well as by statute in most states, and under
the constitutional provision above mentioned, the complaint must
be made under the oath or affirmation of the complainant, or of
r* 4 Inst. 176; 2 Hawk. P. 0. 84; 1 Chit. Cr. Law, 12.
IB 2 Hale, P. C. 108; 4 Bl. Comm. 290; 1 Chit. Cr. Law, 13. And see cases
hereafter cited.
16 4 Bl. Comm. 290; Caudle v. Seymour, 1 Q. B. 889; State v. Wimbush,
9 S. C. 309; Wells v. Jackson, 3 Munf. (Va.) 479; State v. Mann, 5 Ired. (N.
C.) 48.
• State (or Commonwealth) of , County of . to wit.
A. B., upon oath, complains that on the day of , A. D. ,
C. D., In the county of , in said state (or commonwealth), (or in the
county aforesaid), did feloniously steal, take, and carry away one overcoat,
of the value of twenty-five dollars, of the goods and chattels of the said A.
B. (or of any other person who may have been, the' owner). The said A.
24 APPBEHENSION OF PBKSONS AND PROPERTY. [Ch. 2
some other witness on his behalf. The oath or affirmation is es-
sential." By statute in many of the states it is also required to
be reduced to writing. In some it is expressly required that the
magistrate, after examining on oath the complainant and any witness
produced by him, shall reduce the complaint to writing, and cause
it to be subscribed by the complainant. It seems, however, that this
provision is merely directory, in so far as it provides for reduc-
tion to writing by the magistrate himself, and that the writing
may be done by the complainant or any other person.^ ° In other
states it is merely provided that the magistrate shall examine the
complainant and his witnesses on oath. The complaint is not re-
quired to be reduced to writing.^* Writing is not necessary at
common law.^"
B., therefore, prays that the said C. D. may be apprehended, and held to
answer the said complaint, and to be further dealt with according to law.
Dated this the day of , A.. D. .
[Signed] A. B.
State (or Commonwealth) of , County of , to wit
I, X. y., a justice of the peace, of the county aforesaid, do certify that on
this day, in said county, personally appeared before me the said A. B., whose
name is signed to the foregoing complaint, dated on this day of ,
A. D. , and, being duly sworn, deposes and says that the facts stated
in said complaint are true.
Given under my hand this day of , A. D. . X. Y., J. P.
The forms will differ in some respects, under the practice or statutes of
the various states.
17 State V. Wimbush, 9 S. C. 309; Caudle v. Seymour, 1 Q. B. 889; Daniels
V. State, 2 Tex. App. 353. But see State v. Killet, 2 Bailey (S. C.) 289. It
has been held that the oath cannot be administered by the magistrate's
clerk, but must be administered by the magistrate himself. Lloyd v. Sta1;e,
70 Ala. 32; Poteete v. State, 9 Baxt (Tenn.) 261. But see, contra. State v.
Louver, 26 Neb. 757, 42 N. W. 762.
18 Gen. St Mass. c. 170, § 10; Rev. St 111. 1874, p. 401, § 348. As to sub-
scription and jurat, see Com. v. Wallace, 14 Gray (Mass.) 382; "Webb v.
State, 21 Ind. 236; Com. v. Quin, 5 Gray (Mass.) 478. A complainant who
cannot write may subscribe by making his mark. Com. v. Sullivan, 14 Gray
(IV^ass.) 97; Sale v. State, 68 Ala. 530.
i» People V. Lynch, 29 Mich. 278; People v. Becktel, 80 Mich. 623, 45 N.
W. .582.
211 See cases above cited.
Ch. 2] ARREST BY WARRANT. 25
Ordinarily, any person is competent to make a complaint if he is
capable of understanding tlie nature of an oath or afilrmation, and
so competent to testify, for it is the wrong against the public, and
not against the individual, that is to be considered and punished.^^
It is no objection to a complaint, therefore, that it was made by a
convict.''^ An insane person or a child of very tender years would
no doubt be incompetent, as he could not understand the nature
of an oath or affirmation.''^ By statute, in some jurisdictions, it
is provided, on grounds of public policy, that a complaint for adul-
tery can only be made by the injured husband or wife.^*
"Complaint" is a term which is applied, not only to the accusation
made for the purpose of procuring a warrant, but also to the accusa-
tion upon which an oflEender is put upon his trial before a magis-
trate, or other inferior court, for offenses within the latter's juris-
diction to punish.^ ° The latter complaint is more in the nature of
an indictment or information, and is very different from a complaint
for the purpose of procuring a warrant. What would suffice in the
latter may not be sufficient in the former, so the distinction must
be borne in mind.^* Some of the text books confuse the two.^^
The complaint for the purpose of an arrest and examination need
not be as specific as an indictment, information, or complaint on
which the accused is to be tried and punished.^* It should, how-
ever, contain a full description of the offense charged with a rea-
21 People V. Stokes, 24 N. Y. Supp. 727; State v. Killet, 2 Bailey (S. C.) 289.
22 State v. Killet, supra; People v. Stokes, supra. But see Walker v. Kear-
ney, 2 Strange, 1148.
28 Whart. Cr. Bv. §§ 366-376.
2* State V. Roth, 17 Iowa, 336; State v. Brecht, 41 Minn. 50, 42 N. W. 602.
2 5 Post, p. 131.
2 6 Com. V. Phillips, 16 Pick. (Mass.) 211.
27 Tbis caution is deemed necessary, for the reason that some of the books
virtually ignore the distinction, and assume that there is no difference in
their requisites. See Rap. Cr. Proc. § 7. A complaint on which a person is
to be put upon his trial before a magistrate, and possibly upon a trial de
novo on appeal to the district or circuit court, requires the same certainty of
allegation as an indictment, and we shall consider its sufficiency when we
come to treat of the indictment. We are here concerned only with the com-
plaint necessary for the purpose of arrest and commitment
28 Com. V. Phillips, 16 Pick. (Mass.) 211.
26 APPREHENSION OF PERSONS AND PROPERTY. [yh. 2
sonable degree of certainty." It has been said that it need not
allege positively that the accused has committed the crime ; that it
will be sufficient to state that there are reasonable grounds to
suspect that he has committed it;'" but by the weight of au-
thority it is not enough to aver suspicion merely, or belief on infor-
mation received from others. There must be an averment of per-
sonal knowledge of facts and of belief. ^^
Evidence to Authorize Issuance.
Under the constitutional provision which we have already men-
tioned, and which is merely declaratory of the common law, a war-
rant of arrest cannot be issued except on probable cause, supported
by oath or affirmation. In other words, the complaint or evidence
adduced before the magistrate must show that the -crime charged
has been committed, and that there is probable cause to suspect the
accused. It is also very generally so provided by statute in the
different states. If a warrant is regular on its face, however, and
was issued by a magistrate having jurisdiction, it is not rendered
illegal by the fact that the proof before the magistrate was not
sufficient to justify its issuance.'*
SAME— SUFFICIENCY OF WARRA-NT.
7. The -w^arrant, to authorize an arrest —
(a) Must have been issued by a magistrate having
jurisdiction.
(b) It may, in the absence of statutory restriction,
be issued on Sunday, and at any time of the
day or night,
29 State T. Burrell, 86 Ind. 313; Housh v. People, 75 111. 487; In re Way,
41 Mich. 299, 1 N. W. 1021.
so Com. V. Phillips, 16 Pick. (Mass.) 214; Housh v. People, 75 111. 487.
81 Smith V. Boucher, Cas. t. Hardw. 69; Com. v. Lottery Tickets, 5 Gush.
(Mass.) 369; People v. Recorder, 6 Hill (N. Y.) 429; In re Way, 41 Mich. 299,
1 N. W. 1021; Swart v. Kimball, 48 Mich. 443, 5 N. W. 635; People v.
Heffron, 53 Mich. 527, 19 N. W. 170; State v. Hobbs, 39 Me. 212; Connor v.
Com., 3 Bin. (Pa.) 38; Welch v. Scott, 5 Ired. (N. C.) 72; Comfort v. Fulton,
39 Barb. (N. Y.) 56.
82 State V. James, 80 N. C. 370; post, p. 34.
Ch. 2] AEEEST BY WARRANT. 27
(c) It must in some, but not all, jurisdictions be un-
der seal.
(d) It must state the offense, and an offense for
which an arrest may be made.
(e) It must show authority to issue it, as that a
complaint on oath or affirmation w^as made.
(f) It must correctly name the person to be arrest-
ed, or, if his name is unknown, so describe
him that he may be identified.
(g) It must show the time of issuance.
(h) It must be directed to a proper officer, either
by name or by description of his office.
(i) It must direct, and not merely authorize, the
arrest.
(j) It must command the officer to bring the accused
before the issuing magistrate or some other
magistrate having jurisdiction.
(k) Clerical errors and formal defects will not ren-
der it insufficient.
The form of a warrant of arrest is given below.*
Jurisdiction.
The magistrate or judge issuing the warrant must have jurisdic-
tion of the subject-matter. A warrant issued without any juris-
diction at all, or in excess of jurisdiction, or a warrant issued by a
* State (or Commonwealth) of , County of , to wit
To the Sheriff or Any Constable of Said County:
Whereas, A. B. has this day made complaint and information on oath be-
fore me, X. X., a justice of the peace of the county aforesaid, that C. D.,
on the day of , A. D. , in said county, did feloniously steal,
take, and carry away one oyercoat, of the value of twenty-five dollars, of
the goods and chattels of the said A. B.:
These are therefore to command you (or now, therefore, you are com-
manded) forthwith to apprehend and bring before me, or some other jus-
tice of said county, the body of the said C. D.. to answer said fomplaint,
and to be further dealt with according to law.
Given under my hand and seal, this day of , A. D. .
X. Y., J. P. [Seal.1
28 APPEEHENSION OF PERSONS AND PBOPERTY. [Ch. 2
person not a magistrate, as where a blank warrant ia filled up by a
private person, is illegal and void.*'
Time of Issuance.
A warrant may be issued on Sunday as well as on any other day,
in the absence of statutory provision to the contrary; ** and it may
be issued at any time of the day or night. As we have already
seen, it may be issued before the accused has been indicted.'"
Form and Contents of Warrant.
Not only must the warrant be issued by a magistrate or judge hav-
ing jurisdiction to issue it, and on a sufficient complaint, but it must
be sufficient in form.
By the weight of authority, it must be not only under the hand
of the magistrate or judge, but also under his seal.'* In some
jurisdictions, however, a seal is not deemed necessary, even at com-
mon law,'^ and in others it has been declared unnecessary by
statute.
The warrant must state shortly the offense for which the arrest
is to be made, or recite the substance of the accusation, and, of
course, it must state an offense for which an arrest may lawfully be
3 8 Wells V. Jackson, 3 Munf. (Va.) 479; RafiEerty v. People, 69 111. Ill, 72 111.
37; State v. Bryant, 65 N. C. 327; State v. Shelton, 79 N. O. 605.
siPearce v. Atwood, 13 Mass. 347; post, p. 49. A warrant may be Issued
on Sunday, whenever an arrest may be made on Sunday, "for, if the arrest
is authorized by law, the order to make such arrest must likewise be law-
ful." Pearce v. Atwood, supra.
3 0 Ante, p. 23.
36 4 Bl. Comm. 290; Tackett v. State, 3 Terg. (Tenn.) 393; Welch v. Scott,
5 Ired. (N. C.) 72; State v. Worley, 11 Ired. (N. C.) 242; State v. Drake, 36
Me. 306; State v. Coyle, 33 Me. 427; People v. Holcomb, 3 Parker, Cr. R.
(N. y.) 656; Beekman v. Traver, 20 Wend. (N. Y.) 67; State v. Goyette, 11
R. I. 592; Lough v. Millard, 2 R. I. 436; State v. Weed, 1 Post. (N. H.) 268;
State v. Curtis, 1 Hayw. (N. C.) 471; Somervell v. Hunt, 3 Har. & McH. (Md.)
113; State v. Caswell, Charlt. (Ga.) 280. A wafer or scroll sufficient, if in-
tended as a seal. State v. McNally, 34 Me. 210; State v. Thompson, 49 Mo.
188.
sTPadfield v. Cabell, Willes, 411; Burley v. Griffith, 8 Leigh (Va.) 447;
Davis v. Clements, 2 N. H. 390; Thompson v. Fellows, 1 Post. (N. H.) 430.
In some of these cases, the warrant was not for arrest,* but for commitment.
See State v. Drake, 30 Me. 360.
Ch. 2] AKREST BY WARRANT. 29
made.^* It should state the time of commission of the offense. It
has been held, however, that a statement that the ofEense was com-
mitted on a day later than the date of the warrant, as where a war-
rant issued in March, 1878, stated the offense to have been com-
mitted on May 20, 1878, instead of May 20, 1877, does not render the
warrant invalid, where the complaint gives the correct date pre-
vious to its issuance, as the mistake is merely clerical, and not mis-
leading.''
It must contain recitals showing authority to issue it, as, for in-
stance, that a complaint under oath or affirmation has been
made.*" This is probably not necessary under the statutes in some
jurisdictions.
It must be specific, and correctly name the person to be arrested,
giving his Christian name; or, if his name is unknown, it must
so state, and must describe him so that he may be identified.**
8 8 Money v. Leach, 1 W. Bl. 555; Caudle v. Seymour, 1 Q. B. SS9; Peo-
ple V. Phillips, 1 Parker, Cr. R. (N. Y.) 104; People v. Mead, 92 N. Y. 415;
Duckworth v. Johnston, 7 Ala. 578; Brazleton v. State, C6 Ala. 96; Johnson
V. State, 73 Ala. 21; In re Booth, 3 Wis. 1; State v. Hobbs, 39 Me. 212; Brady
V. Dayis, 9 Ga. 73; State v. Kowe, 8 Rich. Law (S. C.) 17; State v. Leach,
7 Conn. 452; State v. Whltaker, 85 N. C. 566; State v. Jones, 88 N. C. 671;
Floyd V. State, 7 Eng. (Ark.) 48; State v. Everett, Dud. (S. C.) 295; Moore
V. Watts, 1 Breese (111.) 42. The place where the crime was committed must
be stated with a reasonable degree of certainty. Price v. Graham, 3 Jones
(N. C.) 545. A warrant for larceny must state the value of the stolen prop-
erty, so that it may appear whether the lower or the higher court has juris-
diction. People V. Belcher, 58 Mich. 325, 25 N. W. 303.
3 0 Heckman v. Swartz, 64 Wis. 48. 24 N. W. 473.
40 Caudle v. Seymour, 1 Q. B. 889; Smith v. Bouchier, 2 Strange, 993;
Brady v. Davis, 9 Ga. 73; Grumon v. Raymond, 1 Conn. 40; State v. Wim-
bush, 9 S. C. 309; Gold v. Bissell, 1 Wend. (N. Y.) 213; Tracy v. Williams,
4 Gonn. 107; Com. v. Ward, 4 Mass. 497; Conner v. Com., 3 Bin. (Pa.) 38:
Halsted v. Brice, 13 Mo. 171.
41 Com. V. Crotty, 10 Allen (Mass.) 403; West v. Cabell, 153 U. S. 78, 14
Sup. Ct. 752 (collecting authorities); Rex v. Hood, 1 Moody, Crown Cas. 281;
Mead v. Haws, 7 Cow. (N. Y.) 332; Money v. Leach, 1 W. Bl. 555; Alford v.
State, 8 Tex. App. 545; Miller v. Foley, 28 Barb. (N. Y.) 630; Brady v. Davis,
9 Ga. 73; Nichols v. Thomas, 4 Mass. 232; Wells v. Jackson, 3 Munf. (Va.)
458; Hoye v. Bush, 1 Man. & G. 775; Griswold v. Sedgwick, 6 Cow. (N. Y.)
456; Gumsey v. Lovell, 9 Wend. (N. Y.) 319; Melvin v. Fisher, 8 N. H. 407;
Scott V. Ely, 4 Wend. (N. Y.) 555; Clark v. Bragdon, 37 N. H. 562; Johnston
30 APPREHENSION OF PERSONS AND PROPEBTY. [Ch. 2
This is not only required by the common law, but is also rendered
necessary by the constitutional provision to which we have referred,
and a statute dispensing with the requirement would be void. A
general warrant to apprehend all persons suspected of a crime, as,
for instance, to apprehend the authors, printers, and publishers of
a libel, without naming them, is void.*^ In England, under stat-
utes which are old enough to have become a part of our common
law, general warrants to take up loose, idle, and disorderly per-
sons, such as prostitutes, vagrants, drunkards, and the like, are an
exception to this rule.*^ With us, under our constitutional provi-
sions, such a warrant would no doubt be void, but there are in
most jurisdictions statutes and ordinances allowing such arrests
without any warrant at all. This, it is held, does not violate the
constitution.**
The warrant, it has been held, must state, or at least show,
the time of issuance; *° must be directed to a proper officer by name,
♦■. Riley, 13 Ga. 97, 137; Scheer v. Keown, 29 Wis. 586; Wilks v. tiorck, 2
Taunt. 400; Haskins v. Young, 2 Dev. & B. (N. C.) 527. The arrest of a
person by a wrong name cannot be justified, though he was the person In-
tended, unless it be shown that he was known by one name as well as the
other. Shadgett v. Clipson, 8 Bast, 328; Mead v. Haws, supra; Griswold
V. Sedgwick, 6 Cow. (N. Y.) 456; Wilks v. Lorck, 2 Taunt. 400. The fact
that a proper name is misspelled does not render the warrant insufficient, if
the true name and the name as given are idem sonans. People v. Gosch, 82
Mich. 22, 46 N. W. 101. It has been held, however, that, under statutes al-
lowing amendments in criminal proceedings and process, where a person has
been arrested under a complaint and warrant giving a wrong name, they
may be amended so as to give his name correctly. It was so held where
Mary B. Keehn had been arrested under a complaint and warrant against
Jenny M. Keehn, and action was brought for false imprisonment Keehn v.
Stein, 72 Wis. 196, 39 N. W. 372. If this decision is a good one, the statutes
in this respect are dangerous. They clearly contravene the constitutional
provisions as to the issuance of warrants, unless the above decision be lim-
ited to cases in which the accused, though misnamed in the warrant, is suf-
ficiently described.
42 Money v. Leach, 1 W. Bl. 555; 4 Bl. Comm. 291; Com. v. Grotty, supra.
*8 Money v. Leach, 3 Burrows, 1766.
*4 Post, p. 39.
45 Donahoe v. Shed, 8 Mete. (Mass.) 326.
Ch. 2] AREEST BY WAEEANT. '61
or a proper class of oflflcers by the description of their ofQce;*'
must direct, and not merely authorize, the arrest; *^ and must com-
mand tlie ofiScer to bring the accused before the proper magistrate,
to be dealt with according to law.**
Clerical errors and merely formal defects will not render the war-
rant insuflScient.** Variances between the warrant and complaint
may be cured by amending the warrant, even after the preliminary
examination of the accused.""
Before Whom Warrant Returnable.
The warrant must order the officer to bring the accused either
before the issuing magistrate or judge, or some other magistrate or
Judge having jurisdiction of the subject-matter."*^ Though there
was at one time some doubt on the subject, the propriety of mak-
ing the warrant returnable before a magistrate or judge, other
than the one who issued it, is well settled,"^ and is very generally
expressly authorized by statute. It must, however, be returnable
before some magistrate or court having jurisdiction of the subject-
matter."*
Life of Warrant — Alteration.
A warrant remains in force until it i^eturned. Until then, even
though the accused has been arrested, it is still in force,^^ that,
4 6 Wells V. Jackson, 3 Munf. (Va.) 458; Abbott v. Booth, 51 Barbel. T.)
546; State v. Wenzel, 77 Ind. 428. But see Com. v. Moran, 107 Mass. 23m^
*7 Abbott V. Booth, 57 Barb. (N. Y.) 546. ^
■*8 Reg. V. Downey, 7 Q. B. 281. Use in the mandate of a warrant of the
phrase, "to be dealt with according to law," instead of, "to answer such
•complaint," as provided by statute, is a mere informality, which does not
affect the validity of the warrant. Bookhout v. State, 66 Wis. 415, 28 N.
W. 179.
48 Com. V. Murray, 2 Va. Cas. 504; Heckman v. Swartz, 64 Wis. 48, 24 N.
W. 473; Com. t. Martin, 98 Mass. 4; Donahoe v. Shed, 8 Mete. (Mass.) 326;
State V. Jones, 88 N. C. 671; Johnson v. State, 73 Ala. 21. But see State v.
Lowder, 85 N. 0. 564; State v. Whitaker, Id. 566.
00 People V. Hilderbrand, 71 Mich. 313, 38 N. W. 919.
Bi Reg. V. Downey, 7 Q. B. 281.
02 Foster's Case, 5 Coke, 59; 2 Hale, P. C. 112; Com. v. Wilcox, 1 Cush.
(Mass.) 503. And the statutes, where they have not provided otherwise, are
held not to have changed the common law in this respect Com. v. Wilcox,
supra.
08 Stetson v. Packer, 7 Cush. (Mass.) 562.
32 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
should he escape, it would justify his rearrest.^* After it has been
returned, it is functus oflScio, and no longer of any validity.""
No alteration can be made in a warrant by any person other
than the magistrate who issued it. Any material alteration by
another magistrate, before whom it is returnable, or by any other
person, renders it invalid."*
SAME— EXECUTION" OP THE WARRANT.
8. As regards the execution of the warrant' by making
the arrest —
(a) It can only be executed by the officer to "whom it
is directed either by name or by description of
office.
(b) It cannot confer authority to execute it on one offi-
cer, -where a statute provides for its execution by
another,
(c; Unless a statute so allo-ws, it cannot be executed
outside the jurisdiction of the issuing magistrate
or court. "
(d) Perhaps it may be directed to and executed by a
private person. As to this there is a conflict in
the authorities.
(e) Where the warrant is necessary, it must be in the
possession of the officer at the time of the arrest.
(f) It must be returned after the arrest.
The person executing a warrant must be authorized to execute it,
or the arrest will be illegal." When a warrant is directed to an
officer by the description of his office, he can execute it only within
e« Cooper v. Adams, 2 Blackf. (Ind.) 294; Com. v. Sheriff, 1 Grant, Cas.
(Pa.) 187.
BBCom. V. Roark, 8 Cush. (Mass.) 210; Tubbs v. Tukey, 3 Gush. (Mass.)
438.
BO Haskins v. Young, 2 Dev. & B. (N. C.) 527.
07 Reynolds v. Orvis, 7 Cow. (N. Y.) 269, Wood v. Ross, 11 Mass. 271.
Ch. 2] ARREST BY WARRANT. 33
his own precinct; but, when it is directed to an officer by name, he
may execute it anywhere within the jurisdiction of the magistrate
or judge who issued it.°' A warrant at common law cannot confer
authority to execute it outside of the jurisdiction of the issuing
magistrate or judge. A warrant, therefore, issued by a justice
of the peace or judge of one county, must be backed or indorsed
by a justice of the peace or judge of another county before it can
be executed in the latter."* In some states, however, the statutes
provide that a warrant, issued either by a judge of a court of record
or by a justice of the peace of a county in which an offense is com-
mitted, shall extend all over the state, and may be executed in any
county without having it indorsed, the ofQcer to whom it is directed
being given the same authority in any other county as he has in his
own.
Where a statute provides that certain arrests shall be made by
a certain officer or class of officers, a warrant for such an arrest
cannot confer authority to execute it upon any other officer or
class of officers.'"
A warrant is ordinarily directed to a sheriff, constable, or other
peace officer, but, according to the weight of authority, it may at
common law be directed to a private person by name, in which case,
of course, he would in respect to its execution stand in the same
position as an officer."^ There are some cases which hold that it
cannot be directed to a private person, at least if its execution by
an officer is possible.'"
»8 Wbart. Or. PI. & Prac. § 2; Blatcher v. Kemp, 1 H. Bl. 15, note; Rex
V. Chandler, 1 Ld. Raym. 546; Rex v. Weir, 1 Barn. & C. 288; Krug v.
Ward, 77 111. 603; Lawson v. Buzines, 3 Har. (Del.) 416.
50 4 Bl. Comm. 291. It is so provided by statute in some states. Peter v.
State, 23 Tex. App. 684, 5 S. W. 228; Ledbetter v. State, 23 Tex. App. 247,
5 S. W. 226; State v. Doolcy (Mo. Sup.) 26 S. W. 558.
80 Reynolds v. Orvis, 7 Cow. (N. Y.) 269; Wood v. Ross, 11 Mass. 271.
«i4 Bl. Comm. 291; 1 Hale, P. C. 581; 2 Hale, P. C. 110; 2 Hawk. P. C.
c. 13, § 28; Meek v. Pierce, 19 Wis. 300; Rex v. Kendall, 1 Ijd. Raym. 66;
Kelsey v. Parmelee, 15 Conn. 265; Blatcher v. Kemp, 1 H. Bl. 15; Case of
Village of Chorley, 1 Salk. 176; Com. v. Keeper, 1 Ashm. (Pa.) 183; Me-
Cpnnell v. Kennedy, 29 S. C. 180, 7 S. E. 76.
62 Com. V. Foster, 1 Mass. 488; Noles v. State, 24 Ala. 672.
CKIM.PROC. — 3
34 APPEEHENSION OF PERSONS AND PEOPERTY. [Ch. 2
The officer or person executine a warrant must have it in his pos-
session at the time of the arrest/' and after he has made the arrest
the warrant must be returned."*
An officer may call upon others to assist him in the execution of
a warrant, and they are bound to obey the command. The officer's
authority in this respect is not different from his authority in mak-
ing a lawful arrest without a warrant, so we will postpone consider-
ation of the question. Other questions relating to arrests generally,
whether with or without a warrant, such as notice of purpose and
authority, use of force, and the like, will also be hereafter consid-
ered.
SAME— WARBANT AS PROTECTION TO OFFICER.
9. An officer is not liable for executing a -warrant which
is regular and valid on its face, and issued from a court
or magistrate having jurisdiction of the subject-matter,
though the Avarrant may 'in fact have been voidable, or
even void; but he is not protected by a ■warrant void on
its face.
' It is obvious that the administration of justice would be greatly
retarded if an officer receiving a warrant which is regular and valid
on its face should be compelled, at his peril, to examine into the
circumstances under which it was procured, and determine the
validity of the proceedings prior to its issuance. It is therefore
oniversally held that an officer, to whom a warrant is directed and
asCodd v. Cabe, 1 Exch. Dlv. 352; Webb v. State, 51 N. J. Law, 189, 17
Atl. 113; Cabell v. Arnold (Tex. Civ. App.) 22 S. W. 62. In tlie latter case
an officer, to whom a warrant had been delivered, was held civilly liable
because his deputy naade the arrest without having the warrant in his pos-
session. As to the officer's liability, however, the case has been reversed.
Id., 86 Tex. 102, 23 S. W. G45. It was affirmed in so far as it held possession
of the warrant by the officer making the arrest necessary. See, also, Smith
V. Clark, 53 N. J. Law, 197, 21 Atl. 491.
«4 Slomer v. People, 25 111. 70; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741.
Failure of the officer in this respect will, not render those lawfully assisting
In the arrest liable. Dehm v. Hinman, supra.
Ch. 2] AREEST BY WARRANT. 35
delivered, is bound to execute it, so far as the jurisdiction of tlie
magistrate or court and himself extends, if it was issued by a magis-
trate or court having jurisdiction, and is regular and valid on its
face."" Being charged with this duty, he cannot be held liable to
the party arrested for executing the warrant, though it may have
been irregularly or wrongfully issued.'* "It will not do to require
of executive officers, before they shall be held to obey precepts
directed to them, that they shall have evidence of the regularity of
the proceedings of the tribunal which commands the duty. Such
a principle would put a stop to the execution of legal process; as
officers so situated would be necessarily obliged to judge for them*
selves, and would often judge wrong, as to the lawfulness of the au-
thority under which they are required to act. It is a general and
known principle that executive officers, obliged by law to serve
legal writs and processes, are protected in the rightful discharge
of their duty, if those precepts are sufficient in point of form, and is-
sue from a court or magistrate having jurisdiction of the subject-
matter. If such a magistrate shall proceed unlawfully in issuing
the process, he, and not the executive officer, will be liable for the
injury consequent upon such act." '''
It has been said that "it is the general rule that when the au-
thority under which an officer acts is voidable only, he is justified
by it, but not when the authority is void"; '' but the protection of
the warrant extends further than this. An officer may even be
justified by a void warrant, if the defect does not appear. "No doc-
trine is more firmly established than this, namely, that an officer
8 5 Stoddard v. Tai-bell, 20 Vt. 321, and cases hereafter cited.
86 Sandford v. Nichols, 13 Mass. 286; State v. Weed, 1 Fost. (N. H.) 262;
Nichols v. Thomas, 4 Mass. 232; Kennedy v. Duncklee, 1 Gray (Mass.) 65;
Pearce v. Atwood, 13 Mass. 324; Wilmarth v. Burt, 7 Mete. (Mass.) 257;
Parsons v. Lloyd, 3 Wils. 345; Boyd v. State, 17 Ga. 194; Allison v. Rheam,
3 Serg. & R. (Pa.) 139; Warner v. Shed, 10 Johns. (N. Y.) 138; Parker v.
Walrod, 16 Wend. (N. Y.) 514; Savacool v. Boughton, 5 Wend. (N. Y.) 170;
Cooper V. Adams, 2 Blackf. (Ind.) 294; Brother v. Cannon, 1 Scam. (111.)
200; Robinson v. Harlan, Id. 237; State v. Kirby, 2 Ired. (N. C.) 201; Cody
V. Quinn, 6 Ired. (N. C.) 191; State T. Jones, 88 N, 0. 671; Cooley, Torts,
459, and cases there cited.
8T Sandford v. Nichols, supra.
8 8 Nichols V. Thomas, supra.
36 APPREHENSION OF PEESONS AND PEOPEETY. [Ch. 2
may justify acts done by him under a process that is void, unless
it appears on its face to be void, as well as acts done under a
process that is voidable, and has been avoided." °°
If the warrant is illegal and void on its face, the officer not only
is not bound to execute it, but if he does so, or attempts to do so,
he will be both civilly and criminally liable for the assault and bat-
tery or false imprisonment, and all the other consequences of an
illegal arrest or attempt to arrest will follow.'"' Amendable de-
fects do not avoid the warrant, and therefore do not render the
officer liable; but he is liable if the magistrate or judge had no
jurisdiction of the subject-matter,^^ provided the want of jurisdic-
tion is not latent; ^'^ or where the warrant does not state a specific
offense for which an arrest may lawfully be made;'' or where a
seal is omitted when required by law; '* or where the warrant does
not name the accused when his name is known, or so describe Mm
when his name is unknown that he may be identified;'" or, pos-
«9 Kennedy v. Duncklee, supra. And see Parsons v. Lloyd, supra; Alli-
son V. Rheam, supra; People v. Warren, 5 Hill (N. Y.) 440.
70 Rafeerty v. People, 69 111. Ill; Parker v. Walrod, 16 Wend. (N. Y.) 514;
Grumon v. Raymond, 1 Conn. 40; Griswold v. Sedgwick, 6 Cow. (N. Y.)
456; Rex v. Hood, 1 Moody, 281; Noles v. State, 24 Ala. 672; Gurney v.
Tufts, 37 Me. 130; State v. McDonald, 3 Dev. (N. C.) 468; Moore v. Watts,
Breese (111.) 42; State v. Crow, 6 Eng. (Ark.) 642.
71 State V. McDonald, 3 Dev. (N. O.) 471; Allen v. Gray, 11 Conn. 95;
Sprague v. Birchard, 1 Wis. 457; Camp v. Moseley, 2 Fla. 171; Barnes v.
Barber, 1 Gilm. (111.) 401; McDonald v. Williie, 13 111. 22; TefCt v. Ash-
baugh, Id. 602; State v. Shelton, 79 N. C. 605; Tracy v. Williams, 4 Conn.
107; Miller v. Grice, 1 Rich. (S. C.) 147; Stephens v. Wllkins, 6 Pa. St. 260.
7 2 Pearce v. Atwood, 13 Mass. 324; Savacool v. Boughton, 5 Wend. (N. Y.)
170; Churchill v. Churchill, 12 Vt. 061; Miller v. Grice, 1 Rich. (S. 0.) 147;
Rodman v. Harcourt, 4 B. Mon. (Ky.) 230; Barnes v. Barber, 1 Gilman (111.)
401. A constable is justified in executing process regular on its face, though
the officer issuing it was but an officer de facto. Wilcox v. Smith, 5 Wend.
(N. Y.) 231; Com. v. Kirby, 2 Cush. (Mass.) 577. Knowledge by the officer
of facts rendering the warrant void for want of jurisdiction does not raider
him liable, if the want of jurisdiction does not appear on the face of the
warrant. People v. Warren, 5 Hill (N. Y.) 440; post, p. 37.
7 8 Ante, p. 28.
74 Ante, p. 28.
7e Ante, p. 29.
Ch. 2] ARREST BY WARRANT. 37
sibly, where no complaint under oath was made for the issuance of
the warrant, and the warrant does not state that it was made.'"
By the weight of authority, the mere fact that the officer knows
that the warrant was obtained for an unlawful purpose, or was
illegally issued, does not give him the right to refuse to execute it,
and therefore does not render the warrant any the less a protection
to him, provided it is valid on its face. He must be governed by
the warrant alone.'''' If he acts without his jurisdiction, or the
jurisdiction conferred by the warrant,''* or if the warrant is not
directed to him, or, though it is directed to him, he is not authorized
by law to execute it,'° it will afford him no protection. The fact
that the accused is exempt from arrest does not render the officer
liable, if the fact does not appear on the face of the warrant.*" It
seems that under no circumstances is the warrant any protection
to the officer if it is not returned.*^
It is sufficient in all cases, to render the officer liable, that the
warrant shows on its face facts or a form which renders it insuffi-
cient in law, whether the officer knows of the insufficiency or not,
for he is conclusively presumed to know the law.'*
T 8 Ante, p. 29. If there was a complaint under oath, the fact that it was
false is immaterial. State v. James, 80 N. C. 370. Insufficiency of the com-
plaint not appearing upon the warrant does not render the officer liable.
Donahoe v. Shed, 8 Mete. (Mass.) 326; State v. Mann, 5 Ired. (N. O.) 45;
Welch v. Scott, Id. 72; Humes v. Taber, 1 R. I. 464.
77Tarlton v. Fisher, 2 Doug. 671; State v. Weed, 1 Fost. (N. H.) 262;
Webber v. Gay, 24 Wend. (N. Y.) 485; People v. Warren, 5 Hill (N. Y.) 440;
Watson V. Watson, 9 Conn. 140; Gott v. Mitchell, 7 Blackf. (Ind.) 270; Wil-
marth v. Burt, 7 Mete. (Mass.) 257; Whitworth v. Clifton, 1 Moody & R. 531.
7 8 Ante, p. 32; People v. Burt, 51 Mich. 199, 16 N. W. 378.
7 9 Ante, p. 32; Freegard v. Barnes, 7 Exch. 827; Russell v. Hubbard, 6
Barb. (N. Y.) 654; Reynolds v. Orvis, 7 Cow. (N. Y.) 269; Wood v. Ross,
11 Mass. 271.
80 Tarlton v. Fisher, 2 Doug. 671; Carle v. Delesdernier, 13 Me. 363; Chase
y. Fish, 16 Me. 132.
81 Slomer v. People, 25 111. 70; Brock v. Stimson, 108 Mass. 520; Tubbs v.
Tukey, 3 Gush. (Mass.) 438; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741.
But see Com. v. Tobin, 108 Mass. 426. Persons lawfully assisting the officer,
however, will not be liable. Dehm v. Hinman, supra.
«ii Sandford v. Nichols, 13 Mass. 286.
38 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
SAME— ARREST WITHOUT A WARRANT.
10. BY OFFICER — Any peace ofiacer may arrest without
a warrant trnder the following circumstances:
(a) By verbal direction of a judge or justice of the
peace —
(1) For a felony or breach of the peace committed
in the presence of the judge or justice.
(2) For any offense committed in the presence
of the judge or justice in court.
(b) "Without any direction, but of his own accord —
(1) For a felony committed in his own presence
or view^.
(2) For a breach of the peace committed in his
own presence or view, provided the arrest
is made during its commission, or, perhaps,
immediately afterw^ards.
(3) On a reasonable charge by another that a
felony has been committed by the person
arrested.
(4) On his own reasonable suspicion that a felony
has been committed, and that the person ar-
rested is guilty, though in fact no felony
has been committed at all.
(5) He may recapture a prisoner who has es-
caped from lawful custody, w^hether before
or after conviction.
11. BY PRIVATE PERSON— A private person has the
same authority as an ofi&cer to arrest -without a w^arrant,
except that, where he arrests on suspicion for a felony,
he must show that a felony had in fact been committed
by some one.^
88 This statement is in accordance with the great weight of authority, but,
as we shall see, there is some conflict in the authorities. A few courts ha-ve
held, for instance, that where an arrest is made on suspicion for a felony
Ch. 2] AREEST WITHOUT A WAEEANT. 39
12. STATUTES— The authority both of officers and of
private persons to arrest without a warrant is very much
extended by statute in many jurisdictions.
It has been contended that the constitutional provision to which
we have referred, declaring that the people shall be secure from un-
reasonable arrests, and that no warrant to arrest a person shall is-
sue without describing him as nearly as may be, nor without prob-
able cause supported by oath or affirmation, renders all arrests un-
lawful except upon a warrant so issued; but it is well settled that
the provision does not apply to reasonable arrests without a war-
rant, authorized either by the common law or by statute.** In
many cases it would defeat the ends of justice if no arrest could be
made without a warrant, for while a warrant is being procured the
offender may escape. Under certain circumstances, therefore, such
arrests have been allowed from the earliest times. As we shall
see, when an arrest is made without a warrant, the prisoner must
be taken before a proper magistrate, and a complaint made. It is
not necessary, however, that the magistrate shall issue his warrant.
This would be unnecessary.*"
Arrest by Officer without a Warrant.
In the first place, a judge or justice of the peace may himself
apprehend, or cause to be apprehended, without the issuance of a
warrant, any person committing a felony or breach of the peace in
his presence.* ° So, also, a judge or justice of the peace, in whose
actual guilt of the person arrested must be shown; and there Is some au-
thority against his right to arrest for a breach of the peace.
84 Wakely v. Hart, 6 Bin. (Pa.) 318; North v. People, 139 111. 81, 28 N.
E. 966.
SB Hoggatt V. Bigley, 6 Humph. (Tenn.) 236.
86 4 Bl. Comm. 292; Com. v. McGahey, 11 Gray (Mass.) 194; State v. Shaw,
3 Ired. (N. C.) 20; Holcomb v. Cornish, 8 Conn. 375; Tracy v. Williams, 4
Conn. 107; Lancaster v. Lane, 19 IlL 242; O'Brian v. State, 12 Ind. 369.
In some jurisdictions, the power of a magistrate in this respect is extended
by statute to all ofCenses committed in his presence. A magistrate has the
same authority to command assistance in pursuing and retaking an offender
whom he has so caused to be arrested for an offense committed in his pres-
ence, and who has escaped, which he had to command the original arrest
Com. Y. McGahey, supra.
40 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
presence in court an offense is committed, may direct the arrest
of the offender without issuing a warrant, though the offense may-
be such as would require a warrant under other circumstances.^^
Dr. Wharton seems to lay down the proposition that "for all
offenses committed or attempted in the presence of an officer,"
whether a felony or merely a misdemeanor, he may arrest without a
warrant,^' but this is not true at common law. The cases cited in
support of the proposition are most of them cases in which there
was a felony or breach of the peace, or else cases in which the ar-
rest was expressly authorized by statute. It is well settled that
a sheriff, constable, or other peace officer invested by statute with
like powers, may arrest without a warrant for a felony,** or for
a misdemeanor, provided it amounts to breach of the peace,*" com-
8T Lancaster v. Lane, 19 111. 242.
88 Whart Or. PL & Prac. § 8; citing Keg. v. Mabel, 9 Car. & P. 474; Dere-
court V. Corbishley, 5 El. & Bl. 1S8; Galliard v. Laxton, 2 Best & S. 363;
Com. V. Deacon, S Serg. & R. (Pa.) 47; State v. Brown, 5 Har. (Del.) 505;
Wolf V. State, 19 Ohio St. 248 (authorized by statute); People v. Wilson, 55
Mich. 506, 21 N. W. 905 (this was a case of felony, and the opinion assumes
that, had it not been so, the arrest would have been unauthorized); State
V. Bowen, 17 S. C. 58; Staples v. State, 14 Tex. App. 136. There are statu-
tory provisions to this effect In many states.
8» Doering v. State, 49 Ind. 56; Carr v. State, 43 Ark. 99; Cahill v. Peo-
ple, 106 111. 621. This includes statutory felonies. Firestone v. Rice, 71
Mich. 377, 38 N. W. 885.
8 0 Taylor v. Strong, 3 Wend. (N. Y.) 384; Douglass v. Barber (R. I.) 28 AtL
805; City CouncU v. Payne, 2 Nott & McC. (S. C.) 475; Quinn v. Heisel, 40
Mich. 576; People v. Bartz, 53 Mich. 493, 19 N. W. 161; Crosland v. Shaw
(Pa. Sup.) 12 Atl. 849; State v. Lewis (Ohio Sup.) 33 N. E. 405; Com. v. Tobin,
108 Mass. 426; Com. v. Kennedy, 136 Mass. 152; State v. Brown, 5 Har.
(Del.) 505; Knot v. Gay, 1 Root (Conn.) 66; Shanley v. WeUs, 71 111. 78;
Com. V. Deacon, 8 Serg. & R. (Pa.) 47; McCullough v. Com., 67 Pa. St 30;
State V. Bowen, 17 S. C. 58; Pow v. Beckner, 3 Ind. 475; Vandeveer v.
Mattocks, Id. 479; Ross v. State, 10 Tex. App. 455; Staples v. State, 14 Tex.
App. 136. It must be remembered tliat fighting, rioting, etc., is not neces-
sary to constitute a breach of the peace. A breach of the peace is "a vio-
lation of public order,— the offense of disturbing the public peace. An act
of public indecorum is also a breach of the peace." Galvin v. State, 6 Cold.
(Tenn.) 294. "The term 'breach of the peace' is generic, and includes riotous
and unlawful assemblies, riots, afCray, forcible entry and detainer, the wanton
discharge of firearms so near the chamber of a sick person as to cause in-
jury, the sending of challenges and provoking to fight, going armed in public
Vh. 2] ARREST WITHOUT A WARRANT. 41
mitted in his presence, and within Ms jurisdiction; and,^if commit-
ted within his Tiew or hearing, it is committed in his presence."^
He may also arrest without a warrant on a reasonable charge of
a felony having been committed,^^ or upon his own reasonable sus-
picion that it has been committed; °* and the fact that it after-
wards turns out that his suspicion was unfounded, or even that no
offense had been committed at all, will not make the arrest un-
lawful."* In this respect an officer stands on a different footing
from a private person; for the latter, as we shall see, must show
that an offense had actually been committed by some one. There
must in all cases be a reasonable suspicion to authorize the arrest;
that is, a bona fide suspicion, and probable cause therefor.^' Some
without lawful occasion in such manner as to alarm the public, and many
other acts of a similar character." People v. Bartz, supra. In this case
it was held that the wanton discharge of firearms in the streets of a city,
being well calculated to alarm the public, was a breach of the peace.
01 People V. B^rtz, supra; State v. McAfee, 107 N. C. 812, 12 S. E. 435.
But it has been held that shouting in the streets of a village was not in
the presence of an olBcer who was 150 feet away, on another street, and
did not see the offender, and had no direct knowledge who committed the
ofEense. People v. Johnson, 86 Mich. 175, 48 N. W. 870. An officer may ar-
rest without a warrant for wife beating, if he arrives at the scene during
the progress of the beating, or immediately thereafter, being attracted by
the noise of the disturbance or the outcry of the woman. Eamsey v. State
(Ga.) 17 S. E. 613.
8 2 Samuel v. Payne, 1 Doug. 359; Hobbs v. Branscomb, 3 Camp. 420; Hol-
ley V. Mix, 3 Wend. (N. Y.) 350. It is not only the officer's right, but it is
his duty, to arrest under such circumstances, and, if he refuses to do so,
he is guilty of a misdemeanor. Cowles v. Dunbar, 2 Car. & P. 565.
"3 Ledwith v. Catchpole, Cald. 291; Doering v. State, 49 Ind. 56; Wade v.
Ghaffee, 8 E. I. 224; Beckwith v. Philby, 6 Bam. & O. 635; Rohan v. Sawin,
5 Cush. (Mass.) 281; Eanes v. State, 6 Humph. (Tenn.) 53; Davis v. RusseU,
5 Bing. 354; Lawrence v. Hedger, 3 Taunt. 14; Hobbs v. Branscomb, 3 Camp.
420; Lewis v. State, 3 Head (Tenn.) 127; Rex v. Woolmer, 1 Moody, 334;
Nicholson v. Hardwlck, 5 Car. & P. 495.
ei Rohan v. Sawin, 5 Cush. (Mass.) 281; Davis v. Russell, 5 Bing. 354; Com.
T. Cheney, 141 Mass. 102, 6 N. E. 724; Com. v. Presby, 14 Gray (Mass.) 65.
9 6 Davis V. Russell, 5 Bing. 364; Wade v. Chaffee, 8 R. I. 224; Somerville
V. Richards, 37 Mich. 299; Mure v. Kaye, 4 Taunt. 34; State v. Underwood,
75 Mo. 230; State v. Grant, 79 Mo. 113; Boynton v. Tidwell, 19 Tex. 118;
People v. Bm-t, 51 Mich. 199, 16 N. W. 378; Hogg v. Ward, 3 Hurl. & N. 417;
42 APPBEHENSION OF PERSONS AND PROPERTY. [Ch. 2
courts have held that it must appear that the accused may escape
if time is taken to procure a warrant," ° but the great weight of
authority is to the contrary."^ The right of an officer to arrest
on another's accusation, or on his own suspicion only, is limited to
cases of felony."'
As a rule, at common law, an officer can under no circumstances
arrest without a warrant for a misdemeanor not amounting to a
breach of the peace; °" nor, according to the overwhelming weight
of authority, can he arrest for a breach of the peace after it is over,
unless it was committed in his presence or view, and even then the
arrest must be made within a reasonable time after the commission
Hobbs V. Branscomb, 3 Camp. 420; Firestone v. Rice, 71 Mich. 377, 38 N. W.
885; Hall v. Hawkins, 5 Humph. (Tenn.) 357; Lawrence v. Hedger, 3 Taunt.
14; Flndlay v. Pruitt, 9 Port. (Ala.) 195; Sugg v. Pool, 2 Stew. & P. (Ala.)
196; Winebiddle v. Porterfield, 9 Barr (Pa.) 137. An indictment for a felony-
Is sufficient cause. 1 East, P. O. 301; Ex parte Krans, 1 Barn. & C. 261.
So, also, is a proclamation by the governor. Eanes v. State, 6 Humph.
(Tenn.) 53. The suspicion must have been bona fide. If it was otherwise,
the fact that there were reasonable grounds for suspicion is not enough.
Roberts v. Orchard, 2 Hurl. & C. 769. Whether or not there was probable
cause is to be determined by the facts as they were known to exist at the
time of the arrest. Thomas v. Russell, 9 Exch. 764; Swaim v. Stafford, 3
Ired. (N. 0.) 289.
86 See O'Connor v. State, 64 Ga. 125; Ross v. State, 10 Tex. App. 455;
Staples V. State, 14 Tex. App. 136.
97 Davis V. Russell, 5 Bing. 354; Wade v. Chaffee, 8 R. I. 224; Burns v.
Erben, 40 N. X. 463; Rohan v. Sawin, 5 Cush. (Mass.) 281.
88 Com. V. McLaughlin, 12 Cush. (Mass.) 615; Rex v. Curvan, 1 Moody,
132; Com. v. Carey, 12 Cush. (Mass.) 246; Griffin v. Coleman, 4 Hurl. & N.
263; Rex v. Ford, Russ. & R. 329; Bowditch v. Balchin, 5 Exch. 378.
8 8 Com. V. Carey, 12 Cush. (Mass.) 246; Bright v. Patton, 5 Mackey (D. C.)
534; Com. v. McLaughlin, 12 Cush. (Mass.) 615; People v. McLean, 68 Mich.
480, 36 N. W. 231; Drennan v. People, 10 Mich. 169; Quinn v. Heisel, 40
Mich. 576; In re Way, 41 Mich. 299, 1 N. W. 1021; Scott v. Eldridge, 154
Mass. 25, 27 N. E. 677; Danovan v. Jones, 36 N. H. 246; Com. v. Wright, 158
Mass. 149, 33 N. E. 82; Hopkins v. Crowe, 7 Car. & P. 373; Rex v. Bright, 4
Car. & P. 387; Butolph v. Blust, 5 Lans. (N. Y.) 81; State v. Grant, 76 Mo.
236; Coupey v. Henley, 2 Esp. 540; Reg. v. Walker, 1 Dears. Crown Cas. 358;
Stocken v. Carter, 4 Car. & P. 477; Shanley v. Wells, 71 lU. 78; Cahill v.
People, 106 111. 621. But see Roberts v. State, 14 Mo. 138; State v. Roberts,
15 Mo. 28; State v. Brown, 5 Har. (Del.) 505.
Ch. 2] AEHEST WITHOUT A WARRANT. 43
of the offense."" It is otherwise by statute in many states.^"* In
most, if not all, the states there are statutes and city ordinances,
which are clearly valid, authorizing officers to arrest for certain mis-
demeanors without a warrant, when committed in their presence.^"''
An officer may and should, without a warrant, interpose to prevent
a breach of the peace, and to accomplish this object he may arrest
the person menacing, and detain him in custody until the chance of
the threat being executed is over; and if he is assaulted he may
arrest the offender, and take him before a magistrate.^"' It is true
that an officer must always interfere to prevent an attempted felony,
and, if necessary to prevent the felony, he may arrest the offender
and take him before a magistrate, though an attempt to commit a
felony is only a misdemeanor. It will no doubt be found, however,
that in every such case the attempt will amount to a breach of the
peace. It is also true that if a person obstructs an officer in his
lawful attempt to arrest with or without a warrant, either by using
force himself, or by. encouraging the person sought to be arrested
to resist, the officer may arrest him without a warrant.^"* It will
100 See the cases heretofore cited; and see, more particularly, Taylor v.
Strong, 3 Wend. (N. Y.) 38i; State v. Lewis (Ohio Sup.) 33 N. E. 405; Quinn
V. Heisel, 40 Mich. 576; People v. Haley, 48 Mich. 495, 12 N. W. 671; Webb
V. State, 51 N. J. Law, 189, 17 Atl. 113; Eeg. v. Walker, 6 Cox, Cr. Cas. 371.;
Reg. V. Marsden, 11 Cos, Cr. Cas. 90; Cook v. Nethercote, 6 Car. & P. 741:
Sternack v. Brooks, 7 Daly (N. Y.) 142. But see the dicta in Spaulding v.
Preston, 21 Vt. 9; Reg. v. Light, Dears. & B. 332; State v. Sims, 16 S. C. 48R.
101 The statutes of many of the states allow an officer to arrest without a
warrant for any public offense committed in his presence, and this includes
misdemeanors. Dilger v. Com., 88 Ky. 550, 11 S. W. 651. And in some states
there are statutes allowing arrests without a warrant for certain misde-
meanors, on Information received from others. Jacobs v. State, 28 Tex. App.
79, 12 S. W. 408; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812 (carrying
weapons).
102 Thomas v. Village of Ashland, 12 Ohio St. 127; White v. Kent, 11 Ohio
St. 550; Roberts v. State, 14 Mo. 138; Mitchell v. Lemon, 34 Md. 176; Roddy
v. Finnegan, 43 Md. 490; Danovan v. Jones, 36 N. H. 246; Bryan v. Bates,
15 111. 87; Main v. McCarty, Id. 441; Smith v. Douelly, 66 lU. 464.
10 3 Rex V. Hems, 7 Car. & P. 312; Rex v. Light, 7 Cox, Cr. Cas. 389; Levy v.
Edwards, 1 Car. &'P. 40; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Shanley v.
Wells, 71 111. 78; Mclntyre v. Raduns, 46 N. Y. Super. Ct. 123.
104 Coyles v. Hurtin, 10 Johns. (N. Y.) 85; Levy v. Edwards, 1 Oar. & P.
40; White v. Edmunds, Peake, 89.
44 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
be noticed, however, that, though the resistance is a misdemeanor
only, it is a breach of the peace. The rule does not apply where
the attempt to arrest is unlawful, for resistance is then justifiable.
Where a prisoner, either before or after he has been convicted,
escapes from lawful custody, even with the consent of the oflQcer
having him in charge, he may be pursued and rearrested without a
warrant."^
Arrest by Private Person without a Warrant.
The right of a private person to arrest without a warrant is
almost, but not quite, the same as that of an officer.
As we have seen, a judge or justice of the peace may cause to be
apprehended, without issuing a warrant, any person committing
a felony or breach of the peace in his presence. He may cause the
arrest to be made by a private person as well as by an officer.^"*
It is also well settled at common law that any private person
who is present when a felony is committed, not only may, but must,
arrest the offender, though he has no warrant.^"^ By the great
weight of authority, also, where a felony has in fact been committed,
a private person may arrest on reasonable suspicion that it was
committed by the person arrested, though his suspicion may be un-
founded in fact.^°* In such a case his position is different from
that of an officer, in that he will be liable for assault and battery
or false imprisonment, and the other consequences of an illegal
105 1 Chit. Cr. Law, 61; Com. v. McGahey, 11 Gray (Mass.) 194; Ex parte
Sherwood, 29 Tex. App. 334, 15 S. W. 812; Simpson v. State, 56 Ark. 8, 19 S.
W. 99.
106 Ante, p. 39.
107 4 Bl. Comm. 293; Long v. State, 12 Ga. 293; HoUey v. Mix, 3 Wend. (N.
Y.) 350; Phmips v. TruU, 11 Johns. (N. Y.) 486; Ruloff v. People, 45 N. Y. 213;
Rex V. Hunt, 1 Moody, 93; Keenan v. State, 8 Wis. 132; Weimer v. Bun-
bury, 30 Mich. 211; Davis v. Russell, 5 Bing. 364; Kindred v. Stitt, 51 111.
407.
108 2 Hale, P. 0. 78; Ashley's Case, 12 Coke, 90; Wakely v. Hart, 6 Bin.
(Pa.) 316; Brooks v. Com., 61 Pa. St. 352; Kennedy v. State, 107 Ind. 144,
6 N. E. 305; U. S. v. Boyd, 45 Fed. 851; Long v. State, 12 Ga. 293; HoUey
V. Mix, 3 Wend. (N. Y.) 350; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Gary v.
State, 76 Ala. 78; Brockway v. Crawford, 3 Jones (N. C.) 433; State v. Roane,
2 Dev. (N. G.) 58; Smith v. DoneUy, 66 111. 464; Wrexford v. Smith, 2
Root (Conn.) 171; Carr v. State, 43 Ark. 99; Reuck v. McGregor, 32 N. J.
Law, 70; Wilson v. State, 11 Lea (Tenn.) 310.
Ch. 2] ARREST WITHOUT A WARRANT. 4&
arrest or attempt to arrest will also follow, unless it is shown, not
only that there was probable cause for his suspicion, but also that
a felony had actually been committed by some one. Proof of prob-
able cause to believe, and belief in good faith, that a felony had
been committed, will not excuse him as it would an ofBcer.^'"'
Some of the courts have said that an arrest by a private person
without a warrant cannot be justified by proving the actual com-
mission of the crime by some one, and suspicion on probable cause
of the person arrested; that actual guilt must be shown; ^^° and in
Texas it has been held that the offense must have been committed
in the presence of the person maldng the arrest; ^^^ but these
cases are contrary to the overwhelming weight of authority. In no
case is mere conjecture, or suspicion without probable cause, sufB-
cient to justify the arrest.^^*
As a rule, a private person cannot arrest without a warrant for
a misdemeanor, even when it is committed in his presence,^*'
though it is otherwise by statute in some jurisdictions,^^* and, as
100 Holley v. Mix, 3 Wend. (N. Y.) 350; Burns v. Erben, 40 N. Y. 463; Wake-
ly V. Hart, 6 Bin. (Pa.) 316; Com. v. Carey, 12 Gush. (Mass.) 246; Beckwith
V. Philby, 6 Barn. & C. 638; People v. Adler, 3 Parker, Or. R. (N. Y.) 249; Com.
V. Deacon, 8 Serg. & R. (Pa.) 49; Brooks v. Com., 61 Pa. St. 352; Teagarden
V. Graham, 31 Ind. 422; Brockway v. Crawford, 3 Jones (N. C.) 433; Carr v.
State, 43 Ark. 99; Reuck v. McGregor, 32 N. J. Law, 70; Doughty v. State,
33 Tex. 1; Findlay v. Pruitt, 9 Port. (AJa.) 195; Salisbury v. Com., 79 Ky.
425; Allen v. Wright, 8 Car. & P. 522.
110 Rohan v. Sawin, 5 Gush. (Mass.) 285; Com. v. Carey, 12 Gush. (Mass.)
251; Kindred v. Stitt, 51 111. 407; Morley v. Chase, 143 Mass. 396, 9 N. E. 767.
No authorities, however, are cited in these cases in support of the proposition.
111 Alford V. State, 8 Tex. App. 545 (citing no authority, however).
112 Davis V. Russell, 5 Bing. 364. We have already collected the cases on
this point in treating of arrests by an officer without a warrant. Many of
the cases there cited are cases of arrest by a private person. The liability
of an officer and a private person is the. same in this respect; so it is only
necessary to refer to what we have already said on the subject. Ante, p. 41.
113 Fox V. Gaunt, 3 Barn. & Adol. 798; Price v. Seeley, 10 Clark & F. 28
Phillips V. Trull, 11 Johns. (N. Y.) 487; Handcock v. Baker, 2 Bos. & P. 262
Butler V. Turley, 2 Car. & P. 585; Coward v. Baddeley, 4 Hurl. & N. 478
Wooding V. Oxley, 9 Car. & P. 1.
114 In some states it is provided that a private person may arrest for any
crime committed in his presence. People v. Morehouse (Sup.) 6 N. Y. Supp-
763.
46 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
in the case of arrests by an officer, there are some exceptions at
common law. He cannot arrest for a breach of the peace after it
is over,"" but by the weight of authority he may not only interpose
to stop a breach of the peace, but may, during its continuance, or
where there is reasonable ground for apprehending its renewal,
arrest the offender and take him before a magistrate, or turn him
over to an officer."' Some of the courts have held, or seem to have
held, that he can only interpose and restrain the offender for the
purpose of stopping the breach of peace; that he cannot arrest
for the offense."^ A private person not only may, but must, inter-
pose to prevent the attempted commission of a felony, or infliction
of a deadly injury, and, if necessary to prevent it, may arrest the
offender, though the attempt is only a misdemeanor.^^' As already
stated, however, such an attempt must necessarily, in most, if not
in all, cases, amount to a breach of the peace, so that the arrest may
be justified on that ground.^^*
A private person, it seems, may also recapture a prisoner who
has broken jail, or otherwise escaped from lawful custody, either
before or after conviction, though he may have been in custody for
a misdemeanor only, and though the prison breach or escape is
only a misdemeanor.^^"
There are circumstances, as we shall now see, under which a
private person may be called upon by an officer to assist him in
making an arrest.
115 Price V. Seeley, 10 Clark & F. 28; Phillips v. Trull, 11 Johns. (N. Y.) 487.
118 Price V. Seeley, 10 Clark & F. 28; Timothy v. Simpson, 1 Cromp., M. &
R. 757; Derecourt v. Corbishley, 5 El. & Bl. 188.
117 See Phillips v. Trull, 11 Johns. (N. Y.) 487; Wheeler v. Whiting, 9 Oar.
& P. 262.
lis Handcock t. Baker, 2 Bos. & P. 260; Kex v. Hunt, 1 Moody, 93; Reuck
V. McGregor, 32 N. J. Law, 70; Dill v. State, 25 Ala. 15; Ruloffi v. People, 45
N. Y. 213; Long v. State, 12 Ga. 298; Com. v. Deacon, 8 Serg. & R. (Pa.) 47;
Keenan v. State, 8 Wis. 132.
119 Ante, p. 43.
120 state V. Holmes, '48 N. H. 377.
*"ii- ^J ASSISTING OFFICEK. 47
SAME— ASSISTING OFFICER.
13. An ofllcer authorized, to make arrests may call upon
private persons to assist him. and they are bound to do
so, provided they act in his actual or constructive pres-
ence.
If there is just cause, any justice of the peace may take of the
county any number of persons he thinks proper to pursue, arrest,
and imprison felons or breakers of the peace. This is called "rais-
ing the posse comitatus." Persons who refuse to aid are guilty
of a misdemeanor. This applies not only where the sheriff is acting
under a warrant, but also where he is acting without a warrant as
a conservator of the peace.^^^ Not only may the sheriff or a justice
of the peace thus raise the posse comitatus, but any other peace
officer, anthorized to make arrests or to suppress breaches of the
peace, may call upon private persons to assist him in the execution
of his duty, whether he is acting under a warrant, or, in a proper
case, without a warrant, and any person who without good excuse
refuses to aid is guilty of a misdemeanor.^^^ If the command is
made by a proper officer, and the case is one in which he apparently
has authority, the persons assisting him will be protected against
any liability for their assistance, though in fact the officer may
not have authority, or, though having authority, he may so fail
to comply with the law as to become liable himself.^^' To justify
private persons, however, in acting at the command of an officer
in cases in which they would have no right to act of their own ac-
cord, they must act in the actual or constructive presence of the
offlcer.^^* As we have seen, the verbal command of a judge or
121 Dalton, c. 171; 4 BL Comm. 293.
122 2 Hawk. P. C. c. 13, § 7; Com. v. Field, 13 Mass. 321; Coyles v. Hur-
tln, 10 Johns. (N. Y.) 85; Blatch v. Archer, Cowp. 63; McJIahan v. Green, 34
Vt. 69; Mitchell •?. State, 7 Eng. (Ark.) 50: State v. James, 80 N. C. 370;
State V. Shaw, 3 Ired. (N. C.) 20.
issDehm v. Hinman, 56 Conn. 320, 15 Atl. 741; McMahan v. Green, su-
pra; Reed v. Rice, 2 J. J. Marsh. (Ky.) 44; Watson v. State, 83 Ala. 60, 3
South. 441; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885.
124 Coyles V. Hurtin, supra; Mitchell v. State, supra; State v. Shaw, supra;
People V. Moore, 2 Doug. (Mich.) 1; Com. v. Field, 13 Mass. 321; Rex v.
48 APPREHENSION Of PERSONS AND PBOPEETY. [Ch. 2
justice of the peace to arrest for a felony or breach of the peace com>
mitted in his presence must be obeyed.
SAME— ARKEST UPON HUE AND CRY.
14. Arrest upon hue and cry is an old common-law
process of pursuing ■with horn and with voice all felons
and such as have dangerously w^ounded others.
The hue and cry could be raised by officers or by private persons
or by both". The officer and his assistants have the same powers,
protection, and indemnity as if acting under a warrant. If a war-
rant has been obtained, and the felon has fled into another county,
he may be followed by hue and cry without having the warrant
backed or signed by a justice of the latter county. Private per-
sons who join in the hue and cry are justified, even though it may
turn out that no felony has in fact been committed. If, however,
a private person wantonly and maliciously, and without cause,
raises the hue and cry, he commits a breach of the peace, and is
guilty of a misdemeanor.^'''
Patience, 7 Car. & P. 775. The ofBcer need not be actually present He may,
for Instance, leave persons whom he has called upon to assist, and go after
help, and they must act in his aid during his temporary absence. "The sher-
iff," it was said in such a case, "Is quodam modo present by his authority. If
he be actually engaged in efforts to arrest, dum fervet opus, and has com-
manded and is continuing to command and procure assistance. When he is
calling on the power of the county, or a requisite portion of it, to enable him
to overcorae resistance, it would be impossible that he should be actually pres-
ent in every place where power might be wanting. The law is not so unrea-
sonable as to require the ofilcer to be an eye or ear witness of what passes, and
to render all his authority null and void except when he is so present. • • •
The question in these cases does not turn upon the fact of distance, so long
as the sheriff is within his county, and is bona fide and strictly engaged in
the business of the arrest." Coyles v. Hurtin, supra. It has lately been held
in Michigan, however, that a sheriff, having a warrant in a case in which
a warrant is necessary, cannot send his deputy to one place to malve the ar-
rest without the warrant, while he goes to another place for the same pur-
pose with the warrant. People v. McLean, 68 Mich. 480, 36 N. W. 231.
12 5 4 Bl. Oomm. 293; 2 Hale, P. C. 98; Jackson's Case, 1 East, P. O. 298;
Galvin v. State, 6 Cold. (Tenn.) 283; Brooks v. Com. 61 Pa. St 352.
Ch. 2] NOTICE OF PURPOSE AND AUTHORITY, 49
SAME— TIME or ARREST.
16. In the absence of statutory provision to the con-
trary, an arrest may be made at any time.
An arrest at common la"w may be made on Sunday.^ ^° By stat-
ute, in some jurisdictions, the right to execute a warrant on Sunday
is limited in terms to cases of treason, felony, and breach of peace,
but the term "breach of peace" is held to include all indictable
offenses.^"^ In other jurisdictions, it is provided by statute that
an arrest cannot be made on Sunday for a misdemeanor, unless
upon direction of the magistrate indorsed upon the warrant
An arrest at common law may be made at any time of the day
or night,^^' but by statute, in some jurisdictions, the right to arrest
at night is very much restricted.
SAME— NOTICE OF PURPOSE ANB AUTHORITY
16. An ofiElcer, commonly known as such, and acting
within his ow^n precinct, need not show his warrant, but
he must, if requested, tell its substance. A private per-
son or an officer not commonly know^n, or who is acting
outside his precinct, must show his warrant if requested.
An officer or private person arresting w^ithout a w^arrant
must give notice of his authority and purpose, unless
they are know^n or are obvious.
EXCEPTIOIT — If the arrest is resisted, it may be
effected before notice of authority.
An arrest, to be legal, must not only be authorized, but must be
made in a proper manner. If made in an improper manner, the
128 State V. Smitli, 1 N. H. 346; Pearce v. Atwood, 13 Mass. 324, 347. Main
V. McCarty, 15 111. 441; Rawlins v. Ellis, 16 Mees. & W. 172.
12T Rawlins v. Ellis, supra; Watts v. Com., 5 Bush (Ky.) 309; Keith y. Tut-
tle, 28 Me. 326.
128 State V. Smith, supra; Wright v. Keith, 24 Me. 158; State v. Brennan's
Liquors, 25 Conn. 278.
CKIM.PROC— 4
50 APPBEHENSION OF PEKSONS AND PROPEETY. [Ch. 2
person making it is just as liable for the injury as if lie had pro-
ceeded without any authority at all. An officer, if he is commonly
known to be an officer, and is acting within his own precinct, need
not show his warrant, though requested to do so; but he niust, if
requested, tell the substance of it.^" But all private persons to
whom a warrant is directed, and officers who are not commonly
known, or who are acting out of their own precincts, must show
their warrant if requested."" So, also, an officer acting without a
warrant should, unless the party is previously acquainted with the
fact, or can plainly see it, notify him that he is an officer, or that
he arrests in the name of the state, and for what offense,^ '^ but he
need not do so if his character and the reason of the arrest are
known to the accused, or are obvious.^ ^^ It is established by the
weight of authority, however, that an officer, whether acting with
■or without a warrant, need not state his character or authority
Ijefore making the arrest, where the arrest is resisted, as this might
•defeat the arrest. It is enough if he does so on request, after the
arrest has been made.^^' A private person, in making an arrest
without a warrant, must make known his purpose,^'* but, as is
the case with an officer, he need not do so in express words, where
the circumstances render his purpose obvious.^'"
120 2 Hawk. P. C. c. 13, § 28; Com. v. Cooley, 6 Gray (Mass.) 350; Arnold
V. Steeves, 10 Wend. (N. Y.) 514; Bellows v. Shannon, 2 Hill (N. Y.) 92; Codd
V. Cabe, 1 Exch. Dlv. 352; Hall v. Roche, 8 Term R. 188; Shovlin v. Com.,
106 Pa. St. 3C9; State v. Curtis, 1 Hayw. (N. C.) 471; State v. Caldwell, 2
Tyler (Vt) 214; State v. Phinney, 42 Me. 384.
ISO 2 Hawk. P. C. c. 13, § 28; State v. Curtis, 1 Hayw. (N. C.) 471; Frost
■V. Thomas, 24 Wend. (N. Y.) 418; Arnold v. Steeves, 10 Wend. (N. Y.) 514;
People V. Nash, 1 Idaho, 206; State v. Kirby, 2 Ired. (N. C.) 201.
181 Yates V. People, 32 N. Y. 509; Wolf v. State, 19 Ohio St 248.
182 Wolf V. State, supra; Com. v. Tobin, 108 Mass. 426; Roberts v. State,
14 Mo. 144; I.«wis v. State, 3 Head (Tenn.) 127; People v. Pool, 27 Cal. 573.
133 Com. T. Cooley, 6 Gray (Mass.) 350; State v. Townsend, 5 Har. (Del.)
487; Rex v. Woolmer,. 1 Moody, 334; Com. v. Field, 13 Mass. 321; Drennan
V. People, 10 Mich. 169; Kernan v. State, 11 Ind. 471; Boyd v. State, 17 Ga.
194; Shovlin v. Com., 106 Pa. St. 369. But see State v. Garrett, 1 Winst Eq.
<N. C.) 144.
134 Fost. Crown Law, 311; Rex v. Howarth, 1 Moody, 207; Long v. State,
12 Ga. 293; State v. Bryant, 65 N. C. 327; Brooks v. Com., 61 Pa. St. 352.
135 state V. Mowry, 37 Kan. 369, 15 Pac. 282; Rex v, Howarth, 1 Moody, 207.
And see Wolf v. State, 10 Ohio St. 248.
Ch. 2] USE OF FORCE. 61
SAME— USE or FORCE.
17. All necessary force, even, to the taking of life, may
be used to eflfect an arrest or prevent an escape in cases
of felony, and all necessary force, short of taking life, may
be used, in cases of misdemeanor. Some courts have held
that life may be taken, if niecessary, even in cases of mis-
demeanor. In no case can unnecessary force be used.
Neither an oflQcer nor a private person, in making an arrest, can
use unnecessary violence; if he does so, he will be liable both
civilly and criminally for assault and battery, or criminally for
murder or manslaughter if homicide results.^ ^° He may, however,
use all necessary force both to effect the arrest and to retain the
custody of his prisoner.^'' It has been held, for instance, that an
offlcer may strike a man who is fighting, if the blow is necessary to
stop the fight, and if he acts in good faith.^'* So, also, if necessary,
an officer may tie or handcuff an unruly prisoner, but he cannot use
handcuffs unnecessarily.^ '° If a legal attempt to arrest is forcibly
resisted, the offlcer may oppose force to force, even though the
death of the person resisting may be the consequence, provided
there is reasonable necessity for the killing.^*" He cannot kill if
there is any other way of effecting the arrest. It has been held
that this applies to misdemeanors as well as felonies, and to civil
136 State V. Pugh, 101 N. C. 737, 7 S. E. 757; State v. Sigman, 106 N. C.
728, 11 S. E. 520; Wright v. Keith, 24 Me. 158; Murdock v. Ripley, 35 Me.
472; Bums v. State, SO Ga. 544, 7 S. E. 88; Sliidmore v. State, 43 Tex. 93;
State V. Mahon, 3 Har. (Del.) 568; Findlay v. Pruitt, 9 Port (Ala.) 195;
Clark, Cr. Law, 211.
13T State V. Pugh, supra; State v. McNinch, 90 N. C. 695; State v. Fuller
(Mo. Sup.) 19 S. W. 583; State v. Mahon, 3 Har. (Del.) 568; Ramsey v. State
(Ga.) 17 S. E. 613; Beaverto v. State, 4 Tex. App. 175; Clark, Cr. Law, 211.
188 state v. Pugh, supra.
139 Wright V. Court, 4 Barn. & C. 596; State v. Sigman, supra; State
V. Stalcup, 2 Ired. (N. 0.) 50; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741;
Leigh V. Cole, 6 Cox, Cr. Cas. 331. And, if handcuffs are used in the bona
fide belief that they are necessary, the offlcer will not be liable, though it
afterwards appears that they were unnecessary. Firestone v. Rice, 71 Mich.
377, 38 N. W. 885.
140 state v. Dieberger, 96 Mo. 666, 10 S. W. 168; Clements v. State, 50 Ala,
117; Clark, Cr. Law, 134.
52 APPREHENSION OF PERSOKS AND PROPERTY. [Ch. 2
as well as criminal cases,^*^ but there are cases to the contrary.^**
After an arrest has once been made, and the offender is in custody,
the officer having him in charge may kill him to prevent his escape,
if such extreme measures are necessary, and he may, under like
circumstances, kill others who are seeking to rescue the prisoner; ^*'
but, in those jurisdictions where it is held that an oflQcer cannot kill
to effect an arrest for a misdemeanor, it is also held that he cannot
kill to prevent the escape of one in custody for a misdemeanor, as
this is virtually a rearrest.^** In misdemeanor cases, where a per-
son sought to be arrested does not assault the officer and forcibly
resist the attempt to arrest, but flees, the officer cannot kill him
in pursuit, but must rather suffer him to escape.^*" It is otherwise
in the case of felonies. A fleeing felon may be killed if he cannot
otherwise be taken.^*° In all cases the killing must be apparently
necessary.^*^ If an officer's life is threatened, or grievous bodily
harm is imminent, he may kill to save himself. What we have said
also applies to lawful arrests by a private person.
Life may also be taken by an officer or a private person, if neces-
sary, in order to prevent a felony ^*' or suppress a riot,^*' but not
to suppress an affray,^ °'' for in the latter case it cannot be necessary.
1*1 state V. Dieberger, supra; State v. Garrett, 1 Winst. (N. O.) 144.
1*2 Head v. Martin, 85 Ky. 480, 3 S. W. 622; Dilger v. Com., 88 Ky. 550, 11
S. W. 651; Thomas v. Kinkead, 55 Ark. 502, 18 S. W, 854.
1*3 4 Bl. Comm. 179; Fost. Crown Law, 321; 1 Hale, P. C. 49G; 2 East,
P. C. 821; Jackson v. State, 76 Ga. 473; State v. Bland, 97 N. C. 438, 2 S. E.
460; Clark, Cr. Law, 135.
14* Eeneau v. State, 2 Lea (Tenn.) 720; Head v. Martin, 85 Ky. 480, 3 S.
W. 622; Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854. It is otherwise where
the attempted escape is a statutory felony. State v. Turlington, 102 Mo. 642,
15 S. W. 141.
1*5 Fost. Crown Law, 291; State v. Moore, 39 Conn. 244; Dilger v. Com.,
88 Ky. 550, 11 S. W. 651; Clark, Cr. Law, 136.
146 1 East, P. C. 302; Rex v. Finnerty, 1 Craw. & D. 167; Jackson v. State,
66 Miss. 89, 5 South. 690; State v. Roane, 2 Dev. (N. C.) 58.
1*7 Clark, Cr. Law, 136.
1*8 1 East, P. C. 271; State v. Harris, 1 Jones (N. C.) 190; State v. Moore, 31
Conn. 479; Clark, Cr. Law, 137, and cases there cited.
149 1 Hale, P. C. 495; 4 Bl. Comm. 179; Pond v. People, 8 Mich. 150; Clark,
Cr. Law, 136.
150 People V. Cole, 4 Parker, Cr. E. (N. Y.) 35; Conner v. State, 4 Yerg.
(Tenn.) 137; Clark, Cr. Law, 137.
Ch. 2] BREAKING DOORS, ETC. 53
SAME— BREAKING DOORS, ETC.
18. An ofiBcer, if, after notice of his purpose and author-
ity, he is refused admittance, may break an outer or inner
door or -vrindow of a house, for the purpose of executing
a •warrant, or of making a laTsrful arrest -vBithout a -war-
rant, or to liberate himself or another -who, having en-
tered to maka an arrest, is detained therein. A private
person may so break into a house, to prevent a felony, or
to arrest a person for a felony actually committed by
him, but not to arrest a suspected felon. Either an ofi&cer
or a private person may so break into a house to arrest a
person who has escaped from lawful custody.
In order to execute a warrant, the ofiScer may break open doors,
if upon demand of admittance it cannot be otherwise obtained.^"^
It has been said that the right to break doors in order to execute a
warrant does not extend to misdemeanors not accompanied by vio-
lence. It is difficult to understand what is meant by such a state-
ment. At any rate, it does not seem possible that when an officer
has a warrant for the arrest of a person, even though it be for the
pettiest misdemeanor, the offender may escape arrest by taking
shelter in a house. Must the officer lay siege and wait for him to
come out, or must he give up the execution of the warrant? To so
hold would be absurd. The right to break doors to execute a war-
rant must exist in the case of a misdemeanor as well as in the case
of a felony. It could not be otherwise without allowing a man to
defy the law."^
Where the house is occupied by the accused, the authorities are
agreed that the officer is not liable as a trespasser for forcing an
iBi Fost. Crown Law, 320; 1 Hale, P. 0. 583; 2 Hale, P. C. 103, 117; 1
East, P. C. 323; 1 Chit. Or. Law, 51; State v. Smith, 1 N. H. 346; Com. v.
Ii'win, 1 Allen (Mass.) 587; Barnard v. Bartlett, 10 Cush. (Mass.) 501; Com.
V. Reynolds, 120 Mass. 190; Allen v. Martin, 10 Wend. (N. Y.) 300; BeU v.
Clapp, 10 Johns. (N. Y.) 263; Hawkins v. Com., 14 B. Mon. (Ky.) 318; Shan-
ley V. Wells, 71 111. 78; Kelly v. Wright, 1 Root (Conn.) 83; State v. Shaw,
Id. 134.
102 See the authorities above cited.
54 APPREHENSION OP PERSONS AND PEOPEETY. [Ch. 2
entrance, though it may turn out that the accused is not there, pro-
vided there was probable ground to believe he was there.^"^ And
by the better opinion the same is true where the house is occupied
by a third person.^ °*
It has been said that the right of an officer to break doors to
effect an arrest without a warrant is generally the same as if he
proceeded upon a warrant, but this is not true. It seems to be well
settled that, Ivhere a felony has been committed, he may break
doors and arrest without a warrant, and that he need not have
seen the felony committed, but may act on the information of
some one else who saw it.^°° He may also, according to the weight
of authority, break into a house when there is an affray or breach
of the peace therein, even when the doors are fastened.^"* Some
of the cases, however, hold that he can only do so where the doors
are unfastened.^^' In other cases of misdemeanor, as, for instance,
where unlawful gaming is going on in the house, or intoxicating
liquors are being sold in violation of law, he cannot break in with-
out a warrant,^^' for he could not even arrest without a warrant.
If a private person sees a felony committed, he may break into
a house to arrest the offender, if the latter is within the house and
refuses to surrender, but he cannot break into a house to arrest a
suspected felon.^" He may also break into a house to prevent
a felony.^"" It has been said that he may break into a house where
he is certain a felony has been committed, though he was not an
eyewitness to its commission.^"
In all cases, without as well as with a warrant, after a person has
been once actually arrested, and has escaped from custody, any
153 Barnard v. Bartlett, 10 Cush. (Mass.) 501; Com. v. Reynolds, 120 Mass.
190; Hawkins v. Com., 14 B. Men. (Ky.) 318; State v. Smith, 1 N. H. 346.
164 Com. v. Irwin, 1 Allen (Mass.) 587; Com. v. Rejoiolds, supra. Contra,
1 Chit. Cr. Law, 57; 2 Hale, P. C. 117; Johnson v. Leigh, 1 Marsh. 565, 6
Taunt. 246; Hawkins v. Com., 14 B. Mon. (Ky.) 318.
15B 1 Hale, P. C. 583, 589; 1 Chit. Cr. Law, 53.
166 1 Hale, P. C. 583, 589; Handcoek v. Baker, 2 Bos. & P. 260.
1B7 Com. V. Tobin, 108 Mass. 426.
IBS McLennon v. Kichardson, 15 Gray (Mass.) 74. And see Bailey v. Bagatz,
50 Wis. 554, 7 N. W. 564.
1B9 2 Hale, P. O. 78, 82; 1 Chit. Cr. Law, 53; Brooks v. Com., 61 Pa. St 358.
160 Handcoek v. Baker, 2 Bos. & P. 260.
1611 Chit. Cr. Law, 52.
Ch. 2] WHAT CONSTITUTES AN AEEEST. 65
door may be broken open to retake him, after proper demand of
admittance.^'^
Where an ofScer who has entered a house is locked in, or other-
wise prevented from retiring, he may break out, or other officers may
break in to rescue him.'°' Where an ofScer has entered a house
he may always break an inner door, if admittance is demanded and
refused.^'* In all cases, except perhaps of felony, demand of ad-
.mittance must be made before the door is broken.^""
SAME— WHAT CONSTITUTES AN ARREST.
19. To constitute an arrest, there must be actual restraint
of the person arrested, or else he must submit to the cus-
tody of the o£B.cer or person arresting.
Legal consequences attach to an escape from lawful arrest, and
in many respects the position and the rights and liabilities of the
parties arresting and arrested are different before and after the
arrest has been made. It often becomes important, therefore, to
determine when an arrest has been made and the accused is in the
custody of the officer. To constitute an arrest, mere words are not
sufficient.^'* There must be some Actual restraint of the person
16 2 1 Chit. Cr. Law, 58; Fost. Orown Law, 320; Geimer v. Sparks, 6 Mod.
173, 1 Salk. 79; Com. v. McGahey, 11 Gray (Mass.) 194; Allen v. Martin, 10
Wend. (N. Y.) 300; Cahill v. People, 106 111. 621. And wbere the prisoner has
taken shelter in his own house, and the pursuit is fresh, the door may be
broken without demand of admittance. Alien v. Martin, supra.
16 3 1 Chit. Cr. Law, 58; 1 Hale, P. C. 459; Fost. Crown Law, 319; Genner
V. Sparks, 6 Mod. 173, 1 Salk. 79.
16* 1 Chit. Cr. Law, 58; 1 Hale, P. C. 458, 459; Lee v. Gansel, Cowp. 1; Eat-
clifCe V. Burton, 3 Bos. & P. 223; Hubbard v. Mace, 17 Johns. (N. Y.) 127;
Williams v. Spencer, 5 .Tohns. (N. Y.) 352; Hutchison v. Birch, 4 Taunt. 618.
16 6 1 Chit. Cr. Law, 53; Launock v. Brown, 2 Barn. & Aid. 592; Burdett
V. Colman, 14 East, 163; Ratcliffe v. Burton, 3 Bos. & P. 229; Com. v. Reyn-
olds, 120 Mass. 190; State v. Oliver, 2 Houst. (Del.) 585. As stated in a
previous note, where a prisoner escapes from custody and takes shelter in
his own house, the officer, in fresh pittsuit, may break in without demand of
admittance, as the prisoner is aware of the object of the officer. Allen v.
Martin, 10 Wend. (N. Y.) 300.
166 Grainger v. Hill, 4 Bing. N. C. 212; Brushaber v. Stegemann, 22 Mich.
266; Mo wry v. Chase, 100 Mass. 85.
56 APPREHENSION OF PERSONS AND PROPERTY. [Oil. 2
of the accused. Merely to say to him that he is under arrest is not
enough, if he does not submit; but it is sufflcient if the officer
touches him, however lightly; ^^^ and it is enough if the officer,
being in a room with the accused, tells him that he is under arrest,
and locks the door.^°* Eren though the officer uses no force at all,
if he tells the accused that he is under arrest, and the accused sub-
mits, there is an arrest, and if the accused afterwards runs off he
is guilty of an escape.^'* As we have seen, an officer or private per-
son in making an arrest should make known his purpose and au-
thority, unless the purpose or authority is already known or is ob-
vious. If he fails to do so, and the purpose to arrest is not known
nor obvious, physical restraint will not constitute an arrest^'" If
the authority and purpose to arrest are obvious, as where the officer
shows his badge, or does some other act from which it can be seen
that he is an officer and acts as such, express notice is not neces-
sary.^ ^^
SAME— DUTY AFTER ARBEST.
20. An ofi&cer or private person, after making an ar-
rest, must, Tvithout unnecessary delay, take his prisoner
before a magistrate for examination; but a private person
may, if he chooses, deliver his prisoner to an oflB.cer.
16 7 Genner v. Sparks, 1 Salk. 79, 6 Mod. 173; Whittiead v. Keyes, 3 Allen
(Mass.) 495.
16 8 Williams v. Jones, Cas. t. Hardw. 301; Grainger v. HiU, 4 Bing. N. C.
212.
16 9 Emery v. Chesley, 18 N. H. 198; Mowry v. Chase, 100 Mass. 79; Pike
V. Hanson, 9 N. H. 491; Eussen v. Lucas, 1 Car. & P. 158; George v. Rad-
ford, Moody & M. 244; Gold v. BisseU, 1 Wend. (N. Y.) 210; Shannon v.
Jones, 76 Tex. 141, 13 S. W. 477. But see U. S. v. Benner, Baldw. 239, Fed.
Cas. No. 14,568; Huntington v. Shultz, Harp. (S. C.) 452; Lawson v. Buzines,
3 Har. (Del.) 416; State v. Mahon, Id. 568. Submission to authority asserted
under a pretended warrant has been held an arrest. Haskins v. Young, 2
Dev. & B. (N. C.) 527.
17 0 1 Bish. Cr. Proc. § 158; Whart Cr. PI. & Prac. § 3; citing Yates v. Peo-
ple, 32 N. Y. 509; Rex v. Howarth, 1 Ryan & M. 207; State v. Belk, 76
N. C. 10.
171 Ante, p. 49; People v. Pool, 27 Cal. 573.
Ch. 2] DUTY AFTER ARREST. 57
When an arrest has been made, the ofiQcer should, as soon as
the circumstances will permit, bring his prisoner before a proper
magistrate. If he is guilty of unnecessary delay, he will be liable
for false imprisonment. This applies, not only to arrests under a
warrant,^^^ but also to arrests without a warrant either by an offi-
(>gj.i73 Qj. ijy g^ private person,^^* except that where the arrest is
by a private person he may, if he prefers, deliver his prisoner over
to an oflBcer to be taken before the magistrate. In such a case he
ceases to be further responsible for the safe custody of the prisoner.
Necessary delay will not render either an officer or a private per-
son liable.^^"
In some states, if the warrant so directs, the officer may take his
prisoner either before the magistrate who issued it, or before some
other magistrate having concurrent jurisdiction of the subject-
matter. In other states he can only take him before the magistrate
who issued the warrant. The law in this respect must be fol-
lowed.^^*
1T2 1 Chit Cr. Law, 59; 2 Hale, P. O. 119; Tubbs v. Tukey, 3 Cush. (Mass.)
438; Brock v. Stimson, 108 Mass. 520; Butler v. Washburn, 5 Post. (N. H.) 251;
Rex V. Bootie, 2 Burrows, 864; Harris v. City of Atlanta, 62 Ga. 290; Boaz
V. Tate, 43 Ind. 67; Paplneau v. Bacon, 110 Mass. 319; Phillips v. Fadden,
125 Mass. 198; Johnson v. Mayor, etc., of Americus, 46 Ga. 80; Butolph v.
^lust, 5 Lans. (N. Y.) 84; Burke v. Bell, 36 Me. 321; post, p. 72.
17 3 See the authorities above cited; and see Simmons v. Vandyke (Ind.
Sup.) 37 N. B. 973; Wright v. Court, 4 Barn. & C. 596; Com. v. Deacon, 8
Serg. & R. (Pa.) 47; Sclrcle v. Neeves, 47 Ind. 289; Burke -v. Bell, 36 Me. 317;
Papineau v. Bacon, 110 Mass. 319; post, p. 72.
17 4 See the authorities above cited; and see, particularly. Com. v. Deacon,
8 Serg. & R. (Pa.) 47; Com. v. Tobin, 108 Mass. 429; post, p. 72.
ITS Arnold v. Steeves, 10 Wend. (N. Y.) 514. If a prisoner cannot be
brought before a justice on the night of his arrest, the officer may place him
In jail for the night. Wiggins v. Norton, 83 Ga. 148, 9 S. E. 607. A party
may waive his right to be immediately taken before a magistrate. Nowak
V. Waller, 56 Hun, 647, 10 N. Y. Supp. 199. The time during which a prisoner
may be detained before being taken before a magistrate is in many states
expressly limited by statute. Arnold v. Steeves, supra.
17 8 Post, p. 75.
58 APPREHENSION OF PERSONS AND PEOPERTY. [Ch. 2
SAME— AUTHORIZED ARREST IN UNAUTHORIZED MANNER
21. The fact that an authorized arrest is made in an un-
authorized manner -will render the ofl&cer or person ar-
resting liable, but will not affect the state's right to detain
the accused.
The authority to arrest, either with or without a warrant, should
not be confused with the requirements of the law in regard to the
manner of making the arrest "The manner and circumstances of
execution relate not to the authority, unless expressly or by neces-
sary intendment made to; and, if the law prescribes the modes of
execution, this is either to secure the execution of the process, or
to guard the person whose arrest is commanded from unnecessary
annoyance or oppression, and a departure in this respect ought not
to affect the question of authority." ^^'^ If an oflQcer, making an au-
thorized arrest, uses unnecessary force, he becomes civilly liable,
as would any other wrongdoer; and, if he refuses to disclose his
authority when he should do so, he may forfeit the right he would
otherwise have to compensation for injm-y inflicted by the person
sought to be arrested in resisting, and such person would not be
liable criminally for the resistance, unless he should intentionally
kill the officer, and even then only for manslaughter; but the ar-
rest and detention would be none the less under the authority
of law, and therefore legal. The prisoner would not be entitled to
a discharge from custody.^^'
177 Cabell v. Arnold, 86 Tex. 102, 23 S. W. 645; post, p. 60, note 182.
178 Cabell V. Arnold, supra, "If the offtcer expressly declare that be arrests
under an illegal precept, and on that only, yet he is not guilty of false impris-
onment, If he had at the time a legal one; for the lawfulness of the arrest
does not depend on what he says, but what he has." State v. Kirby, 2 Ired.
(N. C.) 201; State v. Elrod, 6 Ired. (N. C.) 250.
Ch. 2] FUGITIVES FEOM JUSTICE. 59
FUGITIVES FEOM JUSTICE.
22. A person -vp-ho commits a crime in one country or
state, and flees into another, cannot be folio-wed and ar-
rested in the latter without its consent.
SAME— INTERNATIONAL EXTRADITION.
S3. By treaties, however, between the United States and
most foreign countries, and by acts of congress in pursu-
ance thereof, provision is made for the extradition of fugi-
tives from justice in specified cases. This is a matter in
which the states cannot act.
24. A person extradited for one crime cannot be tried
for another.
25. By the weight of authority, a person can be trierf
and punished for a crime committed in this country, though
he has been forcibly abducted from a foreign country.
By the law of nations, a person who commits a crime in one coun-
try, and flees into another, cannot be followed and arrested in the
latter without its consent; and, further than this, there is no obliga-
tion, under the law of nations, upon the latter to surrender the
fugitive;^''" but this difficulty, in so far as the United States and
foreign nations are concerned, is regulated by treaties between
them, mutually allowing the extradition of fugitives, and by acts
of congress giving effect to the treaty provisions. This is a matter
in which, as far as we are concerned, the United States government
alone can act. The states, while they are in a sense independent
sovereignties, have no national powers as respects foreign nations.
They cannot provide for the surrender of fugitives from foreign
countries, nor can they demand of a foreign government the sur-
render of a fugitive.^*"
1T9 Ex parte McCabe, 46 Fed. 363. As to international extradition, see,
generally, In re Ezeta, 62 Fed. 972.
ISO Holmes v. Jennison, 14 Pet 540; Ex parte Holmes, 12 Vt. 630; People
V. Curtis, 50 N. Y. 321.
60 APPREHENSION OF PERSONS AND PROPEBTV. [Ch. 2
A person extradited from a foreign country cannot be tried for
a crime not within the treaty between that country and the United
States; "^ nor, unless the treaty so allows, can he be tried for a
diiferent offense than that for which he was extradited.^'^
It is almost needless to add that in all cases the provisions of
the treaty, and of any act of congress in pursuance of it, must be
complied with.^'*
There has been a direct conflict of opinion on the question whether
a person who has been illegally extradited, or who has been kid-
napped without any proceedings at all, and brought from one coun-
try into another, can be tried for a crime. The treaties do not
guaranty a fugitive from the justice of one country an asylum in
the other. They only make provision that for certain crimes he
shall be deprived of that asylum, and surrendered to justice, and
prescribe the mode in which this shall be done.^** Where a fugi-
tive is extradited under a treaty, good faith, as between the coun-
tries, requires that the treaty provisions shall be observed, and, as
we have seen, he cannot be tried for an offense other than the one
for which he was extradited. It has been said, on the other hand,
that a person who has not been extradited under a treaty, but has
been forcibly abducted from one country, and brought into another
in which he is charged with a crime, has no rights under the treaty,
and there is the highest authority for holding that his abduction
does not prevent his trial and punishment.^'" There are cases that
181 U. S. V. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234; State v. Vanderpool,
39 Ohio St. 273; Ex parte Hibbs, 26 Fed. 421.
182 U. S. V. Rauscher, supra; State v. Vaiiderpool, supra; Ex parte Goy, 32
Fed. 911; In re Reinltz, 39 Fed. 204; In re Baruch, 41 Fed. 472; Ex parte
Hibbs, 26 Fed. 421.
183 In re Herris, 32 Fed. 583.
184 Kerr v. Illinois, 119 U. S. 436, 7 Sup. Ct 225; Lascelles v. Georgia, 148
U. S. 537, 13 Sup. Ct. 687. But see State v. Vanderpool, 39 Ohio St. 273.
186 Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct 1204; Kerr v. Illinois, 119
U. S. 437, 7 Sup. Ct 225; Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687;
Ex parte Scott, 9 Barn. & C. 446; Lopez & Sattler's Case, 1 Dears. & B.
Crown Cas. 525; State v. Smith, 1 Bailey (S. C.) 283; State v. Brewster, 7
Vt 118; In re Miles, 52 Vt 609; Dew's Case, 18 Pa. St 37; State v. Ross,
21 Iowa, 467; The Richmond v. U. S., 9 Cranch, 102; People v. Rowe, 4 Parker,
Or. R. (N. Y.) 253; State v. Wensel, 77 Ind. 428; note 207, infra.
Ch. 2] FUGITIVES FROM JUSTICE. 61
hold the other way.^*' In reason, it would seem that the person
arrested should not be allowed to raise any objection, though an
objection coming from the authorities of the country from which he
was abducted should be regarded.
SAME— INTERSTATE EXTRADITION.
26. Provision is made by the constitution of the United
States, by acts of congress in pursuance thereof, and by
auxiliary statutes in the different states, for the extradi-
tion of a person "charged" in one state with "treason,
felony, or other crime," who shall "flee from justice and
be found in another state."
27. In order that a person may be extradited —
(a) He must be judicially "charged" w^ith a crime
in the demanding state, as by indictment,
affidavit, or complaint.
(b) He must not be charged w^ith a crime against
the state on w^hich demand is made.
(c) He must have been in the demanding state, or
he cannot have "fled from justice." It is
sufficient, how^ever, if, having been in the de-
manding state, and having committed a crime
therein, he departed from it, though for other
reasons than to escape.
(d) A person may be extradited for any crime
against the laws of the demanding state.
28. By the weight of authority, a person may be tried
for a crime other than that for w^hich he was extradited.
29. By the weight of authority, also, the forcible abduc-
tion of a person from another state does not prevent his
trial and punishment.
The constitution of the United States provides that "a person
charged in any state with treason, felony, or other crime, who shall
186 In re Robinson, 29 Neb. 135, 45 N. W. 267; State v. Simmons, 39 Kan.
262, 18 Pac. 177; In re Cannon, 47 Mich. 481, 11 N. W. 280.
62 APPKEHENSION OF PERSONS AND PEOPEETY. [Ch. 2
flee from justice, and be found in another state, shall on demand
of the executive authority of the state from which he fled, be de-
livered up to be removed to the state having jurisdiction of the
crime." ^" To carry this provision into effect, congress has passed
an act providing substantially that vrhenever the executive of any
state shall demand any person, as a fugitive from justice, of the
executive authority of another state to which such person shall
have fled, and shall, moreover, produce the copy of an indictment
found, or an affidavit made before a magistrate of the demanding
state, charging the person so demanded with having committed
treason, felony, or other crime, certified as authentic by the govern-
or or chief magistrate of the demanding state,^** it shall be the
duty of the executive authority of the state on which the demand
is made to cause him or her to be arrested and secured, and notice
of the arrest to the executive authority making such demand, or
to the agent of such authority appointed to receive the fugitive, and
to cause the fugitive to be delivered to such agent when he shall
appear. But if no such agent shall appear within six months from
the time of the arrest, the prisoner may be discharged.^*' There
are further provisions which it is not necessary to mention. Our
purpose is to treat the subject only in a general way.
Auxiliary to this act, some of the states have enacted statutes
providing, among other things, for the arrest of fugitives from jus-
tice before demand by the state from which they have fled; while
in other states, on grounds of comity, such an arrest and detention
is allowed independently of statutory provision.^"" The executive
on whom demand is made, if he complies with it, usually issues his
18T Const. U. S. art. 4, § 2.
188 A statement of the commission of a crime, without a copy of an affidavit,
complaint, or indictment, is insufficient. In re Doo Woon, 18 Fed. 898; Ex
parte Pfitzer, 28 Ind. 451.
189 Rev. St. U. S. § 52T8.
190 Gom. V. Hall, 9 Gray, 262; Com. v. Tracy, 5 Mete. (Mass.) 536; Peo-
ple V. Schenck, 2 Johns. (N. Y.) 479; In re Fetter, 23 N. J. Law, 311; In re
€ubreth, 49 Cal. 435; People v. Wright, 2 Caines (N. Y.) 213; State v. Buzine,
4 Har. (Del.) 572; Com."V. Deacon, 10 Serg. & R. (Pa.) 125. But see Tullis v.
Fleming, 69 Ind. 15. Some courts have held such an arrest legal when made
without a warrant, and by a private person. Lavina v. State, 63 Ga. 513;
MorreU v. Quarles, 35 Ala. 544.
Ch. 2] FUGITIVES FROM JUSTICE. BiJ
warrant to the agent sent by the demanding executive, authorizing
him to arrest and transport the fugitive, or he may issue his war-
rant to an officer of his own state, directing him to arrest the fugi-
tive and turn him over to the agent of the demanding state.^^^
A fugitive cannot be surrendered, or even arrested, until pro-
ceedings have been commenced against him in the demanding
state, making, at least, a prima facie showing of guilt; or, as ex-
pressed in the constitution, until he is "charged" with a crime. A
complaint under oath, or an information, is suflflcient; there need
be no indictment.^ °^ If he is already actually charged with a
crime in the state upon which demand is made, he will not be sur-
rendered,^'^ though it is otherwise if he is merely amenable to a
charge, no charge having yet been made.*'*
It would seem clear, from the constitutional provision and act
of congress above mentioned, that the executive upon whom de-
mand is made should have no discretion in the matter; that he
cannot look beyond the requisition and the properly certified copy
of the charge against the person demanded, and proof as to the
identity of the person demanded, and the fact that he is a fugi-
191 There has been some conflict as to the requisites of the warrant. Some
of the cases seem to require that it shall set out the evidence necessary to
authorize the state executive to issue it. Church, Hab. Corp. § 474; Doo
Woon's Case, 18 Fed. 898. But the weight of authority is to the contrary.
"When the papers upon which a warrant of extradition is issued are with-
held by the executive, the warrant itself can only be looked to for the evi-
dence that the essential conditions of its issuance have been complied with,
and it is sufficient if it recites what the law requires." Donohue's Case, 84
N. Y. 438. It is sufficient if it recites the affidavit or indictment on which it
is based. It need not set it out in fuU nor be accompanied by it. Bx parte
Stanley, 25 Tex. App. 372, 8 S. W. 645, and cases there cited. It need not
show that the crime charged and recited in the demand is a crime in the
•demanding state. Ex parte Stanley, supra.
192 In re Hooper, 52 Wis. 699; 58 N. W. 741; Ex parte White, 49 Cal. 433;
Ex parte Sheldon, 34 Ohio St. 319; Ex parte Hart, 59 Fed. 894; State v. Huf-
ford, 28 Iowa, 391; Ham v. State, 4 Tex. App. 645; State v. Swope, 72 Mo.
399.
198 In re Troutman, 24 N. J. Law, 634; Taylor v. Talntor, 16 WaU. 366;
Taintor v. Taylor, 30 Conn. 242; Bx parte Hobbs, 32 Tex. Cr. R. 312, 22 S. W.
1035; Ex parte Sheldon, 34 Ohio St. 319; Work v. Corriagton, Id. 64; State
V. Allen, 2 Humph. (Tenn.) 258.
194 See the. cases above cited.
64 APPREHENSION OB' PERSONS AND PROPERTY. [Ch. 2
tive."" He should not receive eyidence and determine the ques-
tion of guilt or innocence of the crime charged,^"' nor should he
determine the technical sufficiency of the charge,^"'' or look into
the motive or purpose of the demanding executive, and so it has
been held;^°* but there are cases to the contrary.^®* However
this may be, the executive of the state upon which the demand is
made can determine the question for himself; that is, he has the
power, as distinguished from the right, to do so. If he thinks proper
to exercise a discretion in the matter, and to deny the requisition,
contrary to the act of congress, there is no way in which his action
can be controlled, for the federal government cannot control it.°°*
The executive on whom the demand is made may revoke his warrant
at any time before its execution, if he is satisfied that it ought not
to have been issued. ^"^
The words "other crimes," in the constitutional provision above
referred to, include all crimes under the common law or statutes
of the demanding state, though mere misdemeanors, and though
not crimes in, the state upon which the demand is made.^" The
lOB In re White, 5 C. O. A. 29, 55 Fed. 54.
19 8 In re White, supra.
19' State V. O'Connor, 38 Minn. 243, 36 N. W. 462; In re Voorhees, 32 N.
J. Law, 141; Davis' Case, 122 Mass. 324; Pearce v. State, 32 Tex. Or. R. 301,
23 S. W. 15. The information, complaint, or affidavit, however, must charge
a definite offense in the demanding state. State v. O'Connor, supra; Smith
V. State, 21 Neb. 552, 32 N. W. 594. An affidavit that affiant "has reason to
believe, and does believe," that the alleged fugitive committed a certain
crime, is not sufficient Ex parte Spears, 88 Cal. 640, 26 Pac. 608.
108 Work V. Corrington, 34 Ohio St. 64; In re Manchester, 5 Cal. 237; Kings-
bury's Case, 106 Mass. 223; In re Olarli, 9 Wend. (N. Y.) 212; Ex parte Reg-
gel, 114 U. S. 642, 5 Sup. Ct. 1148; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct.
291; Ex parte Swearingen, 13 S. C. 74. There are statutes in some of the
states making the surrender obligatory. See, also, Pearce v. Texas (U. S.
Sup.) 15 Sup. Ct. 116; In re Sultan (N. O.) 20 S. E. 375; In re Van Sceiver
(Neb.) 60 N. W. 1037.
190 Kentucky v. Dennison, 24 How. 66; Hartman v. Aveline, 63 Ind. 344;
Kimpton's Case, 13 Am. Law Rev. 157.
200 Kentucky v. Dennison, 24 How. 66; In re Manchester, 5 Cal. 237.
201 Work V. Corrington, 34 Ohio St. 64.
202 Kentucky v. Dennison, 24 How. 66; Ex parte Reggel, 114 U. S. 642, 5
Sup. Ct. 1148; Brown's Case, 112 Mass. 409; In re Clark, 9 Wend. (N. Y.) 212;
People V. Brady, 56 N. Y. 182; State v. Stewart, 60 Wis. 587, 19 N. W. 429;
Ch. 2] FUGITIVES FROM JUSTICE. 65
person demanded must have been within the demanding state, and
departed out of it, or there can have been no "fleeing," within the
meaning of the constitution. A person, therefore, who commits an
act without, taldng effect and constituting a crime within, a state,""*
but who has never been within the state, cannot be demanded of
the other state.^"* There need not, on the other hand, have been
an actual "fleeing from justice," as the term is popularly understood.
A man who while in one state commits a crime there, and after-
wards goes into another state, though for other reasons than to
escape, may be extradited.^"'
As we have seen, a fugitive extradited from a foreign country,
by virtue of provisions of a treaty between that country and the
In re Voorhees, 32 N. J. Law, 141; In re Fetter, 23 N. J. Law, 311; Johnston
V. Riley, 13 Ga. 97; Taylor v. Taintor, 16 Wall. 366; Roberts v. Eeilly, 116
TJ. S. 80, 6 Sup. Ct. 291; Com. v. Green, 17 Mass. 515; Davis' Case, 122 Mass.
324; Com. v. Johnston, 12 Pa. Co. Ct. R. 263; Morton v. Skinner, 48 Ind. 123;
Wilcox V. Nolze, 34 Ohio St. 520.
203 Clark, Or. Law, 364.
20* Jones V. Leonard, 50 Iowa, 106; Hartman v. Aveline, 63 Ind. 344; Ex
parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148; In re Greenough, 31 Vt. 279;
Jackson's Case, 12 Am. Law Rev. 602, Fed. Cas. No. 7,125; Wilcox v. Nolze,
34 Ohio St. 520; In re Mohr, 73 Ala. 503. Lately, a man standing in North
Carolina, by shooting across the boundary into Tennessee, killed a man in the
latter state. It was held that he could not be tried and punished in North
Carolina, as the murder was committed in Tj'ennessee. State v. Hall, 114 N.
C. 909, 19 S. E. 602. The authorities of Tennessee then sought to extradite
the offender, but the North Carolina court held that he could not be surren-
dered, since, never having been in Tennessee, he could not be a fugitive from
the justice of that state. State v. Hall (N. C.) 20 S. B. 729. In this case
the authorities are collected, and the question is considered at length. The
legislature could provide for a surrender in such cases. Id.
205 In re Voorhees, 32 N. J. Law, 141; Kingsbury's Case, 106 Mass. 223; In
re White, 5 C. C. A. 29, 55 Fed. 54; In re Mohr, 73 Ala. 503; Ex parte Brown,
28 Fed. 653; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291; State v.
Richter, 37 Minn. 436, 35 N. W. 9. It has even been held that where a per-
son starts a bank in which he is an officer, and the business of which is un-
der his control, and afterwards goes to another state, and allows the bank,
while to his knowledge in an insolvent condition, to receive a deposit, in vio-
lation of the law of the state, he is guilty of the offense, though not in the
state at the time of the deposit or afterwards, and is a fugitive from the jus-
tice of that state. In re Cook, 49 Fed. 833. See, also, In re Sultan (N. C.)
20 S. E. 375.
ciiiM.rnoc. — 5
66 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2
tJnited States, cannot be tried for an offense other than that for
■which he was extradited. A few courts have held that the same
rule applies in the case of interstate extradition;^"* but the great
weight of authority is to the effect that "a fugitive from justice,
surrendered by one state upon the demand of another, is not pro-
tected from prosecution for offenses other than that for which he
was rendered up, but may, after being restored to the demanding
state, be lawfully tried and punished for any and all crimes com-
mitted within its territorial jurisdiction, either before or after ex-
tradition." ="
What we have said as to the right of one country to try and pun-
ish a person forcibly abducted from another, applies also where a
person is forcibly abducted from one state and brought into an-
other.""*
SEARCHES AND SEIZURES OF PROPERTY.
30. At common la'nr, as "well as by statute in most states,
a magistrate, to recover stolen property or procure evi-
dence of a crime, may issue a w^arrant directing a search
-for, and seizure of, property.
208 State V. Hall, 40 Kan. 338, 19 Pac. 918; Ex parte McKnight, 48 Ohio St.
588, 28 N. E. 1034; In re Cannon, 47 Mich. 481, 11 N. W. 280; In re Fitton, 45
Fed. 471.
2 07 Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687; Id., 90 Ga. 347, 16 S.
"B. 945; State v. Stewart, 60 Wis. 587, 19 N. W. 429; People v. Cross, 64 Hun,
348, 19 N. Y. Supp. 271, 135 N. Y. 536, 32 N. E. 246; Com. v. Wright, 158 Mass.
149, 33 N. E. 82; State v. Patterson, 116 Mo. 505, 22 S. W. 696; Harland v.
Territory, 3 Wash. T. 131, 13 Pac. 453; Williams v. Weber, 1 Colo. App. 191.
28 Pac. 21; Ham v. State, 4 Tex. App. 645; State v. Glover, 112 N. C. 896,
17 S. E. 525; People v. Sennott, 20 Alb. Law J. 230; Hackney v. Welch. 107
Ind. 253, 8 N. E. 141. But see Waterman v. State, 116 Ind. 51, 18 N. E. 03,
in which the conti-ary seems to be assumed; Musgrave v. State, 133 Ind. 297,
32 N. E. 885; State v. Kealy (Iowa) 50 N. W. 283; Reid v. Ham, 54 Minn.
305, 56 N. W. 35. Note 185, supra. Where fraud or imposition is practiced
upon the executive of the state from which a fugitive is extradited, the courts
Or the demanding State will discharge the prisoner. Harland v. Territoiy,
s«pra. See, also, Carr v. State (Ala.) 16 South. 150.
«0 8 Notes 184-186, supra.
Ch. 2] SEARCHES AND SEIZURES OP PROPERTY. 67
31. To authorize the issuance of such a -warrant, the same
preliminary proceedings are generally necessary as are
necessary to procure a -wrarrant of arrest.
32. The requisites of a search warrant are generally the
same as the requisites of a •warrant of arrest, except as
the diflference in the purpose of the w^arrant renders them
different. A search warrant —
(a) Must accurately describe the person w^hose place
is to be searched, the place, and the property
to be seized.
(b) It must command the property to be brought be-
fore the magistrate.
(c) It must generally, both at common law and by
statute, direct the search to be made in the day-
time. In special cases it may direct a search
in the nighttime.
33. A search warrant w^ill protect the oflficer or person
executing it under the same circumstances as a warrant
of arrest will protect him.
The constitution of the United States declares that the people
shall be secure iu their persons, houses, papers, and possessions,
from unreasonable arrests, and that no warrant to search any place,
or seize any person or thing, shall issue without describing them as
Qearly as may be, nor witliout probable cause supported by oath
or affirmation. This proYision does not apply to searches and sei-
zures under authority of the states,^"" but the state constitutions
contain the same or a similar restriction. The provision is sub-
stantially a declaration of the common law. It does not prohibit
such searches and seizures as were authorized by the common law,
nor does it prohibit statutes authorizing reasonable searches and
seizures in cases not within the common law.^^" It does, however,
prohibit unreasonable searches and seizures, even under legislative
authority, for a statute in violation of the constitution is void.
200 Reed v. Rice, 2 J. J. Marsh. (Ky.) 44.
210 Com. V. Dana, 2 Mete. (Mass.) 336; Allen v. Staples, 6 Gray (Mass.) 491;
Santo V. State, 2 Iowa, 165.
68 APPREHENSION OF PERSONS AND PROPERTY. [Ch 2
At common law, in order to recover stolen property, or, it seems,
to procure evidence of a crime, a magistrate, on a proper complaint,
may issue a warrant directing the oflficer, or, as held by sOme courts,
a private person,^^^ to whom it is addressed, to make a search for
and seize the property described in the warrant." ^^ Such warrants
are expressly authorized by statute in most of the states, and in
addition to this there are statutes authorizing search warrants in
cases not covered by the common law, such as warrants to search
for and seize intoxicating liquors, lottery tickets, gambling ap-
paratus, etc., kept in violation of law.
Not only under the statutes and the constitutional provision men-
tioned above, but also at common law, to authorize the issuance of a
search warrant, there must be a complaint on oath or aflflrmation.
This is essential. The usual form of a complaint for the purpose of
obtaining a warrant to search for stolen property is for the com-
plainant to aver in direct terms the fact that the property has been
stolen, and then to aver that he hath cause to suspect, and doth
suspect, that it is secreted in the house or place proposed to be
searched."^^ The form of the complaint * in statutory cases is gen-
erally regulated by the statute. The facts inducing suspicion should
be stated so that the magistrate may determine whether there is
211 Meek V. Pierce, 19 Wis. 300; ante, p. 33.
212 1 Cliit Cr. Law, 03; Bell t. Clapp, 10 Johns. (N. Y.) 263; State v. Miller,
48 Me. 576; Allen v. Colby, 47 N. H. 544.
213 Com. V. PhiUips, 16 Pick. (Mass.) 214.
* The following is a form of complaint to procure a warrant to search for
and seize stolen property, and to arrest the person in whose possession it is
found:
State (or Commonwealth) of , County of , to wit:
A. B., upon oath, complains that on the day of . A. D. , in
the county aforesaid, one overcoat of the value of twenty-five dollars, of the
goods and chattels of the said A. B., was feloniously stolen, taken, and car-
ried away from him by C. D., and that he has just cause to suspect, and
does suspect, that the said property is concealed in the dwelling house of the
said C. D., at , in said county.
The said A. B. therefore prays that the said dwelling house may be searched,
and the said stolen property seized and disposed of according to law, and that
the said C. D. may be apprehended and dealt with according to law.
Dated this day of , A. D. . [Signed] A. B.
(Here follows the jurat of the justice as in the form on page 24, ante.)
Oh. 2] SEARCHES AND SEIZURES OP PROPERTY. 69
probable cause, for, in the absence of this, a warrant cannot be
issned.^^* Tbe warrant f should show that the necessary complaint
under oath or affirmation was made.^^" Some courts hold that it
must be under seal, but, as we have seen, there is a conflict on this
point.^^°
General search warrants, like general warrants of arrest, are
void. To be valid, the warrant must accurately describe the per-
son whose place is to be searched, the place, and the things to be
seized.^^^ No other place than that described can be searched,^^'
21* 1 Chit. Cr. Law, 64; Sandford v. Nichols, 13 Mass. 286; Com. v. Lottery
Tickets, 5 Cush. (Mass.) 369.
tThe following is a form of a search warrant. But the form may differ
In the various states:
State (or Commonwealth) of , County of , to wit:
To the Sheriff or any Constable of said County:
Whereas, A. B., of the county aforesaid, has this day made complaint on
oath, before me, X. Y., a justice of the peace of said county, that on the
day of — , A. D. , in said county, one overcoat, of the value
of twenty-five dollars, of the goods and chattels of the said A. B., was felo-
niously stolen, taken, and carried away by C. D., and that he has just cause
to suspect, and does suspect, that the said property is concealed In the
dwelling house of the said C. D., at , in said county.
Now, therefore, you are commanded to search the said dwelling house, and
seize said stolen property, and bring the same, and the said C. D., the person
In whose possession it is found, before me at my oflQce in said county, to be
disposed of and dealt with according to law.
Given under my hand and seal this day of , A. D. .
[Signed] X. Y., J. P. [Seal.]
215 state V. Staples, 37 Me. 228; State v. Carter, 39 Me. 262; Jones v.
Fletcher, 41 Me. 254.
216 People V. Holcomb, 3 Parker, Cr. R. (N. Y.) 656; ante, p. 28.
217 Reed V. Rice, 2 J. J. Marsh. (Ky.) 44; Sandford v. Nichols, 13 Mass. 286;
Grumon v. Raymond, 1 Conn. 40; Humes v. Taber, 1 R. I. 464; People v.
Holcomb, 3 Parker, Cr. R. (N. Y.) 656; Santo v. State, 2 Iowa, 165; Meek v.
Pierce, 19 "Wis. 300; Stone v. Dana, 5 Mete. (Mass.) 98; Ashley v. Peterson,
25 Wis. 621; Dwinnells v. Boynton, 3 Allen (Mass.) 310; Com. v. Intoxicating
Liquors, 109 Mass. 371; Com. v. Intoxicating Liquors, 115 Mass. 145; Jones
V. Fletcher, 41 Me. 254; Flaherty v. Longley, 62 Me. 420; Tuell v. Wrink, 6
218 See the cases above cited; and see State v. Spencer, 38 Me. 30; Jones
V. Fletcher, 41 Me. 254; McCllnchy v. Barrows, Id. 74; State v. Thompson,
44 Iowa, 399. But see Dwinnells v. Boynton, supra.
70 APPREHENSION OF PERSONS AND PROPERTY. [Gh. 2
and it has been held that no other property than that described can
be seized."" It has been held sufficient, where the warrant and the
complaint on which it is issued are on the same paper, for the war-
rant to refer to the complaint for a description of the property
to be seized.^^"
The warrant must command that the property to be seized shall
be brought before the magistrate, to be disposed of according to
law. It is Toid if it leaves the disposition of the property to the
ministerial officer.^"
The rules in regard to breaking doors in executing a search war-
rant are substantially the same as those stated in treating of arrest
under a warrant. As a rule, locks should not be broken until the
keys are demanded and refused, provided there is any person at
hand upon whom demand may be made.^^^
The statutes authorizing search warrants must in all cases be
strictly complied with. Some of the statutes, for instance, require
the complaint to be fully set forth in the warrant, and a warrant
failing to comply with the statute, as where it fails to name the
complainants, is void.^^*
It is possible that a search warrant may direct a search to be
made in the nighttime, but it is doubtful, except in cases of special
necessity.^^* However this may be, the statutes very generally re-
quire that searches shall be made in the daytime only, except in
special cases.''^' Where they allow a search in the nighttime, it
may, of course, be made.^^°
BlacM. (Ind.) 249; State v. Whiskey, 54 N. H. 164. For descriptions of prop-
erty held sufficient, see State v. Fitzpatrick, 16 R. I. 54, 11 Atl. 773. For de-
scription of premises held sufficient, see Com. v. Intoxicating Liquors, 146
Mass. 509, 16 N. E. 298.
219 Orozier v. Cundey, 6 Barn. & C. 232, 9 Dowl. & R. 224; Stone v. Dana.
5 Mete. (Mass.) 98.
220 Com. V. Dana, 2 Mete. (Mass.) 329.
221 Cooley, Const. Lim. 369.
222 Androscoggin v. Richard, 41 Me. 233.
223 Guenther v. Day, 6 Gray (Mass.) 490. And see Hussey v. Davia. 58 N.
H. 317.
224 2 Hale, P. C. 150.
22 0 Cooley, Const. Lim. 369.
22 6 Com. V. Hinds, 145 Mass. 182, 13 N. B. 397.
Ch. 2] TAKING PROPERTY FROM PERSON ARRESTED. 71
A search warrant will protect the ofQcer executing it under the
same circumstances as a warrant of arrest will protect him. In-
deed, the rules stated in treating of warrants of arrest are generally
applicable to search warrants, except in so far as the difference in the
object of the warrant may make them inapplicable.
TA.KING PROPERTY FROM PERSON ARRESTED.
34. Property found in the possession of a person arrested
cannot be taken from him and turned over to the magis-
trate, unless it -was apparently used in committing the
crime, or is the fruit of the crime, or furnishes the prisoner
the means of committing violence or escaping, or may be
used as evidence.
If personal property, found in the possession of a person when
he is arrested, was apparently used by him in the commission of the
crime, or if it was obtained by the crime, or if by its means the
prisoner may commit Tiolence, or effect an escape, or if it may be
used as evidence against him, it is lawful for the person making
the arrest to take it from him; '^" but a prisoner cannot be de-
prived of his money or other property if it is in no way connected
with the charge or proof against him, or may not be used by him in
violence or in escaping. "To take away the party's money in such
cases is to be deprive him of the lawful means of defense." ^^^ The
fact, however, that property has been illegally obtained from a per-
son, renders it none the less competent evidence against him.''^"
22T1 Bish, Cr. Proc. §§ 210-212; Reifsnyder v. Lee, 44 Iowa, 101; Commer-
cial Exch. Bank v. McLeod, 65 Iowa, 665, 19 N. W. 329, and 22 N. W. 919;
Houghton V. Bachman, 47 Barb. (N. T.) 388; Rex v. Burgiss, 7 Car. & P.
488.
2 28 Reg. V. McKay, 3 Crawf. & D. 205; Rex v. Kinsey, 7 Car. & P. 447;
Rex V. O'Donnell, Id. 138; Rex v. Jones, 6 Car. & P. 343; Commercial Exch.
Bank v. McLeod, supra; Welch v. Gleason, 28 S. C. 247, 5 S. E. 599.
228 Post, p. 538; State v. Plynn, 36 N. H. 64.
72 FEELIMINAEY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
CHAPTER III.
PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT.
35. Preliminary Examination.
36. Bail— In General.
37-38. Right to Release on Ball.
39. Sufficiency of Bail.
40. Remedy on Denial of BalL
41. The Ball Bond or Recognizance.
42. Release of Sureties.
43. Breach of Bond or Recognizance, or Forfeiture of BalL
44. Commitment.
45. Habeas Corpus.
PRELIMINARY EXAMINATION.
35. Both at common law, and very generally by stat-
utes in tlie different states, a person arrested on a charge
of crime is entitled to a preliminary examination before
a proper magistrate, ■without unnecessary delay, to deter-
mine -whether a crime has in fact been committed, and, if
so, -whether there is probable cause to suspect that he is
guilty. Without such an examination as soon as the cir-
cumstances will permit, the detention of the accused will
be unla"wful.
EXCEPTIOITS— (a) The right to an examination may
be w^aived by the accused.
(b) An examination is not necessary w^here the ac-
cused is a fugitive from justice.
(c) A coroner's inquest and commitment in homicide
cases is equivalent to an examination before a
magistrate, in the absence of a statutory pro-
vision to the contrary.
(d) If an indictment against the accused has been
found by the grand jury, an examination be-
fore a magistrate is not necessary.
ph. 3] PEELJMINARY EXAMINATION. 73
When an offender or suspected offender has been arrested in any
of the modes mentioned in the preceding chapter, he must, as soon
as the circumstances will permit, be taken before a proper magis-
trate, and given a preliminary hearing or examination, for the pur-
pose of determining whether there is sufficient ground for detaining
him for trial. In most of the states, if not in all of them, it is so
provided by statute, but, independently of any statutory provision
on the subject, a preliminary examination is necessary at common
law. If it is denied the accused, or if it is illegally conducted, his
detention will be unauthorized.^
There are some exceptions to this rule. In the first place, the
right to an examination is a right which the accused may waive.''
The waiver, however, to be effective against him, must have been
made freely. A waiver under fear of personal violence cannot
estop him.' Generally, it is provided that informations may be
filed without a preliminary examination, vhere the accused is a
fugitive from justice.*
In the absence of statutory provision to the contrary, the accusa-
tion returned by a coroner's jury upon an inquisition, and the com-
mitment by the coroner, have the force and effect of an examina-
tion and commitment by a magistrate, though the inquisition was
held in the absence of the accused. At common law, the accused
can be tried on such an accusation. It is equivalent to an indict-
ment." This, of course, can apply only in cases of homicide.
The examination before a magistrate has nothing to do with the
finding of an indictment against the accused by the grand jury, un-
1 Simmons v. Vandyke (Ind. Sup.) 37 N. E. 973; State v. Devine, 4 Iowa,
443 J Papineau v. Bacon, 110 Mass. 319; State v. Miller, 31 Tex. 564; Jack-
son V. Com., 23 Grat. (Va.) 919.
2 State V. Cobb, 71 Me. 198; Stuart v. People, 42 Mich. 255, 3 N. W. 863;
In re Secrest, 36 Kan. 729, 14 Pac. 144; Butler v. Com., 81 Va. 159; Cowell
v., Patterson, 49 Iowa, 514; State v. Mays, 24 S. C. 190; Benjamin v. State,
25 Fla. 675, 6 South. 433; McCoy v. State, 46 Ark. 141; Washburn v. People,
10 Mich. 372; People v. Jones, 24 Mich. 215; People v. Wright, 89 Mich. 70,
60 N. W. 792. But see Ex parte Ah Bau, 10 Nev. 264.
8 In re Secrest, supra.
* People V. Kuhn, 67 Mich. 463, 35 N. W. 88; State v. Woods, 49 Kan. 237,
SO Pac. 520.
5 Ex parte Anderson, 55 Ark. 527, 18 S. W. 856; Com. v. LafEerty, 11 Pa.
Co. Ct. R. 513; post, p. 130.
74 PKELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
less by reason of statutory provisions, as, for instance, where an in-
dictment is allowed to be based upon the minutes of the preliminary
examination. The two proceedings are entirely distinct. The fact,
therefore, that the grand jury are investigating the charge against
the accused does not deprive him of his right to an examination
before a magistrate to determine whether he should be held to
await the decision of the grand jury.* A discharge by the magis-
trate would not prevent an indictment by the grand jury; and an
indictment would itself authorize or require detention of the ac-
cused, so that after an indictment an examination would be an idle
ceremony, and therefore unnecessary.
It is required, both by the statutes and at common law, that the
examination shall be had without any further delay than the cir-
cumstances render unavoidable.'' Unnecessary delay will render
the detention of the accused a false imprisonment." If necessary,
the hearing may be adjourned from time to time. The length of
time is very generally limited by statute; but, even at common law,
an adjournment for an unnecessary length of time is unlawful.*
In no case, unless a statute should expressly so permit, which is
very improbable, can the hearing be adjourned to await the mere
convenience of the magistrate or the prosecuting oflScers.^"
« State V. Recorder, 42 La. Ann. 1091, 8 South. 279.
7 Scavage v. Tateham, Cro. Ellz. 829; In re Peoples, 47 Mich. 626, 14 N.
W. 112; Davis v. Capper, 10 Barn. & C. 28; Wright v. Court, 4 Bam. & C.
596; State v. Freeman, 86 N. C. 683; and see cases hereafter cited. If a
prisoner cannot he brought before a magistrate on the night of his arrest
the officer may place him in jail for the night. Wiggins v. Norton, 83 Ga.
148, 9 S. E. G07. See further, as to necessary delay, Arnold v. Steeves, 10
Wend. (N. Y.) 515; Wheeler v. Nesbitt, 24 How. 544. A party may waive
his right to be immediately taken before a magistrate. Nowak v. Waller,
56 Hun, 647, 10 N. Y. Supp. 199.
8 Tubbs V. Tuliey, 3 Cush. (Mass.) 438; Davis v. Capper, supra; State v.
Kruise, 32 N. J. Law, 313.
» Day is v. Capper, supra; Hamilton v. People, 29 Mich. 173; Pardee v.
Smith, 27 Mich. 43. An adjournment for an unreasonable time, or for a
greater length of time than is fixed by statute, may render the magistrate
and the officer having the custody of the accused guilty of false imprison-
ment. Davis V. Capper, supra.
10 In re Peoples, supra. Absence of the county attorney from the county,
when a warrant is returned to a justice, is ground for a reasonable con-
Unuance. State v. Nerbovig, 33 Minn. 480, 24 N. W. 321.
Ch. 3] PEELIMINAEY EXAMINATION. 75
Before Whom.
At common law, and by the statutes in most of the states, the
officer may, unless the warrant directs otherwise, take his prisoner
either before the magistrate who issued the warrant, or before any
other magistrate having jurisdiction of the offense.^^ In other
states he can only take him before the magistrate who issued the
warrant, unless he is absent, in which case he may take him before
some other magistrate.^^
In some states the statutes provide for a change of venue to
some other justice on the ground of prejudice, or for other rea-
sons; ^^ but in others, where the statutes providing for a change of
venue from one justice to another do not expressly mention pre-
liminary examinations, it has been held, on a construction of them,
that they do not apply to such examinations, but only to actions or
proceedings which the justice has power to try and determine.**
Mode of Conducting Examination.
The mode in which a preliminary examination must be conducted
is almost entirely regulated by statute, and these statutes must be
strictly followed, or the proceedings will be void.**
Same — Complaint.
It is generally required that a complaint shall be made against
the accused. Where the accused has been arreste'd by warrant,
the complaint made for the purpose of procuring the issuance of
the warrant serves, in most states, as the complaint for the purpose
of the examination. A complaint is just as necessary where the
arrest has been made without a warrant.*^
In some states it is held, however, that, as the complaint or affi-
davit made for the purpose of procuring an arrest is merely for the
11 Foster's Case, 5 Coke, 59; Com. v. Wilcox, 1 Cush. (Mass.) 503; Wiggins
V. Norton, 83 Ga. 148, 9 S. B. 607; ante, p. 57.
12 Batchelder v. Currier, 45 N. H. 460; People v. Fuller, 17 Wend. (N.
Y.) 211.
IS State V. Sorenson, 8-1 Wis. 27, 53 N. W. 1124.
14 Duffles V. State, 7 Wis. 567; State v. Bergman, 37 Minn. 407, 34 N. W.
787.
15 State V. Devine, 4 Iowa, 443; Papineau v. Bacon, 110 Mass. 319; Jack-
son V. Com., 23 Grat. (Va.) 919.
16 Tracy v. Williams, 4 Conn. 107. No warrant need be issued, however,
as that would be unnecessary. Ante, p. 39.
76 PEELIMINAUY EXAMIKATION, BAIL, AND COMMITMENT. [Ch. 3
purpose of satisfying the magistrate that a crime has been com-
mitted and that there is probable cause to suspect the accused,
if it is defective it will not invalidate the subsequent examination
and commitment of the accused; that the accused can only avail
himself of defects therein before his examination and commit-
ment.^' And it is also held that if, upon the examination, it is
found that the accused is probably guilty of an offense other than
that charged in the complaint, he should not for that reason be dis-
charged. It is the duty of the magistrate to commit him for trial
for the offense disclosed by the evidence.^*
Even when a complaint is essential, yet where it is insufficient,
because it fails to charge an offense, or because it does not charge
the particular offense of which the evidence shows the accused is
probably guilty, or for any other reason, the magistrate is not bound
to discharge him, but may hold him until a new complaint is made.^"
In some states the complaint made for the arrest and examina-
tion of the accilsed is of no force after the warrant of arrest is is-
sued. The examination is had upon the warrant, and not upon the
complaint.
Same — Attorneys for the State and for the Accused.
The state is generally, but not necessarily, represented at the
hearing by the prosecuting attorney. The prosecutor, unless it is
prohibited by law, may also employ private counsel to assist.^" At
common law it was held that the accused had no right to be repre-
sented by counsel, since the proceeding is a preliminary investiga-
tion only, and not conclusive upon him;^^ but by constitutional
provisions and by statute in most of the states he is given this
right."*
Same — Presence of Accused.
Probably at common law the accused could not insist on being
present at the hearing, but it is very generally provided by statute
that the examination shall be conducted in his presence.^*
IT People V. Smith, 1 Cal. 9.
18 People V. Smith, supra.
18 See State v. Shaw, 4 Ind. 428.
2 0 People V. Grady, 66 Hun, 465, 21 N. T. Supp. 381.
21 Cox V. Coleridge, 1 Barn. & C. 37.
22 Post, p. 432.
2 3 See post, p. 423.
Ch. 3] PRELIMINARY EXAMINATION. 77
Same — Intimidation and Restraint of Accused.
The accused, when brought before a magistrate for his examina-
tion, should not be subjected to intimidation or unnecessary personal
restraint. He should not be handcuffed or otherwise bound, unless
he is unruly.^* The mere fact, however, that he was handcuffed
when he waived his examination will not affect the validity of a
subsequent indictment^''
Same — Examination of Witnesses.
At common law witnesses for the accused are not necessarily ex-
amined at the preliminary hearing, and the accused probably cannot
insist upon their being examined;^* but the better practice, is to
examine them if the accused asks it, and if their testimony may aid
in determining whether there is probable cause.^' In some states
the statute expressly provides that the witnesses produced by the
accused shall be examined. The accused is also allowed by statute,
though not at common law, to cross-examine the witnesses against
him.
It is generally provided by statute that the magistrate, while ex-
amining any witness, may in his discretion exclude from the place
of examination all the other witnesses; and that he may also, if
requested, or if he sees cause, direct the witnesses for or against
the accused to be kept separate, so that they cannot converse with
each other until they are examined. This discretionary power has
always existed at common law. It is provided in most states that
the testimony of the witnesses examined shall be reduced to writ-
ing by the magistrate, or under his direction, and shall be signed
by the witnesses. A failure in this respect will be fatal to all sub-
sequent proceedings, where the subsequent prosecution is bv in-
formation,^^ though it would not render an indictment invalid, or
affect the validity of proceedings thereon. In some of the states
24 2 Hawk. P. C. c. 28, § 1; Britt. c. 5, fol. 14; The Union, c. 5, § 1 (54):
State v. Krin^r, 64 Mo. 591; People v. HaiTin^on, 42 Cal. 165. But see
Layer's Case, 16 How. State Tr. 130.
2B State v. Lewis, 19 Kan. 260.
2 8 See IT. S. v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16,685.
27 Whart. Or. PI. & Prac. § 72; Anon., 2 Car. & K. 845.
2 8 People V. Chapman, 62 Mich. 280, 28 N. W. 896. Failure in this respect
cannot be cured by amendment, after the justice has made his return to the
circuit court. People v. Chapman, supra. Where the testimony was reduced
78 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
the statute does not require the testimony of the witnesses to be re-
duced to writing, and, where this is so, it is not necessary to do so."
It is not necessary to do so unless the statute requires it
Same — Examination of Accused.
It is provided by the constitutions of the United States, and of
most if not all the states, that no person shall be compelled to be
a witness against himself in a criminal case, and the accused, there-
fore, cannot be examined as a witness unless he chooses to submit
to examination.'" At common law he was not allowed to be a wit-
ness in his own defense, but his incompetency in this respect has
been very generally removed by statute, and he can now testify in
his own behalf on his preliminary examination.'^ When he does
so, he becomes, like any other witness, subject to cross-examination
by the attorney for the state, and, as we shall see, his testimony may
be used against him at his trial.'*
Same — Statement of Accused.
Not only by statute in some states, but also at common law, or
by early English statutes which are old enough to be a part of our
common law," the accused is entitled, but cannot be compelled, to
make a statement not under oath.'* In a few states he may be
cross-examined. This statement may be used against him at the
trial,"* and the magistrate must so inform him. Failure to caution
to writing and signed, failure to read it to the witnesses Is waived by not
objecting to the filing of the information. People v. Gleason, 63 Mich. 626,
30 N. W. 210.
2s Redmond v. State, 12 Kan. 172.
so Post p. 540.
51 State V. Kinder, 96 Mo. 548, 10 S. W. 77. Post, p. 543.
52 Post, p. 546.
53 Rex V. Fagg, 4 Car. & P. 566; Rex v. Green, 5 Car. & P. 312. His state-
ment ought not to be taken until after the evidence against him is all re-
ceived, and then he should be aslied if he has anything to say in answer to
the charge. Rex v. Fagg, supra.
s* If the statement is under oath, It cannot be used against him. Rex v.
Smith, 1 Starlile, 242; Rex v. Rivers, 7 Car. & P. 177; Reg. v. Pikesley, 9
Car. & P. 124.
SB Post, p. 528. Where two prisoners are taken before a magistrate, and
both make a statement, the statement of one cannot be used against the
other on the trial. Reg. v. Swinnerton, 1 Car. & M. 503.
Ch. 3j PRELIMINARY EXAMINATION. 79
him in this respect will render the statement inadmissible against
him.'*
Same — Suffidmcy of Evidence.
Neither at common law nor by statute is the same degree of proof
required in order that the magistrate may commit or bind over the
accused to await action by the grand jury, or to await trial, as is nec-
essary to convict him on his trial. The rule at common law is stated
by Blackstone to be that if "it manifestly appears either that no
such crime was committed, or that the suspicion entertained of the
prisoner was wholly groundless, in such cases only is it lawful to
discharge him. Otherwise he must be either committed to prison
or give bail." °^ With us, however, more evidence is required. The
statutes generally provide that the magistrate must find that an
offense has been committed, and that there is probable cause to be-
lieve the accused guilty;'^ and, even in the absence of such a pro-
vision, the evidence should show this much." It need not, either
at common law or under the statutes, show more.*"
Statutes providing that the magistrate shall examine the com-
plainant and his witnesses on oath are held directory as to the quan-
tity of testimony to be taken. They mean that the magistrate shall
receive such testimonv from the complainant and his witnesses as
may be offered.*^
Same — Binding Over the Witnesses.
At common law, in cases of felony, the magistrate may require
the material witnesses for the prosecution to enter into recogni-
zances to appear at the trial of the accused, and if they cannot find
security they may be committed to jail.*'' In some of our states,
by statute, the power of the magistrate in this respect extends to
38 Rex V. Green, 5 Car. & P. 312; post, p. 528.
37 4 Bl. Comm. 296; Bostick v. Rutherford, 4 Hawks (N. C.) 90; Ex parte
Bell, 14 Rich. (S. C.) 13.
us Where it is so provided, the record of the magistrate should show the
existence of these conditions. State v. Tennison, 39 Kan. 726, 18 Pac. 948.
8 9 State V. Hartwell, 35 Me. 129; Burr's Trial, 11, 15; Whart. Cr. PI. & Prac
§ 73; Yaner v. People, 34 Mich. 286; Reg. v. Johnson, 2 Car. & K. 394;
Anon., Id. 845.
40 People V. Sherman (Cal.) 32 Pac. 879, and cases cited above.
41 People V. Curtis, 95 Mich. 212, 54 N. W. 767.
4 2 2 Hawk. P. C. c. 10, § 2.
80 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
misdemeanors.** In some states the hardship resulting from this
rule, where witnesses are unable to find sureties, has induced the
legislature to pass statutes requiring them to be allowed to go at
large on their own recognizance.
Same- — Decision of Magistrate and Return.
If the magistrate deems the evidence insufficient to show prob-
able cause for holding the accused, he must discharge him. This
discharge, however, will not prevent another complaint and exam-
ination for the same offense.** If, on the other hand, the magis-
trate determines that he should hold the accused for trial, he must
make an order to that effect, and must fix the amount of bail, if the
offense is bailable. The question of bail and the commitment will
be presently explained.
The statutes generally require that the magistrate shall certify
the examination and proceedings, and return the same to the clerk
of the court before which the accused is bound to appear, and a
proper return is generally essential to the validity of an informa-
tion filed in the higher court, and to the jurisdiction of the higher
court thereon.*"
Effect of Want of Examination or Irregularities Therein.
It is not every irregularity in the preliminary examination that
will affect the subsequent proceedings against the accused. Fail-
ure to grant the accused a preliminary hearing, as we have already
seen, or irregularities at the hearing, cannot affect the validity of
an indictment against him; for the right of the grand jury to in-
vestigate a charge and present an indictment in no way depends
upon a preliminary examination.*^ In some states an indictment
is allowed to be founded on the minutes of a preliminary examina-
tion, and the rule there would be different.*'
*3 Markwell v. Warren Co., 53 Iowa, 422, 5 N. W. 570.
44Templeton v. People, 27 Mich. 501; State v. Ritty, 23 Ohio St. 562;
Cowell V. Patterson, 49 Iowa, 514; Ex parte Walsh, 39 Cal. 705; State v.
Jones, 16 Kan. 608.
*5 As to the sufficiency of the return, see People v. Dowdigan, 67 Mich. 95,
38 N. W. 920.
*8 Osborn v. Com. (Ky.) 20 S. W. 223; Slate v. Schieler (Idaho) 37 Pac.
272. Contra, Com. v. Hughes, 11 Pa. Co. Ct. R. 470.
47 See State v. Wise, 83 Iowa, 596, 50 N. W. 59; State v. Helvin, 65 Iowa,
289, 21 N. W. 645.
Ch. 3] PRELIMINARY EXAMINATION. 81
In those states, however, where the prosecuting attorney is al-
lowed to file an information against the accused in lieu of an in-
dictment, the preliminary examination is intended to taJie the place
of a presentment by the grand jury, and furnish the same protection
against prosecutions without cause. Here a proper preliminary
examination, unless it is waived,** is not only a right of the accused,
but is essential to the validity of an information upon which he is
to be tried.** In such jurisdictions, where the statute requires the
examining justice to hold the accused to answer, when he is satis-
fled that an offense has been committed, and that there is probable
cause to believe the accused guilty, it has been held that the de-
cision of the justice on these points is a judicial determination nec-
essary to the jurisdiction of the higher court, and that an informa-
tion filed in the higher court before any return has been made,
showing such a decision by the justice, should be quashed, and this,
notwithstanding a proper return is made pending the motion to
quash. ^''
Presumption of Regularity of Proceedings.
The proceedings before the magistrate are presumed to have been
regular."^ Where a statute, for instance, allows a magistrate to
try a complaint where the punishment may be within or beyond his
jurisdiction to try, and to bind over the accused for trial in the
higher court if in his opinion the offense is so aggravated as to re-
quire a greater punishment than he can impose, his record need
not show that the offense was so aggravated as to require binding
over, for the presumption in favor of his judgment binding him over
will supply the omission.^^ So, also, where the testimony at the
preliminary examination is not required to be, and is not, reduced
to writing, it will be presumed, in the absence of any showing to the
«8 Stuart v. People, 42 Mich. 255, 3 N. W. 863; ante, p. 78.
49 O'Hara v. People, 41 Mich. 623, 3 N. W. 161; People v. Evans, 72 Mich.
367, 40 N. W. 473.
BO People v. Evans, supra. It has been held, however, that, where the jus-
tice's return fails to show a waiver of examination, the court may order a
further return, and when it is made the information will be upheld. People
V. Wright, 89 Mich. 70, 50 N. W. 792.
51 Boynton v. State, 77 Ala. 30.
B2 State V. Watson, 56 Conn. 188, 14 Atl. 797. But see People v. Evans,
72 Mich. 367, 40 N. W. 473.
CKIM.PKOC. — 6
82 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
contrary, that it was suflQcient to authorize the decision of the mag-
istrate, whatever that decision may be.°'
Waiter of Objections.
As we have seen, the accused may waive his right to a prelimi-
nary examination. He may also, though he has not waived an ex-
amination, waive the objection that he was not given one, and he
may waive any irregularities in the examination. As a rule, he
will be deemed to have waived them if he has failed to make objec-
tions at the proper time. If, for instance, he enters into a recog-
nizance, or gives a bail bond, for his appearance at court to stand
his trial, without making any objection to the suflBciency of the
warrant on which he was arrested, or the suflflciency of the com-
plaint or information on which he is held, he waives any defects in
this respect.^* Giving bail is also a waiver of any irregularity in
the order of commitment.' °
Failure to plead in abatement in the trial court is a waiver of the
objection that there has been no preliminary examination. °° And,
generally, objections to matters of form in the commitment proceed-
ings are waived, if not raised before plea and trial."'
Power to Convict and Punish.
In all the states magistrates have exclusive jurisdiction to try
and punish for certain petty offenses. In some states they have
concurrent jurisdiction with the higher court over certain offenses.
They act in a twofold capacity, — the one, that of an examining
magistrate preparatory to binding the party to answer to the higher
court upon presentment to be made by the grand jury, or, in some
states, information to be filed by the prosecuting attorney; the
other, that of a court competent to exercise final jurisdiction, or,
in other words, a concurrent jurisdiction with the higher court to
try the case, subject to an appeal, in which case a trial de novo is
had in the higher court on the original complaint." It has been held
us Redmond v. State, 12 Kan. 172.
04 State v. Longton, 35 Kan. 375, 11 Pac. 163: Cunningham v. State, 116
Ind. 433, 17 N. E. 904; State v. Perry, 28 Minn. 455, 10 N. W. 778.
5 5 Cunningham v. State, supra.
5 6 State V. Woods, 49 Kan. 237, 30 Pac. 520.
B7 March v. Com. (Pa. Sup.) 14 Atl. 375; People v. Hanifan, 98 Mich. 32,
56 N. W. 1048.
S8 Com. V. Harris, 8 Gray (Mass.) 470.
Ch. 3] BAIL. 83
that a magistrate clothed with this double power may, iii cases where
the higher court has a concurrent original jurisdiction, bind over the
party if the circumstances of the case seem to demand a higher pun-
ishment than he can inflict, although he has jurisdiction to deter-
mine the case and punish the offender by a penalty more limited
than might be imposed by the higher court.°° In some states the
statute expressly so provides.'
BAIL.
36. Bail is security gjiven by a person charged with a
crime for his appearance for further examination, or for
trial, whereupon he is sujffered to go at large.*"
Admission to bail has been said to consist in the delivery, or bail-
ment, of the accused to his sureties on their giving security, he also
entering into his own recognizances, for his appearance, at the time
and place of trial, there to surrender and take his trial. In the
meantime he is allowed to be at large, being supposed to remain in
their friendly custody.*^ This definition is still good as far as it
goes, but it does not cover all cases. A person accused of crime
may, on adjournment of his preliminary examination, be admitted
to bail to secure his appearance for further examination, and not
for trial.** And in some cases he may be released on his own re-
cognizance, without sureties.
Another form of security for the appearance of a person charged
with crime was mainprise, but it is now obsolete. "The chief, if
not only, difference between bail and mainprise seems to be this,
that a man's mainpernors are barely his sureties, and cannot justify
the detaining or imprisoning of him themselves, in order to secure
his appearance ; but that a man's bail are looked upon as his jailers
of his own choosing, and the person bailed is, in the eye of the law,
59 Com. V. Harris, supra; Com. v. Sullivan, 156 Mass. 487, 31 N. E. 647.
«^o We are here dealing witli bail before trial and conviction. In some
cases bail may be allowed after a conviction, pending an appeal or writ of
error.
01 Harris, Cr. Law, 343; 4 Bl. Comm. 297; Nichols v. IngersoU, 7 Johns.
(N.. Y.) 145.
82 Goodwin v. Dodge, 14 Conn. 206.
84 PEELIMINAEY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
for many purposes, esteemed to be as much in the prison of the
court by which he is bailed as if he were in the actual custody of the
proper jailer." °^
The form of security is either a bond or a recognizance. These
will be presently explained at length. It is sufficient to say here
that a bail bond is a contract under seal, just like any ordinary
bond, conditioned that the accused shall appear as therein pro-
vided. A recognizance is similar in so far as the obligation to pay
money and the condition is concerned, but, instead of being a con-
tract under seal, it is a contract of record, being acknowledged by
the parties, and then entered or filed in the records of the court
At common law a deposit of money by the accused in lieu of fur-
nishing sureties was not allowed, but it is now allowed by statute
in some cases.
At common law any magistrate, judge, or court having jurisdic-
tion to examine a charge of crime, and commit for trial, or to try
and punish for, a crime, has, as incident to such jurisdiction, the
power to admit to bail in cases where the offense is bailable. Ju-
risdiction to admit to bail is now very generally regulated by stat-
ute. It is conferred upon magistrates before or at the preliminary
examination, and provision is also made for application to the
higher courts or judges, including the judges of the supreme court.
The question must be determined in each state by reference to the
statute.
The power to admit to bail is a judicial power.'* It can only be
exercised by those having judicial powers. It cannot be exercised
by a clerk, or other ministerial officer,' ' nor can it be delegated."
6 8 2 Hawk. P. 0. c. 15, §§ 2, 3.
64 Gregory v. State, 94 Ind. 384; Linford v. FItzroy, 13 Q. B. 240; State
V. Mills, 2 Dev. (N. C.) 555; Reg. v. Badger, 4 Q. B. 468; and see cases here-
after cited.
«6 Gregory v. State, supra; State r. Mills, supra; State v. Wlninger, 81 Ind.
51; State v. tlill, 3 Ired. (N. 0.) 398; Wallenwcber v. Com., 3 Bush (Ky.)
68; State v. Jones, 3 La. Ann. 9; Solomon v. People, 15 111. 291; Com. v.
Roberts, 1 Duv. (Ky.) 199; Dugan v. Com., 6 Bush (Ky.) 305; Com. v. Lee,
3 J. J. Marsh. (Ky.) 698; Governor v. Jackson, 15 Ala. 703. It cannot be
6 6 Butler V. Foster, 14 Ala. 323; Jacquemine v. State, 48 Miss. 280; State
V. Clark, 15 Ohio, 596; Morrow v. State, 5 Kan. 563: Antonez v. State, 26
Ala. 81.
Ch. 3] RIGHT TO RELEASE ON BAIL. 85
A statute allowing the clerk of the court to determine whether an
offense is bailable, or to fix the amount of bail, would be unconsti-
tutional, as conferring judicial powers on a ministerial officer/^
A ministerial officer, however, may be, and is in many jurisdictions,
allowed to approve and accept bail, after it has been allowed and
fixed by the magistrate or judge, as that is a ministerial act^°
A magistrate may become criminally liable either for wrongfully
denying bail, or for wrongfully allowing it. To refuse or delay to
bail any person entitled to bail, or to willfully require excessive
bail, is a misdemeanor, not only by statute, but also at common
law.*" On the other hand, a magistrate who releases a prisoner
on bail, where the offense is not bailable, is guilty of a negligent
escape.'"'
SAME— RIGHT TO RELEA.SE ON BAIL.
37. At common la-w it -was -witliirL the discretion of the
magistrate, judge, or court to allo'w or deny bail in all
cases. It could be allo-wed -wrhenever it was deemed suf-
ficient to insure the appearance of the accused, but not
otherwise, and w^as therefore always allowed in cases of
misdemeanor, but w^as generally denied in cases of fel-
ony, and almost always denied in cases of felony punish-
able by death,
38. It is now generally declared by the constitutions
of the different states, or provided by statute, that the
accused shall have an absolute right to give bail in all
exercised by the governor of the state. Governor v. Fay, 8 La. Ann. 490.
In England a sheriff had judicial powers to a certain extent, and it seems
that he was allowed to admit to bail. See 1 Chit Or. Law, 98; Bengough v.
Rossiter, 2 H. Bl. 418; Posteene v. Hanson, 2 Saund. 59. He has also been
allowed the power in this country, in some jurisdictions. Dicisinson v. Kings-
bury, 2 Day (Conn.) 1; McCole v. State, 10 Ind. 50; Schneider v. Com., 3
Mete. (Ky.) 411. But see cases above cited.
8 7 Gregory v. State, supra.
6 8 State V. Wininger, 81 Ind. 51; Wallenweber v. Com., 3 Bush (Ky). 68;
State V. Jones, 3 La. Ann. 9; State v. Gilbert, 10 La, Ann. 524; State v.
Benzion, 79 Iowa, 467, 44 N. W. 709.
6 0 4 Bl. Comm. 297; Evans v. Foster, 1 N. H. 374.
70 4 BL Comm. 297; 2 Hawk. P. C. c. 15, § 7; Rex v. Clarke, 2 Strange,
1216; State v. Arthur, 1 McMul. (S. C.) 456.
86 PRELIMINAKY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
cases except -where the punishment may be death, and
even in those cases except -where the proof is e-vldent or
the presumption great.
The ground upon which a magistrate commits a prisoner to jail,
pending or after a preliminary examination and before trial, is to
insure his appearance for examination or trial, and not to punish
him. He is committed solely because there is a probability that he
will not otherwise appear. For this reason, bail should be taken
whenever it will insure his appearance, but not otherwise. It was
therefore the general rule at common law that the accused should
be released on bail in all cases except cases of felony, for in all
such cases, the punishment being generally a mere fine or a short
term of imprisonment in the county jail, it was thought that bail
would insure the appearance of the accused. There was, however,
no absolute right to release on bail, even in cases of misdemeanor,
though it was generally, if not always, allowed. If there were
any reason to believe the accused would fail to appear, bail could
be denied in any case.
Where the offense was a felony punishable by death, bail was
scarcely ever allowed, for it was not thought that any pecuniary
consideration could weigh against the desire to live.''^ Even when
the felony was not punishable by death, bail was generally denied,
unless the guilt of the accused was very doubtful. "Where guilt
is clear," it was said, "and a rigorous and disgraceful imprisonment
may follow for a great length of time, the presumption is strong
that the accused will not appear and surrender himself to the de-
mands of justice to avoid a mere forfeiture of property. The safest
course, therefore, in cases of felony, where the guilt of the criminal
is clear, is to deny bail."''^
In cases of felony, however, the maiiistrate or court might always
admit to bail in his discretion.'" Even in capital cases, bail was
71 See Cole's Case, 6 Parker, Cr. R. (N. Y.) 695; State v. Holmes, 3 Strob.
(S. C.) 272. , '
72 Per Sutherland, J., in Ex parte Tayloe, infra; People v. Dixon, •^'if'arker,
Cr. B. (N. Y.) 651.
73 Ex parte Tayloe, 5 Cow. (N. Y.) 39; Ex parte Baronnet, 1 El. & Bl. 1;
People V. "Van Home, 8 Barb. (N. T.) 158; Com. v. Trask, 15 Mass. 277; Peo-
ple V. Dixon, 4 Parker, Cr. R. (N. Y.) 651; State v. Summons, 19 Ohio, 139;
State v. McNab, 20 N. H. 160.
Ch. 3] EIGHT TO EEI.EASE ON BAIL. 87
sometimes allowed, for instance where there was a well-founded
doubt of guilt; ^* or where the accused was ill, and his confinement
endangered his life;''^ or where several continuances had been
granted at the instance of the state.' ° And in California, when it
was a new state, and the courts had not been fully organized, or
their terms prescribed, and where there was no jail in which pris-
oners could be securely kept, prisoners were for this reason ad-
mitted to bail in a capital case."
In most of our states there are constitutional or statutory pro-
visions giving persons arrested for crime an absolute right to release
on bail, except where the offense is punishable by death, and the
proof is evident or the presumption great. It will be noticed that
the common law is chaAged by these provisions. The magistrate,
judge, or court no longer has a discretion in all cases as to whether
he will allow bail. He must allow it in all cases except where the
offense is punishable by death, and even then he must allow it un-
less the proof is evident or the presumption great. These provi-
sions are for the benefit of the accused, and it does not seem that
they should be held to deprive the courts of the common-law power
to admit to bail under special circumstances in capital cases, even
T* Barronet's Case, 1 El. & Bl. 1; Ex parte Bridewell, 57 Miss. 39; U. S.
V. Jones, 3 Wasli. C. C. 224, Fed. Cas No. 15,495; TJ. S. v. Hamilton. 3
Dall. 17; State v. Hill, 1 Ttead. Const. (S. C.) 242; People v. Perry, 8 Abb.
Pr. (N. S.) 27; State v. Rockafellow, 6 N. J. Law, 332; Com. v. Semmes, 11
Leigh (Va.) 665; Archer's Case, 6 Grat. (Va.) 705; State v. Summons, 19
Ohio, 139.
75 Aylesbury's Case, 1 Salk. 103; Rex v. Wyndham, 1 Strange, 2, 4; Har-
vey's Case, 10 Mod. 334; U. S. v. Jones, 3 Wash. C. C. 224, Fed. Cas. No.
15,495; Archer's Case, 6 Grat. (Va.) 705. Sickness is no ground for release
of a person on bail, unless confinement aggravates his illness, and endangers
his life. Bex v. Wyndham. supra; Ex parte Pattison, 56 Miss. 161; Lester
v. State, 33 Ga. 192; Tlji^s v. State, 40 Tex. 6.
76 Fitzpatrick's GjiC 1 Salk. 103; Crosby's Case, 12 Mod. 66; U. S. v.
Jones, 3 Wash. O.'c. 224, Fed. Cas. No. 15,495; People v. Perry, 8 Abb. Pr.
(N. S.) 27; B«^ v. Wyndham, 1 Strange, 2, 4. It is so by statute in many
states. See Ex parte Chaney, 8 Ala. 424; Ex parte Stiff, 18 Ala. 464. An
omission to prosecute at the first term after the arrest is not ground for bail,
unless the omission has operated oppressively. State v. Abbott, R. M. Charlt
(Ga.) 244.
T7 People V. Smith, 1 Cal. 9.
88 PEELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
though the proof is evident and the presumption great; but it has
been held in Pennsylvania that no power at all to admit to bail ex-
ists in such cases.'*
In construing the words, "when the proof is evident," the Texas
court at first held that bail should be denied if the evidence adduced
on the examination would sustain a verdict of murder 'in the first
degree, but otherwise bail should be allowed.'* But in a later case
that decision was overruled, and it was held, following an Alabama
case, that "if the evidence is clear and strong, leading a well-guarded
and dispassionate judgment to the conclusion that the offense has
been committed, that the accused is the guilty agent, and that he
will probably be punished capitally if the law be administered, bail
is not a matter of right." ^^
SAME— SUFriCIBNCT OF BAIL.
39. The bail reqtiired. should be such, and such only, as
will be suf&cient to insure the appearance of the accused.
It is declared by the constitution of the United States, and those
of the different states, that excessive bail shall not be required,
and there are statutes in most jurisdictions limiting the amount of
bail that may be required to such a sum as will, in the opinion of
T8 Com. V. Keeper, 2 Ashm. (Pa.) 227.
7 8 Bx parte Foster, 5 Tex. App. 625.
80 Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte McAnally, 53
Ala. 495. And see, as to this point, Com. v. Keeper, supra; Ex parte Wray,
30 Miss. 673; UUery v. Com., 8 B. Mon. (Ky.) 3; State v. Summons, 19
Ohio, 139; Shore v. State, 6 Mo. 640; Ex parte Goans, 99 Mo. 193, 12 S. W.
635. It has been held that, except under extraordinary circumstances, an
indictment creates such a presumption of guilt as to absolutely prevent ad-
mission to bail. Evidence to rebut the presumption was excluded. People
V. Tinder, 19 Cal. 539; Hight v. U. S., 1 Morris (Iowa) 407. But see Lynch
V. People, 38 111. 494; Lumm v. State, 3 Ind. 293; State v. Hill, 3 Brev. (S.
C.) 89; Com. v. Rutherford, 2 Rob. (Va.) 767; Tayloe's Case, 5 Cow. (N.
y.) 39. Doubt as to prisoner's sanity when the crinie was committed may
be ground for bail. Zembrod v. State, 25 Tex. 519. As to drunkenness as
not raising doubt, see Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343 (Hurt,
J., dissenting). Where the jury are unable to agree on two trials for mur-
der, bail should be allowed. People v. Perry, 8 Abb. Pr. (N. S.) 27.
Ch. 3] SUFFICIENCY OF BAIL. 89
the judge or magistrate, secure the presence of the accused. This
is merely a declaration of the common law. The object of requir-
ing bail is to insure the presence of the accused to stand his trial,
and the amount of bail required should be such only as to accom-
plish this object. "It has been sometimes argued that bail should
be arbitrarily graded to meet the heinousness of the offense. But
this is a dangerous principle, as it tends to show that on the rich
who can find bail, and afford to forfeit it, there is no necessary cor-
poral punishment imposed. Far wiser is it to adopt the principle
that, in determining and adjusting bail, the test to be adopted by
the court is the probability of the accused appearing to take his
trial." *^ In applying this test, the circumstances and character
of the accused, his means, the probability of his guilt, the nature
of the crime charged, and the possible punishment, are all to be
considered.'^ Where the punishment is a fine only, there is noth-
ing to prevent the magistrate from requiring bail in an amount
greater than the maximum fine. Indeed, it should be so required.*^
It has been held that a magistrate who has taken insufftcient bail
cannot direct the rearrest of the accused for the purpose of increas-
ing it; ** but it is otherwise by statute in some jurisdictions.
Sufficiency of Sureties — Justification.
The magistrate or judge will act according to his discretion as
to the sufficiency of the sureties, and, to determine their responsi-
bility, he may orally examine them upon oath as to their means, or
require them to justify by affidavit.*" Such justification by the su-
reties is generally required by statute. Failure to justify, or justi-
fication in a less sum than fixed by law. cannot be urged by the
sureties to escape liability.*"
siWhart. Or. PI. & Prac. § 76. And see People v. Cunningham, 3 Par-
ker, Or. R. (N. T.) 520; Reg. v. Scaife, 9 Dawl. 553, 5 Jur. 700; Com. v.
Rutherford, 5 Rand. (Va.) 646; Com. v. Semmes, 11 Leigh (Va.) 665; Lumm
V. State, 3 Ind. 293; State v. Hill, 3 Brev. (S. O.) 89.
82 Whart Cr. PI. & Prac. § 76; People v. Cunningham, supra; In re Bar-
ronet, 1 El. & Bl. 1; State v. Hopson, 10 La. Ann. 550.
8 3 State V. Martinez, 11 La. Ann. 23.
84 Ingram v. State, 27 Ala. 17.
85 1 Chit. Cr. Law, 99; 2 Hale, P. 0. 125; People v. Vermilyea, 7 Cow. (N.
r.) 108. ■
8 6 People V. Carpenter, 7 Oal. 402; People v. Shirley, 18 Cal. 121.
90 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
Same — Who may Become Bail.
At common law, neither a married woman, nor an infant, nor an
insane person, nor a person convicted of an infamous crime, could
become bail." But the disability of married women in this respect
has been very generally removed by statute. Unless the statutes
provide otherwise, there is no reason why any person who is capa-
ble of contracting may not become bail. An infant may enter into
a bail bond or recognizance as principal.^^
SAME— REMEDY OF ACCUSED ON DENIAL OP BAIL.
40. A prisoner, if he is denied bail, or if excessive baU
is required, has a remedy by application for a writ of
habeas corpus.
If a person under arrest on a charge of crime is denied release
on bail, or if excessive bail is required, he may apply to the proper
judge or court for a writ of habeas corpus. After a hearing, the
court will admit him to bail if his offense is bailable, and will fix
the amount of bail.*° Where, however, the magistrate or judge
by whom bail was denied, was required to determine whether under
the evidence and circumstances of the particular case bail should
be allowed, so that the matter rested in his discretion, and was not
bound to admit to bail as a matter of course, the higher court or
judge will not interfere, except where that discretion has been ex-
ercised in an arbitrary, unjust, and oppressive manner. This ap-
plies not only to cases in which bail has been denied entirely,"' but
also to cases in which it is claimed that excessive bail has been re-
quired."^ The subject of habeas corpus is for treatment in a subse-
quent chapter.
87 1 Chit. Cr. Law, 100; Rex v. Edwards, 4 Term R. 440; Bennet v. Wat-
son, 3 Maule & S. 1.
8 8 Clark, Cont. 225.
8 9 Evans V. Foster, 1 N. H. 374.
00 Lester v. State, 33 Ga. 192; Ex parte Jones, 20 Ark. 9; Ex parte Os-
born, 24 Ark. 185; People v. McLeod, 25 Wend. (N. Y.) 483, 1 Hill (N.
Y.) 377.
01 People V. Perry, 8 Abb. Pr. (N. S.) 27; Lynch v. People, 38 111. 494;
Lumm V. State, 3 Ind. 293; Lester v. State, 33 Ga. 192.
Ch. 3] THE BOND OR RECOGNIZANCE. 91
SAME— THE BOND OR RECOGNIZANCE.
41. A bond or recognizance cannot be taken unless au-
thorized by la-w, and, when authorized, it must be taken
in the manner and form prescribed by law. If unauthor-
ized or illegally taken, or if it is not in proper form, it is
void, and of no effect.
As we have heretofore stated, bail may be either in the form of
a bond or of a recognizance. A bail bond is like any other bond,
except in its condition.* It is a contract under seal between the
accused and his sureties on the one side, and the state on the other,
whereby the former bind themselves to pay the latter a certain sum
of money if the accused fails to appear as therein provided. In
some states this form of security is no longer used.
A recognizance is an obligation similar to the obligation created
by a bail bond, acknowledged by the accused and his sureties before
the magistrate, judge, or court, the acknowledgment being entered
or filed in the records of the court. The practice now in giving a
recognizance is generally to draw up and sign an instrument simi-
lar in form to a bond, and, instead of sealing it, to acknowledge it
* The following is a form of bail bond:
Know all men by these presents:
That we, C. D. and E. F., are held and firmly bound unto the state Cor
commonwealth) of in the penal sum of dollars, for true payment
whereof, well and truly to be made, we bind ourselves and our heirs, jointly
and severally.
The condition of the above obligation is such that if the above-bound C. D.
shall personally appear before the judge of the court of the county of
, state (or commonwealth) of , on the first day of the next term
thereof, then and there to answer the state (or commonwealth, or people of
the state) of , for and concerning a certain felony (or misdemeanor)
by him committed, in this: that (describing the offense),— wherewith he, the
said C. D., stands charged, and shall not depart thence without the leave
of the said court, then this obligation to be void; otherwise to remain in
full force and virtue.
Witness our hands and seals this the day of , A. D. .
C. D. [Seal.]
E. P. [Seal.]
92 PEELIMINAEY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
before the magistrate or judge. The instrument is certified as hav-
ing been acknowledged, and is filed. Unless required by statute,
however, this formality is not necessary. "The manner of taking
a recognizance is that the magistrate repeats to the recognizors
the obligation into which they are to enter, and the condition of it,
at large, and asks them if they are content. He makes a short
memorandum, which it is not necessary that they should sign,
* * * From this short minute the magistrate may afterwards
draw up the recognizance in full form, and certify it to the court.
This is the most regular and proper way of proceeding." *" When
the acknowledgment of obligation is entered in the records of the
proper court, or filed therein, it becomes a matter of record. It is
a contract, not under seal, but a contract of record, with all the
characteristics of such a contract.®*
Since, therefore, a bail bond or recognizance is a contract between
the parties who execute it and the state, in determining its validity
and effect we must not only look to see whether special statutory
or common-law requirements are complied with, but also to see
whether it accords with the rules relating to contracts generally.
Parties cannot be held liable on an attempted bail bond or recog-
nizance if for any reason they have failed to make a valid contract.
We can notice shortly those requirements only which spring from
the nature of this particular kind of obligation, or are prescribed by
statute. Other questions that may arise will be answered by the
law of contracts generally.
In the first place, to be valid, a bail bond or recognizance must
be authorized, and must be taken in the mode prescribed by law.
If a magistrate, judge, or court assumes without jurisdiction to
admit a prisoner to bail, or if, though authorized to admit to bail,
he exceeds his powers, or fails to comply with the requirements of
the law, the bond or recognizance is void, and neither the accused
nor the sureties are liable thereon. It has no effect whatever.®*
»2 Com. V. Emery, 2 Bin. (Pa.) 434.
03 1 Chit. Cr. T^aw, 90; People v. Kane, 4 Denlo (N. X.) 535; Bridge v.
Ford, 4 Mass. 641; State v. Crippen, 1 Ohio St. 401.
8* Com. V. Loveridge, 11 Mass. 337; Com. v. Fisher, 2 Duv. (Ky.) 376;
State V. Kruise, 32 N. J. Law, 313; State v. Harper, 3 La. Ann. 598; Com.
V. Otis, 16 Mass. 198; Governor v. Fay, 8 La. Ann. 490; Branham v. Com.,
2 Bush (Ky.) 3; State v. Nelson, 28 Mo. 13; Cooper v. State, 23 Arli. 278;
Ch. 3] THE BOND OR KECOGNIZANCE. 93
The same is true where a ministerial officer assumes to admit to
bail."^
Whether or not a bond or a recognizance should be taken must
generally depend on the statutes of the particular state. If a stat-
ute expressly requires a bond, a recognizance might not do; and if
it expressly requires a recognizance, a bond might be insufficient,
unless in the latter case the bond, being filed of record, may be
treated as a recognizance. At common law, and under a statute
which is silent as to the form of bail, either a bond or a recognizance
may be talcen.""
A bail bond, like any other contract under seal, must be signed,
sealed, and delivered, or it cannot take effect as a contract."' A
recognizance, however, being a contract of record, need not be un-
der seal.®* Nor, unless it is so required by statute, need it be
signed by the parties; for it is the a&nowledgment and record
thereof that gives it validity. If signed, the signatures may be re-
jected as surplusage."" At common law, and under the statutes
in most states, the accused need not necessarily execute the bond
or enter into the recognizance. The sureties may do so alone.^"'
The bond or recognizance, to be valid, "must contain, and ex-
press in the body of it, the material parts of the obligation and con-
dition."^"^ By the weight of authority at common law, and gen-
State V. Berry, 8 Greenl. (Me.) 179; Com. v. Canada, 13 Pick. (Mass.) 86;
Powell v. State, 15 Ohio, 579; Solomon v. People, 15 111. 291; Darling v.
Hubbell, 9 Conn. 350; State v. Randolph, 26 Me. 213; WUliams v. Shelby,
2 Or. 144; State v. Wenzel, 77 Ind. 428.
9 5 Ante, p. 84.
96 Pugh v. State, 2 Head (Tenn.) 227.
97 Clark, Cont 73. Signing is probably necessary, though there seems to
have been some doubt on the question. Id.
9 8 siaten v. People, 21 111. 28; Campbell y. State, 18 Ind. 375; HaU v.
State, 9 Ala. 827; State v. Foot, 2 MUl Const. (S. C.) 123.
9 9 1 Chit. Cr. Law, 90; Irwin v. State, 10 Neb. 325, 6 N. W. 370; King v.
State, 18 Neb. 375, 25 N. W. 519; Madison v. Com., 2 A. K. Marsh. (Ky.)
131; Com. v. Mason, 3 A. IC Marsh. (Ky.) 456; Com. v. Emery, 2 Bin. (Pa.)
■434. Contra, Cunningham v. State, 14 Mo. 402; State y. Foot, 2 Mill Const.
(S. C.) 123.
100 State V. Patterson, 23 Iowa, 575; People v. Dennis, 4 Mich. 609; Com.
V. Mason, 3 A. K. Marsh. (Ky.) 456; Com. v. Eadford, 2 Duv. (Ky.) 9; Minor
v. State, 1 Blackf. (Ind.) 230. But see State v. Doax, 19 La. Ann. 77; State
V. Taylor, Id. 145.
101 State v. Crippen, 1 Ohio St. 399.
94 PEELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
erally under the statutes, a bond or recognizance must state the
offense for which the accused is held. It need not state the cir-
cumstances under which the offense was committed, nor need it
state all the facts necessary to constitute the offense; ^"^ but it
must describe the offense itself accurately and with reasonable cer-
tainty.^"' If it states a charge for which an indictment will not
lie, it is void.^"* It has also been held that a material variance
in the description of the offense between the warrant, complaint,
or indictment on which the accused is held and the bond or recog-
nizance is fatal.^""
There is authority for the proposition that the fact that the ac-
cused is subsequently indicted for a higher offense than that for
which he recognized does not affect the validity of the recognizance,
and that it is forfeited if he fails to appear to answer to the indict-
ment;'^"^ but it is difficult to see how a contract, — and the bond
or recognizance is nothing more, — binding a person to appear to
answer for one offense, can be construed to bind him to appear and
answer for another and a different offense.^"^
Since all the terms of the contract must be contained in the bond
or recognizance, it must correctly and with certainty state the time
and place at which the accused is to appear, including a description
of the court at which he must appear.^"' In a California case it
102 State V. Marshan, 21 Iowa, 143; Patterson v. State, 12 Ind. 86; State
V. Hamer, 2 Ind. 371; Young v. People, 18 111. 566; People v. Baughman, Id.
152; Hall v. State, 15 Ala. 431; Browder v. State, 9 Ala. 58; People v.
Dennis, 4 Mich. 609; Com. v. Downey, 9 Mass. 520; Com. v. Daggett, 16
Mass. 447; Hampton v. Brown, 32 Ga. 251; Daniels v. People, 6 Mich. 381;
State V. Williams, 17 Ark. 371; Besinier v. People, 15 111. 439; People v.
Blankman, 17 Wend. (N. Y.) 252.
103 Nicholson v. State, 2 Ga. 363; Simpson v. Com., 1 Dana (Ky.) 523;
-Goodwin v. Governor, 1 Stew. & P. (Ala.) 465. But see State v. Loeb, 21
Iva. Ann. 599.
104 Dailey v. State, 4 Tex. 417; Cotton v. State, 7 Tex. 547; Tousey v.
State, 8 Tex. 173; McDonough v. State, 19 Tex. 293.
10 5 Dillingham v. U. S., 2 Wash. C. C. 422, Fed. Cas. No. 3,913; Welch
V. State, 36 Ala. 277; People v. Hunter, 10 Cal. 502; State v. Woodley, 25
Ga. 235.
106 Pack V. State, 23 Ark. 235; State v. Bryant, 55 Iowa, 451, 8 N. W. 303.
lOT People V. Hunter, supra; post, p. 99.
10 8 People V. Mack, 1 Parker, Cr. R. (N. Y.) 567; State v. Allen, 33 Ala.
422. In the , latter case, a recognizance taken by a justice of the peace,
Ch. 3] THE BOND OR RECOGNIZANCE. 95
was held unnecessary to state the court, on the ground that it was
fixed by law.^^^
Mere clerical errors will not invalidate the bond or recogni-
zance.^^" Nor will it be avoided by recitals of unnecessary and ir-
relevant matter, since such matter may be rejected as surplus-
age.^^^ Nor does the fact that the words used are improperly ar-
ranged affect the validity of the contract, where all the necessary
words are inserted so that they can be understood.^^*
A bail bond, to be valid, need not be filed, for the execution and
delivery is what renders it binding. A recognizance, however, de-
rives its validity and effect from the fact that it is a judicial rec-
ord, and it must therefore be certified by the magistrate to the
proper court of record, and be there filed or recorded. It then be-
comes an obligation of record.^ ^^ When the recognizance has thus
become a matter of record, it will be presumed that a charge was
properly preferred and examined into, and a proper decision made
before it was entered into and acknowledged.^^*
By the weight of authority, a bond or recognizance taken before
or approved by a person unauthorized by law, or in a case where
the taking of it is unauthorized by law, so that it is invalid under
the statutes, is invalid for all purposes. It cannot be upheld as a
common-law obligation.^^^
conditioned for the prisoner's appearance, on a certain day, before him, or
some other justice, was held void for uncertainty, because the place of ap-
pearance was not specified. And a recognizance to appear to answer a
charge on a day when the court does not sit is void. State v. SuUivant, 3
Yerg. (Tenn.) 281.
109 People V. Carpenter, 7 Cal. 402.
110 State V. Patterson, 23 Iowa, 575.
111 State V. Adams, 3 Head (Tenn.) 259; Howie v. State, 1 Ala. 113; Mc-
carty V. State, 1 Blackf. (Ind.) 338; State v. Wellman, 3 Ohio, 14.
112 State v. Adams, supra.
113 People V. Huggins, 10 Wend. (N. X.) 464; People v. Kane, 4 Denio (N.
Y.) 535; Bridge v. Ford, 4 Mass. 641; Com. v. Emery, 2 Bin. (Pa.) 431;
King V. State, 18 Neb. 375, 25 N. W. 519.
11* Shattuck V. People, 4 Scam. (111.) 477.
116 Powell V. State, 15 Ohio, 579; Williams v. Shelby, 2 Or. 144; Dickin-
son V. State, 20 Neb. 72, 29 N. W. 184. Contra, State v. Cannon, 34 Iowa,
325; Dennard v. State, 2 Ga. 137.
96 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. £Ch. 3
SAME— RELEASE OF SUBETIES.
42. The sureties will be discharged from liability —
(a) By any change in the terms of the bond or
recognizance made by the state ■without
their consent.
(b) By any action on the part of the state preju-
dicing their rights.
(c) By surrendering the accused; and for this
purpose they may arrest him, either them-
selves or by deputy, and at any time or
place.
The liability of sureties on a recognizance or bail bond is limited
to the precise terms of their contract, and they will be discharged
if any change is made therein without their consent; as, for in-
stance, where the state agrees with the accused to postpone the
trial until a later day or term than that named in the bond or recog-
nizance.^^" The sureties are also discharged by any other action
by the state, without their knowledge or consent, prejudicing their
rights, as where it consents to the departure of the accused beyond
their reach or control.^"
Facts rendering the sureties unable to surrender the accused,
other than his death, where they are not attributable to action by
the state, will not release them.^^! For instance, they are not dis-
charged or excused from their obligation by the fact that the ac-
cused has, since his release on bail, been arrested and imprisoned
in another state, so that they are unable to surrender him.^^»
As is the case with any other kind of contract, the sureties will,
of course, be discharged from their obligation, if the terms thereof
118 Reese t. U. S., 9 Wall. 13. And see Vincent v. People, 25 111. 500.
117 Reese v. TJ. S., supra.
118 Yarbrough v. Com., 89 Ky. 151, 12 S. W. 143.
118 State V. Scott, 20 Iowa, 63; Harrington v. Dennie, 13 Mass. 92; Taylor
V. Taintor, 16 Wall. 366; Yarbrough v. Com., supra; King v. State, 18 Neb.
375, 25 N. W. 519.
Uh. 3] RELEASE OF SUKETIES. 97
are complied with. What amounts to such a compliance will be
presently shown.^^"
Arrest and Surrender of Accused.
The sureties are not compelled to act as bail for a longer time
than they wish. As we have already said, the accused is, in the
eye of the law, in the custody of his sureties, who are considered
his keepers. If they fear his escape, or for any other reason wish
to be released, they may rearrest him, and surrender him before the
magistrate or court by which he was bailed. They will then be dis-
charged.^''' The accused, however, will be allowed to find new
sureties. The sureties may depute another to take and surrender
the accused,^"'' and either they or their agent may seize him at any
time, and in any place, even in another state.'"'
120 Post, p. 98.
121 1 Chit. Cr. Law, 104; Harp v. Osgood. 2 Hill (N. T.) 216; Parker v.
Bidwell, 3 Conn. 85; State v. Le Cerf, 1 Bailey (S. C.) 410; State v. Mahon,
3 Har. (Del.) 568; Com. v. Bronsan, 14 B. Mon. (Ky.) 291. The court or mag-
istrate cannot compel a continuance of responsibility against the express
dissent of the bail. People v. Clary, 17 Wend. (N. Y.) 373. A bail in arrest-
ing his principal occupies substantially the same position as a person malc-
ing any other authorized arrest. He becomes liable if he uses unnecessary
force in the arrest or in the detention. Pease v. Burt, 3 Day (Conn.) 485.
He may break open doors, as already explained. Nichols v. Ingersoll, 7
Johns. (N. Y.) 145; Com. v. Brickett, 8 Pick. (Mass.) 138; Bean v. Parker,
17 Mass. 604; TJ. S. v. Bishop, 3 Yeates (Pa.) 37; Broome v. Hurst, 4 Yeates
(Pa.) 123; Read v. Case, 4 Conn. 166. The accused, in order that the sure-
ties may be discharged, must be surrendered to the proper magistrate or
court, or to some officer who has authority to commit him to jail. State v.
Le Cerf, 1 Bailey (S. C.) 410; Com. v. Bronson, 14 B. Mon. (Ky.) 361. Merely
to deliver him to the deputy sheriff is not sufficient. State v. Le Cerf, supra;
Stegars v. State, 2 Blackf. (Ind.) 104. If the accused is indicted and arrested
upon a warrant before default of appearance, this is equivalent to a sur-
render, and the bail are discharged. People v. Stager, 10 Wend. (N. Y.) 431.
12 2 Nichols V. Ingersoll, 7 Johns. (N. Y.) 145; Harp v. Osgood, 2 Hill (N.
Y.) 216.
128 Nichols V. IngersoU, supra; Com. v. Brickett, 8 Pick. (Mass.) 138; Read
V. Case, 4 Conn. 166; Anon., 6 Mod. 231; State v. Beebe, 13 Kan. 589.
CKIM.PSOC. — 7
98 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
SAME— BREACH OP BOND OB, RECOGNIZANCE, OR TOR-
EEITURE OF BAIL.
43. As soon as the condition of tlie bond or recogni-
zance is broken, the bail is said to be forfeited, and the
sureties become absolutely liable on their obligation for
the amount of the penalty.
If, at the time fixed for the appearance of the accused, he is called
and fails to appear, his bail is forfeited, and the sureties are abso-
lutely liable for the amount of the penalty.^^* This liability is
mot necessarily affected by the fact that he is afterwards surren-
dered or arrested, or voluntarily appears, and is tried.^^° Gen-
erally, however, the court has the power to remit the forfeiture,
if good excuse is shown; ^^* and generally, by constitutional or
statutory provisions, the governor is given power to remit fines and
forfeitures, so that he can remit the forfeiture of a bail bond or
recognizance, even after the liability has passed into judgment.^^'
In felonies, a personal appearance by the accused is necessary,
for he cannot be tried in his absence.^"* Where, however, under
indictment for misdemeanor, the accused may, as is generally the
-case, appear and plead by attorney, and be tried in his absence, the
court has no power to declare his bond or recognizance forfeited
for failure to appear, if his attorney appears and offers to plead
for him.^^° The mere appearance of the accused at the time and
place required by the recognizance does not discharge the sureties
from their obligation, where the court does not by its oflBcer take
124 Com. V. Johnson, 3 Gush. (Mass.) 454.
120 Com. v. Johnson, supra; Shore v. State, 6 Mo. 640; Lee v. State, 25
Tex. App. 331, 8 S. W. 277.
128 U. S. v. Feeley, 1 Brock. 255, Fed. Cas. No. 15,082; Com. v. Dana, 14
Mass. 65.
127 Harbin v. State, 78 Iowa, 263, 43 N. W. 210.
128 state v. Rowe, 8 Rich. (S. C.) 17; post, p. 423.
129 People V. Bbner, 23 Cah 158; State v. Counehara, 57 Iowa, 351, 10 N.
W. 677; post, p. 423. In an action on a recognizance as forfeited, however,
a demurrer will not lie on this ground, unless it appears that the accused
did appear by attorney. It is not enough that he could have so appeared.
People V. Smith, 18 Cal. 498.
Ch. 3] FORFEITURE OF BAIL. 99
Mm in custody;^*" but where the accused not only so appears, but
is taken into custody, the sureties are discharged, and are not liable
if he is subsequently released, /or if he escapes.^^^
If the obligation merely requires the accused to appear and an-
swer to a certain indictment, or for a particular crime, it would
seem that he cannot be required to appear and answer for any
other crime, or to any other indictment, for the sureties are entitled
to stand strictly on the terms of their contract; and it has been so
held.^*^ But if the condition of the contract is not only that the
accused shall appear, but also that he "shall not depart without
the leave of the court," or "until discharged by due course of law,"
etc., then the condition is broken if he does so depart, without re-
gard to whether the crime for which he is indicted is the same as
the crime for which he was held.^^' A recognizance to appear in
court from day to day to answer to a certain indictment, and not
to depart without the leave of the court, is not discharged by the
quashing of the indictment, but remains in force until the defend-
ant has leave from the court to depart; and, if a new indictment is
found, he and his sureties are bound for his appearance to an-
swer it.^^*
It is always essential to the breach of a bail bond or recognizance
that the prisoner shall have been formally called before entry of
his default, and in an action on the recognizance it must be proved
that he was so called and failed to appear.^^"
It has been held that where an indictment is fatally defective
ISO Com. V. Ray, cited in Com. v. Coleman, 2 Mete. (Ky.) 386. And see
Starr v. Com., 7 Dana (Ky.) 243.
181 Com. v. Coleman, 2 Mete. (Ky.) 382. And see Lyons v. State, 1 Blackf.
(Ind.) 309; State v. Murphy, 10 Gill & J. (Md.) 365; Smith v. State, 12 Neb.
309, 11 N. W. 319.
1S2 Gray v. State, 43 Ala. 41; People v. Hunter, 10 Cal. 502.
133 u. s. V. White, 5 Oranch, C. C. 368, Fed. Cas. No. 16,678; Pack v. State,
23 Ark. 235; Gentry v. State, 22 Ark. 544; State v. Bryant, 55 Iowa, 451,
8 N. W. 303.
134 U. S. v. White, supra.
136 Dillingham v. U. S., 2 Wash. C. C. 422, Fed. Cas. No. 3,913; Mishler
V. Com., 62 Pa. St. 55; Park v. State, 4 Ga. 329; State v. Grigsby, 3 Yerg.
(Tenn.) 280; White v. State, 5 Yerg. (Tenn.) 183. The baU need not be called.
Mishler v. Com., supra.
100 PEELIMINAEV EXAMINATION, BAIL, AND COMMITMENT. [Oh. 3
there can be no breach of a recognizance to appear and answer.^^'
There are many cases, however, to the effect that thfe sureties on
a bail bond cannot question the ralidity of the indictment,^" unless
it was insufficient to confer jurisdiction, as where it was found by
an illegally constituted grand jury.^^* This question, it would
seem, must depend on the terms of the contract as above ex-
plained.^^ °
The accused cannot be required to appear at any time other than
that stipulated in the bond or recognizance, even though the legis-
lature should change the time of holding the court.^*"
As we have already seen, the sureties are not excused from lia-
bility for breach of their contract by the fact that the accused has
been arrested and imprisoned in another state, or by any other fact
rendering it impossible for them to surrender him, other than his
death, or action by the state.^*^
Forfeiture of bail cannot affect the right of the state to afterwards
capture and punish the accused.**''
A forfeited bond or recognizance is enforced by entry of the for-
feiture, and judgment, and by scire facias thereon, or by an action
by the state on the obligation. The practice in this respect is gen-
erally regulated by statute.
COMMITMENT.
■ 44. If the offense is not bailable, or if bail is refused,
or is not given, the accused is committed to jail to await
his trial.
If the offense is not bailable, or if the magistrate, in a proper ex-
ercise of his discretion, determines not to allow bail, or the accused
18 8 state V. Lockhart, 24 Ga. 420.
137 Lee V. State, 25 Tex. App. 331, 8 S. W. 27T; State v. Loeb, 21 La,
Ann. 599.
138 Wells V. State, 21 Tex. App. 594, 2 S. W. 806.
139 Ante, p. 94.
1*0 State V. Stephens, 2 Swan (Tenn.) 308; State v. Melton, Busb. (N. 0.)
426.
1*1 Ante, p. 96.
1*2 State V. Meyers, 61 Mo. 414; State v. Rollins^ 52 Ind. 168.
Ch. 3] COMMITMENT. 101
fails to furnish sufiScient bail, and the evidence is suflQcientto require
him to be held for trial, the magistrate must commit him to jail to
await his trial.
To authorize the detention of the accused after he is committed,
a mittimus or warrant to the jailer is necessary, and, of course, it
must be valid.^*^ A form is given below.* It must be in writing,
under the hand, and, by the weight of authority at common law,
under the seal,\** of the magistrate, and it must show the authority
of the magistrate,^ *° and the time and place of making it.^*° It
must run in the name of the state, or that of the magistrate, judge,
1*3 Sthreshley v. Fisher, Hardin (Ky.) 257. A magistrate may by parol or-
der a person to be detained a reasonable time, until he can draw up a formal
commitment. 1 Chit. Cr. Law, 109; 7 East, 537; 2 Hale, P. C. 122. It has
been held that the order or sentence of a court of record, without any mitti-
mus, is sufficient to authorize the detention of the accused (In re Wilson, 18
Fed. 37; People v. Nevins, 1 Hill [N. Y.] 154; State v. Heathmau, Wright
[Ohio] 691); but this cannot apply to justices of the peace, for a justice's
court is not a court of record.
♦State (or Commonwealth) of , County of , to wit.
To the Sheriff or Any Constable of Said County, and the Jailer of Said
County:
These are to command you, in the name of the state (or commonwealth) of
, forthwith to convey and deliver into the custody of the said jailer,
together with this warrant, the body of C. D., charged before me, X. Y., a
justice of the peace of said county, on the oath of A. B., with a felony (or
misdemeanor) by him committed. In this: that he, the said 0. D., did, on the
day of , A. D. , in said county (here describe the ofCense);
and you, the said jailer, are hereby required to receive the said O. D. into
your jail and custody, that he may be tried for said offense by the
court of said county, and him there safely keep until he shall be discharged
by due course of law.
Given under my hand and seal this the day of A. D. .
[Seal.] X. Y., J. P.
144 1 Chit Cr. Law, 109; 2 Hawk. P. C. c. 16, § 13; 2 Hale, P. C. 122: 4 BL
Comm. 300; Somervell v. Hunt, 3 Har. & McH. (Md.) 113; State v. Caswell,
Charlt (Ga.) 280. In some jurisdictions, a seal is not deemed necessary. State
V. Vaughn, Harp. (S. C.) 313; Thompson v. Fellows, 1 Fost (N. H.) 425; Davis
V. Clements, 2 N. H. 390. And in many It is rendered unnecessary by statute.
14 5 1 Chit. Cr. Law, 109. It must, for instance, show where the offense was
committed, for it may have been committed beyond the magistrate's juris-
146 1 Chit. Cr. Law, 109; 2 Hale, P C. 122.
102 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3
or court by whom it is issued.^*^ It must be directed to the proper
jailer, and not be generally to carry the accused to prison.^** The
accused must be described by his name, including his Christian
name, if known, and, if not known, the fact should be stated, and he
should be described so that he may be identihed.^*' It seems to be
unnecessary to state that the accused has been charged upon
oath,^^" and it is certainly unnecessary to set out any of the evi-
dence adduced before the magistrate; ^"^ but the mittimus must
state the offense with which the party is charged, and must state
it with reasonable certainty.^ ^^ It is sufficient to state the nature
of the crime. A detailed statement of the circumstances attending
its commission is not necessary.^^^ It must point out the place of
imprisonment, and not merely direct that the accused shall be taken
to prison ;^^* and it should state the time of imprisonment, namely,
"until he shall be discharged by due course of law." ^^°
Errors in the commitment do not generally affect the validity of
the examination and subsequent proceedings. The fact, for in-
stance, that a magistrate erroneously commits the accused to trial,
in a county other than that in which the offense was committed,
diction. It should also show the character of the magistrate. The initials
"J. P.," after his signature, are sufficient to show that he is a justice of the
peace. State v. Manley, 1 Tenn. 428; Rex v. York, 5 Burrows, 2684.
1*7 1 Chit. Cr. Law, 109.
1*8 Hex V. Smith, 2 Strange, 934; Rex v. Fell, 1 Ld. Raym. 424.
148 1 Chit. Cr. Law, 110; 1 Hale, P. C. 577.
10 0 1 Chit. Cr. Law, 110; Rex v. Wyndham, 1 Strange, 3, 4; Rex v. Wilkes,
2 Wils. 158; Rex v. Piatt, 1 Leach, 107.
iBi Rex V. Wilkes, 2 Wils. 158.
162 1 Chit. Cr. Law, 110; 2 Hale, P. C. 122; 4 Bl. Comm. 300; Rex v.
Wilkes, 2 Wils. 158; Rex v. Judd, 2 Term R. 255; Rex v. Wyndham, 1
Strange, 2; Rex v. Marks, 8 East, 157; Rex v. Kendal, 1 Ld. Raym. 65; Col-
lins V. Brackett, 34 Minn. 339, 25 N. W. 708; State v. Bandy, 2 Ga. Dec.
40; Day v. Day, 4 Md. 2G2; Com. v. Ward, 4 Mass. 497; In re Ricker, 32 Me.
37. Where the offense is statutory, the mittimus should so show. Rex v.
Remnant, 5 Term R. 169.
iss People V. Johnson. 110 N. Y. 134, 17 N. E. 684; Collins v. Brackett,
supra; In re Kelly, 46 Fed. 653.
154 Rex V. Smith, 2 Strange, 934; Rex v. Fell, 1 Ld. Raym. 424.
iBo 1 Chit Cr. Law, 111.
Ch. 3] HABEAS COBPUS. 103
does not invalidate the examination and commitment, if it was oth-
erwise proper, so as to prevent the filing of an information thereon
in the proper county,^ °°
HABEAS CORPUS.
45. When a person -who has been committed to jail, as
just explained, is advised that his commitment is illegal,
or that he is entitled to be discharged or baUed by a
superior judge or court, he may obtain relief by writ of
habeas corpus.
The right to apply for this writ is not limited to persons illegally
committed by an examining magistrate, but extends to every per-
son who is illegally imprisoned. We shall therefore consider the
subject in a separate chapter.^'''' We shall then see that irregulari-
ties in the preliminary examination, wrongful refusal to admit to
bail, or irregularity and defects in the commitment, do not neces-
sarily entitle the accused to a discharge.
158 In re Schurman. 40 Kan. 533, 20 Pac. 277.
107 Post, p. 554.
104 MODE AND TIME OS ACCUSATION. [Ch. 4
CHAPTER IV.
MODE OF ACCUSATION— TIME OP PROSECUTION— NOLLE PROSEQUI
OR WITHDRAWAL.
46. In General of Mode of Accusation.
47-48. Indictment and Presentment— The Grand Jury.
49. Information.
50. Coroner's Inquisition.
51. Complaint.
52-53. Time of Prosecution.
54. NoUe Prosequi, or Withdrawal of Accusation.
MODES or ACCUSATION— IN GENERAL.
46. The prosecution of a person charged with, crime
may be either:
(a) Upon an indictment or presentment upon oath by a
grand jury.
(b) Upon a coroner's inquisition in cases of homicide.
(c) Upon an information preferred by the proper
prosecuting ofiB.cer without the intervention of
a grand jury.
(d) Upon a complaint or information made under
oath by a private person.
A formal accusation is essential to every trial for crime. With-
out it the court acquires no jurisdiction to proceed. Not even the
consent of the accused can give it jurisdiction.^ And, where the
law requires a particular form of accusation, that form of accusa-
tion is essential. In a New York case in which the law required
prosecution by indictment, a fatal defect in the indictment was
1 1 Bish. Cr. Proc. §§ 79, 95, et seq.; People v. Campbell, 4 Parlier, Cr. R. (N.
Y.) 386; ante, p. 5. A conviction is bad where the charge does not In terms
show a legal offense, though the meaning of the charge was understood by
the defendant, and was in a form used time out of mind in the court In which
It was made. Ex parte Hopliins, 61 Law J. Q. B. (N. S.) 240, 66 Law T. CN.
S.) 53, 17 Cox, Cr. Cas. 444.
Ch. 4] INDICTMENT AND PEESENTMENT GRAND JUBY. 105
sought to be remedied by stipulation of counsel that the case should
be tried as if the omitted allegation had been inserted. This the
court held was not sufflcient to give jurisdiction. "The charge as
made, being a felony, the constitution of this state requires the pre-
sentment or indictment of a grand jury as a prerequisite to trial;
and, if the pleading they file with the court could be remodeled by
stipulations between the counsel, the defendant would not be tried
upon the presentment of the grand jury, but rather upon the con-
sent of counsel. This court cannot acquire jurisdiction to try an
offense by consent, nor can its jurisdiction over an offense be
changed by consent, so as to embrace any other than that presented
by the grand jury, where the action of that body is requisite." '
INDICTMEWT AND PRESENTMENT— GRAND JURY.
47. An indictment is a written accusation of a crime,
presented on oath by a grand jury.
48, A presentment is the notice taken by a grand jury
of an offense from their o-wm knowledge or information,
or of their ow^n motion from infortnation derived from
others, on -wrhich an indictment is afterwards framed.
A distinction has been made between an indictment and a pre-
sentment. By presentment is meant the notice taken by a grand jury
of an offense from their own knowledge or observation, or of their
own motion on information from others, without any bill of indict-
ment having been laid before them. Upon such a presentment the
proper ofQcer of the court afterwards framed an indictment or
formal accusation.' By indictment is meant a written accusation
2 People v. Campbell, supra. And see Com. v. Adams, 92 Ky. 134, 17 S.
W. 276; Com. v. Maher, 16 Pick. (Mass.) 120.
3 4 Bl. Comm. 301; State v. Cox, 8 Ark. 442; Id., 6 Ired. (N. 0.) 444; I^ewls
v. Board of Com'rs, 74 N. C. 197; State v. MoiTis, 104 N. C. 837, 10 S. B. 454.
"A presentment made in the ordinary way by a grand jury is regarded, in
the practice at common law, as nothing more than instructions given by the
grand jury to the proper oflacer of the court for framing an indictment for
an offense which they find to have been committed. When the indictment has
been prepared by him, it Is submitted to them; and, upon their finding it
106 MODE AND TIME OF ACCUSATION. [Ch. 4
of crime, drawn up, with us by the prosecuting attorney, and sub-
mitted to the grand jury, and by them found and presented as true.*
Wlien submitted to the grand jury, it is only a "bill" of indictment,
and becomes an indictment when found and presented by them.
This distinction, it has been said, though still recognized, is of no
practical importance, for every indictment is in fact a finding and
presentment; the grand jury find and "present" that the accused
has committed a certain crime. ° This observation, however, does
not apply in all states, and the distinction must be borne in mind.
When Indictment Lies.
An indictment lies for all treasons, felonies, or misdemeanors at
common law. It has always been the usual mode of prosecution."
If a statute prohibits a matter of public grievance, or commands a
matter of public convenience, such as the repairing of highways, all
acts or omissions contrary to the command or prohibition of the
statute, being misdemeanors at common law, are punishable by in-
dictment if the statute specifies no other mode of proceeding.'' If
the statute specifies a mode of proceeding different from that by in-
dictment, then, if the matter was already an indictable offense at
common law, and the statute introduces merely a different mode of
prosetution and punishment, and does not expressly or by necessary
a true bill, the prosecution commences upon that indictment. The present-
ment merged in the indictment ceas«s and becomes extinct. If, however, the
ofiBcer of the court, who is the representative of the crown, and whose con-
currence and co-operation in the prosecution are always required, declines
framing an indictment upon these instructions, the presentment ceases to
exist for any piu:pose." Com. v. Christian, 7 Grat. (Va.) 631. It has been,
and may still be, the practice in some states to allow the presentment an
efficacy not known at common law. It has been allowed for some purposes to
stand as an indictment, or to stand as the foundation for further proceedings,
as by information, against the party presented. Com. v. Christian, supra.
*4 Bl. Comm. 302; Ganaway v. State, 22 Ala. 777; Mose v. State, 35 Ala.
425; Goddard v. State, 12 Conn. 452; Lougee v. State, 11 Ohio, 71; Wolf v.
State, 19 Ohio St. 255; State v. Cox, 8 Arli. 442: Board of County Com'rs v.
Graham, 4 Colo. 202; Vanderliarr v. State, 51 Ind. 93; State v. Tomlinson,
3 Ired. (N. C.) 33; State v. Wallcer, 10 Ired. (N. C.) 236; State v. Collins, 1
McCord (S. C.) 357; State v. Morris, 104 N. C. 837, 10 S. E. 454.
B Com. V. Keefe, & Gray (Mass.) 290.
6 2 Hawk. P. C. c. 25, § 4.
7 Harris, Cr. Law, 349; Reg. v. Hall, L. R. 1 Q. B. 632.
Ch. 4] INDICTMENT AND PEESENTMENT GEAND JUKY. 107
implication do away with indictment, the remedy is cumulative, and
the prosecution may be either by indictment at common law, or by
the mode pointed out by the statute.*
When Indictment is Necessary.
At common law all offenses above the grade of misdemeanor must
be prosecuted by indictment, for it is the policy of the common law
that no man shall be put upon his trial for felony until the necessity
therefor has been determined by a grand jm'y on oath.° The con-
stitution of the United States declares that "no person shall be held
to answer for a capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury."^" This provision does
not apply to prosecutions by the states; ^^ but in many of the state
constitutions there is a similar provision. In some states, instead
of requiring an indictment in prosecutions "for a capital or other-
wise infamous crime," it is required in all cases where the punish-
ment is death or confinement at hard labor. In others, an indict-
ment is necessary in every case where an indictment will lie. In
others, it is required only where the punishment is death or impris-
onment for life.
There has been some conflict of opinion as to what constitutes an
"infamous" crime, within the meaning of the constitution. By the
weight of opinion the question is determined by the punishment
with which the offense may be visited, rather than by the nature of
the act itself, and all crimes are held to be infamous that may be
punished by death or by imprisonment in the penitentiary.^^ If
: Harris, Or. Law, 349; Rex v. Robinson, 2 Burrows, 799.
» 1 Chit. Or. liaw, 844; 2 Hale, P. O. 151; 4 Bl. Comm. 310; 2 Hawk. P. C.
c. 26, § 3; Com v. Barrett, 9 Leigh (Va.) 665.
10 Amend. Const. U. S. art. 5. "Cases arising in the land or naval forces, or
in the militia when in actual service, in time of war or public danger," are
excepted.
11 Eowan v. State, 30 Wis. 129; Turner v. People, 33 Mich. 363; State v.
Keyes, 8 Vt. 57; Jones v. Ptobbins, 8 Gray (Mass.) 345; Parris v. People, 70
lU. 274.
12 Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935; Mackin v. U. S., 117 TJ.
S. 348, 6 Sup. Ct. 777; U. S. v. De Walt, 128 U. S. 893, 9 Sup. Ct. Ill; Jones
V. Robbins, 8 Gray (Mass.) 347; U. S. v. Wong Dep Ken, 57 Fed. 206. Other
offenses may be prosecuted by information. State v. Ebert, 40 Mo. 186; King
V. State, 17 Fla. 183.
1U8 MODE AND TIME OF ACCUSATION. [Ch. 4
they may be so punished, the fact that they may receive a less pun-
ishment is immaterial, for it is the possible punishment that makes
the crime infamous.^^ The term "infamous crime" is not syn-
onymous with "felony," except in those states where every offense
that may be punished by death or imprisonment in the penitentiary
is declared or held to be a felony.^*
Where an indictment or presentment is required by the consti-
tution, such an accusation is essential to the court's jurisdiction to
try the offender.^" The defendant cannot even waive the benefit of
the provision by consenting to be tried in another mode, for, as we
have seen, jurisdiction cannot be conferred upon the court by con-
sent.^* Where the constitution does not require an indictment,
there is nothing to prevent the legislature from providing for the
prosecution of all offenses, even capital, by information, and in some
states such statutes have been enacted.
There is another constitutional provision which has been claimed
to render prosecutions for felony otherwise than by indictment ille-
gal, because the common law required an indictment in such cases.
This provision is that no person shall be deprived of life, liberty, or
property without due process of law. It has been held, however,
that it is not depriving a person of due process of law to do away
with the grand-jury system and indictments, provided some other
formal and sufiScient mode of accusation, as by information, is sub-
stituted.i^
Powers of Grand Jury.
The authorities are not agreed as to the powers and functions of
the grand jury. Dr. Wharton ^^ points out three different views
that have been advanced on the subject.
The view taken by the English judges, and in which they are fol-
lowed by some of the judges in this country, is that the grand jury
IS See Clark, Or. Law, 34.
1* See Jones v. Robbing, supra.
15 Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781; Hewitt v. State, 25 Tex. 722;
People V. Campbell, 4 Parker, Cr. R. (N. Y.) 386.
16 People V. Campbell, supra; ante, p. 104.
iTHurtado v. California, 110 U. S. 516, 4 Sup. Ct. Ill, 292; Rowan v.
State, 30 Wis. 145; State v. Boswell, 104 Ind. 541, 4 N. E. 675; State v. Led-
ford, 3 Mo. 102.
18 Wbart. Cr. PI. & Prac. §§ 332-340.
Ch. 4] INDICTMENT AND PKESENTMENT — GRAND JUKY. 109
has the power, on its own motion, to institute any prosecution it
may see fit, and for this purpose to summon witnesses to appear be-
fore them ; and that they "cannot be controlled in their action by the
court or the prosecuting officer.^ °
Another, and perhaps a prevailing view in this country, is that
they can inquire into and present all offenses which are of public
notoriety and within their knowledge, and such offenses as are given
them in charge by the court or the prosecuting officer, but that they
cannot summon witnesses, and inquire into and present other of-
fenses, unless the accused has been examined before a magistrate.^"
A third view is that they cannot inquire into and present any of-
fense unless there has been a preliminary examination of the ac-
cused before a magistrate.^ ^
A grand jury cannot indict or present for an offense that is not
within the jurisdiction of the court in which they are acting.'* It
cannot present for offenses committed in another county.'*
Selecting and Summoning the Grand Jury.
The sheriff of every county was required by the common law to
return to every term of the court having jurisdiction of offenses
24 men having the requisite qualifications; and from these men
a grand jury were selected. The mode of selecting and sum-
moning grand jurors is now generally regulated by statutes, and it
is unnecessary to do more than refer to that fact, and leave the stu-
dent to consult the statutes of his state.
Same — Qualification of Jurors.
The common law requires grand jurors to be good and lawful
freeholders and inhabitants of the county in which the crimes they
19 Whart. Cr. PI. & Prac. § 334; Ward v. State, 2 Mo. 120; U. S. v. Tomp-
kins, 2 Oranch, 0. C. 46, Fed. Gas. No. 16,483; Blaney v. State, 74 Md. 153, 21
Atl. 547; State v. Wilcox, 10-4 N. 0. 847, 10 S. E. 453.
2 0 Whart. Or. PI. & Prac. § 338; McCuUough v. Cam., 67 Pa. St. 33; Brown
V. Com., 76 Pa. St. 319; Com. v. Green, 126 Pa. St. 531, 17 Atl. 878; People v.
Horton, 4 Parker, Or. R. (N. Y.) 222; State v. Love, 4 Humph. (Tenn.) 255;
State V. Lewis, S7 Tenn. 119, 9 S. W. 427; Lewis v. Board of Gounty Com'ra.
74 N. 0. 194.
21 Whart. Cr. PI. & Prac. § 339.
2 2 U. S. V. Hill, 1 Brock. 156, Fed. Gas. No. 15,364; Shepherd v. State, 64
Ind. 43; U. S. V. Keed, 2 Blatchf. 435, Fed. Cas. No. 16,134
2 3 Ante, p. 9; post, pp. 126, 390.
no MODE AND TIME OF ACCUSATION. [Ch. 4
are to inquire into were committed. Tlie statutes sometimes re-
quire simply tliat thej' shall be electors of the county, and some-
times they prescribe other qualifications. In many states nothing
but what is specified in the statute will disqualify a grand juror.^*
The statutes generally exempt from jury duty persons who are
over a certain age, or who occupy certain positions. This, however,
is merely an exemption, which they may claim or not as they choose.
It does not disqualify them.^^
Same — Constitution of Grand Jury — Impaneling,
After the court has been opened in the usual way, the names of
those summoned on the grand jury are called, and they are sworn.
They must, at common law, number 12 at least, and not more than
23, so that 12 may be a majority, the concurrence of a majority and
of that number being required to find an indictment. At corhmon
law a finding by less than 12 or by more than 23 is void.'"
2* See Territory v. Hart, 7 Mont. 42, 14 Pac. 768.
2 6 State v. Wright, 53 Me. 328; State v. Quimby, 51 Me. 395; Green v.
State, 59 Md. 123; State v. Forshner, 43 N. H. 89; Owens v. State, 25 Tex.
App. 552, 8 S. W. 658; State v. Adams, 20 Iowa, 486; State v. Stunkle, 41
Kan. 456, 21 Pac. 675; Jackson v. State, 76 Ga. 551; post, p. 449.
26 2 Hale, P. C. 121; 2 Hawk. P. C. c. 25, § 16; King v. Marsh, 6 Adol. &
EI. 236; Clyncajd's Case, Cro. Eliz. 654; State v. Barker, 107 N. 0. 913,
12 S. E. 115; People v. King, 2 Gaines (N. Y.) 98; Pybos v. State, 3
Humph. (Tenn.) 49; State v. Symonds, 36 Me. 128; People v. Thurston,
5 Gal. 69; Hudson v. State, 1 Blackf. (Ind.) 317; Leathers v. State, 26 Miss.
73; English v. State, 31 Fla. 356; 12 South. 689; Gom. v. Wood, 2 Gush.
(Mass.) 149. In many of the states the maximum number that shall be
necessary is prescribed by statute, and in some states more than 12 are
required; but in very few states does the statute change the common-law
requirement that there shall not be less than 12 nor more than 23, and
that 12 must concur. Statutory provisions that there shall be a certain num-
ber (the maximum) have been held merely directory, and not a change of the
common law, so as to prevent a finding by a jury less than that number, but
of at least 12. Gom. v. Wood. 2 Gush. (Mass.) 149; Gom. v. Sayers, 8 Leigh (Va.)
722; State v. Miller, 3 Ala. 343; State v. Clayton, 11 Rich. (S. C.) 581; Hudson
V. State, 1 Blackf. (Ind.) 317; State v. Davis, 2 Ired. (N. G.) 153; Pybos v.
State, 3 Humph. (Tenn.) 49; People v. Butler, 8 Cal. 435. Contra, Doyle v.
State, 17 Ohio, 222. Where the constitution requires an indictment, it would
seem that it requires such an indictment as was necessary at common law,
and therefore an indictment found by the concurrence of at least 12 grand
jurors; so that a statute allowing an indictment to be found on the con-
Ch. 4] INDICTMENT AND PKESENTMENT GRAND JUKY. IH
The oath administered to the jury is substantially the same in
most of the states, and substantially the same as that administered
at Gommon law. It is generally that they will diligently inquire
and true presentment make of such articles, matters, and things as
shall be given them in charge, or otherwise come to their knowledge,
touching the present service, the commonwealth's or state's counsel,
their fellows' and their own, they shall keep secr.et; that they shall
present no one from envy, hatred, or malice, nor leave any one un-
presented from fear, favor, affection, hope of reward, or gain, but
shall present all things truly, as they come to their knowledge, ac-
cording to the best of their understanding. The oaths administered
in the different states vary somewhat, so that the statutes must be
consulted. The foreman, when appointed by the court, is first
sworn, and the rest of the jurors, several at a time, after him. They
merely take the same oath without its being repeated to them.^'
A foreman is appointed by the court before the jury is sworn, or
else he is selected by the jurors after they retire, according to the
practice in the particular jurisdiction.^*
Same — Charge of the Court.
After the grand jury has been sworn, the judge charges or in-
structs them, the object of the charge being to show them their du-
ties, and to assist them by stating the law applicable to the various
cases that may come before them, and by pointing out matters
which require special attention. The charge should not be inflamma-
tory. It will not be a contempt of court to object to a charge on
that ground, and, if the objection is properly talcen, it may be
ground for setting the indictment aside. It should be taken by
plea."
currence of a less number than 12 would be unconstitutional; and so It bas
been held. State v. Barker, 107 N. C. 913, 12 S. E. 115; English v. State, 31
Pla. 356, 12 South. 6S9. In some states the common-law requirement is not
guarantied by the constitution, or is expressly changed, and there are statutes
allowing a grand jury to consist of less than 12. See State v. Belvel (Iowa)
06 N. W. 54»
2T The record must show that all the jurors were sworn. Roe v. State (Ala.)
2 South. 459; note 97, infra.
2 8 See Blackmore v. State (Ark.) 8 S. W. 940.
29 Clair V. State, 40 Neb. 534, 59 N. W. 118.
112 MODE AND TIME OF ACCUSATION. [Oh. 4
Same — Finding of Indictments.
After they have heard the charge, the grand jury withdraw from
the court to their own room, where they are to conduct their ex-
aminations, and hold their deliberations. Bills of indictment,
which, as we have seen, are formal written accusations prepared in
advance by the prosecuting officer of the county, and which do not
become indictments until they are found true by the grand jury, are
taken with them by the jury when they withdraw, or are sent or
taken to them there by the prosecuting officer. The names of wit-
nesses to be examined are sometimes indorsed on the bills by the
prosecuting officer, but the latter, unless required by statute, need
not so indorse them. He may summon and call or send such wit-
nesses as he sees fit into the jury room, and in some states the jury
may summon witnesses themselves.*" The witnesses whose names
are indorsed on the bill, or who are called or sent in, are sworn in
open court before going into the jury room,*^ and are examined by
the grand jurors. Only the witnesses for the prosecution need be
examined, since the function of the grand jiu'y is merely to inquire
whether there is sufficient ground to put the accused upon his trial;
but, as we have said, the jury may in some states call others, and
they should do so if they may show that there is no ground for in-
dictment. A person against whom a charge is pending has no right
to be present himself nor by counsel, nor can he send witnesses to be
examined in his behalf.^^
The grand jury should not hear any but legal evidence. If it is
shown that an indictment was found entirely upon incompetent evi-
dence, it will be quashed on plea in abatement." But, by the bet-
so ward V. State, 2 Mo. 120; ante, p. 108.
81 The general practice has been to swear the witnesses In court before they
go Into the grand jury room (State v. Kilcrease, 6 S. C. 444); but in some
states they may be sworn in the grand jury room by the foreman (Bird v.
State, 50 Ga. 585; Allen v. State, 77 111. 484); or, in Connecticut, by a magis-
trate (State V. Fasset, 16 Conn. 457).
82 State V. Walcott, 21 Conn. 272; People v. Goldenson, 76 Cal. 328, 19
Pac. 161.
ss State V. Logan, 1 Nev. 509; People v. Lauder, 82 Mich. 109, 46 N. W.
956; Sparenberger v. State, 53 Ala. 486; Com. v. Knapp, 9 Pick. (Mass.) 498;
Com. V. Green, 120 Pa. St. 531, 17 Atl. 878; Com. v. McComb, 157 Pa. St.
611, 27 Atl 794; Boone v. People, 148 111. 440, 3G N. E. 99. Contra, State v.
Dayton, 23 N. J. Law, 49.
Ch. 4] INDICTMENT AND PKESENTMENT^GRAND JURY. 113
ter opinion, where there was the slightest legal evidence, the court
cannot inquire into its sufficiency, or set the indictment aside be-
cause some illegal eTidence was received with it.^*
A person who is accused of crime cannot be compelled to testify
against himself, and the grand jury have no power to require him to
testify. If they do so against his will, it is held by some courts that
the indictment will be quashed.*" Other courts hold that, though
this is a violation of the defendant's constitutional rights, still it is
no ground for setting aside the indictment, if there was other, and
legal, evidence before the grand jury.'*
By the weight of authority, the prosecuting attorney may and
should attend before the grand jury while they are receiving evi-
dence, and may assist in the examination of witnesses;'^ and he
may be accompanied by his assistants, including his stenographer."
No one else can be present during the examination of witnesses, and
no one, not even the prosecuting attorney, can be present during the
deliberations of the jury.*^
84 People v. Lauder, 82 Mich. 109, 46 N. W. 956; People r. Hulbut, 4 Denlo
(N. Y.) 136; Hope v. People, 83 N. Y. 418; State v. Logan, 1 Nev. 509; Wash-
ington V. State, 63 Ala. 189; Bloomer v. State, 3 Sneed (Tenn.) 69. State v.
Passet, 16 Conn. 472; Stewart v. State, 24 Ind. 142; Creek v. State, Id. 151;
State V. Tucker, 20 Iowa, 508; State v. Fowler, 52 Iowa, 103, 2 N. W. 983;
State V. Boyd, 2 HiU (S. C.) 288. Contra, State v. Dayton, 23 N. J. Law, 49.
«5 People V. Haines (Gen. Sess. N. Y.) 1 N. Y. Supp. 55; State v. Froiseth,
16 Minn. 297 (Gil. 260); dissenting opinion in People v. Lauder, infra. And
see People v. Mondon, 103 N. Y. 211, 8 N. E. 496; Boone v. People, 148 111.
440, 36 N. E. 99; State v. Hawks (Minn.) 57 N. W. 455. If the defendant
voluntarily testifies, he cannot object. People v. Lauder, 82 Mich. 109, 46 N.
W. 956; People v. King, 28 Cal. 265.
38 People v. Lauder, 82 Mich. 109, 46 N. W. 956; U. S. v. Brown, 1 Sawy.
531, Fed. Gas. No. 14,671. But see the dissenting opinion in People v. Lauder,
supra.
37 McCuUough V. Com., 67 Pa. St. 30; State v. Adam, 40 La. Ann. 745, 5
South. 30; Shoop v. People, 45 111. App. 110.
as u. S. V. Simmons, 46 Fed. 65. And see Courtney v. State, 5 Ind. App.
856, 32 N. E. 335.
89 Wilson V. State (Miss.) 13 South. 225. In this case a conviction on indict-
ment for forgery was reversed because it appeared that the attorney for the
person defrauded by the forgery had been before the grand jury urging the
bringing of the indictment.
CRIM.PKOC. — 8
114 MODE AND TIME OF ACCUSATION. [Ch. 4
If a majority of the jurors (which must, as we have seen, be at
least 12 of them) " think that the evidence adduced makes out a suf-
ficient case, the words "A true bill" are indorsed on the back of the
bill, and signed by the foreman. In some states omission of this
indorsement is fatal to the indictment.*^ If they are of the oppo-
site opinion, the words "Not a true bill" are so indorsed. In the
former case, the bill is said to be found ; in the latter, it is said to
be ignored or thrown out. The jury may find a true bill as to one
count or charge in a bill, and ignore that in another; or as to one
defendant, and not as to another; but they cannot return a special
or conditional finding, or select part of a count as true and reject
the other part.
There must be sufiflcient evidence before the grand jury to show
prima facie that the accused is guilty in order to warrant them in
finding an indictment.** In New York it has been held that an in-
dictment should be quashed if there was wanting an essential link
in the proof of the charge, and an indictment alleging a prior con-
viction was therefore set aside, because there was no testimony be-
fore the grand jury identifying the accused as the prior convict.*'
Many courts, however, hold that the court cannot look into the evi-
'dence before the grand jury to determine its sufficiency. If the
grand jury find a true bill on insufficient evidence, they simply vio-
late their oath. According to these decisions, the indictment can-
not be set aside.**
*" Clyncard's Case, Cro. Eliz. 654; ante, p. 110.
*i Low's Case, 4 Greenl. (Me.) 453; Webster's Case, 5 Greenl. (Me) 432;
Gardner v. People, 3 Scam. (111.) 83; Noimaque v. People, Breese (111.) 109;
DuteU v. State, 4 G. Greene (Iowa) 125; State v. Elkins, 1 Meigs (Tenn.) 109;
Com. V. Walters, 6 Dana (Ky.) 290; Strange v. State, 110 Ind. 354, 11 N. B. 357.
In other states the contrary Is held. Com. v. Smyth, 11 Cush. (Mass.) 473;
State V. Freeman, 13 N. H. 488; State v. Davidson, 12 Vt. 300; Sparks v.
Com., 9 Pa. St. 354; State v. Cox, 6 Ired. (N. C.) 440. In some states this mat-
ter is regulated by statute. See Strange v. State. 110 Ind. 354, 11 N. E. 357;
McKee v. State, 82 Ala. 32, 2 South. 451; Patterson v. Com., 86 Ky. 313, 5
S. W. 387, 765.
4 2 People V. Hyler, 2 Parker, Cr. R. (N. Y.) 570; 1 Bish. Or. Proc. §§ 866,
867; State v. Cowan, 1 Head (Tenn.) 280.
43 People V. Price (Sess.) 2 N. Y. Supp. 414.
44 Spratt V. State, 8 Mo. 247. But see ante, p. 112.
Ch. 4] INDICTMENT AND PRESENTMENT GRAND JURY. 115
Any number ot indictments may be preferred against the same
person at the same time for distinct offenses; and even the fact that
an indictment is pending for the same offense does not render a
second indictment invalid.*" It has been held that where an indict-
ment is quashed for informality, and the case is resubmitted to the
same grand jury, they may find and present a second indictment
without re-examining the witnesses,*" and there seems no good rea-
son against this rule; but the contrary has been held.*' The fact
that one grand jury has ignored a bill is no reason why a fresh bill
may not be submitted to, and found by, a subsequent grand jury.**
The power to find an indictment in a case under consideration
does not cease until the jury have made their report, even if it ceases
then. The fact, therefore, that the jury have voted not to find an
indictment, will not prevent them from reconsidering the matter,
and voting to find one, and they may do so without hearing any new
evidence.*'
At common law it is not necessary for the prosecuting officer to
countersign an indictment, but it is made so by statute in some
states."
When bills have been found, the grand jurors come into court,
and hand the bills to the clerk, who states to the court the name of
the accused, the charge, and the indorsement of the grand jury.
After this they are discharged by the court. The bills do not be-
come valid indictments until they are thus presented to the court. "^
45 Rosenberger v. Com., 118 Pa. St. 77, 11 Atl. 782; State v. Keena, 64 Conn.
212, 29 Atl. 470.
4 8 Mclntlre v. Com. (Ky.) 4 S. W. 1.
" State V. Ivey, 100 N. C. 539, 5 S. E. 407.
*8 4 Bl. Comm. 305; Potter v. Casterline, 41 N. J. Law, 27; State v. Cox,
6 Irecl. (N. O.) 444; State v. Brown, 81 N. C. 570; State v. Harris, 91 N. 0.
658; State v. Collis, 73 Iowa, 542, 35 N. W. 625.
*9 U. S. v. Simmons, 46 Fed. 65.
00 Vanderkarr v. State, 51 Ind. 93; Com. v. Beaman, 8 Gray (Mass.) 490
Harrall v. State, 26 Ala. 53; Territory v. Harding, 6 Mont. 323, 12 Pac. 750
State V. Myers, 85 Tenn. 203, 5 S. W. 877; State v. Coleman, 8 S. C. 237
Taylor v. State, 113 Ind. 471, 16 N. E. 183; State v. Reed, 67 Me. 127. But
see Teas v. State, 7 Humph. (Tenn.) 174.
51 And it is essential tliat the record shall show such presentation in open
court. Mose v. State, 35 Ala. 425; Thornell v. People, 11 Colo. COS, 17 Pac.
904; State v. Pitts, 39 La. Ann. 914, 3 South. 118; State v. Squire, 10 N. H.
116 MODE AND TIME OF ACCUSATION. [Cll. 4
The grand jury, as already intimated, are not restricted to the
consideration of bills which have been prepared and submitted to
them by the prosecuting attorney, but may inquire into such mat-
ters as are called to their attention by the court; and, as we have
seen, they may in some states even inquire into matters of which
they may learn through their investigations, or which may have oth-
erwise come to their knowledge or the knowledge of individual ju-
rors."" If any matter so coming under their investigation should
oe prosecuted, they so state, and the prosecuting attorney draws an
indictment. This statement by the grand jury is what ■»« nave al-
ready described as a presentment.
Same — Indorsing Names of Witnesses and of Prosecutor.
In order to give the accused some knowledge of the evidence
which he may have to meet at the trial, and for other purposes, it is
provided in many states that the names of the witnesses examined
by the grand jury shall be indorsed on the indictment, or returned
with it into court; but this provision is generally regarded as being
directory, and not mandatory, so that an omission to comply with it
does not vitiate the indictment."' In a few states, minutes of the
testimony are required to be taken, and returned into court None
of these provisions, unless they expressly show that such was the
intention of the legislature, prevent the prosecuting attorney from
calling and examining other witnesses at the trial than those who
were examined before the grand jury, and whose names are so in-
dorsed on the indictment.
It is also provided by statute in some states that the name of
a private prosecutor shall be indorsed on the indictment, so that, if
the prosecution is without cause, he may be taxed with the costs.
559; Waterman v. State, 116 Ind. 51, 18 N. E. 63; Collins v. State, 13 Pla.
658; .Tobnson v. State, 24 Fla. 162, 4 South. 535; Brown v. State, 5 Terg.
(Tenn.) 168; State v. Cox, 6 Ired. (N. C.) 440; Nomaque v. People, Breese (111.)
146; State v. Vincent, 91 Mo. 662, 4 S. W. 430; Gardner v. People, 20 111. 430.
As to entry of the fact on the record nunc pro tunc, see Waterman v. State, su-
pra; Johnson v. State, supra.
6 2 JlcCuUough V. Com., 67 Pa, St 30.
6 3 State V. Shores, 31 W. Va. 491, 7 S. E. 413; State v. Holllngsworth, 100
N. C. 535, 6 S. B. 417; Hathaway v. State, 32 Fla. 50, 13 South. 592; Shel-
toa v. Com., 89 Va. 450, 16 S. E. 355.
Ch. 4] INDICTMENT AND PRESKNTMENT GHAND JUKY. 117
Same — Dissolution of Grand Jury.
The grand jury is dissolved either by being discharged by the
court, or by final adjournment of the court, and expiration of the
term of its service. It cannot dissolve itself.^*
Objections to Organization, Constitution, and Qualifications of Grand Jury or
Jurors.
Objections to the manner in which the grand jury were selected,
summoned, or impaneled — as, for instance, because the venire to
summon them was not sealed as required by law, or because they
were not drawn as required by law, etc. — may be taken by challenge
to the array, before indictment, by any person whose case is to come
before them.°° If the objection is not discovered before indictment,
or if there is no opportunity to challenge, and in some states, even
where there is such opportunity, the objection may be raised against
the indictment, by plea in abatement, or, where the defect appears
on the face of the record, by motion to quash."' It must be raised
in one or the other of these ways, or it will be waived. It cannot
be raised after pleading to the indictment on the merits."^ In some
jurisdictions it is held that objections to the manner of selecting
and summoning the grand jury cannot be raised against an indict-
ment by plea in abatement or otherwise, where the jurors were
qualified and competent"*
04 Clem V. State, 33 Ind. 148; In re Gannon, 69 Cal. 541, 11 Pac. 240.
OB People V. Jewett, 3 Wend. (N. Y.) 314; State v. Duncan, 7 Yerg. (Tenn.)
271; Logan v. State, 50 Miss. 269.
6 6 State V. "Ward, 60 Vt. 142, 14 Atl. 187; Reich v. State, 53 Ga. 73; State v.
Flemming, 66 Me. 142; Avirett v. State, 76 Md. 510, 25 Atl. 676, 987; Peters
V. State, 98 Ala. 38, 13 South. 334.
67 Wallace v. State, 2 Lea (Tenn.) 29; Ellis v. State, 92 Tenn. 85, 20 S. W.
500; State v. Easter, 30 Ohio St. 542; Holland v. Com., 82 Pa. St. 306; Taylor
V. Com. (Va.) 17 S. E. 812; Barron v. People, 73 111. 256; Conkey v. People, 5
Parker, Cr. R. (N. Y.) 31; State v. Martin, 2 Ired. (N. C.) 101; State v. Carver,
49 Me. 588; State v. Whitton, 68 Mo. 91; State v. Clarissa, 11 Ala. 57; State
V. Greenman, 23 Minn. 209; McQuiUen v. State, 8 Smedes & M. (Miss.) 587;
State V. Borroum, 25 Miss. 203; Byrne v. State, 12 Wis. 519; Brown y. Com.,
73 Pa. St. 34; People v. Hidden, 32 Cal. 445. In some states the rule is in
same cases changed by statute.
08 state v. Bleekley, 18 Mo. 428; State v. Matthews, 88 Mo. 121; U. S. v.
Eagan, 30 Fed. 60a
118 MODE AND TIME OF ACCUSATION. [Ch. 4
Objections to individual jurors on the ground that they are not
qualified may be taken by challenge to the polls, before the jury is
sworn, by any one against whom a charge of crime is pending or
may be made, or by some person as amicus curiae."" In most juris-
dictions, as we shall see, the objection may in many cases be raised
against the indictment by plea in abatement or motion to quash, if
not waived by failure to challenge. In no case can it be raised after
pleading to the indictment.""
In some states it is expressly provided by statute that objections
to the qualifications of grand jurors, or to the organization of the
grand jury, can only be taken by challenge to the array, or to the
polls before the jury are sworn; that they cannot be raised against
the indictment.'^
In some jurisdictions it has been held that a juror cannot be ob-
jected to, even before the jury are sworn, on the ground that he
originated the prosecution of one whose case will come before the
jury, or has formed an opinion, or is otherwise biased."^ But, in
most jurisdictions where the question has arisen, grand jurors have
been allowed to be challenged on this ground before being sworn.
B9 2 Hawk. P. C. c. 25, § 16; 3 Bac. Abr. "Jtu-ies," A; 1 Chit. Or. Law. 309;
U. S. V. "Williams, 1 Dill. 492, Fed. Cas. No. 16,716; U. S. v. Blodgett, 35 Ga.
337; Mershon v. State, 51 Ind. 14; State v. Hamlin, 47 Conn. 95; Com. v.
Burton, 4 Leigh (Va.) 645; Com. v. Smith, 9 Mass. 107; State v. Clarissa, 11
Ala. 57. But see, contra, as to objections by amicus curiae, People v. Horton,
4 Parker, Cr. R. (N. Y.) 222; Hudson v. State, 1 Blackf. (Ind.) 318.
00 Doyle v. State, 17 Ohio, 222; State v. Easter, 30 Ohio St. 542; State v.
Symonds, 36 Me. 128; Conkey v. People, 5 Parker, Cr. R. (N. Y.) 31; State v.
Martin, 2 Ired, (N. C.) 101; Com. v. Williams, 5 Grat. (Va.) 702; State v. Car-
ver, 49 Me. 588; Vanhook v. State, 12 Tex. 252; State v. Clarissa, 11 Ala. 57:
State v. Town of Newfane, 12 Vt. 422; McQuillen v. State, 8 Smedes & M.
(Miss.) 587; State v. Borroum, 25 Miss. 203; Wilbum v. State, 21 Ark. 198;
Byrne v. State, 12 Wis. 519; State v. Duncan, 7 Yerg. (Tenn.) 276.
81 Under such a statute, even the nonresidence or alienage of a grand juror
cannot be raised against the Indictment. Lienburger v. State (Tex. Cr. App.)
21 S. W. 603; Lacy v. State, 31 Tex. Cr. R. 78, 19 S. W. 896. And see State
V. Henderson, 29 W. Va. 147, 1 S. B. 225.
6 2 Tucker's Case, 8 Mass. 286; State v. Clarissa, 11 Ala. 57. And see State
V. Easter, 30 Ohio St. 542. See, for an extreme case, Baldwin's Case, 2 Tyler
(Vt.) 473.
Ch. 4] INDICTMENT AND PRESENTMENT GEAND JURY, 119
either by one whose case is to come before them, or by some person
as amicus curiae."^
It has been held in some jurisdictions that no personal disquali-
fication of grand jurors can be made the ground of objection to an
indictment.** The general rule, however, in the absence of a stat-
ute, is to the contrary, where the disqualification is not only pro-
nounced by the common law or by statute, but is one that absolutely
disqualifies, such as alienage/" If there is one person on the jury
«str. S. V. Aaron Burr (U. S. Cir. Ct. Va.) Burr's Trial by Robertson, 38;
TJ. S. V. White, 5 Cranch, O. C. 457, Fed. Cas. No. 16,679; People v. Jewett,
3 Wend. (N. Y.) 314; Com. v. Clark, 2 Browne (Pa.) 325; Musick t. People, 40
lU. 268; State v. Quimby, 51 Me. 395. Other grounds whicb, while not ab-
solutely disqualifying a grand juror, so as to vitiate an indictment, have been
said to be sufficient to sustain a challenge, are that the juror is related to
the prosecutor, or person killed in cases of homicide, or otherwise has a per-
sonal interest in the prosecution. See Whart. Cr. PI. & Prac. § 348; U. S. v.
Williams, 1 Dill. 485, Fed. Cas. No. 16,716. But the fact that he is a member
of an association for the detection of crime is no ground for challenge.
Musick V. People, 40 HI. 268. A grand juror may be challenged if he has con-
scientious scruples which will prevent his finding an indictment for a capital
offense, If such an ofEense is to be inquired into. State v. Rockafellow, 6 N. J.
Law, 332; State y- Duncan, 7 Yerg. (Tenn.) 271; Gross v. State, 2 Cart. (Ind.)
329.
64 Com. v. Smith, 9 Mass. 107 (but see Com. v. Parker, 2 Pick. [Mass.] 550);
Com. v. Gee, 6 Cush. (Mass.) 174; Boyington y. State, 2 Port. (Ala.) 100; Peo-
ple v. Jewett, 3 Wend. (N. Y.) 314; Hardin v. State, 22 Ind. 347; Mershon v.
State, 51 Ind. 14; People y. Beatty, 14 Cal. 566. As already stated, it is so
provided by statute in some jurisdictions.
6 5 State V. Hamlin, 47 Conn. 95; State v. Sharp, 110 N. 0. 604, 14 S. E. 504;
State y. Rockafellow, 6 N. J. Law, 340; Com. v. Sherry, 2 Va. Cas. 20; Com.
y. St. Clair, 1 Grat. (Va.) 556; Stanley v. State, 16 Tex. 557; Thayer y. Peo-
ple, 2 Doug. (Mich.) 417; State v. Ostrander, 18 Iowa, 438; State v. Middle-
ton, 5 Port. (Ala.) 484; Barney v. State, 12 Smedes & M. (Miss.) 68; State v-
Duncan, 7 Yerg. (Tenn.) 271; Huling v. State, 17 Ohio St. 583; Doyle v. State,
17 Ohio, 222 (but see State y. Easter, 30 Ohio St. 542); Kitrol y. State, 9 Fla. 9.
"It is certainly not reasonable to require a person, who has not been held to
answer, to object to the juror before he is impaneled; for he may be on the
other side of the globe, or he may have no reason to suppose he is going to
be indicted, being guiltless. And, even if a person has been held to answer,
he may be in prison, or sick at home, or, if in court, he may be ignorant
without fault of the disqualification of the juror until after he has been sworn.
Indeed, a person may be indicted for an offense committed pending the in-
120 MODE AND TIME OF ACCUSATION. [Ch. 4
who is absolutely disqualified, the indictment is bad.°° Objections
to an indictment have been sustained on the ground that one of the
grand jurors was an alien ;°' that he was not a freeholder or
elector;'^ that he had n©t paid his taxes as required by statute;*"
that he had served on a petit jury which convicted the defendant of
the same offense. ''° On the other hand, objections to a grand juror
on grounds which do not absolutely disqualify him, as because he
had formed and expressed an opinion as to the guilt of the accused,
or was related to the person killed by the accused, or to the prose-
cutor, cannot be raised against the indictment.'^ This is the gen-
erally accepted rule, though there are some cases to the contrary.
In many states it is provided that no indictment shall be deemed
insufiScient by reason of any defect in matter of form, and under
such a statute it has been held that an indictment cannot be ob-
jected to because one of the grand jurors was not a qualified elector,
quest. Moreover, the action of the grand jury is ex parte and preliminary,
and it is contrary to principle to hold that a person shall forfeit his rights by
not intervening in a proceeding to which he is not a party." State v. Davis,
12 R. I. 492.
6 6 Barney v. State, 12 Smedes & M. (Miss.) 68; State v. Cole, 17 Wis. 674;
State V. Duncan, 7 Yerg. (Tenn.) 271; Kitrol v. State, 9 Fla. 9; State v. Jacobs,
6 Tex. 99.
6 7 Reich V. State, 53 Ga. 73.
6 8 State V. Rockafellow, 6 N. J. Law, 332; State v. Davis, 12 R. I. 492; State
v. Doyle, 17 Ohio, 222.
6 9 State V. Diurham Fertilizer Co., Ill N. C. 658, 16 S. E. 231.
TO U. S. V. Jones, 31 Fed. 725.
71 State V. Easter, 30 Ohio St. 542; Tucker's Case, 8 Mass. 286; State T.
Sharp, 110 N. C. 604, 14 S. E. 504; State v. Rickey, 10 N. J. Law, 83; Musick
V. People, 40 111. 268; U. S. v. White, 5 Cranch, C. C. 457, Fed. Cas. No. 16,679;
People V. Jewett, 3 Wend. (N. Y.) 314; U. S. v. Williams, 1 Dill. 485, Fed. Cas.
No. 16,716; State v. Chairs, 9 Baxt. (Tenn.) 190; Lee v. State, 69 Ga. 705;
Com. V. Brown, 147 Mass. 585, 18 N. E. 587; State v. Brainerd, 56 Vt.532; Com.
V. Strother, 1 Va. Cas. 186; State v. Maddox, 1 Lea (Tenn.) 671. It was held
In a late Massachusetts case that an indictment is not bad merely because
one of the grand jurors, before the meeting of the jury, made a personal in-
vestigation into the guilt of the accused, and secreted himself in a roam with
an officer for the purpose of listening to declarations and admissions of the
accused, and heard the same, and listened to statements of officers as to his
guilt, and believed him guilty. Com. y. Woodward, 157 Mass. 516, 32 N. E.
939.
Ch. 4] INDICTMENT AND PRESENTMENT GBAND JURY. 121
as required by statute,'^ or assessed for taxes.'' It was even said
that all personal disqualifications of grand jurors are matters of
form, within the meaning of the statute,'* though this is probably
going too far.'"
Secrecy as to Proceedings of Grand Jury.
It has always been the policy of the law that the proceedings of
grand juries should be kept secret. At common law, as well as un-
der most of the statutes, the jurors are sworn to secrecy, — that "the
secrets of the cause, their own, and their fellows' they will duly ob-
serve and keep." "The secrets of the cause," it has been said, "re-
late to the persons accused, the witnesses, who they are, and what
they testified. Their own and their fellows' secrets must refer to
the deliberations and the votes of 'the grand jurors themselves."'®
As a rule, therefore, no objection can be raised in a criminal case
at any stage which must necessitate a disclosure of the proceedings
before or by the grand jury. Grand jurors cannot ordinarily be
compelled to testify to what was given in evidence before them, or
as to irregularities in their proceedings; but there are exceptions
to the rule, and there is some conflict in the authorities as to the ex-
tent of the rule." It has even been held that witnesses called be-
7 2 U. S. V. Ewan, 40 Fed. 451.
7 3 U. S. V. Benson, 31 Fed. 896.
T4 U. S. V. Tuska, 14 Blatchf. 5, Fed. Gas. No. 16,550.
'0 U. S. V. Ewan, supra.
7 6 State V. Hamlin, 47 Conn. 95.
77 State V. Hamlin, 47 Conn. 95; State v. Fasset, 16 Conn. 465; Beam v.
Link, 27 Mo. 201; People v. Hulbut, 4 Denio (N. Y.) 133; Zeigler v. Com. (Pa.
Sup.) 14 Atl. 237; State v. Hayden, 45 Iowa, 11; State v. Gibbs, 39 Iowa, 318;
Tindle v. Nichols, 20 Mo. 326; Perkins v. State, 4 Ind. 222; Ex parte Sontag,
64 Cal. 52.5, 2 Fac. 402. But see Com. v. Green, 326 Pa. St. 531, 17 Atl. 878.
The grand jury cannot be made to disclose "how any member voted, or the
opinion expressed by their fellows or themselves upon any question before
them, nor to disclose the fact that an indictment for a felony has been foamd
against any person, not in custody or under recognizance, nor to state in de-
tail the evidence on which the indictment is founded." Com. t. Hill, 11 Cush.
(Mass.) 137. And see People v. Hulbut, supra; Freeman v. Arkell, 1 Car.
& P. 137; Huidekoper v. Cotton, 3 Watts (Pa.) 56. But a grand juror
Is a competent witness to testify that a certain person did or did not tes-
tify before the grand jury. Com. v. Hill, supra; Ex parte Schmidt, 71 Cal.
212, 12 Pac. 55. And it has been held that the testimony of grand jurors la
122 MODE AND TIME OP ACCUSATION. [Ch. 4
fore the grand jury cannot testify to what took place before that
body, as this would nullify the rule requiring the proceedings before
the grand jury to be kept secret.^"
Although there are some authorities to the contrary, it has been
generally held that it is inadmissible to show the number of jurors
who concurred in finding an indictment, for the purpose of an ob-
jection that it was found by less than the 12 required by law, since
this could be shown only by the testimony or aflfidavits of the grand
jurors themselves.'"
admissible to prove that one of the witnesses for the prosecution testified dif-
ferently on his examination before them. It was said that, though the au-
thorities on this point were not uniform, the weight of authority was in favor
of the ruling. "The reasons on which the sanction of secrecy which the com-
mon law gives to proceedings before grand juries Is founded are said in the
books to be threefold. One is that the utmost freedom of disclosure of al-
leged crimes and offenses by prosecutors may be secured. A second is that
perjury and subornation of perjury may be prevented by withholding the
knowledge of facts testified to before the grand jury, which, If known, it
would be to the interest of the accused or their confederates to attempt to
disprove by procinring false testimony. The third is to conceal the fact that
an indictment is found against a party, in order to avoid the danger that he
may escape, and elude arrest upon it. before the presentment is made. To
accomplish these purposes, the rule excluding evidence, to the extent stated
in Com. v. Hill, 11 Cush. (Mass.) 140, seems to be well established, and it Is
embodied substantially in the words of the oath of office which each grand
juror takes on entering on the discharge of his duties. But, when these pur-
poses are accomplished, the necessity and expediency of retaining the seal
of secrecy are at an end. 'Cessante ratione, cessat regula.' After the indict-
ment is found and presented, and the accused is held to answer, and the trial
before the traverse jury is begun, all the facts relative to the crime charged
and its prosecution are necessarily opened, and no harm can arise to the cause
of public justice by no longer withholding facts relevant and material to the
Issue, merely because their disclosure may lead to the development of some
part of the proceedings before the grand jury. On the contrary, great hardship
and injustice might often be occasioned by depriving a party of important
evidence, essential to his defense, by enforcing a rule of exclusion, having its
origin and foundation in public policy, after the reasons on which this rule
is based have ceased to exist." Com. v. Mead, 12 Gray (Mass.) 169. And see
State V. Broughton, 7 Ired. (N. C.) 96; Perkins v. State, 4 Ind. 222; Com. v.
Green, 126 Pa. St. 531, 17 Atl. 878; People v. Reggel, 8 Utah, 21, 28 Pac. 955.
■fs State V. Fasset, supra.
TO ^tate V.Hamlin, 47 Conn. 95; People v. Hulbut, 4 Denio (N. Y.) 133; Green
■ "-ite, 28 Miss. 687; State v. Baker, 20 Mo. 347; Tlndle v. Nichols, Id. 326;
Ch. 4] INDICTMENT AND PRESENTMENT GRAND JtlRY. 123
In some cases grand jurors may be allowed to testify to what
took place before them where the ends of justice require it, as in a
prosecution of a person for perjury before them. And by statute
in some jurisdictions it is expressly provided that grand jurors may
be compelled to disclose the testimony of witnesses before them in
certain cases.
Record and Caption of Indictment.
The caption is no part of the indictment itself; it is only a formal
statement of the proceedings, describing the court before which the
indictment was found, the time and place where it was found, and
the jurors by whom it was found.^" These particulars, as we shall
see, must be set forth with sufflcient certainty.*^ It has been said
that the record of the prosecution will not be perfect without the
caption, and would not be admissible in evidence, for it would not
show by what authority the indictment was found ;*^ but it has
been held that the omission of a caption does not make the indict-
ment itself bad, and that the emission may be supplied from other
parts of the record.'^ The name of the county should appear in the
caption, unless' it is inserted in the margin, and is referred to in the
body of the caption as "the county aforesaid."** If stated in the
body of the caption, it may be omitted in the margin.*"
The caption must set forth with sufflcient certainty the court in
Imlay v. Rogers, 7 N. J. Law, 347. Contra, Low's Case, 4 Greenl. (Me.) 439;
Territory v. Hart, 7 Mont. 42, 17 Pac. 718.
80 1 Bast, P. O. 113; State v. Gary, 36 N. H. 359; People v. Jewett, 3
Wend. (N. Y.) 319; Rose v. State, Minor (Ala.) 29; State v. Brickell, 1 Hawks
(N. C.) 354; State v. WilllaDas, 2 McCord (S. O.) 301; U. S. v. Bomemann, 35
Fed. 824; McClure v. State, 1 Yerg. (Tenn.) 260; State v. Hunter, Peck (Tenn.)
166; Noles v. State, 24 Ala. 672; State v. Smith, 2 Har. (Del.) 533; State v.
Jones, 11 N. J. Law, 289.
81 2 Hale, P. C. 165; 2 Hawk P. C. c. 25, §§ 16, 17, 118-120; State v. Conley,
39 Me. 78; Reeves v. State, 20 Ala. 33; English v. State, 4 Tex. 125; State v.
Hunter, supra.
82 Cooke V. Maxwell, 2 Starkie, 183.
83 state V. Gilbert, 13 Vt. 647; State v. Wasden, 2 Taylor (N. C.) 163; post,
p. 126.
84 2 Hale, P. C. 165, 166.
86 1 Chit. Or. Law, 327. It is enough if the county be stated in the body of
the indictment Tefflt v. Com., 8 Leigh (Va.) 721; State v. Lane, 4 Ired. (N.
C.) 113.
i--l MODE AND TIME OF ACCUSATION. [CJh. 4
which the indictment was found, so as to show that the court had
jurisdiction.** It is not necessary, however, to set forth the founda-
tion of the court's authority, if it be exercised in the course of ordi-
nary jurisdiction,*^ but It is probably otherwise if the indictment is
found in a special court.** An indictment with this caption:
"Commonwealth of Massachusetts, Essex, to wit: At the court of
common pleas, begun and holden at Salem, within and for the county
of Essex," on a certain day, — is suflflcient, and suflSciently shows that
the court was held in the commonwealth.*"
The place at which the court is held, including the name of the
county, must be stated."" This is necessary to show that the place
is within the limits of the court's jurisdiction. As already stated,
the county may be stated in the margin, and merely referred to in
the body of the caption as "the county aforesaid." Such a refer-
ence or an express statement of the county is essential."^
The caption must also specify the day and year on which the in-
dictment was presented, and if it state an uncertain, future, or im-
possible day, or merely lay a day of the week, or state the time with
repugnancy, it will be fatally defective,"^ unless the omission or mis-
take is supplied by other parts of the record."*
«■! 2 Hale, P. C. 166; 2 Hawk. P. G. c. 25, §§ 16, 17, 118-120; State v. Wil-
liams, 2 McCord (S. C.) 301; State v. Sutton, 1 Murph. (N. C.) 281; Dean v.
State, Mart. & Y. (Tenn.) 127; Taylor v. Com., 2 Va. Cas. 94; Burgess v. Com.,
Id. 483. In many states it is provided that defects in form may be amended
or cured by verdict, and it has been held that omission of the name of the
court from the caption Is such a defect. State v. Brennan, 2 S. D. 384, 50 N.
W. 625.
8 7 Rex T. Royce, 4 Burrows, 2085; Rex v. Gilbei-t, 1 Salk. 200; 2 Hawk. P.
C. c. 25, § 125.
88 1 Chit. Cr. Law, 329; Fost. 3; State v. Williams, 2 McCord (S. C.) 301.
8» Com. V. Fisher, 7 Gray (Mass.) 492; State v. Conley, 39 Me. 78.
80 2 Hale, P. C. 166; 2 Hawk. P. C. e. 25, § 128; Lusk v. State, 64 Miss. 845,
2 South. 256. See State v. Conley, 39 Me. 78.
81 2 Hale, P. C. 166; 2 Hawk. P. C. c. 25, § 128; State v. Williams, 2 Mc-
Cord (S. C.) 301; Dean v. State, Mart. & Y. (Tenn.) 127; Taylor v. Com., 2 Va.
Cas. 94; Burgess v. Com., Id. 483; Com. v. James, 1 Pick. (Mass.) 375.
»2 2 Hawk. P. C. a 25, § 127; Rex v. Warre, 1 Strange, 698; 4 Coke, 48; Rex
V. Fearnley, 1 Term R. 31 "5, 1 Leach, Crown Cas. 425; Rex v. Roysted, 1 Ld.
Keny. 255.
03 Post, p. 126.
Ch. 4] INDICTMENT AND PRESENTMENT GRAND JURY. 1'25
It was formerly held that, in addition to the description of the
court, and the time and place at which it is held, the caption must
name the judges or justices, or so many of them as the law requires
to constitute the court, and allude to the rest by the words "and
others their fellows";"* and this may still be necessary in some
jurisdictions. There is no reason, however, why it should be re-
quired if the name of the judge otherwise appears on the record;
and in some states it has held not to be necessary, while in others
the approved forms of caption do not contain if
The indictment must always be shown to have been found upon
oath, or upon oath and affirmation; and, if an allegation of this
fact is omitted, the caption will be bad.°' The names of the jurors
need not be specified in the caption, though they must appear some-
where on the record."' It should also appear on the record that
the bill is found by at least 12 jurors,"" though it need not appear in
the caption.^"" It is usual to describe the jurors as "good and law-
ful men," and there is authority for saying that such a description
is necessary.^"^ But they have been held to be unnecessary.^"^
These words include every qualification required by law for grand
jurors.^"" Where some of the jurors are aflQrmed instead of sworn,
the record, it has been held, must show that this was authorized, as
B4 2 Hale, P. 0. 116; 2 Hawk. P. C. c. 25, § 124; 1 Chit. Cr. Law, 331; State
V. Zule, 10 N. J. Law, 348; State v. Price, 11 N. J. Law, 203. It is not nec-
essary to show their appointment. Rex v. Royce, 4 Burrows, 2084.
0 8 Com. V. Stone, 3 Gray (Mass.) 453.
»7 2 Hale, P. C. 167; 2 Hawk. P. C. c. 25, § 126; Rex v. Evans, 1 Keb. 329;
Roy v. Inhabitants of Yarton, 1 Sid. 140; Roe v. State (Ala.) 2 South. 459.
8 8 1 Chit. Cr. Law. 333; U. S. v. Insurgents, 2 Ball. 335, Fed. Cas. No. 15,443;
Mahan v. State, 10 Ohio, 232. See Stone v. State, 30 Ind. 115; State v. Norton,
23 N. J. Law, 33.
99 2 Hale, P. O. 167; 2 Hawk. P. 0. e. 25, §§ 16, 126; ayncard's Case, Cro.
Eliz. 654; Rex v. Darley, 4 East, 175.
100 Young V. State, 6 Ohio, 435; Turns v. Com., 6 Mete. (Mass.) 225.
1012 Hale, P. C. 167; Oily's Case, Cro. Jac. 635.
102 state V. Yancey, 1 Tread. Const. (S. C.) 237; 1 Chit. Cr. Law, 333.
103 Jerry v. State, 1 Blackf. (Ind.) 396; State v. Glasgow, Cam. & N. (N.
C.) 38; State v. Price, 11 N. J. Law, 203; Collier v. State, 2 Stew. (Ala.) 388:
Bonds V. State, Mart & Y. (Tenn.) 143; Cornwell v. State, Id. 147.
126 MODE AND TlMJfi OB' ACCUSATION. [Ch. 4
that they alleged that they had conscientious scruples against tak-
ing an. oath; "* but the weight of authority is to the contrary.
The caption must state that the jurors are "of the county afore-
said," or by some other means state that they are of the county for
which they are inquiring."^ It was formerly regarded in England
as necessary to describe them as "then and there sworn and charged
to inquire for our said lord, the king, and the body of the said
county";^"* but these words are not necessary if it otherwise ap-
pear that they were sworn.^"' When there is any material defect
in the caption, the court may, in its discretion, either quash the in-
dictment, or leave the defendant to demur, or raise the objection in
some other way.^"* This we shall explain in another connection.^"'
As we shall see, an indictment, being a finding of the grand juiy
on oath, cannot be amended by the court. The caption, however,
being no part of the indictment, but merely a ministerial act to
make up the record of the court, may be amended at any time, even
after conviction, so as to cure defects, by making it conform to the
other records of the term.^^" And omissions or mistakes in the
caption, in the description of the court, or the statement of time of
the finding of the indictment, or in any other respect, may be sup-
104 state V. Fox, 9 N. J. Law, 244; State v. Harris, 7 N. J. Law, 361. But
see Mulcahy v. Reg., L. R. 3 Ir. 300; Com. v. Fisher, 7 Gray (Mass.) 492. It
is also held now in New Jersey that such an omission is a defect of form,
which under a statute in that state Is waived if not objected to by demurrer
or motion to quash. State v. Engeman (N. J. Sup.) 23 Atl. 676.
105 2 Hale, P. C. 167; 2 Hawk. P. C. c. 25, §§ 16, 126; Lewson v. Reddleston,
Cro. Eliz. 677; Tipton v. State, Peek (Tenn.) 307; C!ornwell v. State, Mart. &
Y. (Tenn.) 147; Woodsides v. State, 2 How. (Miss.) 655.
106 2 Hale, P. C. 167; Bell v. People, 1 Scam. (111.) 399; People v. Guernsey,
3 Johns. Gas. (N. Y.) 265.
107 1 Chit. Or. Law, 334.
108 2 Hawk. P. C. e. 25, § 146.
lOB Post, p. 362.
110 1 Chit Cr. Law, 335, and old authorities there collected; Philips v. Smith,
1 Stra,pge, 138; Rex v. Hayes, 2 Ld. Raym. 1518, 2 Strange, 843; Rex v. Dar-
ley, 4 East, 175; State v. Williams, 2 McCord (S. C.) 301; State v. Gilbert, 13
Vt. 647; Dean v. State, Mart. & Y. (Tenn.) 127; Com. v. James, 1 Pick. (Mass.)
375; Burgess v. Com., 2 Va. Gas. 483; Taylor v. Com., Id. 94.
^t»- 4] INFOEMATION. 127
plied or corrected by other parts of tlie record, as by the certificate
of the clerk on the back of the indictment.^^^
In many states, the caption, instead of being made up by the
clerk, is prefixed to the bill before it is submitted to the grand jury,
and forms a part of the bill as presented by them. This, however,
does not make it any part of the indictment proper.^^^ Being a
part of the bill, however, when submitted to the grand jury, and
considered by them, the indictment proper may refer to it for the
name of the county, just as it may refer to the county in the
margin.^^^
In North Carolina it has been held that a caption is not necessary
unless the court is acting under a special commission.^ ^*
INFORMATION.
49. An information is a "written accusation of crime
preferred by the prosecuting officer -without the inter-
vention of a grand juiy.
An information lies at common law for all misdemeanors. It
will not lie for a felony, for, as we have seen, it has always been the
policy of the common law that no man shall be put upon his trial
for a felony until the necessity therefor has been determined by the
oath of the grand jury."° As we have seen, however, in speaking
111 Com. V. Mullen, 13 Allen (Mass.) 551; Penn'a v. Bell, Addis. (Pa.) 175;
Com. V. Hines, 101 Mass. 33; U. S. v. Bornemann, 35 Fed. 824; Com. v. Stone,
3 Gray (Mass.) 453; Com. v. Colton, 11 Gray (Mass.) 1; State v. Robinson, 85
Me. 147, 26 Atl. 1092; State v. Jones, 9 N. J. Law, 357; State v. Briclsell, 1
Hawks (N. C.) 356; State v. Gilbert, 13 Vt 647 (in this case it was held that
the entire omission of a caption might be supplied by the minutes of the clerk
on the bill, and the general records of the term). An Indictment which pur-
ports in its caption to have been found on the first day of the term, but charges
an offense of a later day, may be shown, by reference to the clerk's certificate
indorsed thereon, to have been actually returned into court after this date.
Com. v. Stone, supra.
112 Ante, p. 123.
113 Com. V. Edwards, 4 Gray (Mass.) 1; Com. v. Fisher, 7 Gray (Mass.) 492.
114 State V. Brickell, 1 Hawks (N. C.) 354; State v. Haddock, 2 Hawks (N,
C.) 462.
115 Ante, p. 107; 2 Hale, P. O. 151.
128 MODE AND TIME OF ACCUSATION. [Ch. 4
of indictments, there is nothing, in the absence of constitutional
provisions requiring an indictment, to prevent the legislature, if it
sees fit, from doing away with indictments altogether, and substi-
tuting information as the mode of accusation. This the legislature
has done in some states. We have shown that in the constitutions
of the United States and of some of the states there are provisions
requiring all prosecutions in certain cases to be by indictment, and
that in such cases no other mode of accusation will do.^^°
An indictment, as we have seen, is sanctioned by the oath of the
grand jury. An information, on the other hand, is the mere alle-
gation of the prosecuting officer by whom it is preferred. The
practice of filing informations existed at common law, and may be
traced to the earliest period.^^' "As the Mug was bound to prose-
cute," it is said by Blackstone, "or, at least, to lend the sanction of
his name to a prosecutor, whenever a grand jury informed him upon
their oaths that there was a sufficient ground for instituting a crim-
inal suit; so, when his immediate officers were otherwise suffix
ciently assured that a man had committed a gross misdemeanor,
either personally against the king or his government, or against the
public peace or good order, they were at liberty, without waiting for
any further intelligence, to convey that information to the court of
king's bench, by a suggestion on the record, and to carry on the
prosecution in his majesty's name."^^*
Under the common law of England, informations were of two
kinds. The first was filed by the attorney general, as a rule, for
offenses more immediately against the king or the public safety; but
such an information could be filed by him for any other misde-
meanor, though an offense more particularly against an individ-
yrjj 119 rjijjg second was filed by the masters of the crown office, and
it was the usual mode of proceeding by information for offenses
against individuals. Formerly both of these informations could be
iiled without leave of court, and without further oath or affidavit
than the oath of office of the officer preferring it. By an early Eng-
118 Ante, p. 107.
117 1 Chit. Or. Law, 843; 2 Hawk. P. C. c. 26, § 85.
118 4 Bl. Ck)mm. 309.
110 3 Bac. Abr. tit. "Informations," B; 2 Hawk. P. 0. c. 26, § 1; Territory
V. Cutlnola, 4 N. M. 160, 14 Pac. 809.
Ch. 4] INFOEMATION. 129
lish statute,^^" however, whicli is old enough to have become a part
of our common law, if applicable to our conditions, it was provided
that informations by masters of the crown office could only be filed
by leave of court, and that they should be supported by the affidavit
of the person at whose suit they were preferred.^^^ The law remained
that informations fUed by the attorney general (and, as already stated,
he could file them for any misdemeanor) need not be verified, and
that he was the sole judge of the necessity or propriety of filing
them. Leave of court was not necessary. Nor was the accused
entitled to opportunity to show cause against the proceeding.^ ^'^
The attorney general usually acted on affidavits of witnesses laid
before him, but this was not necessary.
There is some authority for the proposition that the kind of in-
formation to be used at common law in this country is that which
in England was filed by the masters of the crown office, and that this
is the kind contemplated by statutes which show no intention to the
contrary;^*' and, if this is so, leave of the court and affidavit would
be necessary. But, by the better opinion, the other kind of informa-
tion is the one in use with us. "In our states the <;riminal informa-
tion should be deemed to be such, and such only, as in England is
presented by the attorney or solicitor general. This part of the
English common law has plainly become common law with us.
As with us the powers which in England were exercised by the at-
torney or solicitor general are largely distributed among our district
attorneys, whose office does not exist in England, the latter officers
would seem to be entitled, under our common law, to prosecute by
information, as a right adhering to their office, and without leave
of court.""*
The mode of procedure is in many states almost entirely regulated
by statute. In some the information must be under the oath of the
120 4 & 5 w. & M. c. 18.
121 Bac. Abr. 635, tit. "Informations."
122 1 Chit. Cr. Law, 845; 4 Bl. Comm. 312; 11 Harg. St. Tr. 270; State t.
Dover, 9 N. H. 468.
123 State V. Gleason, 32 Kan. 245, 4 Pac. 363. And see U. S. v. Tureaud,
20 Fed. 621.
121 1 Bish. Cr. Proa §§ 144, 604, 606; Wliart. Cr. PI. & Prac. § 87; State v.
Kelm, 79 Mo. 515; State v. Moore, 19 Ala. 514; Territory v. Outinola, 4 N.
M. 160, 14 Pac. 809; State v. Keena, 64 Conn. 212, 29 Atl. 470.
CKIM.PKOC. — 9
130 MODE AND TIME OF ACCUSATION. [Ch. 4
prosecuting officer, or of some witness, and, if not so verified, it is
invalid.^^° Unless verification is required by statute, however, it
is not necessary; for, as we liave seen, it was not required at com-
nion law. In some states it is necessary to the filing of an informa-
tion that there shall have been a complaint on oath and preliminary
examination before a magistrate, and a finding by the magistrate of
probable cause for the prosecution.^^"
Though, in general, as stated above, the prosecuting officer is the
sole judge of the necessity and propriety of filing an information,
his action is now very much restricted by statute ; and he must fol-
low the statutory provisions. It has been held that even at com-
mon law he cannot prefer an information where the grand jury have
inquired into the alleged offense, and found that the evidence did
not justify an indictment, unless he has new evidence which was not
brought before the grand jury.^''^ But the soundness of this de-
cision is doubtful.
In all cases, an information, to be valid, must be preferred by the
proper prosecuting officer, and not by a private person.^^*
CORONER'S INQUISITION.
50. A coroner's inquisition is the record of the finding
of the jury s^worn by the coroner to inquire super visum
corporis, concerning the death of a person.
On this a person may, at common law, be prosecuted for murder
or manslaughter without the intervention of a grand jury, for the
finding of the coroner's jury is itself equivalent to the finding of a
grand jury. The accused is arraigned on the inquisition as on an
indictment, and the subsequent proceedings are the same.^^° No
indictment is necessary unless required by statute, but the practice
is generally to indict, and the trial is then had on the indictment.
126 State v. Hay ward, 83 Mo. 303; State v. Calfer (Mo. Sup.) 4 S. W. 418;
Wadgyinar v. State, 21 Tex. App. 459, 2 S. W. 768; Lackey v. State, 14 Tex.
App. 164.
126 o'Hara v. People, 41 Mich. 623, 3 N. W. 161. See ante, p. SO.
127 Richards v. State, 22 Neb. 145, 34 N. W. 340.
128 People V. ICelm, 79 Mo. 515.
12 9 Reg. V. Ingham, 9 Cox, Cr. Cas. DOS.
Ch. 4] COMPLAINT. 1"1
The mode of conducting a coroner's inquest is generally regulated
by statute. On receiving notice of a death under circumstances re-
quiring investigation, the coroner causes a jury consisting of six
men (in some jurisdictions perhaps more, and in some less) to be
summoned. After the jury are sworn, they view the body. Wit-
nesses are examined on oath, and their evidence is reduced to writ-
ing by the coroner. He has authority, like a magistrate, to cause
the material witnesses to enter into a recognizance for their appear-
ance to testify at court in case of a trial.
The inquisition consists of three parts : The caption or incipitur,
the verdict of the jury, and the attestation. The rules as to cer-
tainty, description, etc., which apply to indictments, and which we
shall presently discuss, apply also to an inquisition.
When the jury have returned a verdict of murder or manslaughter
against a person, the coroner must commit him for trial, if present.
If he is not in custody, the coroner may issue a warrant for his ar-
rest, and order him to be brought before himself or some magistrate
of the jurisdiction, in order that he may be so committed. Coroners
are generally authorized to admit to bail.
If an inquest ought to be held over a dead body, it is a misde-
meanor to so dispose of the body as to prevent the coroner from
holding the inquest^^"
COMPLAINT.
51. By statute in most states, certain minor offenses
may be prosecuted before inferior courts upon a com-
plaint or information made under oath, by a private per-
son.
This kind of a complaint or information is very different from the
information which we have already explained. Instead of being
presented by the prosecuting officer, it is made by a private person.
It is more in the nature of a complaint made by a private person
for the purpose of an arrest. It is allowed by statute only, and was
unknown to the common law, and it is allowed only in the case of
petty misdemeanors. The prosecution is instituted in an inferior
ISO Reg. V. Price, 12 Q. B. Div. 24T; Reg. v. Stephenson, 13 Q. B. Div. 331.
132 MODE AND TIME OF ACCUSATION. [Ch. 4
court, as before a justice of the peace or municipal court. In case
of a conviction, an appeal to the higher court is provided for in some
cases, and a trial de novo is there had on the same complaint or in-
formation.
TIME OF PROSECUTION.
52. Et is generally provided by statutes, known as the
"statutes of limitation," that prosecutions shall be barred
unless commenced -vp-ithin a certain time after the offense
was committed. In the absence of such a provision, there
is no period beyond which a prosecution may not be in-
stituted.
53. In some states it is provided by statute that a per-
son under arrest on a charge of crime shall be discharged
from imprisonment unless a presentment, indictment, or
information is found or filed within a prescribed time
after his arrest. But these statutes do not operate as a
bar to prosecutions.
Courts look with disfavor on unreasonable delay in commencing
prosecutions, '^^^ but, in the absence of statutory limitation, there is
no time within which a prosecution must be commenced. But in
most jurisdictions statutes have been enacted barring prosecutions
unless commenced within a prescribed time after the offense is al-
leged to have been committed. These statutes are to be liberally
construed in favor of the defendant.^'^ It has been held that the
statutes apply to offenses committed before their enactment,^'* but
there is authority to the contrary.^'* In New York the courts have
held that a statute extending the time for commencing prosecutions
only applies to subsequent offenses.'*"
181 See Reg. v. Robins, 1 Cox, Or. Cas. 114.
182 Whart Cr. PI. & Prac. § 316.
188 Johnson v. U. S., 3 McLean, 89, Fed. Cas. No. 7,418; TJ. S. v. Ballard, 3
McLean, 469, Fed. Cas. No. 14,507.
184 Martin v. State, 24 Tex. 61.
18B People V. Martin, 1 Parker, Or. R. (N. Y.) 187.
Ch. 4] TIME OF PEOSECDTION. 133
The statute commences to run on the day the offense is consum-
mated,"" unless the offense is continuous, in which case it com-
mences when the act or neglect constituting the offense ceases.^'^
The commencement of the prosecution, stopping the running of the
statute, is in some jurisdictions the finding of an indictment, filing
of an information, or, in case of inferior misdemeanors prosecuted
by complaint, filing of the complaint, and not the filing of a com-
plaint for the issuance of a warrant of arrest or a preliminarv hear-
ing, or the issuance of a warrant.^^^ In other jurisdictions the issu-
ance of a warrant, at least where the arrest is made within a reason-
able time afterwards,^^" or binding over or commitment,^*" will stop
the running of the statute.
The statutes generally except from their operation cases in which
the offender conceals himself or is a fugitive from justice or a non-
resident of the state,^*^ and may contain other exceptions. In
some states the statute does not run until the offense is known. ^*^
136 Whart. Cr. PI. & Prac. § 321; Glse v. Com., 81 Pa. St. 428; State v. As-
bury, 26 Tex. 82; Scoggins T. State, 32 Ark. 205; U. S. v. Irvine, 98 V. S. 450.
18 7 Whart Or. PI. & Prac. § 321; U. S. v. Irvine, supra.
138 u. S. V. Slacum, 1 Cranch, C. C. 485, Fed. Gas. No. 16,311; Com. v. Slieriff,
3 Brewst. (Pa.) 394. The sending ol an indictment to the grand jury does not
stop the running of the statute. State v. Tomlinson, 3 Ired. (N. C.) 32; State
V. Morris, 104 N. C. 837, 10 S. E. 454. Presentment by a grand jury is suffi-
cient, though the statutory period elapses before indictment. Brock v. State,
22 Ga. 98. But see U. S. v. Slacwm, supra. If a nolle prosequi of an indict-
ment is entered, the running of the statute is not interrupted. U. S. v. Bal-
lard, 3 McLean, 469, Fed. Gas. No. 14,507; Contra, by statute, State v. Child,
44 Kan. 420. 24 Pac. 952.
13 9 Reg. V. Parker, 9 Cos, Cr. Gas. 475; In re Glyne, 52 Kan. 441, 35 Pac.
23; Foster v. State, 38 Ala. 425; Ross v. State. 55 Ala. 177; People v. Clement,
72 Mich. 116, 40 N. W. 100. Filing complaint for issuance of warrant is not
sufficient. In re Glyne, supra; People v. Clement, supra; State v. Miller, 11
Humph. (Tenn.) 505; People v. Clark, 33 Mich. 120; In re Griffith, 35 Kan.
377, 11 Pac. 174. The arrest need not be made within the statutory period. Id.
140 Reg. V. Austin, 1 Car. & K. 621.
1*1 As to these exceptions, see U. S. v. White, 5 Oranch, 0. C. 116, Fed. Gas.
No. 16,677; Robinson v. State, 57 Ind. 113; State v. Harvell, 89 Mo. 588, 1
S. W. 837; State v. Heller, 76 Wis. 517, 45 N. W. 307; Graham v. Com., 51 Pa.
St. 255; People v. McCausey, 65 Mich. 72, 31 N. W. 770.
.112 Dale V. State, 88 Ga. 552. 15 S. E. 287.
134 MODE AND TIME OF ACCUSATION. [Ch. 4
No other exceptions than those specified in the statute will defeat
its operation.^**
The fact that an indictment found in time is quashed as defective,
and a new indictment presented after the statutory period has
elapsed, does not reTire the statute so as to bar the prosecution;^**
but it has been held that the running of the statute is not inter-
rupted by an indictment on which a nolle prosequi is entered.^*^
The effect of the statute cannot be avoided by charging a crime
not barred, and convicting of an offense which is included in the
charge, but which was barred. Thus, where a person is indicted for
murder, for which no limitation is prescribed, and is found guilty
of assault with intent to murder, which was barred when the in-
dictment was found, a motion in arrest of judgment should be sus-
tained."*
In some states it is provided that a person in jail on a criminal
charge shall be dismissed from imprisonment if a presentment, in-
dictment, or information be not found or filed against him before
the end of the second term (the time varies in the different states)
of the court at which he is held to answer. These statutes do not
operate, like the statutes of limitation of which we have spoken, as
a bar to the prosecution of the defendant. He must be discharged
from imprisonment if not formally charged within the time pre-
scribed, but he may be again arrested and tried upon any indictment
that may be subsequently found against him.^*^
In most states, by statute, a person who has been indicted or in-
formed against, and is in custody, must be brought to trial within
a certain time, or he will be entitled to a discharge. This, how-
ever, relates to the time of trial, rather than of the prosecution.^*'
"8 Com. V. Sheriff, 3 Brewst. (Pa.) 394; In re Griffith, 35 Kan. 377, 11 Pac.
174.
1** Com. V. Sheriff, 3 Brewst. (Pa.) 394; Poster v. State, 38 Ala, 425; State v.
Johnston, 5 Jones (N. C.) 221; State v. Hailey, 6 Jones (N. O.) 42; TuUy v.
Com., 13 Bush (Ky.) 142.
1*5 u. S. Ballard, 3 McLean, 469, Fed. Cas. No. 14,507.
1*6 Fuecher v. State (Tex. Cr. App.) 24 S. W. 292.
1*7 WaUer v. Com., 84 Va. 492, 5 S. E. 364. It is sufficient under such a
statute that the defendant has been indicted at every term of court, though
for a different crime from that for which he is finally Indicted and tried. Wal-
ler V. Com., supra.
148 Post, p. 410.
Ch. 4] NOLLE PROSEQUI. 135
NOLLE PROSEQUL
54. A nolle prosequi is a formal entry upon the record
by the prosecuting officer, by which he declares that he
will no farther prosecute the case, either as to some of
the counts of the indictment, or part of a divisible count,
or as to some of the defendants, or altogether. It may
be entered at any time before judgment without, the de-
fendant's consent; but if the trial has commenced, and
the indictment is sufficient, it will amount to an acquittal.
At common law, the state may at any time before judgment,^*'
without the defendant's consent, voluntarily withdraw the indict-
ment or other accusation altogether, or as to some counts which are
objectionable, or as to part of a count which is diyisible, or as to
some of several defendants where the offense is joint and several.^ ^^
This is done by the entry of such a withdrawal on the record. The
entry is essential. Until the entry is made on the record, there is
no binding withdrawal, but it may be retracted, and the prosecution
may proceed on the same charge.^ °^ The entry of a nolle proseijui
as to one count does not affect the right to proceed to judgment on
the others, nor does such an entry as to one of several defendants
affect the proceeding as to the others, where the offense is several
as well as joint.^"* If the entry is made before the trial has com-
menced by the swearing of the jury, or even if made afterwards,
where the indictment was fatally defective, a new prosecution may
1*9 Com. V. Briggs, 7 Pick. (Mass.) 178; Com. v. Tuck, 20 Pick. (Mass.) 357;
State V. Burke, 38 Me. 574; Levison v. State, 54 Ala. 520; State v. Roe, 12
Vt. 93.
iBo Com. v. Briggs, supra; Com. v. Tuck, supra; Com. v. Smith, 98 Mass. 10;
U. S. v. Watson, 7 Blatchf. 60, Fed. Gas. No. 16,652; State v. Bruce, 24 Me.
71; State v. Boe, 12 Vt. 93; People v. Porter, 4 Parker, Cr. R. (N. Y.) 524;
Wright V. State. 5 Ind. 290; State v. Fleming, 7 Humph. (Tenn.) 152; Lacey
V. State, 58 Ala. 385.
iBi Com. V. Wheeler, 2 Mass. 172; Com. v. Tuck, supra; Wortham v. Com.,
5 Rand. (Va.) 669.
m See the cases above cited.
136 MODE AND TIME OF ACCUSATION. [Ch. 4
be instituted for the same ofEense;"' but by the weight of author-
ity, as we shall see, there can be no further prosecution if the indict-
ment is sufflcient to sustain a conviction, and the entry is made after
the jury have been sworn.^^*
In some states, by statute, the consent of the court to the entry of
a nolle prosequi is necessary; ^■"' and in others it has been held nec-
essary in the absence of such a statute after the jury are sworn,
and before verdict; ^^* but, by the better opinion, it was not neces-
sary at all at common law.^^'
IBS Post, p. 385; Com. v. Wheeler, 2 Mass. 172; Com. v. Briggs, 7 Pick.
(Mass.) 179; State v. Benham, 7 Comi. 418; Lindsay v. Com., 2 Va. Cas. 345;
Wortham v. Com., 5 Rand. (Va.) 669; V. S. v. Shoemaker, 2 McLean, 114, Fed.
Cas. No. 16,279; State v. McNeill, 3 Hawks (N. C.) 188; State v. Haskett, 3
HiU (S. C.) 95.
154 Post, p. 385.
1 OB See People v. McLeod, 1 Hill (N. Y.) 404.
1B8 u. S. V. Shoemaker, 2 McLean, 114, Fed. Cas. No. 16,279; Com. v. Tuck,
20 Pick. (Mass.) 357; State v. I. S. S., 1 Tyler (Vt.) 178; State v. Moody, 69
N. C. 529.
1B7 People V. McLeod, 1 Hill (N. Y.) 404. The following is related of Sir
John Holt, chief justice of the king's bench in the reigns of William and
Anne: "There were some persons in London who pretended the power of
foretelling futm-e events, and who were called the 'French prophets.' Holt
having, upon occasion, committed one of these to prison, a disciple of his
came to the chief justice's house, and desired to see him. On being ad-
mitted, he said: 'I come from tie Lord, who bade me desire thee to gi-ant
a nolle prosequi for John Atkins, his servant, whom thou hast thrown into
prison.' 'Thou art a false prophet and lying knave,' returned the chief jus-
tice. 'If the Lord had sent thee, it would have been to the attorney gen-
eral; for the Lord knoweth that it is not in my power to grant a nolle pros-
«qui.' " 1 Hill (N. Y.) 405, from 1 Law & Lawy. (Phil. Ed.) 293, 294.
^h. 5] PLEADIiS'G THE ACCUSATION, 137
CHAPTEE, V.
PLEADING— THE ACCUSATION.
55. Form of Indictment— In General,
56. The Commencement.
57. The Statement.
58. Name and Description of Defendant.
59. Statement of OfEense— In General.
60. Stating Ingredients of Offense.
61. Facts to be Stated, and not Conclusions of Law.
62. Identifying OfCense.
63. Mode of Averment — Argument and Inference.
64. Unnecessary Matter.
65. Facts Necessarily Implied from Facts Stated.
66. Facts Judicially Noticed.
67. Conclusions of Law from Facts Stated.
68. Matters of Evidence.
69. Matters of Defense.
70. Facts Particulatly vs^ithin Knowledge of Defendant
71. Pacts not Known.
72. Disjunctive or Alternative Allegations,
73. Repugnancy.
74. English Language.
75. Abbreviations.
76. Use of Videlicet or Scilicet
77. Clerical or Grammatical Errors.
78. Inducement
79. Innuendo.
80. Surplusage.
We have seen that no man can be put upon his trial for an offense
without being formally accused, and we have explained the differ-
ent modes of accusation; namely, by indictment, by information,
and by complaint. It is not only necessary that there shall be an
accusation, but it must be in the form required by law. Certain
allegations are essential, and they must observe certain rules. We
will now show what these essential allegations are, and explain the
rules of pleading which govern the construction of an accusation.
We shall in terms speak of indictments only, but the rules apply
138 PLEADING THE ACCUSATION. [Ch. 5
with equal force to informations and complaints, except in so far
as the difference in the nature of the accusations necessarily ren-
ders them inapplicable.
In general, the rules and principles of pleading with respect to
the structure of a declaration in a civil action are applicable to an
indictment, and therefore, where the criminal law is silent as to
the form of an indictment in a particular case, resort may be had
to decisions on the requisites of pleading in civil actions.^ There
are many questions of pleading in criminal cases, however, which
are peculiar to them, and, even where this is not the case, a correct
knowledge of the principles and rules of pleading in criminal cases
cannot be acquired by a study of the rules of pleading in civil ac-
tions only. A special discussion is necessary.
FORM OF INDICTMENT.
65. An indictment is divided into three parts, namely:
(a) The commencement.
(b) The statement.
(c) The conclusion.
An indictment for larceny at common law would be in the follow-
ing form:
State of , County of , to wit:
The jurors for the county aforesaid upon their oath present (a) that
John Doe, at B , in the county aforesaid, on the first day of
January, in the year of our Lord 1895, one overcoat, of the value of
one hundred dollars, of the goods and chattels of Richard Roe, fe-
loniously did steal, take and carry away, (b) against the peace and
dignity of the state.
From the beginning to the letter (a) is the commencement; from
the letter (a) to the letter (b) is the statement; and from the letter
(b) to the end is the conclusion.
What is called the caption of the indictment precedes the com-
mencement. As we have seen, it is a statement of the court before
which the indictment was found, and of certain other matters. It
1 1 Chit Cr. Law, 168; Rex v, Lawley, 2 Strange, 904; Reg. v. Castro, 6 App;
Cas. 229.
Ch. 5] FORM OF INDICTMENT. 13&
is merely the heading of the record of the indictment, and forms no
part of the indictment itself. ^
We shall in the following pages take up and explain each of these
parts separately and in detail, but before doing so it is necessary
to say something about the form of indictments generally, and to
call attention to the variance between the forms used in the differ-
ent states, and to the effect of modern statutes on the common-law
rules. The form of indictment given above is sufflcient at common
law; and it is therefore sufficient in all of our states unless there
is something in the statutes, decisions, or peculiar practice requir-
ing a different form. It must not be supposed that these exact
words are essential, and that no other words will do, for this is not
true. It is required, as we shall see, that certain matters shall ap-
pear in an indictment, and that they shall be stated in a certain
manner. If these requirements are met, nothing more is necessary.
It is best that there should be a particular form of indictment, and
that it should in practice be followed in all cases, but a departure
from the exact form which is generally used does not necessarily
make an indictment bad. The fact that certain averments or omis-
sions are found in precedents of forms which have been used does
not show that they may not be dispensed with. "It would be giv-
ing too much force to mere precedents of forms, which often con-
tain unnecessary and superfluous averments, to hold that a par-
ticular allegation is essential to the validity of an indictment, be-
cause it has sometimes, or even generally, been adopted by text
writers or by cautious pleaders."' Nor, on the other hand, does
the fact that an indictment follows the form which has been in gen-
eral use necessarily show that it is good. Convictions may be had
on 99 indictments, all of which are in exactly the same form, simply
because no objection is made to a defect therein, or because an ob-
jection is erroneously overruled by the court. This, however, is
no reason why the one hundreth indictment should be sustained, if
it is in fact defective. The rules of pleading must be applied to
every indictment, and it is by those rules (in connection with the
statutes, of course) that its sufficiency is to be determined. If the
2 Ante, p. 123.
s Com. V. Hersey, 2 Allen (Mass.) 179; Com. v. Wright, 1 Cush. (Mass.) 64.
And see State v. Brooks, 94 Mo. 121, 7 S. W. 24.
140 PLEADING THE ACCUSATION. [Ch. 5
pleader adopts a form, he should first test it by these rules. "If,
upon inquiry, it is found that a form which has long been pursued
is inconsistent with the rules of law and good pleading, it cannot
be too soon reformed; and the consequences, which are suggested
to be so alarming in prospect, appear to amount to no more than
to require that in the future the pleader should attend to the lan-
guage of the statute upon which the proceeding is adopted, instead
of copying a faulty precedent." *
The forms of indictment and information vary more or less in
the different states, because of particular constitutional or statu-
tory provisions, or because of local usage. In some states the word
"state" is used in the commencement and conclusion, while in others
the word "commonwealth" is used, and in others the words "the
people of the state" are used. In many of the states forms of in-
dictment are .prescribed by statute. The object of the legislature
is to simplify the drawing of indictments and other accusations,
and dispense with the necessity of purely formal and technical aver-
ments, which, though really useless, are considered essential at
common law, and the omission of which would often defeat an in-
dictment which is perfectly good in substance. These statutes
merely do away to some extent with the strictness required by the
common law; they do not, as a rule, render insufScient an indict-
ment which would have been good at common law.°
The English parliament has plenary power to prescribe any form
of accusation it may see fit, but with us the power of congress and
of the state legislatures is greatly restricted by constitutional pro-
visions. Some of the constitutions, as we have seen, require cer-
tain prosecutions to be by indictment. Most of them require the
accusation, in whatever form it may be, to be suflScient in sub-
stance to fully inform the accused of the specific charge against
him ; and most, if not all, provide that no person shall be deprived
of life, liberty, or property without due process of law. None of
these provisions prevent the legislature from abolishing common-
* Rex V. Morley, 1 Younge & J. 221. A conviction is bad -where the charge
does not in terms show a legal offense, though it is in a form used time out
of mind in the court before which the party was so charged. Ex parte Hop-
kins, 61 Law J. Q. B. 240, 66 Law T. (N. S.) 53, 17 Cox, Gr. Oas. 444.
0 State v. BrooliS, 94 Mo. 121, 7 S. W. 24.
Ch. 5] THE COMMENCEMENT. 141
law forms of accusation (except, of course, that there must be an
indictment when it is required by the constitution), or from dis-
pensing with particular allegations which are necessary at common
law, provided the form substituted or allowed is sufficient to give
the accused reasonable notice of the charge against him." No form,
however, will suffice, even though it may be authorized by statute,
if it fails to set forth any essential element of the offense; ^ or if
it fails to state such particulars of the offense, as distinguished
from its essential legal elements, as may be necessary to inform
the accused of the specific offense charged, and not merely the char-
acter of the offense.*
THE COMMENCEMENT.
56. The commencement of the indictment must state:
(a) The venue. This is the name of the county
from ■which the grand jury have come, and
in Tvhich the trial is to be had, and gener-
« State V. Corson, 59 Me. 137; Morton v. People, 47 HI. 468; State v. Learned,
47 Me. 426; State v. Comstock, 27 Vt. 553; State v. Hodgson, 66 Vt. 134, 28
Atl. 1089; Rowan v. State, 30 Wis. 129; State v. Morgan, 112 Mo. 202, 20 S.
W. 456; State v. Beswick, 13 R. I. 211. That a statute may dispense with the
necessity to state the means, manner, and circumstances of the killing in
an indictment for homicide, see Newcomb v. State, 37 Miss. 383; Cathcart v.
Com., 37 Pa. St. 108; Noles v. State, 24 Ala. 672; Wolf v. State, 19 Ohio
St. 248; Rowan v. State, 30 Wis. 129.
7 State V. Mace, 76 Me. 64; Com. v. Harrington, 130 Mass. 35; Hewitt v.
State, 25 Tex. 722; Mcljaughlin v. State, 45 Ind. 338; State v. Learned, 47 Me.
426; State v. Startup, 39 N. J. Law, 432; People v. Campbell, 4 Parker, Or.
E. (N. Y.) 386.
8 State V. Mace, 76 Me. 64; Bradlaugh v. Reg., 3 Q. B. Div. 607; Murphy y.
State, 24 Miss. 590, 28 Miss. 637; McLaughlin v. State, 45 Ind. 338; Kilrow
v. Com., 89 Pa. St. 480; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State t.
Learned, 47 Me. 426; People v. Dumar, 106 N. Y. 502, 13 N. E. 325; People v.
Stark, 136 N. Y. 538, 32 N. E. 1046; State v. Daugherty, 30 Tex. 360; Com.
V. Buzzard, 5 Grat. (Va.) 694; State v. Comstock, 27 Vt. 553; Blumeubers
v. State, 55 Miss. 528; Williams v. State, 35 Ohio St. 175; State v. Flumiu-,
117 Mo. 377, 22 S. W. 1024; State v. Reynolds, 106 Mo. 146, 17 S. W. 322. As
to what are mere matters of form, and what are matters of substance, see
post, pp. 317, 321, 324.
142 PLEADING THE ACCUSATION. [Ch. 5
ally of the coimty in wliicli the offense was
committed,
(b) The fact of presentment by the grand jurors
upon oath or afi&rmation.
The commencement of an indictment at common law in England
was: "Middlesex, to wit. The jurors for our lord, the king, upon
their oath present," etc. And in this country a proper form would
be: "State (or Commonwealth) of , County of , to wit.
The jurors for the state (or commonwealth, or the people of the
state, according to the practice) of , in and for the body of
the county of (or for the state and county aforesaid, or the
.county aforesaid), upon their oath present," etc. By statute or
usage, the form used varies in the different states, but the above
form would be sufficient in most of them.*
Subsequent counts of an indictment commence: "And the jurors
aforesaid upon their oath aforesaid further present," etc.^"
Statement of Venue.
The statement of the venue is usually said to be a statement of
the county in which the offense was committed and the trial is to
be had. In effect this is generally true, but it is more accurate to
say that it is a statement of the county from which the grand jury
have come, and for which they are to inquire. It is also the county
in which the offense was committed, because generally a grand jury
for any other county would have no authority to present the indict-
ment, and the county in which the trial is to be had, for the trial
is generally had in the county where the offense was committed.
The county is usually stated in the margin of the indictment, but
it need not be if it appears in the body of the commencement or in
the body of the caption ; and in the latter case is referred to in the
commencement as the "county aforesaid." ^^
9 See State v. Nixon, 18 Vt. 70; Hurley v. State, 6 Ohio, 399; Woodsides v.
State, 2 How. (Miss.) 655.
10 A second or tliird count so commencing sufficiently refers to the state-
ment in the first count that the jurors are for the county therein named.
The statement need not be repeated. State v. Vincent, 91 Mo. 662, 4 S. W. 430.
n 2 Hale, P. C. 165; Com. v. Quin, 5 Gray (Mass.) 478; TefCt v. Com., 8
Leigh (Va.) 721.
Ch. 5] THE COMMENCEMENT. 143
It has been held that the omission of the name of the state does
not render the indictment defective.^* Even if it should be deemed
necessary to name the state, the name alone without the words
"State of" would be sufficient."
Showing as to Presentment.
It is essential that it appear that the indictment is presented by
a grand jury. Since no other jury can find an indictment, the word
"jurors" in the commencement will be taken to mean "grand ju-
rors," and will be sufficient. It is not necessary to use the latter
term.^* It would seem that it should appear in the body of the
indictment, by some proper reference, that the grand jury was au-
thorized to inquire into the offense, and therefore that they should
be described as the "jurors for the county of ," or "for the
county aforesaid"; but this does not seem to be necessary where
the county is mentioned in the margin or caption.^" Therefore,
though it is usual to state in the commencement the county from
which the jury have come, it is probably not essential. But it is
essential that the record shall show that they come from the proper
county.^" In some states it is usual to state that the grand jury
are "inquiring for," or are "sworn to inquire for," the county, or in
and for the body of the county, etc. This, however, is not neces-
sary, for the law presumes as much from the fact that the grand
jury can be impaneled and sworn for no other purpose.^^ The num-
12 State V. Lane, 4 Ired. (N. C.) 113; Greeson v. State, 5 How. (Miss.) 33;
Woodsides v. State, 2 How. (Miss.) 655; note 19, infra.
13 See State v. Anthony, 1 McCord (S. C.) 285.
14 Com. V. Edwards, 4 Gray (Mass.) 1.
10 The form in Massachusetts, including the caption, as given by Dr. Whar-
ton, is:
Commonwealth of Massachusetts. Suffolk, to wit.
At the supreme judicial court of said commonwealth of Massachusetts, be-
gun and holden at Boston, within and for the county of Suffolk, on the first
Monday of , in the year of our I^rd, .
The jurors for the commonwealth of Massachusetts upon their oath present,
etc.
1 Whart. Free. Ind. 28, from Com. v. Fisher, 7 Gray (Mass.) 492.
16 Tipton V. State, Peck (Tenn.) 307; Cornwell v. State, Mart. & Y. (Tenn.)
147.
17 Hurley v. State, 6 Ohio, 399; State v. England, 19 Mo. 386.
144 PLEADING THE ACCUSATION. [Ch. 5
ber of the grand jurors should, as we have seen, appear on the rec-
ord, but they need not be specified in the indictment itself.^' A
formal statement in the indictment that it is found by the authority
of the state is not necessary, if it appears from the record that the
prosecution is in the name of the state.^'
It is essential that it shall appear that the indictment is pre-
sented by the jurors under oath, or under oath and aflarmation when
some are affirmed; ^^ and this must appear in every count, either by
direct allegation or by a proper reference to a preceding count.^*
It is therefore stated that the jurors "upon their oath (or oath and
affirmation) present." The use of the word "oaths" instead of
"oath" does not render the indictment defective; either word will
do."'' It has been held that an indictment purporting to be pre-
sented upon oath and affirmation need not state the reasons why
some of the jurors affirmed instead of being sworn, so as to show
that affirmation was authorized,"^ but there is some authority to
the effect that the reasons must appear on the record."*
The fact of presentment must be expressed by the use of the word
"present," or of some other appropriate word showing that the
grand jury charge the defendant;"" and it must be expressed in
the present tense. If an indictment were to read "did present,"
it would be fatally defective.""
18 Ante, p. 125; Young v. State, 6 Ohio, 435.
19 Greeson v. State, 5 How. (Miss.) 33; State v. Doe, 6 "Wash. 587, 34 Pac
154; State v. Kerr (N. D.) 58 N. W. 2T.
20 Cro. Jac. 635; Huffman's Case, 6 Rand. (Va.) 685; Curtis v. People,
Breese (111.) 256.
21 State v. McAllister, 26 Me. 374; State v. Wagner, 118 Mo. 626, 24 S. W.
219; post, p. 208. In State v. McAllister, supra, the first count of the indict-
ment alleged that the jurors "upon their oaths present," etc. The third count
merely alleged that "the jurors aforesaid for the state aforesaid do further
present," etc., and it was held that this was not a sufficient reference to the
allegation of the first count of a finding upon oath, as it did not say "as afore-
said, or in manner aforesaid."
22 Com. v. Sholes, 13 Allen (Mass.) 554; Jerry v. State, 1 Blackf. (Ind.) 395;
State V. Dayton, 23 N. J. Law, 49.
23 Com. V. Fisher, 7 Gray (Mass.) 492; Anon., 9 Car. & P. 78; ante, p. 125.
24 State V. Han-is, 7 N. J. Law, 361; ante. p. 125.
2 5 Vanvickle v. State, 22 Tex. App. 625, 2 S. W. 642.
26 1 Chit. Cr. Law, 202.
Ch. 5] NAME AND DESCRIPTION OF THE DEFENDANT. 145
Mere clerical and grammatical errors in the commencement, as
where the indictment commences, "The grand jurors within and
the body of the county," omitting the word "for," will not vitiate the
indictment. ''^
THE STATEMENT.
67. The statement is that part of the indictment which
charges the offense. For convenience in treatment we
shall divide it into two parts:
(a) The description of the defendant, and
(b) The statement of the offense.
NAME AND DESCRIPTION OF THE DEFENDANT.
58. The indictment should describe the accused by his
full Christian name and surname, if they are known. At
common law a misnomer of the defendant is fatal to the
particular indictment, if the objection is taken by plea in
abatement before pleading to the merits; but it can only
cause delay, for a new indictment may be presented.^
Objection on this ground cannot be made after pleading
to the merits.
The indictment must correctly state the name of the defendant,
including his full Christian name, if his name is known.^* If a man
27 state V. Brady, 14 Vt. 353. See post, p. 174, as to clerical errors.
2 8 In some jurisdictions, by statute, the indictment may be amended in
this respect. A new indictment is not necessary. Post, p. 315.
2 9 Hex V. Shakespeare, 10 Bast, 83; Com. v. PerMns, 1 Pick. (Mass.) 388;
Com. V. HaU, 3 Pick (Mass.) 262; Turner v. People, 40 111. App. 17; En-
wright V. State, 58 Ind. 567; Picking v. State, 6 Ohio, 274; State v. Hand,
1 Eng. (Ark.) 165. See Pancho v. State, 25 Tex. App. 402, 8 S. W. 476. If the
defendant's name is stated with repugnancy, as where it is differently stated
in two places, the indictment is fatally defective. Kinney v. State, 21 Tex.
App. 348, 17 S. W. 423. Where, by statute, an indictment is not to be held
invalid for a defect or imperfection which does not tend to the prejudice of
the substantial rights of the defendant upon the merits, the substitution of in-
itials for the Christian name of the defendant does not render the indictment
bad. State v. Johnson, 93 Mo. 317, G S. W. 77; post, 822.
CBI I.PROC. — 10
146 PLEADING THE ACCUSATION. [Uh. 5
has initials for his Christian name, or is in the habit of using ini-
tials therefor, and is known by them, they may be used to describe
him.^" In most states a middle name or initial is not recognized
as a part of the name, and need not be stated; nor by the weight
of authority, if it is unnecessarily stated, need it be proven." Some
courts, while holding that a middle name or initial need not be
stated, hold that, if it is stated, it becomes part of the description,
and cannot be rejected as surplusage.^^ Other courts seem to
regard the middle name or initial as a part of the name necessary
to be stated.^'
The words "junior," "senior," etc., are no part of a person's name,
and their omission can ordinarily make no difference.'* But where
a father and son have the same name, and are both indicted, some
«uch mode of distinguishing them should be adopted.'"
so Reg. V. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; City Council
V. King, 4 McCord (S. C.) 4S7; State v. Black, 31 Tex. 560 (statutory); State
V. Kean, 10 N. H. 347; Vandermark v. People, 47 111. 122; State v. Johnson,
D3 Mo. 73, 317, 5 S. W. 699, and 6 S. W. 77; State v. Johnson, 67 N. 0. 58.
If the Initial is not so used as the name, the fuU name must be given. Ger-
rish V. State, 53 Ala. 476; State v. Webster, 30 Ark. 166.
31 Choen v. State, 52 Ind. .S47; Franklin v. Talmadge, 5 Johns. (N. Y.) 84;
Roosevelt v. Gardinier, 2 Cow. (N. Y.) 463; Edmundson v. State, 17 Ala. 179;
Thompson v. Lee, 21 lU. 242; Erskine v. Davis, 25 lU. 251; Bletch v.' John-
son, 40 111. 116; Wood v. Fletcher, 3 N. H. 61; State v. Martin, 10 Mo. 391;
Dilts V. Kinney, 15 N. J. Law, 130; Isaacs v. Wiley, 12 Vt. 674; Allen v.
Taylor, 26 Vt. 599; State v. Feeny, 13 R. I. 623; Hart v. Llndsey, 17 N. H.
235; Bratton v. Seymour, 4 Watts (Pa.) 329; Keene v. Meade, 3 Pet. 1; Mc-
Kay V. Speak, 8 Tex. 376; State v. Manning, 14 Tex. 402; State v. William^,
20 Iowa, 98; People v. Lockwood, 6 Cal. 205.
3 2 Price V. State, 19 Ohio, 423; State v. Hughes, 1 Swan (Tenn.) 261.
33 Jones V. MacquiUin, 5 Term R. 195; Com. v. Perkins, 1 Pick. (Mass.) 388;
Com. V. Hall, 3 Pick. (Mass.) 262; Com. v. Shearman, 11 Gush. (Mass.) 546.
3 4 Com. V. Perkins, 1 Pick. (Mass.) 388; Dekentland v. Somers, 2 Root
(Conn.) 437; Kincaid v. Howe, 10 Mass. 205; Cobb v. Lewis, 15 Pick. (Mass.)
7; State v. Grant, 22 Me. 171; Brainard v. Stilphin, 6 Vt. 9; People v. Col-
lins, 7 Johns. (N. Y.) 549; Padgett v. Lawrence, 10 Paige (N. Y.) 170; Allen
V. Taylor, 26 Vt. 599; Headley v. Shaw, 39 111. 354; Com. v. Parmenter, 101
Mass. 211; post, p. 235. But see State v. Vittum, 9 N. H. 519; Pell v. Prevost,
2 Caines (N. Y.) 164.
3 5 1 Chit. Or. Law, 211. See State v. Vittum, 9 N. H. 519; Rex v. Bailey, 7
Car. & P. 264. But by the better opinion, it is not necessary. Rex v. Peace,
Ch, 5] NAME AND DESCRIPTION OF THE DEFENDANT. 147
If the true name and the name given in the indictment are idem
sonans, — that is, if the sound is not affected by the mistake in spell-
ing it, — ^there is no misnomer; ^^ and 4t has been said that if the
two names are the same in original derivation, and are taken pro-
miscuously in common use, there is no misnomer, though they may
differ in sound.^^ If a person is known by more than one name,
either may be used.'* And if a man, by his words or conduct, holds
out a name as his, he is answerable under that name.'' In case of
doubt a second name may be given after an alius dictus.*"
If the name of the defendant (either his Christian name, or both
Christian name and surname) is unknown, and he refuses to disclose
it, an indictment against him as a person whose name is to the
jurors unknown, but who is personally brought before them by the
jailer, will be sufficient.*^ The general practice is to use an as-
sumed name, and drive the defendant to a plea in abatement, which,
as we shall see, must give his true name. If he does not plead in
abatement, the conviction, as we shall see, is good; while if he does
so plead, a new indictment may be presented, or in some states the
indictment may be amended.*^
A corporation is indicted by its full corporate name, which must
be accurately stated, and the names of the natural persons compos-
3 Barn. & Aid. 579; Com. v. Parmenter, 101 Mass. 211. And see cases cited
in ttie preceding note.
38 Bex V. Shakespeare, 10 East, 84: Dicltinson v. Bowes, 16 Bast, 110;
Petrie v. Wood worth, 3 Gaines (N. Y.) 219; State v. Upton, 1 Dev. (N. C.) 513.
See post, p. 341, note 75, where illustrations are collected.
87 2 Rolle, Abr. 135; Bac. Abr. tit. "Misnomer"; 1 Chit. Cr. Law, 203.
88 1 Chit. Cr. Law, 203; Com. v. Gale, 11 Gray (Mass.) 320; State v. Pierre,
39 La. Ann. 915, 3 South. 60. He need not be as well known by one as by the
other. State v. Pierre, supra.
30 People V. Leong Quong, 60 Oal. 107; City Council v. King, 4 McCord (S.
C.) 487; State y. Bell, 65 N. C. 313; Newton v. MaxweU, 2 Cromp. & J. 215.
*o State V. Graham, 15 Rich. (S. C.) 310; Evans v. State, 62 Ala. 6.
411 Chit. Cr. Law, 203; Rex v. , Russ. & R. 489; State v. Angel, 7 Ired.
(N. C.) 27; Bryant v. State, 36 Ala. 270; Kelley v. State, 25 Ark. 392. Merely
to state that his name is unknown, without any statement to identify him, is
not suflScient. Rex v. . Russ. & R. 489. Such a description is bad, and
a misnomer, if the grand jury knew the defendant's real name. Jones v.
State, 63 Ala. 27; post, p. 340.
42 Post, pp. 149, 315. In some states the statute prescribes this practice. See
State V. Geiger, 5 Iowa, 484.
148 PLEADING THE ACCUSATION. [Ch. 5
ing it are not mentioned.*' This applies not only to private cor-
porations, but also to cities, towns, and other municipal corpora-
tions. The city or town bj its corporate name, and not the in-
habitants thereof, is indicted.** The inhabitants of a county or
unincorporated town are generally indicted simply as such, and
not by the name of the county, nor by their individual names.*" It
is possibly allowable, however, to indict them by the name of the
county or town.**
Addition of Defendant.
Even at common law, in England, it was necessary to state the
rank and degree of the defendant, in addition to his name, if he was
a knight, or of any higher dignity. And at common law, where a
person is indicted in respect of his ofiSce, that addition is necessary.*'
The necessity for additions was extended to other cases by the stat-
ute of 1 Henry V. c. 5, known as the "Statute of Additions." It re-
quired that additions should be made in indictments in the name of
the defendants "of their estate, or degree, or mystery, and of the
towns, or hamlets, or places and counties, of which they were, or
be, or in which he or they were conversant." By the terms "estate"
and "degree" were meant the title, rank, condition, etc., of the de-
fendant; as knight, laborer, widow, spinster, etc. By "mystery"
was meant his calling, trade, or profession; as merchant, tailor,
broker, hostler, baker, etc.*' This statute is old enough to be a
part of our common law, but in most jurisdictions it has either been
abrogated by statute or is not recognized. In some states, how-
*8 Reg. V. Birmingham & G. Ry. Co., 3 Q. B. 223; Rex. v. Patrick, 1 Leach,
Crown Cas. 253; Com. v. Demuth, 12 Serg. & R. (Pa.) 389. And it has been
held that there must be an averment that the corporation is in esse; for in-
stance, thus: "The Vermont Central Raih'oad Company, a corporation exist-
ing under and by force of the laws of this state, duly organized and doing
business." State v. Vermont C. R. Co., 28 Vt. 583. But see State v. Great
Works Milling, etc., Co., 20 Me. 41; Com. v. Turnpike Co., 2 Va. Cas. 362;
Clark, Cr. Law, 78. See post, p. 235, note.
** City of Lowell v. Morse, 1 Mete. (Mass.) 473; Com. v. Dedham, 16 Mass.
141.
45 2 Rolle, Abr. 79.
*8 See Com. v. Dedham, supra; City of Lowell v. Morse, supra.
47 1 Chit. Cr. Law, 204; 2 Inst. 666.
48 1 Chit. Cr. Law, 204-208; 2 Hawk. P. C. c. 33, § 111.
Ch. 5] NAME, AND DESCRIPTION OF THE DEFENDANT. 149
ever, it or a similar statute has been or still is in force.*® A woman
is described as tbe wife of some person properly described, or as a
widow, or spinster, where an addition is necessary; but in many
states no such addition is required.^" In some jurisdictions it is still
necessary, and in others it is at least customary, to add the resi-
dence of the defendant as required by the statute of additions;
but it is usual to give as his residence the place where the offense
was committed, even though he may in fact live elsewhere, because
he is considered as having been conversant in that place. '^
Repeating Name and Description of Defendant.
Where the defendant has been once fully named and described,
he may afterwards be referred to as the said (giving his
Christian name only)."'' It has been held that this applies to in-
dictments containing several counts; that, if the defendant is fully
described in the first count, he may be described as the said
(giving his Christian name) in the subsequent counts."' Where
there is only one count in the indictment, a previous description of
a person so referred to need not be repeated;"* but it seems that
such a reference in a second count cannot import a description con-
tained in the first count; that, where there are several counts, the
description must be repeated.""
Effect of Misnomer.
Misnomer of the defendant does not render the indictment fatally
defective, so that a conviction cannot be had thereon. Objection
can be taken only by a plea in abatement before pleading to the
merits. The effect is merely to delay the trial, for the plea must
give the true name of the defendant, and a new indictment may be
presented."' Or the state may join issue on the plea, or reply that
<o state V. Bishop, 15 Me. 122; State v. Hughes, 2 Har. & McH. (Md.) 479;
Haught V. Com., 2 Va. Cas. 3; Com. v. Clark, Id. 401.
60 State V. Guest, 100 N. C. 410, 6 S. E. 253.
Bi 1 Chit. Cr. Law, 210; Com. v. Taylor, 113 Mass. 1.
82 state V. Pike, 65 Me. 111.
63 Com. V. Hagarman, 10 Allen (Mass.) 401; Com. v. Clapp, 16 Gray (Mass.)
237. See State v. Pike, 65 Me. 111.
64 Com. V. Sullivan, 6 Gray (Mass.) 477.
6 6 Reg. V. Martin, 9 Car. & P. 215; Reg. v. Waters, 3 Cox, Cr. Cas. 300.
66 State V. Hughes, 1 Swan (Tenn.) 261. The accused will be concluded
by the name given by him. 1 Chit. Cr. Law, 203. In some states, by statute,
the same indictment may be amended in this respect
150 PLEADING THE ACCUSATION. [Ch. 5
the defendant was as well known by one name as tlie otlier."^ If
the defendant, instead of pleading in abatement, pleads to the mer-
its, he cannot afterwards object on the ground of misnomer."*
Under the statute of additions above mentioned, the same rule ap-
plies where an addition is omitted or misstated. The defect can
only be taken advantage of by plea in abatement.'"
STATEMENT OE THE OFFENSE.
69. The indictmeut must state the offense, and must
state it ^th sufficient certainty —
(a) To enable the court to say that, if the facts stated
are true, an offense has been committed by the
defendant.
(b) To enable the court to know what punishment to
impose in case of conviction.
(c) To enable the court to confine the proof to the of-
fense charged, so that the defendant may not be
accused of one offense and convicted of another.
(d) To give the defendant reasonable notice of the
particular charge he -will be called upon to
answ^er, and enable him to properly prepare
his defense.
(e) To make it appear on the record of what particu-
lar offense the defendant was charged, for the
purpose of review^ in case of conviction.
(f) To so identify the offense that an acquittal or con-
viction may be pleaded in bar of a subsequent
prosecution for the same offense.
It has always been an established rule of the common law that
the indictment must be certain, — that is, that it must set forth the
B7 Com. V. Gale, 11 Gray (Mass.) 320; ante, p. 147.
08 Com. V. Dedham, 16 Mass. 141; Turns v. Com., 6 Mete. (Mass.) 224;
Turner v. People, 40 111. App. 17; post, p. 377.
5 8 1 Chit. Cr. Law, 204; State v. Bishop, 15 Me. 122; State v. McGregor,
41 N. H. 407; Com. v. Cherry, 2 Va. Cas. 20; Com. v. Lewis, 1 Meta (Mass.)
151; Com. v. Butler, 1 Allen (Mass.) 4.
Ch. 5] STATEMENT OP OFFENSE IN GENERAL. 151
special manner of the whole fact, so that it can be clearly seen what
particular crime, and not merely what nature of crime, is intended
to be charged. This rule is recognized and declared by the consti-
tution of the United States, in the provision that "the accused shall
enjoy the right * * * to be informed of the nature and cause
of the accusation." This applies only to prosecutions in the federal
courts, but there are similar proTisions in most of the state consti-
tutions. "The salutary rule of the common law," said the Massa-
chusetts court, "that no one shall be held to answer to an indictment
or information unless the crime with which it is intended to charge
him is expressed with reasonable precision, directness, and full-
ness, that he may be fully prepared to meet, and, if he can, to an-
swer and repel it, is recognized and enforced, and extended to every
mode in which a citizen can be called to answer to any charge of
crime in this commonwealth by the highest authority known to
the laws ; namely, an express provision in the bill of rights (article
12). It declares that no subject shall be held to answer for any
crime or offense until the same is fully and plainly and substantially
and formally described to him."*"
As is generally stated in the books, there are three degrees of cer-
tainty in pleading: (1) Certainty to a common intent; (2) cer-
tainty to a certain intent in general; and (3) certainty to a certain
intent in every particular. A pleading is certain to a common in-
tent when it is clear enough according to reasonable intendment or
construction, though not worded with absolute precision. Cer-
tainty to a certain intent in general means what upon a fair and
reasonable construction may be called certain without recurring to
possible facts which do not appear except by inference or argument.
Certainty to a certain intent in every particular requires "the utmost
fullness and particularity of statement, as well as the highest at-
tainable accuracy and precision, leaving nothing to be supplied by
argument, inference or presumption, and no supposable answer
wanting. The pleader must not only state the facts of his own ■
case in the most precise way, but must add to them such facts as
will anticipate the case of his adversary." *^ The first is the lowest
60 Com. V. Phillips, 16 Pick. (Mass.) 211; Com. y. Blood, 4 Gray (Mass.) 31;
ante, p. 104; post, p. 315.
61 Shipm. Com. L(aw PI. 249.
152 PLEADING THE ACCUSATION. [Ch. 5
degree of pleading allowed, and is allowed only in pleas in bar, and
in certain parts of the indictment other than the charge, which we
shall presently explain. The second degree is required in that
part of the indictment which charges the offense. The third degree
is required in pleas in abatement and other dilatory pleaS.
These rules are as old as the hills, and are often met with in the
books, and they ought to be understood by every pleader; but no
one can understand or apply them until he has mastered the whole
subject of pleading. He must understand the rules which we shall
state and explain in the following pages. There are several rea-
sons why certainty in indictments is required, and there is no better
way to determine the degree of certainty that is necessary than by
referring to them. If an uncertain charge were allowed, the de-
fendant would not know what evidence he might be called upon to
meet, and could not properly prepare his defense; there would be
no way to determine whether the facts given in evidence are the
same as those charged, so that a man might be put upon his trial
for one offense and convicted on proof of another; the court could
not know what punishment to impose in case of conviction; and,
finally, the pendency of the indictment, or an acquittal or conviction
under it, could not be pleaded in bar of another prosecution, for it
could not be determined that the charges were the same, and so a
man might be twice punished for the same offense.*^
There are many decisions on the application of the rule that the
indictment must be certain, and the degree of certainty, and in
many of them very formal objections have been allowed to prevail.
This has often been regretted by the judges. As early as Lord
Hale's time, he observed that the strictness required in indictments
was grown to be a blemish and inconvenience in the law, and the
administration thereof; that more offenders escaped because of the
overeasy ear given to exceptions to indictments than by the mani-
festation of their innocence; and that the grossest crimes had gone
6 2 U. S. V. Orulkshank, 92 U. S. 542; Com. v. Phillips, 16 Pick. (Mass.) 211;
Rex V. Home, 2 Cowp. 682; Com. v. Dean, 109 Mass. 352; People v. Taylor,
3 Denio (N. Y.) 91; Eeg. v. Rowed, 3 Q. B. 180; White v. Reg., 13 Cox, Cr.
Cas. 318; Com. v. Maxwell, 2 Pick. (Mass.) 143; Com. v. Child, 13 Pick.
(Mass.) 202; U. S. v. Reese, 92 U. S. 225.
Ch. 5] STATEMENT OF OFFENSE IN GENERAL. 153
unpunished by reason of these unseemly niceties." And Lord
Mansfield, while admitting that tenderness ought always to prevail
in criminal cases, so far at least as to take care that a man may not
suffer otherwise than by due course of law, said that tenderness did
not require such a construction of wprds perhaps not absolutely and
perfectly clear and express as would tend to render the law nuga-
tory and ineffectual, and destroy or evade the very end of it; nor
did it require the courts to give in to such nice and strained critical
objections as are contrary to its true meaning and spirit."* In
civil cases, it is said by Chitty, it was considered the best policy to
require technical accuracy in pleading; but in criminal cases, where
the public security is so deeply interested in the prompt execution
of justice, it has been held that technical objections should be over-
looked.
All of these statements, however, while true to a certain extent,
are apt to mislead, for technical objections often must and do pre-
vail. In criminal as in civil pleading the established rules must
be observed. As we shall see in the course of our discussion, the
most technical objections are sometimes sustained by the court
where there is a rule of law requiring it, though the court may think
it should not be required. "The strictness required in criminal
pleading has been occasionally the subject of criticism and com-
plaint. With this the court have nothing to do. They are bound
to administer the law as they find it. If this strictness has a tend-
,ency to impede or to thwart the course of justice in criminal proceed-
ings, it is the province of the legislature, and not of the court, to
amend the law.""
60. The indictment must show on its face that if the
facts alleged are true, and assuming that there is no de-
fense, an oflfense has been committed. It must therefore
state explicitly and directly every fact and circumstance
necessary to constitute the offense, whether such fact or
88 2 Hale, I*. C. 193. And see observations of Lord Kenyon (Rex v. Suddis,
1 East, 314) and Lord EUenborough (Rex v. Stevens, 5 East, 260; Rex v.
Perrott, 2 Maule & S. 386).
8*1 Chit. Or. Law, 170.
86 Com. V. Wright, 1 Cush. (Mass.) 63.
154 PLEADING THE ACCUSATION. L^b 5
circumstance is an external event, or an intention or other
state of mind, or a circumstance of aggravation affecting
the legal character of the offense.
Unless the indictment complies with this rule, it does not state
the offense. The charge must always be sufficient to support itself.
It must directly and distinctly aver every fact or circumstance
that is essential, and it cannot be helped out by the evidence at the
trial or be aided by argument and inference.' ' With rare excep-
tions, offenses consist of more than one ingredient, and ia some
cases of many; and the rule is universal that every ingredient of
which the offense is composed must be accurately and clearly
alleged in the indictment, or the indictment will be bad, and may
be quashed on motion, or the judgment may be arrested or be re-
versed on error. What facts and circumstances are necessary to
be stated must be determined by reference to the definitions and
the essentials of the specific crimes. Having ascertained them,
every essential fact must not only have arisen, but it must be stated
tu the indictment.*' To constitute the statutory offense of obtain-
ing property by false pretenses,'* there must have been a repre-
sentation by the defendant of a past or existing fact or circum-
stance; it must have been in fact a false representation; it must
have been known by him to be false; it must have been made with
intent to defraud; it must have been believed by the other party;
and he must have parted with his property to the defendant because
of it If an indictment for this offense fails to state any one or
<i«2 Hawk. P. C. c. 25, § 57; Vaux's Case, 4 Coke, 44b; State v. Brown, 3
Murph. (N. C.) 224; Com. v. Newburyport Bridge, 9 Pick. (Mass.) 142; Reg.
V. Aspinall, 2 Q. B. Div. 56; Bradlaugli v. Reg., 3 Q. B. Div. 626; U. S. v.
Cruiksliank, 92 U. S. 542; Ex parte Hopkins, 61 Law J. Q. B. 240, 66 Law
T. (N. S.) 53, and 17 Cox, Cr. Gas. 444; Reg. v. Dixon, 2 Ld. Raym. 971; Rex
V. Perrott, 2 Maule & S. 379; Lambert v. People, 9 Cow. (N. Y.) 576; Com.
V. Dudley, 6 Leigh (Va.) 613; Com. v. Whitney, 5 Gray (Mass.) 85; Com.
V. Lannan, 1 Allen (Mass.) 590; State v. Perry, 2 Bailey (S. C.) 17; Com. v.
O'Donnell, 1 Allen (Mass.) 593.
67 People V. Gleason, 75 Hun, 572, 27 N. Y. Supp. 670; State v. Fancher,
71 Mo. 460; Garcia v. State, 19 Tex. App. 383; State v. Hall, 72 Iowa, 525,
34 N. W. 315; State v. Railway Co. (Ind. Sup.) 36 N. E, 713.
68 Claxk, Cr. Law, 27&
Ch. 5] STATEMENT OF OFFENSE IN GENERAL. 155
more of these facts or circumstances, it fails to charge the offense,
and would not support a conviction, even though every essential
fact were shown by the evidence to have existed.^"
Where the circumstances are constituent parts of the offense,
they must be set out. In other words, where the act is not in
itself necessarily unlawful, but becomes so by its peculiar circum-
stances and relations, all the matters necessary to show its illegality
must be stated.'"' To erect a building may be a nuisance, but it
is not necessarily so, and therefore an indictment for a nuisance
in erecting a building must show the circumstances which make it
a nuisance.'^
For the reasons above stated, where notice, knowledge, or request
is necessary to raise the duty, the breach of which constitutes the
crime charged, it should be averred.^* And where a particular
evil intent accompanying an act is necessary to make that act a
Crime, it must be alleged.''^ And where aggravating circumstances
enter into the offense, and increase the punishment, they must be
alleged, in order that the increased penalty may be inflicted.'*
It was formerly held at common law that in indictments for homi-
cide, where the death is alleged to have been caused by an incised
wound or cut, the wound must be described, so that the court may
see that it was an adequate cause of death. But this is not now
considered necessary; it is suflflcient to state that it was mortal.'^
It has never been deemed necessary to describe a bruise which does
not make a technical wound.'"
89 Eex v. Perrott, 2 Maule & S. 379; Hightower v. State, 23 Tex. App. 451,
5 S. W. 343.
10 2 Hawk. P. C. a 25, § 57.
"Id.; Higges v. Henwood, 2 Rolle, 345;
7 2 Post, p. 192.
7 3 Post, p. 186.
li Post, p. 203.
TBS Chit. Or. Law, 734; 1 East, P. C. 342; 2 Hale, P. C. 185, 186; Com. v.
Chapman, 11 Cush. (Mass.) 428; State v. Owen, 1 Murph. (N. C.) 452; State
V. Moses, 2 Dev. (N. C.) 452; State v. Crank, 2 Bailey (S. 0.) 66; State v.
Sanders, 76 Mo. 35; State v. Green (Mo.) 20 S. W. 304; West v. State, 48 Ind.
483; Com. v. Woodward, 102 Mass. 155; Stone v. People, 2 Scam. (111.) 326.
T6 Rex V. Mosley, 1 Moody, Crown Cas. 98; Tm'ner's Case, 1 Lewin, Crown
Cas. 177; Rex v. Tomlinson, 6 Car. & P. 370.
156 PLEADING THE ACCUSATION. [Ch. 5
As we shall presently see, technical phrases and expressions are
required to be used in describing certain offenses, to express the
precise idea which the law entertains of the offense. Thus, in every
indictment for a felony the word "feloniously" must be used, and in
every indictment for burglary the words "burglariously and feloni-
ously" are necessary.'' Except in these cases where precise tech-
nical expressions are necessary, there is no rule that any other words
shall be employed than such as are in ordinary use, or that a differ-
ent sense is to be put upon them than that which they bear in ordi-
nary acceptation.''
It is often said without qualification that if every allegation in an
indictment can be taJien as true, and yet the defendant be guilty of
no offense, then the indictment is insufflcient;" but such a rule,
though generally applicable, is not universal. In many cases it
would mislead, and to many it is quite inapplicable. "' As we shall
see, for instance, it is never necessary to negative matters of de-
fense.'^ Everything alleged in an indictment may be true, and
yet there may be some fact which need not be negatived, but must
be set up by the defendant, showing that no crime has been com-
mitted. The test "would prove to be equally fallacious in the case
of a common assault. In such a case the party may have done all
imputed to him by the indictment, and yet be innocent. Hp may
have only corrected his child, or his servant; he may have com-
mitted the ass'ault charged against him in necessary defense of his
life or of his possession. Thus, this test is quite too wide."'*
61. The acts which, are relied, upon as constituting the
offense must be stated, so as to shovr how it w^as commit-
ted. The statement of a conclusion of law, without show-
ing the facts, is bad..**
■n Post, p. 195.
7 8 Com. V. Dedham, 16 Mass. 141; Com. r. Wentz, 1 Ashm. (Pa.) 269.
78 Reg. V. Rowlands, 2 Denison, Crown Cas. 377; Reg. v. Harris, 1 Denison,
Crown Cas. 466; Com. v. Harris, 13 Allen (Mass.) 539.
80 Jones V. Reg., Jebb & B. 161.
81 Post, p. 166.
•2 Jones V. Reg., supra. And see Com. v. Hersey, 2 Allen (Mass.) 181.
88 2 Hawk. P. C. c. 25, § 57; Bradlaugh v. Reg., 3 Q. B. Div. 615; Reg. v.
AspinaU, 2 Q. B. Div. 58; U. S. v. Cmikshank, 92 U. S. 544; Com. v. Dolierty,
Ch. 5] statement; of offense — in qeneual. 157
Under this rule, for instance, to charge generally the yiolation of
public decency, without setting forth the particular acts and the cir-
cumstances rendering them indecent; or the disturbance of a school
or other assemblage, without showing the acts done ; ** or to charge
an unlawful escape from prison, without showing the cause of im-
prisonment;*" or to charge perjury, without setting forth the oath
as an oath taken in a judicial proceeding, and before a proper per-
son, so that it may appear that it was an oath which the court had
jurisdiction to administer;'' or to charge a forgery, the sending
of a threatening letter, or the publication of a libel, without setting
forth a copy of the instrument or writing, — would state a conclu-
sion of law. The instrument must be set forth, so that the court
can see whether the offense has been committed.'^ So where an
indictment charges a conspiracy, without setting forth the object
specifically, and showing that it is criminal, or the means to be used,
and showing that they are criminal, it is bad."
In a leading English case the defendant was charged with unlaw-
fully soliciting one Hooper, a customhouse oflflcer, to neglect his
duty to seize goods. The information alleged that Hooper was a
person employed in the customs service, and that it was his duty
as such person, so employed, to arrest and detain goods, etc., and
was held bad because it did not show the facts making it Hooper's
duty to seize the goods. "The allegation," it was said by Lord Ten-
terden, "that Hooper was a person employed in the service of the
customs, is an allegation of fact. The allegation that it was his
duty to seize goods which upon importation were forfeited is an al-
ios Mass. 443; People v. Heffron, 53 Mich. 527, 19 N. W. 170; State v. Eec-
ord, 56 Ind. 107; State v. Fitts, 44 N. H. 621; Finch v. State, 64 Miss. 461.
84 State V. Butcher, 79 Iowa, 110, 44 N. W. 239; State v. Branson, 2 Bailey
(S. C.) 149; Com. v. Maxwell, 2 Pick. (Mass.) 139; State v. Scribner, 2 Gill &
J. (Md.) 246; Randolph v. Com., 6 Serg. & B. (Pa.) 398; Com. v. Gillespie, 7
Serg. & R. (Pa.) 469; State v. Dent, 3 Gill & J. (Md.) 8.
85 Rex V. Freeman, 2 Strange, 1226; 2 Hawk. P. C. c. 25, § 57.
8 8 Rex V. Home, Cowp. 683; Stedman's Case, Cro. Eliz. 137; State v.
Street, 1 Murph. (N. O.) 156; State v. Ammons, 3 Murph. (N. 0.) 123; State
V. Mace, 76 Me. 64.
87 Post, pp. 160, 205.
88 Post, p. 160.
158 PLEADING THE ACCUSATION. [Ch. 5
legation of matter of law. That being so, the fact from wTiicli that
duty arose ought to have been stated in the count. If, indeed, it
could be said to be the duty of every person employed in the service
of the customs to seize such goods, then the allegation would have
been sufficient. But it is clearly not the duty of every such person;
as, for instance, it is not the duty of a porter employed in the service
of the customs to seize such goods."**
There is an exception to this rule in certain cases in which an act
is allowed to be stated according to its legal effect, instead of ac-
cording to the fact. Under the common-law principle, "qui facit per
alium facit per se," a person whose servant unlawfully sells intoxi-
cating liquor in the course of his employment is regarded in law as
selling it, himself. The sale in such a case may be alleged to have
been made by the principal, though this is a mere conclusion of law,
and the indictment will be sustained by proof of a sale by the
agent."" "It is a general rule in prosecutions for misdemeanors
that, when an indictment alleges that a person did an act, such al-
legation is sustained by proof that he caused it to be done by an-
other.""^ The rule also applies where an indictment charges the
defendant with publishing a libel, and the evidence shows that he
procured another person to publish it;"^ or where an indictment
charges the defendant with selling lottery tickets, and the proof
shows that they were sold by his servant."' So, also, an indictment
for extortion from a person acting as agent may be alleged to have
been from the principal."* And an unlawful sale of liquor to a
person who is acting as agent for an undisclosed principal may be
alleged to have been made to the principal."" And an indictment
charging the defendant with himself committing a murder or other
felony is supported by proof that hfe was present, aiding and abetting
89 Rex V. Everett, 8 Bam. & C. 114.
90 Com. V. Park, 1 Gray (Mass.) 553.
91 Com. V. Park, supra.
9 2 Rex V. Gutch, Mood. & M. 437.
9 3 Com. V. Gillespie, 7 Serg. & R. 469.
9* Com. V. Bagley, 7 Pick. (Mass.) 279.
9 6 Com. V. McGuire, 11 Gray (Mass.) 460. Or it may be alleged to have
been made to the agent. Com. v. Kimhall, 7 Mete. (Mass.) 308.
Ch. 5] STATEMENT OF OFFENSE IN GENERAL. 159
its commission by another, and was principal in the second degree
only.'"
Indictments for soliciting or enticing another to commit an act
need not state the means used, but may charge the solicitation or
enticement in general terms. "The act of enticing or soliciting
consists of a variety of acts and circumstances, all originating in the
same purpose, and is itself a fact which admits of no precise or defi-
nite description; and the particular means used need not, and in-
deed hardly could, be detailed. The general allegation that the de-
fendant did entice and solicit with the prohibited object is therefore
suflQcient.""
The rule has also been laid down that where the offense is made
up of a number of minute acts, which cannot be enumerated upon
the record without great prolixity and inconvenience, and the dan-
ger of a variance, they ought to be dispensed with. Under this rule
it has been held that an indictment for fitting out a vessel in viola-
tion of the slave-trade act need not specify the particulars of the fit-
ting out, since "the fitting out is a compound of various minute acts,
almost incapable of exact specification." °*
63. Tlie indictment, to be certain, must specify and de-
scribe the particular oflfense, so that it may be identified,
and not charge the defendant "with being an offender in
general, or -with having committed an offense of a certain
nature and name, without identifying the particular act
or acts relied upon.
This is clearly necessary in order that the defendant may know
with what particular offense he is charged, and in order that he may
plead his conviction or acquittal if again indicted for the same of-
98 Reg. v. Crisham, 1 Oar. & M. 187; Com. v. Chapman, 11 Cush. (Mass.)
428; Ooal-Heavers' Case, 1 Leach, Crown Cas. 64; Brlster v. State, 26 Ala.
108; post, p. 302.
07 Com. V. McGovern, 10 Allen (Mass.) 193; Bex v. Fuller, 1 Bos. & P. 180,
2 Leach, Crown Cas. 790.
»8 U. S. v. Gooding, 12 Wheat. 460.
160 PLEADING THE ACCUSATION. [Ch. 5
fense, and in order that the proof at the trial may be confined to the
charge.*'
To charge a man, for instance, with burning or burglariously en-
tering a dwelling house, or with stealing, without describing the
house or the property stolen, would not be sufficient. And, under
this rule, an indictment is insufficient if it charges the defendant
generally with having spoken or published scandalous and defama-
tory words of a person, without stating what the words were;^°"
or if it charges a person with the statutory offense of having failed
to deliver to the recorder a chattel mortgage which he had executed,
and with the delivery of which he had been intrusted, and fails
to state by whom the mortgage was delivered to the accused;"*
or if it charges him with being a common disturber of the peace,
and having stirred up divers quarrels,*"^ or with being a common
thief *°^ or a common evildoer.^"*
On the same principle, an indictment for obtaining money by
false pretenses is not sufficient if it merely states that the accused
falsely pretended certain allegations; but it must expressly set out
the representations, and state what part of them was false.^"" And
indictments for forgery and threatening letters must set forth a
copy of the instrument.*"" An indictment for a conspiracy is bad
if it does not set forth the object specifically, and show that such
object is criminal, or the means intended to be used, and show that
»9 2 Hawk. P. G. c. 25, § 59; State v. Mace, 76 Me. 64; Com. v. Pray, 13 Pick.
(Mass.) 359; V. S. v. Cruikshank, 92 U. S. 542; Com. v. Phillips, 16 Pick.
(Mass.) 211; Rex v. Home, 2 Cowp. 682; Com. v. Dean, 109 Mass. 352; Peo-
ple V. Taylor, 3 Denio (N. Y.) 91; T\Tiite v. Reg., 13 Cox, Cr. Cas. 318; Com.
V. Maxwell, 2 Pick. (Mass.) 143; Com. v. Child, 13 Pick. (Mass.) 202; V. S.
V. Reese, 92 U. S. 225; People v. Dmnar, 106 N. Y. 502, 13 N. E. 325; People
V. Stark, 136 N. Y. 538, 32 N. B. 1046; Com. v. Milby (Ky.) 24 S. W. 625;
Luter V. State, 32 Tex. Cr. R. 69, 22 S. W. 140. As to when it is insufficient to
follow the language of the statute, see post, p. 265.
100 Rex V. How, 2 Strange, 699; 2 Hawk. P. C. c. 25, § 59; Cook v. Cox,
3 Maule & S. 116.
101 State V. Grisham, 90 Mo. 163, 2 S. W. 223.
10 2 2 RoUe, Abr. 79; 2 Hale, P. C. 182; Rex v. Cooper, 2 Strange, 1246.
10 3 2 RoUe, Abr. 79; 2 Hale, P. C. 182;
104 2 Hawk. P. C. c. 25, § 59.
105 Rex V. Perrott, 2 Maule & S. 379, 387.
106 Rex V. Gilchrist, 2 Leach, Crown Cas. 661.
Ch. 6] STATEMENT OF OFFENSE IN GENEEAL. 161
they are criminal ;^°^ and an indictment under a statute providing
that no innholder should entertain any persons, other than travelers,
etc., on the Lord's day, under a penalty for each person so enter-
tained, was held bad because it failed to state the precise number of
persons entertained, but merely charged that he entertained "di-
vers persons." ^"^ Sometimes time is a necessary ingredient of
the offense, and must, of course, be stated in order to state the of-
fense. Even where it does not thus enter into the offense, it must
be stated in order to render the offense certain.^"' And in some
cases the particular locality of the offense, though not an ingredient
of the offense, must be stated.^*"
Again, "it is an elementary principle of criminal pleading that
where the definition of an offense, whether it be at common law or
by statute, includes generic terms, it is not sufficient that the in-
dictment shall charge the offense in the same generic terms as in
the definition; but it must state the species, — ^it must descend to
particulars." ^^^
Some offenses, from their nature, form an exception to this rule.
A person, for instance, may be charged generally with being a com-
mon barretor, or a common scold,^^^ or a common seller of intoxicat-
ing liquors, or the keeper of a common bawdy or gaming house,^^'
or a common night walker or prostitute, etc.^^* The indictment
107 Lambert v. People, 9 Cow. (N. Y.) 578; U. S. v. Cruikshank, 92 U. S. 542-
State V. Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Alderman v. People,
4 Mich. 414; State v. Roberts, 34 Me. 32; U. S. v. Patterson, 55 Fed. 605.
108 Com. V. Maxwell, 2 Pick. (Mass.) 139.
109 Post, p. 237.
110 Post, p. 245.
111 U. S. V. Cruikshank, 92 U. S. 542. And see Com. v. Chase, 125 Mass.
202; Rex v. Chalkley, Russ. & R. 258.
112 Rex V. Cooper, 2 Strange, 1246; 2 Hale, P. 0. 182; 2 Hawk. P. 0. c. 25,
§ 59; Com. v. Davis, 11 Pick. (Mass.) 432; Com. v. Pray, 13 Pick. (Mass.)
362; James v. Com., 12 Serg. & R. (Pa.) 220.
113 2 Hale, P. C. 182; 2 Hawk. P. C. c. 25, § 59; Rex v. Cooper, 2 Strange,
1246; Rex v. Humphrey, 1 Bam. & 0. 272; James v. Com., 12 Serg. & R. (Pa.)
220; Com. v. Pray, 13 Pick. (Mass.) 359; Lambert v. People, 9 Cow. (N. Y.)
587; Cam. v. Davis, 11 Pick. (Mass.) 482; U. S. v. Fox, 1 Low. 199, Fed. Cas.
No. 15,156; State v. Patterson, 7 Ired. (N. C.) 70; Stratton v. Com., 10 Mete.
(Mass.) 217; Com. v. Odlin, 23 Pick. (Mass.) 275; State v. Collins, 48 Me. 217.
ii*Statev. Dowers, 45 N. H. 543; State v. Russell, 14 Jl^I. 508^^.
CBIM.PROC. — 11
162 PLEADING THE ACCUSATION. [Ch. 5
need not set out the particular acts, because the charges include in
their nature a succession and continuation of acts which do not be-
long to any particular period, but form the daily habit and char-
acter of the individual offending.^ ^^ The state, however, may be
required before trial to give the defendant notice of the particular
instances that are meant to be proved.^^"
It has been held that an indictment is bad if it may apply to more
than one offense, and does not show which is intended.^^^ In Mas-
sachusetts, however, the contrary has been held. In that state there
were two statutes, one of which declared it a crime to break and
enter in the nighttime an office adjoining a dwelling house, with in-
tent to steal therein, and the other of which declared it a crime,
subject to the same punishment, to break and enter in the night-
time, with a like intent, an office not adjoining a dwelling house.
An indictment for breaking and entering a office in the nighttime
with such intentwas held sufficient, though it failed to allege whether
the office was or was not adjoining a dwelling house, and could
therefore have applied to either offense.^^*
63. The oflfense must be stated positively, and every
essential fact and circumstance must be alleged directly
and distinctly. Nothing can be brought into the indict-
ment by argument or other than necessary inference.
The offense must be stated positively. A statement by way of
recital, and not in positive language, as where a statement is pre-
ceded by the words "whereas," is bad.^^' This does not apply to
iiB 1 Chit. Cr. Law. 230.
118 2 Hawk. P. 0. c. 25, § 59; Rex v. Mason, 2 Term R. 5S6; Com. v. Pray,
13 Pick. (Mass.) 359; Com. v. Davis, 11 Pidc. (Mass.) 434; State v. Chitty, 1
Bailey (S. C.) 379; State v. Russell, 14 R. I. 506.
117 Rex V. Marshall, 1 Moody, Crown Cas. 158.
iisLarned v. Com., 12 Mete. (JIass.) 240.
119 2 Hawk. P. C. c. 25, § 60; Rex v. Crowhurst, 2 Ld. Raym. 1363; Rex
V. Whitehead, 1 Salk. 371. The fact that the participle is used does not ren-
der the statement defective. To charge, for Instance, that the defendant, "be-
ing" an officer, did embezzle, sufficiently alleges that the defendant was an
officer. State v. Manley, 107 Mo. 364, 17 S. W. 800. And see State v. Hooker,
17 Vt 658; State v. Roherts, 52 N. H. 492.
Ch. 5] STATEMENT OF OFFENSE IN GENEEAL. 163
matter stated by way of inducements^" For the same reason an
indictment is bad if the charge is stated argumentatiyely, instead
of in express and positive language; ^^^ or if it is stated that "there
is probable cause to suspect" that the accused has committed the
crime, instead of that he did commit it.^^^
Every fact and circumstance which is essential to make out the
offense must, as we have seen, be alleged.^^' And it must be al-
leged directly and distinctly. The charge must be sufficient to sup-
port itself. It cannot be helped out by argument or inference.
This rule has been expressed in various ways, as that "an indict-
ment must be certain to every intent, and without any intendment
to the contrary"; that it "ought to be full, express, and certain, and
shall not be maintained by argument or implication"; that "the
want of a direct allegation of anything material in the description
of the substance, nature, or manner of the crime cannot be supplied
by any intendment or implication whatsoever"; that the law "re-
quires the utmost precision, and will not permit a fact on which the
life or liberty of a person depends to be made out merely by infer-
ence"; that the charge must be sufficiently explicit to support itself.
for no latitude of intention can be allowed to include anything more
than is expressed.^^* "Where a statement of one fact necessarily
implies that another fact or circumstance existed, the existence
of the latter fact or circumstance need not be directly alleged-^^"
64. It is not necessary or proper to state any other facts
than such as are necessary to make out the offense with
certainty. ^^
120 Eeg. V. Goddard, 2 Ld. Raym. 920; post, p. 176.
121 Rex V. Knight, 1 Salk. 375. And cases hereafter cited,
122 Com. V. Phillips, 16 Pick. (Mass.) 211.
123 Ante, p. 153.
124 1 Chit. Cr. Law, 172; 2 Hawk. P. O. c. 25, § 60; Vaux's Case, 4 Coke,
44b; Rex v. Williams, 1 Leach, Crown Cas. 534; State v. Brown, 3 Mm-ph.
(N. C.) 224; State v. Paul, 69 Me. 259; Com. v. Newburyport Bridge, 9 Pick.
(Mass.) 142; Com. v. Shaw, 7 Mete. (Mass.) 52; Com. v. Whitney, 5 Gray
(Mass.) 85; Com. v. Lannan, 1 Allen (Mass.) 590; Com. v. O'Donnell, Id. 594;
State V. Bushey, 84 Me. 459, 24 Atl. 940; State v. Perry, 2 BaUey (S. C.)
17; Com. v. Dudley, 6 Leigh (Va.) 613; State v. Haven, 59 Vt. 399, 9 Atl. 841.
125 Post, p. 164.
126 1 Chit Cr. Law. 227; State v. Ballard, 2 Murph. (N. G.) 186.
164 PLEADING THE ACCUSATION. [Ch. 6
To set out unnecessary matter is bad pleading, and is not only
censurable, but dangerous; for, while it may in many cases be re-
jected as surplusage, it may, on the other hand, as we shall pres-
ently see, result in repugnancy or absurdity in a material part, and
so render the indictment bad, or may be matter of description,
which will have to be proved as laid. An assault with intent to
kill or to rob does not depend in any way upon the instrument or
means used in making the assault, and it is therefore unnecessary
to set it out.^^^ Where an act constitutes a crime without regard
to the circumstances surrounding its commission, it is not necessary
to set forth the circumstances. They may, however, be alleged in
aggravation.^''* The question of surplusage will be hereafter ex-
plained.
65. Facts •wrMch are necessarily implied or presumed as
a m.atter of law or fact from, facts stated need not be ex-
pressly alleged.
We have seen that every essential fact must be directly and dis-
tinctly alleged, and that nothing can be brought into an indictment
by argument or inference.^^" This rule, however, does not require
the express statement of facts which are necessarily implied from
the facts which are stated.^^" Under a statute, for instance, pro-
viding that, when lands shall be rented or leased by agreement for
agricultural purposes, the crops raised thereon shall be deemed to
be vested in possession of the lessor at all times until the rents are
paid, and all stipulations in the lease or agreement performed; and
that any lessee who shall remove the crop without the consent of
the lessor, etc., "before satisfying all liens held by the lessor on said
crop, shall be guilty of a misdemeanor,"— an indictment for removal
of a crop, which charges that the lease was made, is sufficient; with-
127 Rogers V. Com., 5 Serg. & E. (Pa.) 4G3; State v. John, 3 GiU & J. (Md.)
8; People v. Bush, 4 Hill (N. Y.) 133.
128 Rex V. Home, 2 Cowp. 683.
129 Ante, p. 162.
130 Rex V. Tilley, 2 Leach, 662; Holloway v. Reg., 17 Q. B. 325, 2 Denison,
Crown Cas. 293; Rex v. Chard. Russ. & R. 488.
Ch. 5] STATEMENT OF OFFENSE^— IN GENERAL. 165
out charging specifically that the lessor had a lien, since the statute
implies a lien arising by virtue of the relation charged.^^^
66. The indictment need not state facts of which, the
court must take judicial notice."^
We find a good illustration of this rule in indictments under
statutes. It is never necessary to recite or expressly state the par-
ticular statute upon which the indictment is founded. The court
must take judicial notice of the public statutes, and all that is nec-
essary, therefore, is to state the fact's bringing it within the statute,
and allege in the conclusion that the offense was committed "con-
trary to the form of the statute in such case made and provided."^"
An indictment for larceny, as we shall see, must generally state the
value of the property stolen;^** but an indictment charging the lar-
ceny of "eighty dollars in money, consisting of ten-dollar bills and
twenty-dollar bills, currency of the United States," need not aver
that the money was of the value of |80, for the court will take judi-
cial notice that such bills are worth their face value. '^^^
67. It is not necessary to state a conclusion of la'wr re-
sulting from the facts stated, but it sufi&ces to state the
facts and leave the court to draw the inference.^
, In a Massachusetts case, an indictment under a statute declaring
a building used as a house of ill fame to be a common nuisance was
objected to because, though it charged the defendant with keeping
131 State V. Smith, 106 N. C. 653, 11 S. E. 166 (Davis, J., dissenting).
1S2 Gady v. State, 83 Ala. 51, 3 South. 429; Damron v. State (Tex. Or.) 27
S. W. 7.
133 Post, p. 257.
134 Post, p. 225.
18 B Gady v. State, 83 Ala. 51, 3 South. 429.
is« Wells V. Com., 12 Gray (Mass.) 326; Rex v. Smith, 2 Bos. & P. 127,
1 East, P. C. 183, and Russ. & R. 5; Rex v. Michael, 2 Leach, Crown Oas.
938, Russ. & R. 29; Melton v. State, 3 Humph. (Tenn.) 389; Territory v.
O'Donnell, 4 N. M. 66, 12 Pac. 743; Ball v. State, 48 Ark. 94, 2 S. W. 462;
Leftwich v. Com. 20 Grat. (Va.) 710.
166 PLEADING THE ACCUSATION. [Ch. 5
a house of ill fame, it did not allege that she kept and maintained
a common nuisance. The court held that this was a conclusion of
law which it was not necessary to state.^^'' So, under a statute
declaring a person who should utter counterfeit money, having in
his possession at the same time other counterfeit money, knowing
it to be such, to be a common utterer of counterfeit money, it was
held not necessary for the indictment, after alleging the uttering
of counterfeit money by the defendant and his possession at the
same time of other money knowing it to be counterfeit, to further
allege that the defendant was a common utterer of counterfeit
money, since this was a conclusion of law.^'*
68. It is never necessary to allege mere matter of evi-
dence, unless it alters tlie offense.^
Under this rule it has been held that an indictment charging the
defendants with conspiring "by divers false pretenses and undue
means and devices to obtain money from A. B., and to cheat and de-
fraud him thereof," is suiScient without setting out the particular
means or pretenses.^*" It is often diflflcult to say what is mere
matter of evidence, as distinguished from facts necessary to be
stated in order to render the indictment suflflciently certain to iden-
tify the ofEense.^*^
69. Matters of defense must come fromthe defendant,
and they need not be anticipated and negatived in the
indictment. ^^
137 Wells V. Com., supra.
138 Rex V. Smith, supra,
i8» Rex v. Turner, 1 Strange, 139, 140. Thus, It Is not necessary to show
on the face of an Indictment for forgery in what manner a person Is to be
defrauded, as that Is a matter of evidence at the trial. It is sufficient to show
an instrument which on its face is capable of being used to defraud. Mead
V. State, 53 N. J. Law, 601, 23 Atl. 264.
1*0 Rex V. Henry, 2 Barn. & Aid. 204; Rex v. Mawbey, 6 Term E. 628.
1" Ante, p. 159.
142 Rex V. Baxter, 5 Term R. 84, 2 Leach, Crown Cas. 580; Com. v. Hart,
11 Cush. (Mass.) 137. Under a statute providing that when a public offense
Ch. 5] STATEMENT OF OFFENSE IN GENERAL. 167
"It is an elementary principle of pleading (except in dilatory
pleas, which are not favored) that it is not necessary to allege mat-
ter which would come more properly from the other side; that is,
it is not necessary to anticipate the adverse party's answer, and
forestall his defense or reply. It is only when the matter is such
that the affirmation or denial of it is essential to the apparent or
prima facie right of the party pleading that it must be affirmed or
denied by him in the first instance." ^*^
In an indictment for disobeying a justice's order it need not be
averred that the order was not revoked. '^** And in an indictment
for rape it need not be alleged that the defendant was a male, or
over the age of 14 years, or, if under that age, that he possessed
physical ability, since incapacity to commit the crime is matter of
defense.^*" And it is never necessary to negative all the excep-
tions which, by some other statute than that which creates the of-
fense, might render the act legal, for these must be shown by the
defendant.^*' We shall hereafter consider when it is necessary
to negative exceptions contained in a statute in an indictment un-
der that statute.
This rule is well illustrated by a Massachusetts case, to which we
shall presently refer in another connection. It is the rule, as we
shall see, that an intent to commit a criminal act is inferred from its
commission, and need not be alleged. In a case in which it was
held that an indictment for murder by knowingly administering a
deadly poison need not allege an intent to take life, because the law
would infer such intent from the act, it was urged by counsel for
the defendant that every fact stated in the indictment might have
been done by the defendant, and yet he might have committed no
offense; that is, that a person may administer to another what he
, knows to be a deadly poison innocently, and without any intent to
is committed on the boundary line of two or more counties, etc., the jurisdic-
tion is In either county, an indictment for such a crime need not aver that
the accused has not been prosecuted in tbe other county. State v. Nlers
(Iowa) 54 N. "W. 1076.
143 C!om. V. Hart, 11 Cush. (Mass.) 137.
14* 1 East, P. 0. 19. 20.
14B People V. Wessel, 98 Cal. 352, 33 Pac. 216.
146 Rex V. Pemberton, 2 Burrows, 1036; Rex v. Baxter, 2 Leach, Crown
Cas. 580; Com. v. Maxwell, 2 Pick. (Mass.) 141.
168 PLEADIKG THE ACCUSATION. [Ch. 5
do bodily harm, as where a physician administers poison honestly,
and in the exercise of due care, but with fatal results. The court
said that this was also true with homicide by stabs or cuts with a
knife; that a surgeon may accidentally kill in performing an opera-
tion. But it was held that this did not make it necessary to ex-
pressly allege the criminal intent in an indictment for murder by
poison or by cuts or stabs with a knife. If death is thus caused by
accident, or is otherwise justifiable or excusable, that is a matter of
defense to be proven by the defendant.**'
70. Facts ■vchieh lie more particularly -withiii the knowl-
edge of the defendant need not be sho'wn with more than
certainty to a common intent.
An indictment, for instance, against a public oflScer for breach
of duty, need only state generally that he is such oflBcer, without
setting forth his election or appointment to the office.***
71. Though the law requires certainty in describing the
offense, it generally requires such certainty only as the
circumstances of the case will permit.**'
An indictment for murder at common law should, if possible, state
the means by which the death was caused, but, if the means are un-
known, failure to state them cannot render the indictment bad.*"'
An indictment for a conspiracy to defraud should, if possible, name
the persons whom it was intended to defraud;*"* but if the particu-
lar persons have not been ascertained by the conspirators, or are
not known to the grand jurors, an indictment which does not name
147 Com. V. Hersey, 2 Allen (Mass.) 181.
148 2 Hawk. P. C. a 25, § 112; Rex v. Holland, 5 Term R. 607.
149 State V. Gray, 29 Minn. 142, 12 N. W. 455; Com. v. Webster, 5 Cush.
(Mass.) 295; Com. v. Ashton, 125 Mass. 384; People v. Taylor, 3 Denio (N.
Y.) 91. Lost instruments, Com. v. Martin, 125 Mass. 394.
160 Com. V. Webster, 5 Cush. (Mass.) 322; Cox v. People, 80 N. Y. 500; State
v. Williams, 7 Jones (N. C.) 446.
161 Reg. V. King, 7 Q. B. 782.
Ch. 6] STATEMENT OP OFFENSE IN GENERAL. 169
them is good,^"'' provided, at least, it shows the excuse for not nam-
ing them.*"' The rule also applies to the descriptions of property,
allegations of ownership, names of persons, describing lost instru-
ments, etc.^"** Of course ignorance could not excuse an omission to
state an essential element of the offense. The excuse for failure
to state particulars should be shown by the express statement that
they are unknown to the grand jurors.
72. The offense must not be stated in the disjunctive,
for, if the rule were otherwise, it would always be uncer-
tain which of the two accusations is intended.*"
Under this rule an indictment which charges that the defend-
ant murdered, or caused to be murdered, or that he murdered or
wounded, is bad for uncertainty.^"' The same is true of charges
that the defendant burned or caused to be burned; ^" that he forged
or caused to be forged an instrument;^"* that he erected or caused
to be erected a nuisance;^"' that he published or caused to be pub-
lished a libel; ^'"' that he took or caused to be taken; ^*^ that he
carried and conveyed or caused to be carried and conveyed a per-
ns 2 Rex v. De Berenger, 3 Maule & S. 67; Eeg. v. Aspinall, 2 Q. B. Div. 59.
IB 3 Reg. V. King, supra.
18* Post, pp. 208, 219, 229, 233.
16 5 2 Hawk. P. C. c. 25, §§ 57, 58; Speart's Case, 2 EoUe, Abr. 81; Davy v.
Baker, 4 Burrows, 2471; Com. v. Perrigo, 3 Mete. (Ky.) 5; State v. Stephen-
Bon, 83 Ind. 246; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Hammel
V. State, 14 Tex. App. 326; Angel v. Com., 2 Va. Cas. 231; State v. Jones,
1 McMull. (S. C.) 236; State v. Chiarlton, 11 W. Va, 332. But see State v.
Van Doran, 109 N. C. 864, 14 S. B. 32, in which an indictment charging a
physician with practicing or attempting to practice without a license was sus-
tained.
15 6 2 Hawk. P. 0. c. 25, §§ 57, 58; Hex v. Stocker, 5 Mod. 137.
107 People V. Hood, 6 Cal. 236.
IBS Rex V. Stocker, 5 Mod. 137, 1 Salk. 342, 371; Rex v. Middlehurst, 1
Burrows, 399; Com. v. Perrigo, 3 Mete. (Ky.) 5; People v. Tomlinson, 35
Cal. 503.
169 Rex V. Stoughton, 2 Strange, 900.
180 Rex V. Brereton, 8 Mod. 330.
101 State V. O'Bannon, 1 Bailey (S. 0.) 144.
170 PLEADING THE ACCUSATION. [Ch. 5
son having a contagious disease; ^"^ ov that he suffered a game of
cards to be played "in a house or on premises in the county afore-
said." ^°' And, since all intoxicating liquor is not spirituous, an
indictment charging the sale of "spirituous or intoxicating" liquor
is bad.^'* The rule applies also to such averments as that the de-
fendant administered a drug or poison, or that he broke into a barn
or stable, etc.^°°
The rule does not apply where the charges are the same. As ex-
plained in a Massachusetts case,^°* where the word "or" in a stat-
ute is used in the sense of "to wit," — ^that is, in explanation of what
precedes, — and making it signify the same thing, an indictment
which adopts the words of the statute is sufflcient. Thus, an in-
dictment charging in the words of a statute that the defendant had
in Ms custody and possession 10 counterfeit "bank bills or promis-
sory notes," payable to the bearer thereof, and purporting to be
signed by the president and directors of a certain bank, was held
sufflcient, since the words "promissory note," in the statute, were
used merely as explanatory of "bank bill," and meant the same
thing.^" So an information alleging that the defendant stole a
mare "of a bay or brown color" was held sufficient on the ground
that the colors were the same.^°' And, in the case mentioned
162 Rex V. Flint, Cas. t. Hardw. 370. And see Noble v. State, 59 Ala. 73;
State V. Naramore, 58 N. H. 273.
163 Com. V. Perrigo, 3 Mete. (Ky.) 5.
164 Com. V. Grey, 2 Gray (Mass.) 501. Or of "beer or ale." Rex v. North,
6 Dowl & R. 143. See, however, Cunningham v. State, 5 W. Va, 508; Morgan
V. Com. 7 Grat. (Va.) 592; Thomas v. Com. (Va.) 17 S. B. 788.
16 5 state V. Drake, 30 N. J. Law, 422; State v. Green, 3 Heisk. (Tenn.) 131;
Horton v. State, CO Ala. 72.
166 Com, V. Grey, 2 Gray (Mass.) 501. And see State v. Hester, 48 Ark. 40,
2 S. W. 339.
167 Brown v. Com., 8 Mass. 59. RusseU v. State, 71 Ala, 348; State v. Ellis,
4 Mo. 474; State v. Flint, 62 Mo. 393.
168 State v. Gilbert, 13 Vt. 647. Under such an indictment as this, unless
the description by color could be regarded as superfluous, it would ceem that
the evidence would have to be confined to a light brown or a dark bay
mare. The former is sometimes called bay, and the latter is sometimes called
brown. A light bay is not a brown, nor is a dark brown a bay; and there-
fore to hold that the indictment covers these colors would bring it within the
rule that offenses cannot be stated in the disjunctive.
Ch. 5] STATEMENT OF OFFENSE IN GENERAL. 171
above, the indictment charging the sale of "spirituous or intoxicat-
ing" liquors would have been sufficient if the two terms were the
same. All spirituous liquor is intoxicating, but all intoxicating liq-
uor is not spirituous.^ °°
Where a statement in the disjunctive is superfluous and immate-
rial, it will be rejected as surplusage.^'"
73. An indictment ■which is repugnant in a material
part is altogether bad.'f*
•
Under this rule, an indictment which charged the defendant with
having forged a certain writing, whereby one person was bound to
another, was held bad, because it was impossible for any one to be
bound by a forgery.^'^ And an indictment alleging that the de-
fendant caused to be issued to a person a false and fraudulent cer-
tificate of ownership of certain stock, signed in blank, and of the
following tenor (setting it out), was held bad for repugnancy, as
a blanlv certificate could not certify or purport ownership, nor have
a tenor.^'* So, an indictment for forging a bill of exchange, stating
it as directed to John King, by the name and addition of John Ring,
Esq., was held bad.^'* And an indictment is repugnant if the de-
scription of a written instrument varies from the instrument as set
out therein;^'" or if it states that the offense, or an act constitut-
ing a part of the offense, was committed at "said A.," or at "A. afore-
said," where A. has not been previously mentioned.^'*
Where the contradictory or repugnant expressions do not enter
180 Com. V. Grey, supra.
17 0 1 Hale, P. C. 535; post, p. 178.
iTi 2 Hawk. P. O. c. 25, § 62; Rex v. Gilchrist, 2 Leach, Crown Cas. 660
Reg. V. Harris, 1 Denison, Crown Cas. 461; State v. Hardwick, 2 Mo. 226
State V. Johnson, 5 Jones (N. C.) 221; State v. Haven, 59 Vt. 399, 9 Atl. 841
Com. V. Lawless, 101 Mass. 32. An indictment for mazislaughter, alleging
that the defendant "willfully" and "with culpable negligence" killed the de-
ceased, is bad for repugnancy. State v. Lockwood (Mo.) 24 S. W. 1015.
1T2 2 Hawk. P. C. c. 25, § 62; Rex v. , 3 Mod. 104.
1T3 State V. Haven, 59 Vt. 399, 9 Atl. 841.
174 Bex v. Beading, 2 Leach, Crown Cas. 590.
IT 6 Com. V. Lawless, 101 Mass. 32.
176 Com. V. Pray, 13 Pick. (Mass.) 359; post, p. 246.
172 PLEADING THE ACCUSATION. [Ch. 5
into the substance of the offense, and the indictment may be good
without them, they may be rejected as surplusage. Of this we shall
speak more at length in treating of surplusage.^"
Where a matter is capable of different meanings, that meaning
will be taken which will support the indictment, and not that which
will defeat it^"* But it must be clearly capable of two meanings,
for the court cannot, to support the indictment, arbitrarily give it a
meaning with which the use, habits, or understanding of mankind
would plainly disagree.^^* Words, taken by themselves, may be
open to this objection, and yet, taken in connection with other words
used, they may be sufficient. Words are not ambiguous if it suffi-
ciently appears from the context in what sense they are intended,
and repugnancy only exists where a sense is annexed to words
which is either absolutely inconsistent therewith, or, being appa-
rently so, is not accompanied by anything to explain or define
them.""
74. The indictment must be in the English language.
Formerly, in England, indictments, like all other legal proceed-
ings, were in the Latin language; but the rule for a long time has
been that they must be in English. If, however, any document in a
foreign language, as a libel or a forged instrument, be necessarily
introduced, it should be set out in the original tongue, and then
translated so as to show its application.^^^
75. Abbreviations ought never to be used except in set-
ting forth the facsimile of a ■writing. An indictment is not
bad, however, because the usual initials and figures are
used for dates, nor, perhaps, because of the use of other
abbreviations w^hich are commonly used and understood.
17 7 Post, p. 178.
178 Eeg. V. Stokes, 1 Denison, Crown Gas. 307; Com. v. Butler, 1 Allen
(Mass.) 4; Wright v. Rex, 1 AdoL & E. 448.
17 8 Rex v. Stevens, 5 East, 257.
180 1 Chit. Cr. Law, 173; Reg. v. Craddock, 2 Denison, Crown Cas. 31;
Jefifries v. Com., 12 Allen (Mass.) 145; Com. v. Kelly, 123 Mass. 417; note 192,
Infra, and cases there cited.
181 Post, p. 2UT.
Ch. 5] STATEMENT OF OFFENSE IN GENEEAL. 17 S
By statute In England all indictments are required to be in words
at length, and therefore no abbreviations can be used. Nor can
any figures be allowed, but all numbers must be expressed in words
at length.^'^ There is an exception, of course, in those cases where,
as in the case of forgery, a facsimile of an instrument must be given
in an indictment.^*' In this country, as we shall see, it is held
that the usual initials and figures may be used for dates.^'* Proba-
bly other abbreviations may be used if they have been so commonly
used that they have acquired a meaning which is commonly known;
but abbreviations of words employed by men of science or in the arts
will not answer without a full explanation of their meaning in ordi-
nary language.^"*
76. A videlicet or scilicet (e. g. to wit) may be used to
render more particular and certain a statement before
general or obscure. Its use, if the allegation is immaterial,
■will not prevent rejection of the allegation as surplusage;
nor, on the other hand, if the allegation is material^ will it
allow such rejection, or dispense with strict proof.
In setting forth time, place, number, quantity, etc., it is very usual
to introduce the statement under what is termed a videlicet or
scilicet, — as, "that -afterwards, to wit, on," etc., or "at," etc., the ac-
cused did, etc., or a fact occurred. Lord Hobart, speaking of a
videlicet, says that its use is to particularize that which was before
general, or to explain that which was before doubtful or obscure;
that it must not be contrary to the premises, and neither increase
nor diminish, but that it may work a restriction where the former
words were not express and special, but so indifferent that they
might receive such a restriction, without apparent injury.^'* "The
precise and legal use of a videlicet in every species of pleading is
to enable the pleader to isolate, to distinguish, and to fix with cer-
182 1 Chit. Or. Law, 176.
183 Post, p. 205.
184 Post, p. 244.
185 XI. S. V. Eeichert, 32 Fed. 142.
186 Stiikeley v. Butler, Hob. 172, quoted in 1 Cliit. Or. Law, 226. See State
V. Brown, 51 Conn. 1.
174 PLEADING THE ACCUSATION. [Ch. 5
tainty that which was before general, and which, without such ex-
planation, might with equal propriety have been applied to differ-
ent objects." ^^^
Respecting the effect of the use of this mode of statement, it has
been said that where the time when a fact happened is immaterial,
and it might as well have happened at another day, there, if alleged
under a scilicet, it is absolutely nugatory, and therefore not traversa-
ble, and if it be repugnant to the premises, or not proved as laid,
the defect will not vitiate, but will be rejected as superfluous.""
But where the precise time, etc.,*is material and enters into the sub-
stance of the description of the offense, there the time, etc., though
laid under a scilicet, is conclusive and traversable, and it will be
intended to be the true time and no other, and, if impossible or re-
pugnant or not proved, the defect will vitiate.^*" Either the alle-
gation must exactly correspond with the fact or it may vary. If
the former, it will be well laid with a scilicet, which may be rejected;
and if the latter, though the scilicet were omitted, evidence of a
different. day, quantity, or place may be admitted. Thus, in indict-
ments for extortion, or taking a greater sum for brokerage than al-
lowed by statute, though the sum be stated without a videlicet, it
is not necessary to state it with precision.^*" And, on the other
hand, where the true sum must be set forth, it will not dispense with
strict proof to allege a different sum under a scilicet.^®*
77. Mere clerical or grammatical errors in drafting an
indictment will not vitiate it, if the sense is not obscured
or changed.''^
187 Com. V. Hart, 10 Gray (Mass.) 465.
188 state V. Haney, 1 Hawks (N. C.) 460; State v. Heck, 23 Minn. 549.
189 Jansen t. Ostrander, 1 Cow. (N. Y.) 676; Gleason v. McVickar, 7 Cow.
(N. Y.) 43; State v. Phinney, 32 Me. 440; Hastings v. Lovering, 2 Pick.
<Mass.) 223; Paine v. Fox, 10 Mass. 133.
ISO Rex V. GiUham, 6 Term R. 265, 1 Esp. 285.
101 Grimwood v. Barrit, 6 Term R. 462.
102 People V. Duford, 66 Mich. 90, 33 N. W. 28; Rex v. Dowlin, 5 Term R.
317; Rex v. Beacli, Cowp. 229; Morgan v. Edwards, 2 Marsh. 100; State
V. Wimberly, 3 McCtord (S. O.) 190; State v. Haider, 2 McCord (S. C.) 37T;
Rex V. Hart, 1 Leach, 145; State v. Whitney, 15 Vt 298; Coon. v. Call, 21
Pick. (Mass.) 515; People v. Warner, 5 Wend. (N. Y.) 271; Langdale v. People,
Ch. 5] STATEMENT OF OFFENSE IN GENERAL. 175
Where, for instance, an information for arson charged that the
accused theretofore, to wit, on a certain day, etc., and at a certain
place, the inhabited dwelling of a certain person there situated
"was willfully, maliciously, and feloniously set fire to, with intent
then and there to burn," etc., it was held good on motion in arrest
of judgment. The word "was" was considered a mere clerical er-
ror, and was read "did." *°' Where the meaning is not changed, and
Is clear, an indictment will not be held insufficient merely because
a word is misspelled, or a letter is omitted,^"* or because a word is
used which is grammatically wrong, or a word which is not essen-
tial is omitted.^®" If the error changes or destroys the sense or an
essential word is omitted, it is otherwise.^"*
100 m. 263; Fortenberry v. State, 55 Miss. 403; Ward v. State, 50 Ala. 120;
State V. Edwards, 19 Mo. 674; State v. Davis, 80 N. C. 384; Lazier v. Com.,
10 Grat. (Va.) 708; State v. Gilmore, 9 W. Va. 641; Shay v. People, 22 N.
Y. 317.
193 People V. Duford, supra.
19* Rex V. Beech, 1 Leach, Grown Gas. 134; Rex v. Hart, Id. 145; State v.
Moller, Dev. (N. G.) 263; ICeUer v. State, 25 Tex. App. 325, 8 S. W. 275; State
V. Crane, 4 Wis. 400; State v. Myers, 85 Tenn. 203, 5 S. W. 377; State v.
Hedge, 6 Ind. 330; Lefler v. State, 122 Ind. 206, 23 N. E. 154. But an indict-
ment for murder was held bad because it alleged that the wound was in
the "brest" instead of "breast," and this though the word "breast" was used
in a preceding clause, and the subsequent clause used the words "aforesaid
brest." State v. Carter, Cam. & N. (N. C.) 210; Anon., 2 Hayw. (N. C.) 140.
195 state V. Whitney, 15 Vt. 298; People v. Warner, 5 Wend. (N. Y.) 271;
McLaughlin v. Com., 4 Rawle (Pa.) 464; State v. Brady, 14 Vt. 353; State v.
Freeman, 21 Mo. 481; Evans v. State, 58 Ark. 47, 22 's. W. 1026; Jackson
V. State, 88 Ga. 784, 15 S. E. 677.
196 People V. St. Glair, 56 Gal. 406; State v. Edwards, 70 Mo. 480; Stroder
V. State, 92 Ind. 376; Jones v. State, 21 Tex. App. 349; Moore v. State, 7
Tex. App. 42; State v. Rector (Mo.) 23 S. W. 1074. Thus, under a statute
punishing any person who shall cause a staUion to serve mares near a pub-
lijc highway, unless the place "is so surrounded by artificial or natural bar-
riers" as to obstruct the view, etc., an indictment for causing such service
near a public highway which alleges merely that the place was not so sur-
rounded by "artificial and barriers" as to obstruct the view is bad. State v.
Raymond, 54 Mo. App. 425.
176 PLEADING THE ACCUSATION. [Ch. 5
78. The inducement is a statement of preliminary facts
which do not enter into the description of the offense, but
■wrhieh are necessary to be shown in order to show^ the
criminal character of the acts charged. Wot being a part
of the description of the offense, it does not require the
same certainty. Certainty to a common intent is sufB.-
cient.'^'
In an indictment for dissuading, hindering, and preventing a wit-
ness from appearing at court, statements as to the summoning of
the witness are merely by way of inducement to the substance of
the charge against the defendant, and it need not be stated with
certainty where the witness was summoned and when he was re-
quired to appear.^'^ And, in an indictment for disobeying the or-
der of justices, statements that the justices had jurisdiction to
make the order, and that it was obligatory, are matter of induce-
ment, which may be alleged generally. The offense is the dis-
obedience of the order.^®° So, in an indictment for libel, where the
writing as set out in the indictment is not necessarily libelous, a
preliminary statement of facts is necessary, in order to show its
libelous character.^""
79. An innuendo is a statement shoTving the applica-
tion or meaning of matter previously expressed, the ap-
plication or meaning of which w^ould not otherwise be
clear. It can only explain some matter already suffi-
ciently expressed. It cannot add to or enlarge or change
the sense of previous w^ords.
We have just explained the necessity of an inducement in an in-
dictment for libel where the matter written is not in itself prima
facie libelous. If, after this, the matter alleged in the inducement
1" Com. V. Reynolds, 14 Gray (Mass.) 87; Keg. v. Wyatt, 2 Ld. Raym. 1191;.
Reg. V. Bidwell, 1 Denison, Crown Oas. 222.
IBS Com. V. Reynolds, supra.
190 Reg. V. BidweU, supra,
200 Post, p. 211.
Ch. 5] STATEMENT OF OFFENSE IN GENEEAL. 177
and charge is not obviously libelous, or applicable to the party
charged to have been libeled, it is necessary to render it so by ex-
plaining its real meaning by an innuendo.^"^ This is necessary only
where the intent may be mistaken, or where it cannot be collected
from the libel itself. It is necessary where the words of the writ-
ing are general, ironical, or written by way of allusion or inference,
so that, in order to show its offensive meaning, it connects the writ-
ing with some facts or associations not expressed in words, but
which they necessarily present to the mind. In this case an ex-
planation must be put upon the record, because the jury can take
cognizance of nothing but what is there stated with legal pre-
cision.*"'' The innuendo is only explanatory of matter already ex-
pressed, which it applies to the part that is ambiguous, but it neither
alters nor enlarges the sense of previous averments.""* It not only
cannot supply what has not been alleged in the inducement or the
libel as set out, but it cannot even render certain that which is
there uncertain. Every fact necessary to show that the words are
libelous must be stated in the inducement or libel. The libelous
meaning of the words cannot be explained by an innuendo of a fact
not previously stated with legal precision and certainty. Every-
thing necessary to be stated must be stated previous to the in-
nuendo. The office of the innuendo is to apply facts thus stated to
the matter charged as libelous.""* Whenever the innuendo is er-
roneous in consequence of its going beyond its office, if the libel be
clear to a common intent without it the defective part may be re-
jected as surplusage."""
2013 Chit. Or. Law, 875; post, p. 211.
202 3 Chit. Or. Law, 875; State v. Corbett, 12 R. L 288; State v. Mott, 45
N. J. Law, 494.
203 3 Chit. Or. Law, 875b; Rex v. Greepe, 2 Salt. 513; Woolnoth v. Mead-
ows, 5 East, 469; Goodrich v. Hooper, 97 Mass. 1; Com. v. Keenan, 67 Pa.
St. 203; State v. Spear, 13 R. I. 326; Mix v. Woodward, 12 Conn. 262; State
V. Atkins, 42 Vt. 252.
204'3 Chit. Or. Law, 873, 875b; Woolnoth v. Meadows, 5 East, 469; Hawkes
V. Hawkey, 8 East, 427; James v. Rutlech, 4 Coke, 17b; Cam. v. Snelling, 15
Pick. (Mass.) 321; Thomas v. Croswell, 7 Johns. (N. Y.) 271.
20 5 Woolnoth v. Meadows, 5 East, 463; Hawkes v. Hawkey, 8 East, 427;
Smith V. Cooker, Cro. Car. 512; Peake v. Oldham, Cowp. 275.
OBIM.PROC— 13
178 PLEADING THE ACCUSATION. [Ch. 5
The same rule applies to indictments for forgery. If extrinsic
facts are necessary to show that the instrument alleged to have been
forged, and set out in the indictment, was such an instrument as
«ould be the subject of forgery, these facts must be stated by way of
inducement, and, if necessary, applied to the instrument by in-
nuendo.^"*
SURPLUSAGE.
BO. The introduction of averments ■which are superflu-
ous and. immaterial ■will not render the indictment bad.
If it can be supported without them, they ■will be rejected
as surplusage. But no allegation can be so rejected, even
if it ^was unnecessary, -where it is descriptive of the iden-
tity of that ■which is essential.
Superfluous and immaterial averments, not descriptive of the
identity of what is essential, will generally be rejected as surplus-
age, and therefore will not render the indictment bad.^"'
As we have seen, an indictment cannot charge the offense in
"tlie disjunctive.^"' An indictment is not rendered bad, however,
by a statement in the disjunctive if the statement is superfluous,
for it will be rejected as surplusage. An indictment for robbery
is not bad because it charges that it was committed "in or near
■the highway," for the exact place of its commission is immaterial."'"
Nor is an indictment rendered bad for duplicity by an allega-
tion which is superfluous; as, for instance, where it charges that
206 Post, p. 211.
207 1 Hale, P. O. 535; State v. Kendall, 38 Neb. 817, 57 N. W. 525; State
V. Eroughton, 71 Miss. 90, 13 South. 8S5; State t. Ean (Iowa) 58 N. W. 898;
People V. Lawrence, 137 N. Y. 517, 33 N. E. 547; Turner v. Muskegon Circuit
Judge, 95 Mich. 1, 54 N. W. 705; State v. Kern, 51 N. J. La-w, 259, 17 Atl. 114.
See LitteU v. State, 133 Ind. 577, 33 N. E. 417. And see the cases hereafter
particularly referred to.
iios Ante, p. 169.
209 1 Hale, P. 0. 535. And see State v. Gilbert, 13 Vt. 647; Moyer v. Com.,
7 Pa. St. 439; Respublica v. Arnold, 3 Yeates (Pa.) 417; Ex parte Pain, 5
Bam. & C. 254; Raisler v. State, 55 Ala. 64; Rex v. Wardle, Russ. & R. 9;
State V. EUis, 4 Mo. 474; Mc(Jregor v. State, 16 Ind. 9.
Ch. 5] SURPLUSAGE. 179
the defendant "did embezzle, steal, take, and carry away" certain
goods. "This indictment is not had for duplicity, as charging
the two offenses of larceny and embezzlement in the same count.
The term 'embezzle' is introduced into the count, but not in any
such manner as to give to the count the character of a charge of
embezzlement. It is without any of those technical allegations
essential to a charge of embezzlement; and the indictment being
perfect without it, as a charge of larceny, the word 'embezzle' may
well be stricken out as surplusage." ^^"
An indictment, as we have seen, is bad if it is repugnant or in-
consistent in a material part ; but where the repugnant or contra-
dictory expressions do not enter into the substance of the offense,
and the indictment may be good without them, they may be re-
jected as surplusage.^^^ It has been laid down that where the
repugnant matter is inconsistent with some preceding averment,
it may be rejected as surplusage; but where the objectionable
words are not contradicted by anything that goes before, but are
merely irreconcilable with some subsequent allegation, they cannot
be thus rendered neutral.^^^ "I do not find any authority in the
law," it was said by Lord Ellenborough in a case involving this
point, "which warrants us in rejecting any material allegation in
an indictment or information which is sensible and consistent in
the place where it occurs, and is not repugnant to any antecedent
matter, merely on account of there occurring afterwards, in the
same indictment or information, another allegation inconsistent
with the former, and which latter allegation cannot itself be re-
jected. * * * If the subsequent repugnant matter could be re-
jected at all fwhich in this case it cannot, for the reason before
given), it might be so in favor of the precedent matter, according
210 Com. V. Simpson, 9 Mete. (Mass.) 138; Com. v. Brown, 14 Gray (Mass.)
429; post, p. 284.
211 1 Ohlt. Or. T^w, 231; 2 East, P. C. 1028; Com. v. Pray, 13 Pick. (Mass.)
359; Rex v. Morris, 1 Leach, 109; Rex v. Gill, Russ. & R. 431; Trout v. State,
111 Ind. 499, 12 N. E. 1005. See LitteU v. State, 133 Ind. 577, 33 N. E. 417.
Where an indictment charged an offense against Matt Taylor, "whose Chris-
tian name is otherwise unknown," it was held not bad for repugnancy, as
the words quoted could be rejected as surplusage. Taylor v. State (Ala.) 14
South. 875.
212 1 Chit. Cr. Law, 231.
180 PLEADING THE ACCUSATION. [Gh. 5
to what is said by Lord Holt in Wyatt v. Alard, Salk. 325, 'that,
where matter is nonsense by being contradictory and repugnant
to somewhat precedent, then the precedent matter, which is sense,
shall not be defeated by the repugnancy which follows, but that
which is contradictory shall be rejected.' But here the matter
required to be rejected is precedent matter, and is also, in the place
where it occurs, sensible, and liable to no objection whatever." '^^
The great diflflculty in the application of the doctrine we are here
discussing is to determine when a particular allegation is surplus-
age, and when it is not. If the allegation is wholly foreign to the
charge, or, though not foreign, can be stricken out entirely without
destroying the accusation, it may generally be rejected as super-
fluous.''^* In an indictment for obtaining goods by false pretenses,
for instance, the statement that the offense was committed by the
defendant in his "capacity as a merchandise broker" is surplusage.
"This is certainly an unusual and extraordinary allegation, but we
think the maxim, 'Utile per inutile non vitiatur,' is applicable to
it. Inasmuch as a man cannot ordinarily commit a crime in any
particular capacity or in the exercise of any special occupation,
it does not change or in any way affect the nature of the charge to
aver that, when he was committing it, he purported or claimed to
act, or actually did act, in a specific capacity, or by virtue of a
certain employment. An allegation in due form that a person
committed an assault and battery would not be vitiated by the addi-
tion of an allegation that he did it as a constable, nor would an
averment in technical language that a defendant had committed
larceny be rendered nugatory or insuflScient by an additional alle-
gation that he committed the act in his capacity as a common
carrier. The rule of law as to matters which may be treated as
surplusage is clear, intelligible, and consonant with good sense.
It is this: When, in addition to. facts which are essential to the
charge, others are alleged which are wholly redundant and useless,
218 Rex v. Stevens, 5 Bast, 254; Wyatt v. Aland, 1 Salt. 325.
211 Kex V. Jones, 2 Barn. & Adol. 611; Com. v. Wellington, 7 Allen (Mass.)
209; Rex v. Hollingberry, 4 Barn. & 0. 329; Com. v. Gavin, 121 Mass. 54;
Com. V. Moseley, 2 Va. Cas. 154; State v. Bailey, 11 Fost. (N. H.) 521; Ryalls
V. Reg., 11 Q. B. 781; State v. Corrigan, 24 Conn. 286; U. S. v. Elliott, 3
Mason, 156, Fed. Cas. No. 15,044.
Ch. 5] SURPLUSAGE. 181
the latter may be wholly disregarded. As the law does not re-
quire the superfluous circumstances to be alleged, so, although they
have been improvidently stated, the law, in furtherance of its object,
will reject them as mere surplusage, and will no more regard
them than if they had not been alleged at all." ^^'
Under this rule, where an indictment correctly describes an
offense in the statement of facts, it will not be vitiated by the fact
tliat it designates it, in the charging part or elsewhere, by the
wrong name.^^' So, where an indictment charges the defendant
with being a common seller of intoxicating liquors, that being all
that is necessary under the statute, a further averment that he
made certain specified sales may be rejected as surplusage.''^' And
an indictment charging an offense on a particular day, and also on
divers other days, is good; a day certain being alleged, the residue
may be rejected.^^' So where a complaint alleged that the defend-
ant, "not being first duly licensed, according to law, as an inn-
holder, and without any authority or license therefor duly obtained,
according to law, to sell intoxicating liquor," did sell, etc., and it
appeared that he was duly licensed as an innholder, but was with-
out authority to sell intoxicating liquor, it was held that the alle-
gation that he was not licensed as an innholder should be rejected
as surplusage, and that he was rightly convicted on the other allega-
tions.^ ^° And an indictment for stealing a bank bill or note, which
properly describes it by its denomination and value, is not bad be-
cause it adds "of the goods and chattels" of a person named, since,
if bank bills or notes cannot properly be termed "goods and chat-
tels," those words may be rejected as surplusage.^^" So in a com-
plaint alleging that the defendant did make an assault on Lucy
216 Com. V. Jeffries, 7 Allen (Mass.) 571.
zie State v. Sliaw, 35 Iowa, 575; State v. Davis, 41 Iowa, 311; U. S. v.
Klliott, 3 Mason, 156, Fed. Gas. No. 15,044; State v. Wyatt, 76 Iowa, 828, 41
N. W. 31; U. S. V. Lehman, 39 Fed. 768; post, p. 2i31.
217 Com. V. Pray, 13 Pick. (Mass.) 360; Com. v. Hart, 11 Cush. (Mass.) 130.
218 People V. Adams, 17 Wend. (N. Y.) 475. And see Com. v. Bryden, 9
Mete. (Mass.) 137; Gallagher v. State, 26 Wis. 425; Wells v. Com., 12 Gray
<Mass.) 326; U. S. v. LaCoste, 2 Mason, 129, Fed. Cas. No. 15,548.
219 Com. V. Baker, 10 Cush. (Mass.) 405.
220 Eastman v. Com., 4 Gray (Mass.) 416; Rex v. Morris, 1 Leach. 109; Reg.
V. Radley, 1 Denison, Crown Cas. 450; Com. v. Bennett, 118 Mass. 452.
182 PLEADING THE ACCUSATION. [Ch. 5
Ann Leach, and her did strike with a ferule "divers grievous and
dangerous blovrs upon the head • * * [of her, the said Lucy
Ann Leach, whereby the said Lucy Ann Leach was cruelly beaten
and wounded, and other wrongs to the said Lucy Ann Leach then
and there did and committed], to her great damage," it was held
that the words in brackets could be rejected as surplusage, leav-
ing a sufficient charge of assault on Lucy Ann Leach.^^^
As we shall presently see, an indictment for a statutory offense
should conclude "against the form of the statute," but it would be
improper for an indictment for a common-law offense to so conclude.
The insertion of the words in the latter case, however, will not ren-
der the indictment bad, for they may be rejected as surplusage.''*^
Unnecessary Matter of Description.
Care must always be talcen to distinguish between averments
which are thus wholly foreign and immaterial, or which, though not
wholly foreign, can be stricken out without destroying the accusa-
tion, and averments which, though they might have been omitted,
enter into the description of the offense. If the whole averment may
be rejected without injury to the pleading, it may be rejected; but
it is otherwise with averments of essential circumstances stated
with unnecessary particularity. No allegation, though it may have
been unnecessary, can be rejected as surplusage, if it is descriptive
of the identity of that which is legally essential to the charge.^*'
The application of this rule may often seem to defeat the ends of
justice, but, on the whole, the rule is a salutary one, and is too firmly
established to be shaken or disregarded in particular cases.^**
221 Com. y. Eandall, 4 Gray (Mass.) 36. And see Com. v. Hunt, 4 Pick.
(Mass.) 252; Reg. v. Crespin, 11 Q. B. 913; Rex v. Morris, 1 Leacli, 109; Gree-
son v. State, 5 How. (Miss.) 33; State v. Wall, 39 Mo. 532.
222 Hex V. Mathews, 5 Term R. 162; Com. t. Hoxey, 16 Mass. 3S5; Com.
v. Reynolds, 14 Gray (Mass.) S7.
22 3 u. s. v. Howard, 3 Sumn. 12, Fed. Oas. No. 15,403; Alkenbrack v. Peo-
ple, 1 Denio (N. Y.) 80; Com. v. Atwood, 11 Mass. 93; State v. Noble, 15 Me.
476; Com. v. Hope, 22 Picli. (Mass.) 1; Dennis v. State, 91 Ind. 291; Com. v.
Moriarty, 135 Mass. 540; State v. Slierburne, 59 N. H. 99; Gray v. State, 11
Tex. App. 411; post, pp. 330, 339, 343, 349. As to ownership of property, see
post, p. 339.
2 2* Applying this rule in a civil action, it was held in a leading case that
In an action against a sheriff for taking goods without leaving a year's rent
the declq-ration need not have stated all the particulars of the demise; but
Ch. 5] SURPLUSAGE. 183
A few illustrations will make the rule clear. It has been held, for
instance, that, though an indictment for stealing a sheet need not
state the material of which it is composed, yet, if it does so, it must
be proved as described; and an indictment for stealing "one white
woolen flannel sheet" will not be sustained by proof of stealing
a blanket made partly of cotton and partly of wool.'""' It is not
necessary, as we shall see,^^° to describe third persons further than
by their name; but, if an addition is stated, it must be proved.
Thus, in an indictment for bigamy, if the woman whom it is alleged
that the defendant bigamously married is described as a widow, and
the evidence shows that she was a spinster, the variance is fatal.^^'
'^Whenever a person or thing necessary to be mentioned in an indict-
ment is described with unnecessary particularity, all the circum-
stances of the description must be proved; for they are essential
to its identity. Thus, in an indictment for stealing a black horse,
the animal is necessarily mentioned, but the color need not be stated,
yet, if it is stated, it is made descriptive of the particular animal
stolen, and a variance in the proof of the color is fatal.^^' So, in re-
spect to the larceny of lumber, the special marks on it need not
be described; but, if they are described, the omission or failure to
prove them exactly as they are alleged would constitute an essential
variance between the allegation and the proof, and would neces-
sarily prevent a conviction.^ ^^ And all the authorities afiirm that
since it had done so, and they were not proved as stated, there should be a
nonsuit. "I am very free to own," said Lord Mansfield, "that the strong bias
of my mind has always leaned to prevent the manifest justice of a cause from
being defeated or delayed by formal slips which arise from the inadvertence
of gentlemen of the profession, because it is extremely hard on the party to
be turned round and put to expense from such mistakes of the counsel or at-
torney he employs. It is hard, also, ou the profession. It was on this ground
that I overruled the objection in this case; but I am since convinced * * *
that I was wrong, and that it is better, for the sake of justice, that the strict
rule should in this case prevail." Bristow v. Wright, 2 Doug. 6G5, 1 Smith,
Lead. Cas. (8th Am. Ed.) 1417. And see Peppin v. Solomons, 5 Term R. 496;
Williamson v. Allison, 2 East, 452.
225 Alkenbrack v. People, supra.
226 Post, p. 235.
227 Rex V. Deeley, 1 Moody, Grown Cas. 303.
22 8 1 Greenl. Ev. §§ 56, 65. But see State v. Gilbert, 13 Vt. 647.
230 State V, Noble, 15 Me. 476.
184 PLEADING THE ACCUSATION. [Ch. 5
where place is stated, not as venue, but as matter of local description,
the slightest variance between the description of it in the indict-
ment and the evidence offered concerning it will be fatal.^'" And,
in illustration of this rule, it is said that the slightest variance be-
tween the indictment and the evidence in the name of the place
where the house is situate, or in any other description of it, will be
fatal in indictments for stealing in a dwelling house, or burglary
or arson, or for entering a close by night, being armed for the pur-
pose of taking game. And * * * it is said by Story, J.,'"^ that
no allegation, whether it be necessary or unnecessary, whether it be
more or less particular, which is descriptive of the identity of that
which is legally essential to the charge in the indictment, can ever
be rejected as surplusage. And the rule seems to be fully establish-
ed, both in civil and criminal cases, with respect to what state-
ments in the declaration or indictment are necessary to be proved,
that if the whole of the statement can be stricken out without
destroying the accusation and charge in the one case, and the plain-
tiff's right of action in the other, it is not necessary to prove the
particular allegation; but, if the whole cannot be stricken out with-
out getting rid of a part essential to the accusation or cause of ac-
tion, then, though the averment be more particular than it need have
been, the whole must be proved, or the action or indictment cannot
be maintained." ^^^ In the case from which we have quoted, it was
held that though an indictment for wrongfully desecrating and dis-
figuring a public burying ground need not describe the burying
ground my metes and bounds, yet, if it does so, the metes and bounds
must be proved as stated. In some states, by statute, an indict-
ment for stealing money may describe it simply as money, without
stating the kind. But, if it does unnecessarily state the kind, the
statement is matter of description which must be proved.^^'
We have discussed in another connection the effect of allegations
under a videlicet or scilicet. It is only necessary here to refer to
what was there said.^'*
2 30 See Keg. v. McKenna, Ir. Oirc. E. 416.
281 U. S. V. Howard, 3 Sumn. 14, Fed. Cas. No. 15,403.
282 Com. V. Wellington, 7 Allen (Mass.) 299.
233 Lewis V. State, 113 Ind. 59, 14 N. E. 892.
23 4 Ante, p. 173.
Ch. 5] SURPLUSAGE. 185
Not only may averments which are superfluous be rejected as
surplusage on objection made by demurrer or otherwise before trial,
but they may also be rejected at the trial, or, after the trial, on mo-
tion in arrest of judgment, or appeal, or error.*'"
»8o U. S. V. Howard, 3 Sumn. 15, Fed. Oas. No. 15,403; Com. v. Keefe, 7
Gray (Mass.) 332; Rex v. Jones, 2 Barn. & Adol. Gil; Com. v. Baker, 10 Gush.
(Maes.) 405.
186 PLEADING THE ACCUSATION. [Ch. 6
CHAPTER VI.
PLEADING— THE ACCUSATION (Continued).
81. Allegation of Intent
82. Allegation of Notice, Request, and Knowledge.
83. Technical Terms and Phrases.
84. Aggravating Cii"cumstances— Second or Third OfEense,
85-89. Setting Forth Writings.
90. Setting Forth Spoken Words.
91. Description of Real Property.
92. Description of Personal Property.
93. Ownership of Property.
94. Name and Description of Third Persona.
ALLEGATION OF INTENT.
81. Wheii a particular intention is essential to consti-
tute an offense, or a crime is attempted, but not accom-
plished, and the attempt to carry out the evil intent only
can be punished,^ the intent must be distinctly and pre-
cisely alleged, and proved. But if the offense does not
rest merely in tendency, or in an attempt to carry out
an evil intent, but consists in doing an act criminal in it-
self, the evil intention vnll be presumed from the act, and
need not be alleged, or, if alleged, proved.*
The rule on this subject is well stated and illustrated in a Massa-
chusetts case.' There can be no doubt, it is there said, that in
1 It has been said that the intent must be alleged where a criminal act is
attempted, but not accomplished, "and the evil intent only can be punished."
Heard, Cr. PI. 145; Com. v. Hersey, 2 Allen (Mass.) 173. This is wrong. A
criminal intent is never punished. There must be some act done in an at-
tempt to carry out the criminal intent. The intent Is not punished, but the
act, because it is done with the criminal intent, is punished. The "attempt,"
not the "intent," constitutes the offense. See Clark, Cr. Law, 45, 104.
2 1 Hale, P. C. 455; Rex v. Woodfall, 5 Burrows, 2667; Rex v. Phillpps, 6
East, 473.
3 Com. V. Hersey, 2 Allen (Mass.) 173. In the above discussion other illustra-
tions than those mentioned in the case cited are included.
Ch. 6] ALLEGATION OF INTENT. 18?
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 cannot commit a felony unless tie 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 de-
scription of it in the indictment. On the contrary, as the law pre-
sumes that every man intends the natural and necessary conse-
quences of his acts, it is sufQcient to aver in apt and technical
words that the defendant committed a criminal act, without alleg-
ing the specific intent with which it was done. In such a case, the
act necessarily includes the intent.* In charging the crime of bur-
glary, it is necessary to show in the indictment that the breaking
and entry was with the specific intent to commit a felony in the
house, for this intent is an essential element of the crime." It has
been held, however, that this intent is sufQciently charged by al-
leging the breaking and entry, and the actual commission of the
felony, on the ground that the fact that the felony is committed is
the strongest possible evidence of the intent, and that the allega-
tion of the commission of the felony is equivalent to an averment of
an intent to commit it* These decisions serve as illustrations of
the doctrine we are considering, but the application of the doctrine
to the crime of burglary is very doubtful.''
1 Rex V. Philipps, 6 East, 473; Eeg. v. Taylor, 2 Ld. Raym. 879; State v.
McCarter, 98 N. C. 637, 4 S. E. 553; State v. Hurds, 19 Neb. 316, 27 N. W. 139.
5 Winslow V. State, 26 Neb. 308, 41 N. W. 1116; note 12, infra.
e 2 East, P. O. c. 15, § 24; Com. v. Hope, 22 Pick. (Mass.) 1, 5; Rex v.
Em-nival. Euss. & R. 445; Com. v. Brown, 3 Rawle (Pa.) 207.
7 Tbe correctness of this proposition is doubtful, to say tbe least. If a man
breaks and enters a bouse without a felonious intent, and, after entering,
forms and carries out a felonious intent, be does not commit burglary, for
the intent must exist at the time of the breaking and entry. Clark, Cr. Law,
238. If an indictment merely charges a breaking and entry, and actual com-
mission of a felony in the house, it does not charge a breaking and entry with
intent to commit a felony, except argumentatively and inferentially, and
nothing is better settled in the criminal law than the rule that no material
averment can be supplied by other than necessary inference. Everything
stated in such an indictment may be true, and yet there may have been no
burglary, for the intent to commit the felony may not have been entertained
until after the breaking and entiy. It is true that the intent may and must
necessarily, In most cases, be inferred from the fact that the felony was
188 PLEADING — THE ACCUSATION. [Ch. 6
So, in an indictment for murder by blows or stabs with a deadly
weapon, it is not necessary to expressly allege that the blows were
inflicted with an intent to kill or murder. The law infers the in-
tent from proof that the acts were committed, and that death en-
sued.^ The principle also applies to indictments for murder by
poison. It need not be alleged that the poison was administered
with intent to kill. 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
defendant contemplated and intended the result which followed.'
And, in an indictment for the crime of rape, it is not necessary to
allege that the assault was made by the defendant with intent to
ravish; it is sufficient to allege the assault, and that the defendant
had carnal knowledge of the woman by force and against her will.
The averment of the act includes the intent, and proof of the com-
mission of the offense draws with it the necessary inference of the
criminal intent.^"
On the other hand, if, by the common law or by the provision of a
statute, a particular intention is essential to an offense, or, as is in-
cluded in the above proposition, if a crime is attempted, but not
accomplished, so that the only offense punishable is the attempt to
catry out, or assault with intent to carry out, the particular evil
intent, it is necessary to allege the intent with distinctness and pre-
cision, and to support the allegation by proof. ^^ Burglary is not
committed. This is a matter of evidence, however. The rules of evidence al-
low the existence of one fact to be inferred from the existence of other facts
proved, though the inference is not a necessary one, but the rules of criminal
pleading do not allow averments of a fact or circumstance or a mental condi-
tion, which is necessary to constitute the crime sought to be charged, to be
imported into an indictment by argument and inference, unless it is a neces-
sary inference. Ante, p. 162; note 24, infra.
8 Com. V. Hersey, 2 Allen (Mass.) 173.
» Com. V. Hersey, supra.
10 Com. V. Hersey, supra.
11 Rex V. Philipps, 6 East, 473; Com. v. Hersey, 2 Allen (Mass.) 173; State
V. Davis, 26 Tex. 201; Fergus v. State, 6 Yerg. (Tenn.) 345; Coffee v. State,
3 Yerg. (Tenn.) 283; State v. Beadon, 17 S. C. 55; State v. Garvey, 11 Minn.
154 (GiL 95); People v. Congleton, 44 Cal. 92 ; post, p. 330.
Ch. 6] ALLEGATION OF INTENT. 189
committed unless the breaking and entry was with the specific in-
tent to commit a felony in the house. To charge the crime, there-
fore, the indictment must either expressly allege such an intent,
or perhaps, as stated above, allege the actual commission of a felony
from which an intent to commit it may be implied.^ ^ As we have
seen, an indictment for the consummated crime of rape need not
allege that the assault was made with intent to rape. Where, on
the other hand, the crime is not consummated, and it is sought to
punish for the attempt to rape, or for the statutory crime of assault
with intent to rape, the specific intent to rape must be alleged and
proved. The attempted crime not being consummated, the gist of
the offense consists in the intent with which the assault was com-
mitted. It must therefore be distinctly alleged and proved.^* The
same is true of attempts to murder, or assaults with intent to mur-
der. It must be alleged and proved that the assault was made
with that specific intent.^* This general averment will be sufficient.
By the weight of authority, the indictment need not contain an aver-
ment of the facts necessary to constitute the crime intended to be
committed ; as, in an indictment for murder, that the acts were done
feloniously, willfully, and of malice aforethought.^ °
12 2 Hale, P. C. 513; State v. Lockhart, 24 Ga. 420; Winslow v. State, 26
Neb. 308, 41 N. W. 1116; Portwood v. State, 29 Tex. 47; State v. Brady, 14
Vt. 353; Murray v. State, 48 Ala. 675; Jones v. State, 11 N. H. 269; notes
5-7, supra. An Indictment for burglary with intent to commit larceny need
not allege the intent with the same particularity as would be required in an
indictment for larceny. It need not, for instance, describe the property in-
tended to be stolen, nor state its ownership or value. State v. Tyrell, 98 Mo.
354, 11 S. W. 734; Lanier v. State, 76 Ga. 304; Stokes v. State, 84 Ga. 258,
10 S. E. 740; Wright v. Com., 82 Va. 183; Green v. State, 21 Tex. App. 64,
17 S. W. 262; State v. Jennings, 79 Iowa, 513, 44 N. W. 799; Reg. v. Clarke,
1 Car. & K. 421; Lamed v. Com., 12 Mete. (Mass.) 240; Davis v. State (Tex.
Cr. App.) 23 S. W. 687; Hamilton v. State (Tex. Cr. App.) 24 S. W. 32; Big-
ham v. State, 31 Tex. Cr. R. 244, 20 S. W. 577. The same is true in. case of
Intent to rape, murder, etc. Cases above cited; Com. v. Doherty, 10 Gush.
(Mass.) 52. It has even been said that the particular felony intended need
not be specified. Slaughter v. Com. (Ky.) 24 S. W. 622.
13 Com. V. Merrill, 14 Gray (Mass.) 415.
1* State V. Patrick, 3 Wis. 812; People v. Petit, 3 Johns. (N. Y.) 511; Brad-
ley V. State, 10 Smedes & M. 618.
"People V. Petit, supra; Rex v. Higgins, 2 East, 5; Com. v. Doherty, 10
Cush. (Mass.) 52; Cross v. State, 55 Wis. 262, 12 N. W. 425; Porter v. State,
lyO PLEADING THE ACCUSATION. [Ch. 6
"The indictment should set out precisely all the facts and cir-
cumstances which render the defendant guilty of the offense
charged. » * * if the intent with which an act is done con-
stitutes the offense charged, that intent must be averred in the in-
dictment. In Penhallo's Case, Cro. Eliz. 231, the defendant was in-
dicted on 5 Edw. VI. c. 4, for drawing his dagger in a church against
J. S., and doth not say to the intent to strike him. The indictment
was adjudged bad. So, if an offense at common law is by statute
punishable with additional severity when committed with the in-
tention to perpetrate another and greater offense, the criminal in-
tention must be directly averred in the indictment, or the offender
cannot be subjected to the additional punishment. It is not suffl-
cient that the indictment concludes contra formam statuti. So, if
a misdemeanor is declared to be a felony when committed with a
certain criminal intent, it is not sufiflcient to aver in the indictment
that the criminal act was done feloniously." In the case from
which we have quoted, an indictment under a statute punishing the
removal of a dead body with the intent to use or dispose of it for
the purpose of dissection was held bad because it failed to allege
this intent.^'
An intent to defraud is an essential element in the crimes of
forgery, obtaining goods by false pretenses, etc.; and an indictment
for such an offense is fatally defective if it fails to allege such an
intent.^^ At common law it is generally necessary to allege an in-
tent to defraud some particular person, but, by statute, in many
57 Miss. 300; Garner v. State, 31 Tex. App. 22, 19 S. W. 333; Com. v. Mc-
Donald, 5 Gush. (Mass.) 365; Rogers v. Gom., 5 Serg. & R. (Pa.) 463; Taylor
v. Com., 3 Bush (Ky.) 508; Martin v. State, 40 Tex. 19; State v. Ackles, 8
Wash. 462, 36 Pac. 597; note 12, supra. But see, contra, State v. Wilson, 7
Ind. 516; State v. Fee, 19 Wis. 562; Milan v. State, 24 Ai-k. 346; State v.
Davis (Mo. Sup.) 26 S. W. 568.
le Com. V. Sladc, 19 Pick. (Mass.) 307.
17 Rex V. Rush worth, Russ. & R. 317; Rex v. Powner, 12 Cox, Or. Cas. 235;
People V. Mitchell, 92 Cal. 590, 28 Pac. 597, 788; Com. v. Bakeman, 105 Mass.
53; Com. v. Dean, 110 Mass. 64; People v. Getchell, 6 Mich. 496; Scott v.
People, 62 Barb. (N. Y.) 62; Stoughton v. State, 2 Ohio St. 562; State v.
Jackson, 89 Mo. 561, 1 S. W. 760; State v. Harrison, 69 N. C. 143; Cunning-
ham V. State, 49 Miss. 685; State v. Stephen (La.) 12 South. 883; Moore v.
Com., 92 Ky. 630, 18 S. W. 833. But see State v. Rowlen (Mo. Sup.) 21 S. W.
729; Hamilton v. Reg., 2 Cox, Cr. Cas. 11.
Ch. 6] ALLEGATION OF INTENT. 191
jurisdictions a general allegation of intent to defraud is suflScient.^*
Even where such a statute is in force, a special intent to defraud a
particular person, if alleged, though unnecessarily, must be proved.^"
It has been held that, where it is necessary to allege an evil intent,
it is sufficient if it be alleged in the prefatory part of the indictment.
An indictment for indecent exposure, for instance, which alleges
that the defendant, devising and intending the morals of the people
to debauch and corrupt at a time and place named, m a certain public
building there situate, in the presence of divers citizens, etc., unlaw-
fully, scandalously, and wantonly did expose his person, etc., suffi-
ciently alleges the intent with which the act was committed.^" The
rule is subject to this qualification, namely, that, if the intention
is necessary to constitute the offense, it must be alleged in every
material part where it so constitutes it.^^ Thus, where an indict-
ment for obtaining money on a forged order, after charging that the
accused presented the order with intent to cheat, and that he know-
ingly, etc., pretended it was genuine, proceeded to charge that the
accused did obtain the money, without alleging that he obtained it
with the intent to cheat, etc., or knowingly and designedly, it was
held bad.'^^ And an indictment for selling unwholesome meat, know-
ing it to be unwholesome, is bad if it fails to allege that the defend-
ant knew it was unwholesome. It is not enough to allege that he
did '^knowingly sell" unwholesome meat, for a man may knowingly
sell an article without knowing its condition.''^
Like all other essential averments, the intent must be precisely
18 Reg. V. Hodgson, Dears. & B. Crown Gas. 9; Com. v. Harley, 7 Mete.
(Mass.) 509; Roush v. State, 34 Neb. 325, 51 N. W. 755; State v. Hart, 67
Iowa, 142, 27 N. W. 99; People v. Van Alstine, 57 Mich. 69, 23 N. W. 594;
State V. Tingler, 32 W. Va. 546, 9 S. E. 935; State v. Adams, 39 La. Ann. 238,
1 South. 455.
19 Com V. Harley, supra; Com. v. KeUogg, 7 Cush. (Mass.) 476.
20 Com. V. Haynes, 2 Gray (Mass.) 72; Rex v. Philipps, 6 East, 473; Miller
V. People, 5 Barb. (N. Y.) 203.
21 Curtis V. People, Breese (111.) 256, 1 Scam. (111.) 285; Rex v. Rushworth,
Russ. & R. 317; Com. v. Boynton, 12 Cush. (Mass.) 499; Com. v. Bakeman,
105 Mass. 53; Com. v. Dean, 110 Mass. 64.
2 2 Rex V. Rushworth, Russ. & R. 317.
28 Com. V. Boynton, 12 Gush. (Mass.) 499.
192 PLEADING THE ACCUSATION. [Ch. 6
and distinctly alleged. If not expressly alleged, it cannot be made
out by inference and argument from the facts which are stated.**
Where the intent is thus material, it must be correctly alleged,
for a variance between the allegation and the proof may prove
fatal.^' To avoid a possible variance in this respect, it is usual to
allege the same act with different intents in the same or different
counts of the indictment.*'
If an intent is unnecessarily alleged, it cannot, as a rule, affect the
validity of the indictment, nor need it be proved, for it will be re-
jected as surplusage.*^
ALLEGATION OF NOTICE, REQUEST, AND KNOWLEDGE.
83. Whenever notice, request, or knowledge is necessary
to constitute the crime, it must be alleged and proved.
If a special notice is necessary to raise the duty which the defend-
ant is charged with having violated, it must be alleged. This re-
sults from the rule that every essential element of the crime must be
stated.**
On the same principle, if a request or demand is necessary to raise
the duty which the defendant is charged to have violated, it must be
stated. Thus, an indictment for contempt in disobeying a justice's
order must allege that the defendant was requested to perform the
order, or that it was served on him.*°
On the same principle, whenever a particular knowledge is essen-
tial to the constitution of an offense, it must be alleged, and it must
be alleged in every material part of the description where it so consti-
tutes it. Thus, under a statute imposing a penalty upon any person
who shall knowingly sell unwholesome provisions, "without making
the same fully known to the buyer," not only must the provisions be
2 4 Ante, p. 162; Reg. v. James, 12 Cox, Or. Cas. 127; Rex v. Rushworth,
Russ. & R. 317; Com. v. Lannan, 1 Allen (Mass.) 590; Com. v. Dean, 110
Mass. 64; note 6, supra.
2 5 As to variance, see post, p. 330.
2 8 As to joinder of counts and duplicity, see post, pp. 278, 286.
27 Post, p. 331. But see note 19, supra.
28 Crouther's Case, Cro. Eliz. 654.
2 8 Rex V. Kingston, 8 East, 52; King v. Fearnley, 1 Term R. 316.
Ch. 6] ALLEGATION OF NOTICE, REQUEST, AND KNOWLEDGE. 193
knowingly sold, but the seller must know that they are unwholesome,
and an indictment is fatally defective if it does not allege such
knowledge. It is not enough to allege that the defendant "did
knowingly sell" unwholesome provisions, but it must be further ex-
pressly alleged that he knew at the time that they were unwhole-
some, since a person may knowingly sell an unwholesome article
without knowing it to be unwholesome. The sale of itself is not
made criminal, but it is the sale coupled with a knowledge of the
condition of the article which constitutes the offense, and the
scienter is essential.'" So, also, an indictment for receiving stolen
goods must allege that the defendant knew that they were stolen,
for this knowledge is essential; it is not enough to state that he
"knowingly received" stolen goods, for this might be true, and jei
he might not have known they had been stolen.'^ Averment of
knowledge is also absolutely essential in indictments for uttering
forged instruments or counterfeit coin,'^ and other attempts to de-
fraud; ''in indictments under a statute punishing the stealing of
bank bills or promissory notes, "knowing them to be such;" '* harbor-
ing or aiding a fugitive slave; '^ illegal voting; '° assaulting, resist-
so Com. V. Boynton, 12 Cush. (Mass.) 499. And see Stein v. State, 37 Ala.
123 (selling unwholesome water). But in U. S. v. Clark, 87 Fed. 106, an in-
dictment charging that the defendant did knowingly deposit for mailing and
delivery certain obscene pictures, etc., was held not subject to the objection
that it did not allege that he knew that the pictures were obscene, since It
was considered that the word "knowingly," as used in the charge, qualified the
whole act. And see U. S. v. Najhan, 61 Fed. 936. And it has been held that
a charge that the defendant knowingly uttered a forged note is equivalent
to an averment that he knew the note was forged. State v. Williams (Ind.
Sup.) 38 N. E. 339.
81 Com. V. Merriam, 7 Allen (Mass.) 356; Com. v. Cohen, 120 Mass. 198
Reg. V. Larkin, 6 Cox, Cr. Cas. 377; Huggins v. State, 41 Ala. 393.
32 Anderson v. State, 7 Ohio, 250; Eex v. Rushworth, Russ. & R. 317
Powers V. State, 87 Ind. 97; U. S. v. Carll, 105 U. S. 611; People v. Mitchell
92 Cal. 590, 28 Pac. 597, 788; People v. Smith (Cal.) 37 Pac. 516; Gates v,
State (Miss.) 16 South. 342.
S3 Com. V. Bakeman, 105 Mass. 53; Com. v. Dean, 110 Mass. 64; State
V. Gardner, 2 Mo. 23.
»* Gatewood v. State, 4 Ohio, 380; Rich v. State, 8 Ohio, 111.
seBimey v. State, 8 Ohio, 230. But see State v. Brown, 2 Speers (S. C.)
129.
8« U..a V. Watkinds, 7 Sawy. 85, 6 Fed. 152.
ORIM.PROO. — 13
194 PLEADING THE ACCUSATION. [Ch. 6
ing, or obstructing an oflQcer;'' selling an obscene or libelous
book; '* and in all other cases where it is necessary to show knowl-
edge in order to make out the offense.'^
Where knowledge must be presumed, and the event, fact, or cir-
cumstance rendering the act criminal lay alike in the knowledge of
all men, it is never necessary to state or prove it.*" And whenever
an act is unlawful and criminal without regard to the defendant's
ignorance or knowledge of the facts, so that knowledge does not
enter into the constitution of the offense, it is, of course, unnecessary
to allege or prove knowledge. It was held, for instance, that an
indictment under a statute against an unmarried man for adultery
with a married woman need not allege that the defendant knew, at
the time the offense was committed, that she was a married woman.*^
So, in those jurisdictions where it is held that, under statutes pun-
ishing the sale of intoxicating liquors to minors and drunkards, and
the sale of intoxicating or adulterated liquor or food, ignorance of
the fact that the purchaser of the liquor was a minor or drunkard,
or that the liquor or food was intoxicating or adulterated, is no
defense, knowledge of these facts need not be alleged or proved.*^
There is much conflict as to when knowledge of fact is essential,
but the question is not within the scope of this work.*'
In alleging knowledge, the word "knowingly" or the words "well
37 state V. Maloney, 12 R. L 251; Horan v. State, 7 Tex. App. 183; Com.
V. Kirby, 2 Gush. (Mass.) 577. Contra, People v. Haley, 48 Mich. 495, 12
N. W. 671.
3 8 U. S. V. aark, 37 Fed. 106. ' "^
39 state V. Carpenter, 20 Vt. 9; U. S. v. Buzzo, 18 Wall. 125; Powers v.
State, 87 Ind. 97; Morman v. State, 24 Miss. 54; People v. Lohman, 2 Barb.
(N. Y.) 216; State v. Gove, 34 N. H. 510; State v. Bloedow, 45 Wis. 279.
40 Rex V. HoUond, 5 Term R. 621; 1 Hale, P. C. 561; 2 East, P. 0. 51;
Com. V. ElweU, 2 Mete. (Mass.) 190; Turner v. State, 1 Ohio St. 422; State
V. Freeman, 6 Blackf. (Ind.) 248; Com. v. Stout 7 B. Mon. (Ky.) 247; State
V. Brown, 2 Speers (S. C.) 129.
41 Com. V. ElweU, 2 Mete. (Mass.) 190.
42 Com. V. Raymond, 97 Mass. 507; Com. v. Boynton, 2 Allen (Mass.) 160;
People V. Kibler, 103 N. Y. 321, 12 N. E. 795; State v. Smith, 10 R. I. 258;
People V. Roby, 52 Mich. 577, 18 N. W. 365; State v. Hartfiel, 24 Wis. 60;
State V. Heck, 23 Minn. 549; Faimer v. People, 77 111. 322; State v. House,
71 N. C. 518; State v. Goodenow, 65 Me. 30; State v. Bacon, 7 Vt 219.
*» Clark, Cr. Law, 6a
Ch. 6] TECHNICAL TERMS AND PHRASES. 195
knowing" may be used. Thej are equivalent to a positire averment
that the accused knew the facts subsequently stated.**
If knowledge is unnecessarily stated, the allegation may be re-
jected as surplusage, and need not be proven.*"
TECHNICAL TERMS AND PHRASES.
83. TJnless the necessity therefor is obviated by stat-
ute, the following technical terms and phrases must be
used, and no periphrasis or circumlocution will supply
their place:
(a) The term "traitorously" in all indictments for
treason.
(b) The term "feloniously" in all indictments for fel-
ony,
(c; The terms "feloniously," "of his malice afore-
thought," did kill and "murder," in indictments
for murder.
(d) The terms "feloniously ravished," and, perhaps,
"carnally knew^," in indictments for rape.
(e) The terms "feloniously" and "burglariously" in
indictments for burglary.
(f) The terms "feloniously took and carried away"
the property, or "feloniously took and led
away" the cattle, in indictments for simp'e lar-
ceny.
(g) The terms /'forcibly and against the will" in in-
dictments for robbery.
(h) The terms "feloniously" and "piratically" in in-
dictments for piracy.
(i) "Common barretors," etc., must be indicted by
those words.
** Rex V. Lawley, 2 Strange, 904; Rex v. Rushworth, Russ. & R. 317; Com.
v. Klrby, 2 Cusli. (Mass.) 577. As to ava-meut of knowledge in indictment
for perjury, see note 84, infra.
4B Post, p. 332.
196 PLEADING THE ACCUSATION. [Ch. 6
(j) The word "riot" must be used in indictments for
riot.
(k) The word "maintained" in indictments for main-
tenance.
(1) The w^ords "w^ith strong hand" in indictments for
forcible entry.
(m) As we shall see in treating of indictments under
statutes, technical terms used in the statute
must generally be used in the indictment.
There are certain technical phrases and terms of art which are so
.appropriated by the law to express the precise idea which it enter-
tains of an offense that they must be used in describing it. No
other terms, however synonymous they may seem, will be suffi-
cient.*" There are other technical expressions which, though usual,
are not necessary. ^
The term "unlawfully," which is frequently used in the descrip'
tion of the offense, is unnecessary when the crime existed at com-
mon law, and is manifestly unlawful.*' But, as we shall see, if a
statute, in describing an offense which it creates, uses the word, an
indictment founded on the statute will be bad if it omits to use
it.*' It can in no case be wrong to use the word, and it is in gen-
eral better to insert it, for it precludes all legal cause of excuse for
the crime.*'
In every indictment for treason the word "traitorously" must be
•used.""
And at common law, in every indictment for felony, except in
some cases of statutory felony, to be presently explained, the word
"feloniously" is absolutely essential. Nothing can supply its place.
4 8 2 Hawk. P. C. c. 25, § 55.
■" 2 Hawk. P. C. c. 25, § 96; 2 East, P. C. 985; 2 Rolle, Abr. 82; Jerry v.
State, 1 Blackf. (Ind.) 390; State v. Bray, 1 Mo. 180; Curtis v. People, Breese
(111.) 256; Com. v. Byrnes, 126 Mass. 248; Com. v. Twitchell, 4 Cush. (Mass.)
■74.
*s Post, p. 262.
*» Rex V. Bui-nett, 4 Maule & S. 274; Com. v. Thompson, 108 Mass. 461.
80 3 Inst. 15; 4 Bl. Comm. 307; 2 Hale, P. C. 172, 184; 2 Hawk. P. 0. a
25, § 55; 1 East, P. C. 115.
Ch. 6] TECHNICAL TEEMS AND PHRASES. 197
This applies to all felonies at common law, and generally to statu-
tory felonies also.°^ Tlie term, of course, is not only unDef^eiaary,
but is improper, in indictments for attempts to commit felonies, or
assaults with intent to commit them, for these offenses are misde-
meanors only.''^ But, by the weight of authority, if it is thus er-
roneously inserted in an indictment for misdemeanor, it will not
vitiate, but may be rejected as surplusage.^^ This phrase need not
be inserted in any particular part of the indictment. If it appears
in any part of it, it will be sufficient, provided it shows by the mode
of insertion that the offense was complete. In an indictment for
embezzlement, for instance, it is sufficient to state in the conclusion
that the accused feloniously did steal, take, etc., though the word
is not inserted in the former part of the indictment before the word
"embezzlement." °*
The crime of murder also has terms peculiarly appropriate to its
description. Being a felony, the word "feloniously" must, of course,
be inserted." In addition to this, it must be alleged that the act
Bi 2 Hale, P. C. 171, 184; 2 Hawk. P. C. c. 26, § 55; Dearing's Case, Cro.
Eliz. 193; Long's Case, 5 Coke, 121; Rex v. Crighton, Russ. & R. 62; Reg.
V. Gray, Leigh & C. Crown Cas. 365; Stout v. Com., 11 Serg. & R. (Pa.) 177;
Curtis V. People, Breese (111.) 256, 1 Scam. (111.) 285; Jane v. State, 3 Mo. 61;
State V. Gilbert, 24 Mo. 380; State v. Murdock, 9 Mo. 739; Kaelin v. Com.,
84 Ky. 354, 1 S. W. 594; Hall v. Com. (Ky.) 26 S. W. 8; Bowler v. State, 41
Miss. 570; Wile v. State, GO Miss. 260; Com. v. Scannel, 11 Cush. (Mass.)
547; State v. Jesse, 2 Dev. & B. (N. C.) 297; State v. Rucker, 68 N. G. 211:
State V. Roper, 88 N. C. 656; Com. v. Weiderhold, 112 Pa. St. 584, 4 Atl. 345;
State v. Hang Tong, 115 Mo. 389, 22 S. W. 381; Williams v. State, 8 Humph.
(Tenn.) 685; Scudder v. State, 62 Ind. 13; Edwards v. State, 25 Ark. 444;
State v. Whitt (W. Va.) 19 S. B. 873; State v. Bryan, 112 N. O. 848, 16 S. B.
909; State v. Caldwell, 112 N. C. 854, 16 S. E. 1010. In some states the
term Is declared by statute to be unnecessary. Com. v. Jackson, 15 Gray
(Mass.) 187; Com. v. Sholes, 13 Allen (Mass.) 558.
B2 Stout V. Com., 11 Serg. & R. (Pa.) 177.
B3 Hess V. State, 5 Ohio, 12; People v. Jackson, 3 Hill (N. Y.) 92; Com. v.
Squire, 1 Mete. (Mass.) 258; People v. White, 22 Wend. (N. Y.) 175; Com. v.
Gable, 7 Serg. & R. (Pa.) 423; Hackett v. Com., 15 Pa. St. 95; State v. Sparks,
78 Ind. 166. But see State v. Edwards, 90 N. C. 710; Black v. State, 2 Md.
376.
»* Rex V. Crighton, Russ. & R. 62.
B5 2 Hale, P. C. 186, 187; Dearing's Case, Cro. Eliz. 193; Sarah v. State,
28 Miss. 268; State v. Thomas, 29 La. Ann. 601; note 51, supra.
198 PLEADING THE ACCUSATION. [Ch. 6
which caused death was done "with malice aforethought," this be-
ing essential to the crime of murder at common law; and it must
be stated, as a conclusion from the facts alleged, that so the de-
fendant feloniously, "of his malice aforethought," did kill and "mur-
der" the deceased. Without these terms the indictment will, at
common law, charge manslaughter only."* In Massachusetts it
has been held that the assault need not be alleged to have been
made "with malice aforethought" if the term is used in the conclud-
ing part of the charge."' It has also been held that, where the
death arose from a wounding, beating, or bruising, the words
"struck" or "did strike" are essential;"' and that the wound or
bruise must be alleged to have been mortal; and that the latter
word is not supplied by the allegation, which is also necessary, that
the deceased died in consequence of the wound or bruise."'
In an indictment for rape, the words "feloniously raTished" and
"carnally knew" are necessary; and the want of the former ia not
supplied by the insertion of the latter.*" There is some authority
to the effect that the words "carnally knew" are not absolutely nec-
essary,*^ but it would be unsafe to omit them.*'' If these words are
used, it is not necessary to further allege that the offense was com-
mitted forcibly and against the will of the woman.*'
58 Post. Crown Law, 424; 1 Hale, P. C. 450, 466; 2 Hale, P. 0. 184, 187;
Bradley v. Banks, Cro. Jac. 283; 2 Hawk. P. C. c. 25, § 55; Com. v. Gib-
son, 2 Va. Cas. 70; Maile v. Com., 9 Leigh (Va.) 661; McBlroy v. State, 14
Tex. App. 235; Witt v. State, 6 Cold. (Tenn.) 5; Simmons v. State, 32 Fla.
387, 13 South. 396; State v. Rector (Mo. Sup.) 23 S. W. 1074. But see State
V. Banks, 118 Mo. 117, 23 S. W. 1079.
»' Com. V. Chapman, 11 Cush. (Mass.) 425.
68 Long's Case, 5 Coke, 122; Rex v. Griffith, 3 Mod. 202; 2 Hawk. P. C.
c. 23, § 82; White v. Com.. 6 Bin. (Pa.) 179.
6 0 Rex V. Lad, 1 Leach, Crown Cas. 96; Beg. v. Mawgridge, J. Kel. 125;
2 Hale, P. C. 186; 2 Hawk. P. C. c. 23, § 82; State v. Wlmberly, 3 McCord
(S. C.) 190; Respublica v. Honeyman, 2 Dall. (Pa.) 228.
60 1 Hale, P. C. 028; 2 Hale, P. C. 184; 2 Inst 180; 1 East, P. C. 447; 2
Hawk. P. C. c. 25, | 56; Harman v. Com., 12 Serg. & R. (Pa.) 69; Gougle-
man t. People,' 3 Parker, Cr. R. (N. Y.) 15; Howell's Case, 2 Grat (Va.)
672; Christian v. Com., 23 Grat. (Va.) 954.
81 1 East, P. C. 448; State v. Jim, 1 Dev. (N. 0.) 142.
62 1 Chit. Cr. Law, 243; Davis v. State, 3 Har. & J. (Md.) 154.
88 Harmon v. Com., supra. But see State v. Jim, supra.
Ch. 6] TECHNICAL TERMS AND PHRASES. 199
Every indictment for burglary, in addition to the allegation that
the entry was made feloniously, must allege that it was made 'Tsur-
glariously." The use of this word is absolutely essential at com-
mon law,** though, as we shall see, it may sometimes be omitted in
indictments for statutory burglaries.*® It has been said that it
is also necessary that the felony committed or intended shall be set
forth in technical language, but, as we have seen in another connec-
tion, this is doubtful."*
By referring to the definition of larceny,*' it will be seen that a
taking and a carrying away, with a felonious intent, are absolutely
essential to constitute the crime. A taking without an asportation,
or an asportation by one who hds lawful possession, is not larceny.
In an indictment for simple larceny, therefore, the words "feloni-
ously took and carried away" the property, or "feloniously took and
led away" the cattle, are necessary.*' It is not sufficient to allege
that the defendant "feloniously took and carried," omitting the word
"away." *»
An indictment for robbery must allege that the property was
taken "forcibly and against the will" of the person robbed. It is
usual to aver a putting in fear, but this is not necessary.^' The
»* Vaux V. Brook, 4 Coke, 39, 40; Long's Case, 5 Coke, 121; Kyle's Case,
Cro. Eliz. 920; 2 Hale, P. C. 172, 184; 2 Hawk. P. C. c. 25, § 55; Portwood
V. State, 29 Tex. 47; State v. McClvmg, 35 W. Va. 280, 13 S. B. 654; State
y. McDonald, 9 W. Va. 456. As to indictments for statutory house-breaking,
in which the term Is not necessary, see post, p. 202.
SB Post, p. 202.
«» 1 Hale, P. C. 550; Com. v. Brown, 3 Bawle (Pa.) 207. But see State v.
McClung, supra. And see ante, p. 189.
97 Clark, Or. Law, 241.
»8 1 Hale, P. C. 504; 2 Hale, P. C. 184; Cora. v. Adams, 7 Gray (Mass.) 44;
Gregg V. State. 64 Ind. 223; Green v. Com., Ill Mass. 418 (in this case it
was held that the allegation "did feloniously take and steal" was sufficient,
and that the defect was only formal; but in this respect the decision rides
roughshod over an overwhelming weight of authority to the contrary, for
the indictment omitted to charge an asportation, and therefore failed to
charge the offense of larceny); Rountree v. State, 58 Ala, 381.
88 Com. V. Adams, supra.
70 3 Inst 68; Fost. 128; 1 Hale, P. C. 535; 2 East, P. C. 283; Com. v.
Humphries, 7 Mass. 242; State v. Cowan, 7 Ired. (N. C.) 239; Collins v. Peo-
ple, 39 lU. 233; Anderson v. State, 28 Ind. 22.
200 PLEADING THE ACCUSATION. [Ch. 6
word "violently" is not now regarded as necessary, though formerly
it was so regarded.^ ^
"Feloniously" and "piratically" are both necessary in an indict-
ment for piracy.' '
There are also some misdemeanors which must be described by
particular terms/' Common barretors, common scolds, etc., must
be indicted as such.'* The word "riot" must be inserted in all in-
dictments for rioting; '° the word "maintained" in all indictments
for maintenance; " the words "with strong hand" in an indictment
for forcible entry.''
There are many technical expressions which, though usual, are
not necessary. In cases of treason and felony, it was at one time
usual, by way of inducement, to state that the accused, "not having
the fear of God before his eyes, but being moved and seduced by the
instigation of the devil," perpetrated the crime for which he was
indicted, but it was probably never necessary to insert these words.
It certainly is not necessary now; and the same is true, in indict-
ments for murder, of the statement that the deceased was in the
peace of God and of the king.'*
The words "with force and arms," anciently "vi et armis," were
at common law necessary in indictments for offenses amounting to
an actual disturbance of the peace, or consisting in any way of acts
of violence,'* and were formerly followed by the words "videlicet
Ti 2 East, P. C. 784.
'2 1 Hawk. P. C. c. 37, § 15; 3 Inst 112.
'8 As we have already stated, the word "feloniously" Is out of place In an
indictment for misdemeanor; but, if used, it may be rejected as surplusage.
Ante, p. 197.
7* Reg. V. Foxby, 6 Mod. 11, 178, 218. 239; Com. v. Davis, 11 Pick. (Mass.)
432.
7IS Rex V. Johnson, 1 Wlls. 325.
78 Id.
77 Rex V. Wilson, 8 Term R. 357.
78 1 Chit. Cr. Law, 239; 2 Hawk. P. C. c. 25, § 73; 2 Hale, P. 0. 186; Hey-
den's Case, 4 Coke, 41b; Rex v. Philipps, 6 Bast, 472; Com. v. Murphy, 11
Gush. (Mass.) 472.
79 Hart's Case, Cro. Jac. 472; 2 Hale, P. O. 187; 2 Hawk. P. C. c. 25, {
90. But they were not necessary where the offense consisted of a cheat or
nonfeasance or a mere consequential injury. Bex v. Burks, 7 Term R. 4,
5; 2 Hawk. P. C. c. 25, § 90.
Ch. 6] TECHNICAL TERMS AND PHRASES. 201
cum baculis cultellis arcubus et sagittis." *" But the statute 2T
Henry Vm. c. 8, reciting that several indictments had been deemed
void for want of these words, when in fact no such weapons had
been employed, enacted "that the words 'vi et armis videlicet cum
baculis cultellis arcubus et sagittis' shall not, of necessity, be put
in any indictment." *^ This statute is old enough to have become
a part of our common law, and has been held to be in force in some
of the states.^'
The word "larceny" is not one of those terms of art which it is
indispensable to use in an indictment, and as a substitute for which
no synonymous word and no description or definition is admissible.
Therefore, under a statute punishing the breaking and entering a
house "with intent to commit the crime of * * * larceny,"
the indictment need not use the term "larceny" to describe the in-
tent, but may state that the intent was "feloniously to steal, take,,
and carry away." ''
in an indictment for perjury it must be charged that the defend-
ant willfully and corruptly swore falsely.'*
80 2 Hawk. P. C. c. 25, § 90.
81 Some of the old cases have held that this statute did not Intend to
abolish the necessity for the words "with force and arms" in indictments for
offenses accompanied with actual violence, but that it intended merely ta
abolish the necessity for the words following the "videlicet"; and such indict-
ments have been held Insufficient for omitting the words "with force and
arms." Kex v. Mariot, 2 Lev. 221; Eoy v. Inhabitants de Yarton, 1 Sid. 140;
Collins V. Goldsmith, 1 Bulst. 205; Rex v. Gakes, 1 Keb. 101; Rex v. Singer,
2 Keb. 154. But other cases have held the contrary. Rex v. Sterling, 1 Lev.
126; Rex v. Cramlington, 2 Bulst. 208; Rex v. Burridge, 3 P. Wms. 464, 498.
Chitty states that the latter seems the better opinion, "for otherwise the
terms of the statute appear to be destitute of meaning." "It seems to be
generally agreed," he continues, "that where there are any other words im-
plying force, as, in an indictment for rescue, the word 'rescued,' the omis-
sion of 'vl et armis" is sufficiently supplied. But it is at all times safe and
proper to insert them whenever the offense is attended with an actual or
constructive force, or afCects the interests of the public." 1 Chit Cr. Law, 241.
8 2 State V. Kean, 10 N. H. 347; State v. Mungea-, 15 Vt. 290; Tipton v.
State, 2 Yerg. (Tenn.) 542; Territory v. McFarlane, 1 Mart. (La.) 217.
S3 Josslyn V. Com., 6 Mete. (Mass.) 238.
84 U. S. V. Edwards, 43 Fed. 67; State v. Morse, 90 Mo. 91, 2 S. W. 137;
State V. Day (Mo. Sup.) 12 S. W. 365. Contra, by statute, State v. Peters,
107 N. 0. 876. 12 S. E. 74; State v. Gates, 107 N. C. 832, 12 S. E. 319. The-
202 PI.EADIiNG THE ACCUSATION. [Ch. 6
The terms "forge" and "counterfeit" have a definite meaning in
the law. They imply the idea of falsity, and it is not necessary to
allege that the defendant "falsely" forged or counterfeited."'
The common-law rules requiring technical expressions do not al-
ways apply to statutory crimes. "We think the distinction is this,"
it was said in a Massachusetts case : "When the statute punishes
an offense by its legal designation, without enumerating the acts
which constitute it, then it is necessary to use the terms which tech-
nically charge the offense named at common law; as, for instance,
Eev. St. c. 125, § 1, declares that every person who shall commit the
crime of murder shall suffer the punishment of death. Here the
statute does not enumerate the acts which constitute murder; it
refers for that to the common law.'* In such cases the forms and
technical terms used at common law to describe and define the
murder must be used. But we think this is not necessary when the
statute describes the whole offense, and the indictment charges the
crime in the words of the statute.*' It was therefore held that an
indictment under a statute imposing a penalty upon any person who
should break and enter a dwelling house in the nighttime, with in-
tent to commit a felony, tut not defining the offense as "burglary,"
need not allege the offense to have been committed "burglari-
ously." **
And in the supreme court of the United States, under an act of
congress which declared that any person who should commit cer-
charge that he "willfully and con-uptly" testified to what is averred to be
untrue sufficiently alleges that the testimony was false to his knowledge.
State V. Smith, 63 Vt. 201, 22 Atl. 604. And see State v. Stein, 48 Minn. 46G,
51 N. W. 474; State v. Bush, 47 Kan. 201, 27 Pac. 836; Finney v. State,
29 Tex. App. 184, 15 S. W. 175. That "willfully" may be omitted where the
Indictment uses the words "feloniously," "falsely," "corruptly," "knowingly,"
and "maliciously," see State v. Spencer, 45 La. Ann. 1,' 12 South. 135. But
see tJ. S. V. Edwards, supra.
8B 2 East, P. O. 985; People v. Mitchell, 92 Oal. 590, 23 Pac. 597, 788; State
v. McKieman, 17 Nev. 224, 30 Pac. 831.
86 See Clark, Cr. Law, 30; Prindle v. State, 31 Tex. Oi-. R. 551, 21 S. W. 360;
Pitcher V. People, 16 Mich. 142; Benson v. State, 5 Minn. l9 (Gil. 6).
87 TuUy V. Com., 4 Mete. (Mass.) 358; U. S. v. Staats, 8 How. 44.
88 Tully V. Com., supra. And see State v. Meadows, 22 W. Va. 766; Sullivan
V. State, 13 Tex. App. 462; People v. Rogers, 81 Cal. 209, 22 Pac. 592.
Ch. 6] AGGEAVATIKG CIECUMSTAKCES. 203
tain enumerated acts, with intent to defraud the United States,
should "be deemed and adjudged guilty of felony," it was held that
the acts need not be alleged to have been committed "feloniously."
After admitting the common-law rule in cases of felony where "the
felonious intent is of the essence of the offense," the court said:
"But in cases where this felonious intent constitutes no part of the
crime, that being complete, under the statute, without it, and de-
pending upon another and different criminal intent, the rule can
have no application in reason, however it may be upon authority.
The statute upon which the indictment in question is founded de-
scribes the several acts which make up the offense, and then de-
clares the person to be guilty of felony, punishable by fine and im-
prisonment. • * • The felonious intent is no part of the de-
scription, as the offense is complete without it. Felony is the con-
clusion of law from the acts done with the intent described, and
makes part of the punishment, as, in the eye of the common law,
the prisoner thereby becomes infamous and disfranchised. These
consequences may not follow, legally speaking, in a government
where the common law does not prevail; but the moral degrada-
tion attaches to the punishment actually inflicted." *"
The necessity for an indictment under a statute to follow the lan-
guage of the statute, and use the technical terms used in the stat-
ute,, will be presently considered.'"
AGGRAVATING CIRCUMSTANCES— SECOND OR THIRD
OFFENSE.
84. Where an increased punishment is imposed for an
offense -when it is accompanied by certain aggravating
circumstances, — as under statutes imposing a higher pen-
alty for a second or third offense, assaults when commit-
ted -with a specific intent to coramit a certain crime, lar-
ceny -when committed in a certain place, etc., — the aggra-
vating circumstances must be alleged in the indictment.
SB U. S. v. Staats, supra. And see Cundiff v. Com., 86 Ky. 196, 5 S. W. 486;
Cohen v. People, 7 Colo. 274, 3 Pac. 385; People v. Olivera, 7 Cal. 403; Jane
V. Com., 3 Mete. (Ky.) 18; State v. Mm'phy (R. I.) 24 Atl. 473.
00 Post, p, 262.
204 PLEADING THE ACCUSATION. [Ch. 6
This rule necessarily results from the rule already stated, that
the indictment must state every fact and circumstance which enters
into the offense. In most jurisdictions, by statute, a person who
has been convicted of certain- offenses, like larceny or the unlawful
sale of intoxicating liquors or drunkenness, for instance, is rendered
liable to an increased punishment for a second or third offense.
The previous conviction enters into the second or third offense to
the extent of aggravating it, and increasing the punishment; and,
where it is sought to impose the greater penalty for a second or
third offense, the previous conviction or convictions, like every other
material fact, must be distinctly alleged in the indictment."^
"When the statute imposes a higher penalty upon a second and a
third conviction, respectively, it makes the prior conviction of a
similar offense a part of the description and character of the offense
intended to be punished ; and therefore the fact of such prior con-
viction must be charged as well as proved. It is essential to an in-
dictment that the facts constituting the offense intended to be pun-
ished should be averred." °^ And in like manner, when a statute,
besides imposing a higher penalty upon a second or third conviction
than upon the first, provides that any person convicted of two or
more offenses upon the same indictment shall be subject to the same
punishment as if he had been successively convicted on two indict-
ments, still the second and third offenses must be alleged in the
indictment to be second and third offenses in order to warrant the
increased punishment.'^ A verdict of guilty without the entry of a
judgment thereon would not be such a prior conviction as could
render the offender liable to the increased penalty, on a subsequent
prosecution for a similar offense. An indictment, therefore, for a
second offense, must allege, not merely a conviction for a prior of-
fense, but a judgment thereon.**
As we have already seen, an indictment for an aggravated as-
»i Tuttle V. Com., 2 Gray (Mass.) 506; Com. v. Harrington, 130 Mass. 35; Keg.
V. WiUis, 12 Cox, Or. C^s. 192; State v. Adams, 64 N. H. 440, 13 Atl. ISTy,
Haynes v. Com., 107 Mass. 198.
02 Tuttle V. Com., 2 Gray (Mass.) 503.
S3 Flaherty v. Thomas, 12 Allen (Mass.) 432; Garvey v. Com., 8 Gray (Mass.)
382.
»* Reg. v. Ackroyd, 1 Car. & K. 158; Reg. v. Stonnell, 1 Cox, Or. Cas. 142.
Ch. 6] SETTING FORTH WRITTEN INSTRUMENTS. 205
sault — that is, an assault with intent to kill, to rape, etc. — must
arer the intent, or it charges a simple assault only, and the defend-
ant cannot be punished for aggravated assault." ° The rule applies
also to indictments for larceny from the person, from the dwelling
house, from a shop, etc. Unless the aggravating circumstances are
averred, the indictment charges simple larceny only. The same is
true in all other cases where an act is punished more severely be-
cause accompanied by circumstances of aggravation.
SETTING rORTH WRITTEN INSTRUMENTS.
85. "WTien a -wrritten instrument forms part of the gist
of the offense charged, as in case of forgery, libel, threat-
ening letters, etc., it must be set out in the indictment
according to its tenor, or verbatim. The rule is changed
by statute in some jurisdictions.
86. When a -written instrument must be mentioned or
described in describing the offense, but is not of the gist
of the offense, its substance or purport only need be
given.
87. When an instrument is set out as having a certain
purport, the meaning is that upon its face its legal effect
is that -which it is said to purport to be.
88. When an instrument is set out in an indictment
"in substance as follow^s," "to the effect follo\ping," "in
manner and form foUo-wing," etc., the meaning is that the
■writing is in substance -what it is alleged to be.
89. When an instrument is set out in an indictment
-with the -words "according to the tenor following," "in
the -words and figures folio-wing," "in these -words," or
"as foUo-ws," the meaning is that it is recited verbatim,
though not so as to exclude misspelling.
At common law, whenever a writing is of the gist of the offense
to be charged, it is absolutely essential, in describing the offense, to
BB Ante, p. 188.
206 PLEADING THE ACCUSATION. [Ch. 6
set out in the indictment the very words relied upon, if it is possible
to do so, so that the court may see on the face of the indictment
whether the offense has been committed. To charge the offense
without setting out the writing, so as to show its commission, would
be to state a mere conclusion of law. A failure to set out the writ-
ing word for word, if possible, will render the indictment fatally
defective, not only on demurrer or motion to quash, but on motion
in arrest of judgment, or on error.'" Stating that the defendant
published of a certain person a false and malicious libel, purporting
thereby that such person had committed a crime, or had committed
the crime of larceny, or that he was a person of bad moral character,
without stating the exact words used, would not be sufllcient.''
In an indictment for forgery, or uttering a forged instrument, it
is not sufficient to set forth the writing according to its purport or
in substance merely, but it must be set forth in words and figures
according to its tenor; that is it must be given verbatim.'^ An
exact copy is required, in order that the court may be able to de-
termine on the face of the indictment whether the instrument is one
the false making of which can constitute forgery, for every writing
is not the subject of forgery."' The same rule applies, at common
0 8 Sacheverell's Case, 15 How. St. Tr. 466; Kex v. Gilchiist, 2 Leach, Crown
Cas. 661; Rex v. Nield, 6 Bast, 418-426; Bradlaugb v. Reg., 3 Q. B. Div. 607;
(Jom. V. Stow, 1 Mass. 54; Com. v. Wright, 1 Cush. (Mass.) 46; Com. v. Gil-
lespie, 7 Serg. & E. (Pa.) 469; Rooker v. State, 65 Ind. 86; Smith v. State, 18
Tex. App. 399; Com. v. Tarbox, 1 Cusih. (Mass.) 66; Com. v. Sweney, 10 Serg.
& R. (Pa.) 173; State v. Townsend, 86 N. 0. 676. And see the cases here-
after cited.
9' Wood V. Brown, 1 Marsh. 522, 6 Taunt. 169; note 101, infra.
»8 Rex V. Powell, 1 Leach, Crown Cas. 78; 2 W. Bl. 787; 2 Bast, P. 0. 976;
Rex V. Gilchrist, 2 L«ach, Crown Cas. j360, 661; Com. v. Houghton, 8 Mass. 110;
Com. V. Stow, 1 Mass. 54; U. S. v. Britton, 2 Mason, 464, Fed. Cas. No. 14,650;
Smith V. State, 29 Fla. 408, 10 South. 894; State v. Wheeler, 19 Minn. 98
(Gil. 70); State v. Riebe, 27 Minn. 315, 7 N. W. 262; Rocker v. State, 65
Ind. 86; Smith v. State, 18 Tex. App. 399. But see State v. Curtis, 39 Minn.
357, 40 N. W. 263. Contra, by statute. State v. Wright, 9 Wash. 96, 37 Pac. 313.
09 Rex V. Hunter, 2 Leach, Crown Cas. 624; Rex v. Gilchrist, Id. 657, 661;
2 East, P. C. 975; People v. Kingsley, 2 Cow. (N. Y.) 522; People v. Wright,
9 Wend. (N. Y.) 193; U. S. v. Britton, 2 Mason, 464, Fed. Cas. No. 14,650;
State V. Gustin, 5 N. J. Law, 862.
Ch. 6] SETTING FORTH WRITTEN INSTRUMENTS. 207
law, to indictments for sending threatening letters;^"" for publish-
ing a defamatory libel against a private person,^"^ or an obscene ^'^
or blasphemous ^"^ libel; or for having possession of a forged instru-
ment or counterfeit bank note or other security, with intent to pass
it"*
If the instrument is in a foreign language, it should be set out in
that language, and then translated. The indictment is bad if the
translation only is given.'"'
Where it is necessary to mention a written instrument in describ-
ing the offense, but the writing is not of the gist of the offense, it is
not necessary to set it out verbatim in the indictment.^""
An indictment for resisting or obstructing an officer while execut-
ing a warrant, for instance, need not set out the warrant, but may
merely allege that he was acting under a lawful warrant.^"' And
an indictment for the larceny of written instruments need not set
them out in haec verba. It is sufficient to merely describe them
100 2 East, P. C. 976, 1122; Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169;
Rex V. Nleld, 6 East, 418. Contra, State v. Stewart, 90 Mo. 507, 2 S. W. 790.
101 Com. V. Wright, 1 Cush. (Mass.) 46; State v. Brownlow, 7 Humph. (Tenn.)
63; Com. v. Sweney, 10 Serg. & R. (Pa.) 173; State v. Townsend, 86 N. C.
676; Walsh v. State, 2 McCord (S. C.) 248; State v. Twitty, 2 Hawks (N. C.)
248.
102 Com. V. Tar box, 1 Cush. (Mass.) 661; Bradlaugh v. Reg., 3 Q. B. Div. 607.
But see Com. v. Sharpless, 2 Serg. & R. (Pa.) 91. It need not be given if so
obscene that it would be improper for it to appear or be perpetuated upon
the record. Post, p. 208.
103 Com. V. Kneeland, 20 Pick. (Mass.) 206; Sacheverell's Case, 15 How.
St. Tr. 466.
10* Stephens v. State, Wright (Ohio) 73; notes 98, 99, supra.
10 6 Rex V. Goldstein, 7 Moore, 1, 3 Brod. & B. 201, and Russ. & R. 473;
State V. Marlier, 46 Mo. App. 233.
106 See cases hereafter cited. Where it is not necessary to set out an in-
strument according to its tenor, care should be taken that the indictment does
not purport to do so; for, if it does, the proof must correspond verbatim with
the instrument as set out. Com. v. Gillespie, 7 Serg. & R. (Pa.) 469; Clay v.
People, 86 lU. 147; State v. Townsend, 86 N. C. 676.
107 state V. Dunn, 109 N. C. 839, 13 S. E. 881; State v. Copp, 15 N. H. 212;
State V. Roberts, 52 N. H. 492; Bowers v. People, 17 111. 373; McQuaid v. Peo-
ple, 3 Gilman (lU.) 76. It has been held, however, that an indictment against
an officer for nonfeasance in failing to execute a warrant should set out the
warrant according to its tenor. Rex v. Burroughs, 1 Vent. 305.
208 PLEADING THE ACCUSATION. [Ch. 6
like any other chattel, with such certainty that it may clearly
appear what is alleged to hare been stolen.^"* So, in an indictment
for obtaining property by false pretenses, it may be alleged that the
•defendant falsely pretended that a certain instrument was a valid
promissory note, etc., without setting it out verbatim."' And an
indictment for selling a lottery ticket need not set out the ticket.^"
In some cases it is not necessary to set out the instrument or writ-
ing according to its tenor, even though the words constitute the gist
•of the offense. It is held with us, but not in England, that an
obscene libel need not be set out if it is so obscene that it would be
improper for it to appear on the record. A statement of its con-
tents may be omitted altogether, and a description thereof, suffl-
<;ient to identify it, substituted, provided the reason for the omis-
sion appears in the indictment by proper averments.^ ^^ And in
indictments for forgery, counterfeiting, etc., the instrument need
not be set out if "it has been destroyed by the defendant, or has re-
mained in his possession, and perhaps in other cases, where the in-
strument cannot be produced and there are no laches on the part of
"the government or prosecutor"; but in every such case the reason of
the omission must appear on the indictment.*^'' In an indictment
tor perjury, only the substance of the false oath need be stated.**'
lospost, p. 219.
109 Eeg. V. Coulson, 1 Denison, Crown Gas. 592; Com. v. Coe, 115 Mass. 481.
110 People V. Taylor, 3 Denio (N. Y.) 99; Freleigh v. State, 8 Mo. 613.
111 Com. V. Holmes, 17 Mass. 336; Com. v. Tarbox, 1 Gush. (Mass.) 72; Peo-
ple V. Girardin, 1 Mann. (Mich.) 90; State v. Brown, 27 Vt. 619; Com. v.
Sliarpless, 2 Serg. & R. (Pa.) 91; Thomas v. State, 103 Ind. 419, 2 N. E. 808;
State V. Hayward, 83 Mo. 299. Contra, Bradlaugh v. Reg., 3 Q. B. Dlv. 607.
112 Com. V. Houghton; 8 Mass. 110; Com. v. Sawtelle, 11 Cush. (Mass.) 142;
Hooper v. State, 8 Humph. (Tenn.) 93; Pendleton v. Com., 4 Leigh (Va.) 694;
People V. Kingsley, 2 Cow. (N. Y.) 522; People v. Badgley, 16 Wend. (N. Y.)
53; People v. Bogart, 36 Cal. 245; Wallace v. People, 27 111. 45; State v.
Potts, 9 N. J. Law, 26; State v. Callahan (Ind. Sup.) 24 N. E. 732; Munson v.
State, 79 Ind. 541; Du Bois v. State, 50 Ala. 139; State v. Davis, 69 N. C. 313.
If it is alleged that the instrument has been destroyed, when it has not,
and is produced at the trial, the variance will be fatal. Smith v. State, 33 Ind.
159. The fact that the loss is due to the prosecutor's negligence does not
change the rule, if the negligence was not so great as to show fraud. State
V. Taunt, 16 Minn. 109 (Gil. 99).
113 Rex V. May, 1 Leach, Crown Cas. 192, 1 Doug. 193; People v. Warner,
-5 Wend. (N. Y.) 271; Campbell v. People, 8 Wend. (N. Y.) 636; State v. Hay-
Ch. 6] SETTING FORTH WRITTEN INSTRUMENTS. 209
If only a part of a writing constitutes the offense, that part only
need be set out, provided the part omitted does not in any way
alter the sense of the part which is set out.^^* And it is not neces-
sary to set out the matter which, though appearing on the paper,
constitutes no part of the writing or instrument.^ ^° In an indict-
ment for a defamatory libel or an obscene libel, for instance, only
the libelous or obscene portion of the Writing need be shown, if it
is not affected by the other part.^^° And, in an indictment for
forging a promissory note, a forged indorsement on the note need
not be set out. "The indorsement is no part of the note, but an
act presumed to be done after the note is completed. It need not
be set out in the indictment, if forged." ^^'' An indictment for
forging a draft need not set out the figures cut in the paper,^^' or
the residence of the drawee, written thereon.^^" A name written
on a forged note, to show in whose hands it was placed for collec-
tion, need not be recited in describing or reciting the note.^^" And
an indictment for forging an order drawn by a county board need
not set out the words "Not intended as a circulating medium,"
printed at the top of the order.^^^ Clearly, it is never necessary to
set out writing put upon a forged instrument subsequent to the
forgery.^''^ So, in an indictment for forging a bill of exchange,
ward, 1 Nott & McC. (S. C.) 546; Weathers v. State, 2 Blackf. gnd.) 278;
People V. Phelps, 5 Wend. (N. Y.) 9.
Ill Rex V. Bear, 2 Salk. 417; Oartwright v. Wright, 5 Barn. & Aid. 61.5;
Com. V. Harmon, 2 Gray (Mass.) 289; Buckland v. C!om., 8 Leigh (Va.) 732;
Perkins v. Com., 7 Grat. (Va.) 651; Hess v. State, 5 Ohio, 5; Langdale v. Peo-
ple, 100 111. 263. And see the cases hereafter referred to.
116 Com. V. Ward, 2 Mass. 397; People v. Franklin, 3 Johns. Cas. (N. Y.)
299; Langdale v. People, 100 111. 263; State v. Wheeler, 35 Vt. 261; Wilson
V. People, 5 Parker, Cr. R. (N. Y.) 178; Perkins v. Com., 7 Grat. (Va.) 651;
MiUer v. People, 52 N. Y. 304; Mee v. State, 23 Tex. App. 566, 5 S. W. 243;
State V. Grant, 74 Mo. 33.
118 Tabart v. Tipper, 1 Camp. 350.
117 Com. V. Ward, 2 Mass. 397; Com. v. Adams, 7 Mete. (Mass.) 51; Per-
kins V. Com., 7 Grat. (Va.) 651.
118 White V. Territory, 1 Wash. St. 279, 24 Pac. 447.
110 Trask v. People (lU. Sup.) 38 N. E. 248.
120 State V. Jackson, 90 Mo. 156, 2 S. W. 128.
121 Smith V. State, 29 Pla. 408, 10 South. 894.
122 Hennessy v. State. 23 Tex. App. 340, 5 S. W. 215; State v. Jackson, 90
Mo. 156, 2 S. W. 128.
CBIM.PKOC— 14
210 PLEADING THE ACCUSATION. [Ch. 6
bank bill, or other instrument of this character, "it is not necessary
to insert the marginal ciphers or marks in the indictment, for they
make no part of the bill. It might as well be required that the
water marks, and a facsimile of all the engraved ornaments used
in a bank bill, for the more easy detection of forgeries, should be
inserted in an indictment." ^^'
The indictment must not only set out the tenor of the instrument
where this is necessary, but it must, by a proper use of words, pro-
fess to do so.^^* This is done by the use of the words, "to the tenor
following," or "in these words," or "as follows," or "in the words
and figures following." Any one of these expressions will import
that an exact copy is given.^^" The words "to the effect following"
or "in substance as follows" would not be sufficient, for they im-
port that the substance only is given.^^* "The word 'tenor* imports
an exact copy, — ^that it is set forth in the words and figures, —
whereas the word 'purport' means only the substance or general im-
port of the instrument;" ^" so that the the use of word 'purport' in
12S People V. Franklin, 3 Johns. Cas. (N. Y.) 299; Griffin v. State, 14 Ohio
St 55; Buckland v. Com., 8 Leigh (Va.) 732; Com. v. Bailey, 1 Mass. 62;
Cam. V. Stevens, 1 Mass. 203; State v. Carr, 5 N. H. 367; Com. v. Searle, 2
Bin. (Pa.) 332. The name of the state in the margin of a bank bill is a material
part of it if not repeated in the body of the bill, as it fixes the situs of the
bank, the place where the contract is made and to be performed, and the law
by which it Is to be interpreted. Com. v. Wilson, 2 Gray (Mass.) 70. But where
the words "three dollars" and the name of the state, in the margin of a bank
note, are repeated in the body of the note, so that the contract is complete
without them, they are no part of the note, and need not be stated. Com.
V. Taylor, 5 Cush. (Mass.) 605.
12* Rex V. Lyon, 2 Leach, Crown Cas. 597; Rex v. Gilclu-ist, Id. 660, 661;
State V. Brownlow, 7 Humph. (Tenn.) 63; State v. Twitty, 2 Hawks (N. C.)
441; Com. v. Wright, 1 Cush. (Mass.) 65; Com. v. Tarbox, Id. 66; State v. Good-
man, 6 Rich. Law (S. C.) 387.
125 Reg. V. Drake, 3 Salk. 225; Rex v. Powell, 1 Leach, Crown Cas. 77;
Rex V. Gilchrist, 2 Leach, Crown Cas. 660; McDonnell v. State, 58 Ai-k. 242,
24 S. W. 105.
128 Rex V. Bear, 2 Sallf. 417; Withers v. Harris, Id. 600; Reg. v. Drake,
11 Mod. 78; Anon., Id. 84; Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169;
Wright V. Clements, 3 Barn. & Aid. 503; Cook v. Cox, 3 Maule & S. 116;
Com. V. Sweney, 10 Serg. & R. (Pa.) 173; Walsh v. State, 2 McCord (S. C.) 248.
127 2 Gabb. Cr. Law, 201; Com. v. Sweney, supra; State v. Pullens, 81
Mo. 387; State v. Brownlow, 7 Humph. (Tenn.) 63; State t. Witham, 47 Me.
165; State v. Bonney, 34 Me. 383; Dana v. State, 2 Ohio St &1.
Ch. 6] SETTING FORTH WRITTEN INSTRUMENTS. 21 1
an indictment does not purport to give the exact words.^^' Nor are
mere marks of quotation suflQcient to indicate that the words thus
designated are an exact copy, for quotation marks are often used
when it is not intended to give an exact quotation.^ ^° Nor is the
mere attaching of the original writing to the indictment sufficient,
where the indictment does not show that it is the original.^*"
In setting forth in the same count different parts of a written in-
strument, not following each other, they should not be professedly
stated continuously, and as immediately following each other; for
if they are so stated, and a part is not proved, the whole count will
fail. The proper course is to allege that in one part of the writing
there were certain words, giving them, and in another part thereof
there were certain words, giving them.^'^
As we have already seen, where the writing as set out does not
on its face show that it is such that the crime was committed, the
extrinsic facts showing that it is of such a character must be stated.
This is done by an inducement or innuendo, or both. In an indict-
ment for libel, for instance, if the matter written is not in itself prima
facie libelous, but requires some explanatory facts to show that it is
so, it is necessary to insert in the indictment a positive averment of
such facts, by a formal inducement in the introductory part of the
indictment. And if, after this, the matter alleged in the inducement
and charge is not obviously libelous, or is not necessarily applicable
to the party charged to have been libeled, it is necessary to render
it so by explaining its meaning by an innuendo.^^^
The same is true of forgery. In order to maintain an indictment
for forgery at common law, it must appear that the instrument is
of such a character that it might defraud or deceive if used with that
intent. If the fraudulent character of the instrument alleged to
have been forged is not manifest on its face, the defect must be
remedied by such averments as to extrinsic matter as will enable the
128 Com. v. Wright, 1 Cush. (Mass.) 65; Rex v. Wilkes, 4 Burrows, 2527.
12 9 Com. V. Wright, supra.
130 Com. V. Tarbox, 1 Cush. (Mass.) 66.
isii Chit. Or. Law, 235; 3 Ohlt. Cr. Law, 875; Rex v. Leefe, 2 Camp. 134;
Tabart v. Tipper, 1 Camp. 353.
132 People v. Collins, 102 Cal. 345, 36 Pac. 669; People v. Jackman, 96
Mich. 269, 55 N. W. 809; Rogers v. State, 30 Tex. App. 462, 17 S. W. 548.
212 PLEADING THE ACCUSATION. [Ch. 6
court judicially to see tliat it has such, a tendency.'"' Thus, an in-
dictment for forging an instrument of the tenor following: "Boston,
Aug. 6th, 1868. St. James Hotel. I hereby certify that L. W.
Hinds & Co. have placed in my hotel a card of advertisements as per
their agreement. J. P. M. Stetson, Proprietor," — without any aver-
ment of extrinsic matter to show how the instrument may be used
to defraud, is bad."* And an indictment for forging an indorse-
ment on a promissory note is bad if it contains no averments to show
that the words alleged to have been forged bore such a relation
to the note as to be the subject of forgery."" We have already
explained the general use and effect of inducements and innuen-
does.""
Many of the cases hold that an indictment for forgery must not
only set out the instrument according to its tenor, but must state
the character of the instrument, as that it was a bank bill, promis-
sory note, order for the payment of money, etc., and that, where the
indictment is founded on a statute punishing the forgery of certain
instruments, it is necessary for the indictment to describe the instru-
ment by one of the terms used in the statute.^" Others hold that
it is not necessary to do more than set out the instrument in the in-
dictment, if it is such that its character may be seen on its face."'
Though a statute in terms punishes the passing of any false,
forged, or counterfeited instruments issued under authority of cer-
tain statutes, it means any writing purporting to be such an instru-
ment, but which is not genuine or valid, and an indictment may de-
scribe the writing as a false, forged, and counterfeited writing, pur-
porting to be such an instrument. Indeed, this is the better descrip-
133 Rex V. Hunter, 2 East, P. C. 928; Rex v. Testick, Id. 925; Rex v. Martin,
7 Oar. & P. 549; Com. v. Hinds, 101 Mass. 209; Com. v. Spilman, 124 Mass.
327; Com. v. I>unleay, 157 Mass. 386, 32 N. B. 356; King v. State, 27 Tex.
App. 567, 11 S. W. 525; Tomby v. State, 87 Ala. 36, 6 South. 271; Sliannon
v. State, 109 Ind. 407, 10 N. E. 87.
181 Com. V. Hinds, 101 Mass. 209.
136 Com. V. Spilman, 124 Mass. 327.
136 Ante, pp. 176, 177.
137 Rex V. Wilcox, Russ. & R. 50; State v. Stephen (La.) 12 South. 883;
State V. Ward, 6 N. H. 529; State v. Hay den, 15 N. H. 355.
138 Reg. V. Williams, 2 Denison, Crown Gas. 61; Com. t. Castles, 9 Gray
(Mass.) 124.
Ch. 6] SETTING FORTH SPOKEN WORDS. 213
tion. On the other hand, however, an indictment is not bad be-
cause it describes the writing as being, and not merely purporting to
be, such an instrument, "false, forged, and counterfeited." The
latter words necessarily imply that it is not a genuine instrument,
just as the terms "void will" or "void note" imply that the instru-
ment merely purports to be a will or note.^''
If any part of a true instrument be altered, the indictment may
allege it as a forgery of the whole instrument.^*" But where the
forgery is of a mere addition to an instrument, like the indorsement
on a bUl or note, or interest coupons attached to a bond, or an ac-
knowledgment to a deed, etc., and has not the effect of altering the
instrument itself, but is merely collateral to it, the forgery must be
specially alleged; ^*^ and it must, as we have seen, be expressly shown
by proper allegations that the part thus forged bore such a relation
to the instrument proper that it could be the subject of forgery. To
charge the forgery of an indorsement on a note, merely describing it
as such, without showing its relation to the note, is not enough.^*''
Ordinarily, where the instrument is given according to its tenor,
it must be proven verbatim as laid. This question we shall here-
after consider.^*^
If the instrument as described in the indictment does not corre-
spond with the instrument as set out, the inconsistency will be
fatal.^"
SETTING rOBTH SPOKEN WORDS.
90. Where spoken -words are the gist of the offense,
they must be accurately set out in the indictment. The
rules are substantially the same as in the case of -written
words.***
139 U. S. V. Howell, 11 Wall. 432; Rex v. Birch, 2 East, P. C. 980.
140 1 Hale, P. C. 684; 2 East, P. C. 978; Com. v. Woods, 10 Gray (Mass.)
480; Rex v. Atkinson, 7 Car. & P. 669; Com. v. Butterlck, 100 Mass. 18.
141 Com. V. Woods, supra.
142 Com. V. Spilman, 124 Mass. 327.
143 Post, p. 332.
144 Com. V. Clancy, 7 Allen (Mass.) 537; Com. v. Lawless, 101 Mass. 32.
14 5 Ante, p. 171.
214 PLEADING THE ACCUSATION. [Ch. 6
We have just explained the necessity of setting out written words
where they constitute the gist of the offense charged. For the same
reason, where the offense consists of spolien words, they must be set
out, or the indictment will be fatally defective.^*' But, where the
words do not constitute the gist of the offense, only their substance
need be stated.^*' The rules under this head are substantially the
same as those just stated in treating of written words.
In indictments for attempting to extort money from a person by
threatening to accuse him of a crime, it is sufficient to. set out the
exact words used by the defendant. If these clearly import a threat
of accusation of crime, and they are alleged to have been uttered
with the unlawful intent to extort money, the offense is sufficiently
described. The indictment need not set out with technical accuracy
the crime the accusation of which is alleged to have been threat-
ened.^*' The question of variance between the words set out in
the indictment and the words proven to have been spoken will be
considered when we come to treat of variance.^*'
DESCRIPTION OF REAL PROPERTY.
91. When real property is the subject of the oflFense
charged, the premises must be so described as to show
their character and ownership or occupancy, w^here that
is material; and, in addition to this, they must be de-
scribed with suflacient particularity to identify them.
Whenever real property is the subject of the offense, it must be
described to such an extent that the court may see on the face of
the charge that the premises are such as could have been the sub-
ject of the offense; otherwise the indictment would fail to set out
1*0 Bradlaugh v. Reg., 3 Q. B. Div. 607, 616; Sacheverell's Case, 15 How.
St. Tr. 467; Updesraph v. Com., 11 Serg. & R. (Pa.) 394; State v. Bradley,
1 Hayw. (N. C.) 403; State v. Coffey, 2 Murph. (N. C.) 320; State v. Brew-
ington, 84 N. C. 783; Com. v. Moulton, 108 Mass. 307; Robinson v. Com.,
101 Mass. 27; Walton v. State, 64 Miss. 207; McMahan v. State, 13 Tex. App.
220.
14T Com. V. Moulton, 108 Mass. 307.
148 Com. V. Murphy, 12 Allen (Mass.) 449; Com. v. Dorus, 108 Mass. 488.
"9 Post, p. 332.
Ch. 6] dj:scription of eeal property. 215
everything necessary to constitute the offense. An indictment for
burglary or arson at common law, describing the premises simply
as a certain house or building, would clearly be insufficient, for
these offenses would not be committed by breaking into or burning
a warehouse or store, or any building other than a dwelling house or
outhouse used in connection with it.^"" And an indictment for the
statutory offense of breaking and entering or burning a certain kind
of building, as a warehouse, shop, schoolhouse, etc., must show that
the building is within the statute.^ °^ One who bums, or breaks
and enters with intent to commit a felony, a house owned or occu-
pied by himself, does not commit arson or burglary; hence an in-
dictment for these offenses must show the ownership or occupancy
of the premises.^"^
Further than this, the premises must be so described, as to loca-
tion and otherwise, as to identify the offense, and to apprise the
defendant of the particular charge against him. In all indictments,
therefore, for burglary and other housebreakings, arson and other
malicious burnings, forcible entry and detainer, trespass, fraudu-
lent conveyance of land, etc., the premises must be described with
certainty to a common intent, and the description must be borne
out by the evidence.^"' An indictment for conveying land without
giving notice of incumbrances thereon was held bad for uncertainty,
because it merely named the city and county in which the land was
situated. "There is nothing," it was said, "by which to fix the
identity of the offense. The indictment lacks certainty to a com-
mon intent. The defendant may have owned other parcels of land
in the city of Salem, which he conveyed to the prosecutor on the
day alleged. From the indictment alone, therefore, it is impossible
to say with certainty to what parcel of land the charge relates, or
iBo state V. Atkinson (Wis.) 58 N. W. 1034; Tliomas v. State, 97 Ala. 3, 12
South. 409; State v. Miller, 3 Wash. 131, 28 Pac. 375.
151 State V. Bedell, 65 Vt 541, 27 Atl. 208; State v. Atkinson (Wis.) 58
N. W. 1034; Thomas v. State, 97 Ala. 3, 12 South. 409; Bigham v. State, 31
Tex. Or. R. 244, 20 S. W. 577; Kincaid v. People, 139 111. 213, 28 N. E. 1060;
State r. Fleming, 107 N. C. 905, 12 S. E. 131.
102 State V. Keena, 63 Conn. 329, 28 Atl. 522; post, p. 229.
153 Com. v. Brown, 15 Gray (Mass.) 189; State v. Malloy, 34 N. J. Law,
410. As to the question of variance between the pleading and proof, see
post, p. 335.
216 PLEADING THE ACCUSATION. [Ch. 6
to know that the conveyance proved at the trial was of the same
parcel as that on which the indictment was founded. Whenever,
in charging an offense, it is necessary to describe a house or land,
the premises must be set out in terms suflQciently certain to identify
them. Thus, in an indictment for forcible entry and detainer, to
allege that the defendant entered two closes of meadow or pasture,
a house, a rood of land, or certain lands belonging to the house, is
bad; for the same certainty is required as in a declaration in eject-
ment." "*
An indictment for erecting a nuisance in a public highway which
merely described the erections as "a number of sheds and buildings"
was held bad for uncertainty.^"*" But an indictment for a nuisance
in keeping a house of ill fame, a gaming house, or house for the un-
lawful sale of intoxicating liquors, or other disorderly house, need
not further describe the premises than as a certain house or tene-
ment, giving the city and county in which it is located.^"'
DESCBIPTION OF PERSONAL PROPERTY.
92. When personal property is the subject of the of-
fense, it must be described -with certainty to a common
intent; and in those eases in ■which the value is material,
as in case of larceny, the value must be stated. Prop-
erty may and should be described by the name usually
appropriated to it; or, as it is sometimes expressed, the
common acceptation governs the description.
In all indictments for offenses in relation to personal property it
is necessary to describe the property. In some cases the particular
kind, quantity, number, or value of the property enters into the
nature of the offense, and must be stated for this reason. Some
things, for instance, are not the subject of larceny, and an indict-
ment for larceny must, at the very least, so describe the thing
stolen that the court may see that it could be the subject of larceny,
or it does not state any offense. An indictment alleging the fe-
ns* Com. v. Brown, 15 Gray (Mass.) 189.
JB6 Com. V. Hall, 15 Mass. 240.
1B6 Com. V. Skelley, 10 Gray (Mass.) 464; State v. Nixon, 18 Vt 70.
Oh. 6] DESCEIPTION OF PERSONAL PROPEKTY. 217 '
lonious taking and carrying away of a railroad ticket was held bad
because it failed to state that the ticket was stamped, dated, and
signed, since, unless it was, it was worthless, and not the subject
of larceny.^ '^ And, as we shall presently see, an indictment for
stealing animals which may have been ferae naturae, or for stealing
minerals, must show, in the first case, that the animals had been
killed or reclaimed, and, in the second, that the minerals had been
severed from the realty, and become personal property.^"*
Even, where the description is not necessary to show that an of-
fense has been committed, it is necessary to describe the property
with certainty, in order that the accused may know with what of-
fense he is charged; in order that it may be seen that the property
with reference to which the offense is proven to have been com-
mitted is the same as that with reference to which the offense is
charged in the indictment; and in order that the accused may be
able to plead an acquittal or conviction in bar of a subsequent in-
dictment for the same cause.^°° An indictment charging that the
accused took and carried away a certain person's goods and chattels,
without describing them, or a case of merchandise, without further
description of it, or a certain pape?-, without further description,
is bad for uncertainty.^"" And, by the better opinion, an indict-
ment under a statute for wounding or stealing cattle, without stat-
ing the species of the cattle, is insuflflcient.'^'^ And an indictment
against a bankrupt for concealing his effects, describing a part of
them as "100 other articles of household furniture," and "a certain
debt due from one A. to the defendant to the value of £20 and up-
wards," was held bad.^*^ The general rule is that the property
1B7 McCarty v. State, 1 Wash. 377, 25 Pac. 299; State v. Holmes CWash.)
37 Pac. 283.
168 Post, pp. 222, 224.
109 2 Hale, P. C. 182; Com. v. Strangford, 112 Mass. 289.
"0 2 Hale, P. C. 182; State v. Dawes, 75 Me. 51; State v. Dowell, 3 Gill
& J. (Md.) 310; Com. v. Kelly, 12 Gray (Mass.) 176; Com. v. Gavin, 121
Mass. 55; State v. Edson, 10 La. Ann. 229; Com v. Strangford, 112 Mass.
2S9; Robinson v. Com., 32 Grat. (Va.) 866.
lei Rex V. Chalkley, Russ. & R. 258. Contra, People v. Littlefield, 5 CaL
355.
m Rex V. Foreyth, Russ. & R. 274.
218 PLEADING THE ACCUSATION. [Oil. 6
must be described with as much certainty as the nature of the case
will permit.^"'
But minute details are not necessary. If the descriptive terms
used are- sufficient in their common and ordinary acceptation to
show with certainty to a common intent what the property was,
and to fully identify it, they will be sufficient.^"* In describing
a handkerchief or a sheet, for instance, it may be described simply
by those terms, without stating the color or size, or the material of
which it is made.^*" So where six handkerchiefs are in one piece,
uncut, each being designated by the pattern, they may be described
as six handkerchiefs.^"" And a 10-carat gold watch may be de-
scribed simply as a gold watch, if it is commonly known as such,
though it is not so known by jewelers.^" And it has been held
that a hide may be described as one hide, of a certain value, with-
out stating the kind of animal from which it was taken.^"' And
animals may be described, as "one mare, the property of W., of the
value of," etc., or "a certain hog, said hog being the property and
chattel of one L.," etc., without giving the color, kind, weight, mark,
or brand. Such particularity is never required.^"*
If an article has acquired in common parlance a particular name,
it is erroneous to describe it by the name of the material of which
it is composed.^'"' An indictment, therefore, for the larceny or em-
bezzlement of cloth and other materials is not good as an indict-
ment for the larceny or embezzlement of an overcoat into which the
materials had been made.^'*
183 See the cases above cited.
181 Kex V. Johnson, 3 Maule & S. 539; Alkenbrack v. People, 1 Denlo (N.
Y.) 80; Rex v. Gillham, 6 Term R. 267; Rex v. Burdett, 1 Ld. Raym. 149;
Reg. v. Mansfield, Car. & M. 140; Widner v. State, 25 Ind. 234; Pfister v.
State, 84 Ala. 432, 4 South. 395; Com. v. James, 1 Pick. (Mass.) 3T6; Com.
V. Campbell, 103 Mass. 436; Com. v. Shaw, 145 Mass. 349; 14 N. E. 159.
16B Rex v. Johnson, supra; Alkenbrack v. People, supra.
188 Rex V. Gillham, 6 Term R. 2G7; Rex v. Burdett, 1 Ld. Raym. 149.
187 Pfister V. State, supra.
188 state V. Dowell, 3 (Jill & J. (Md.) 310.
189 People V. Stanford, 64 Cal. 27, 28 Pac. 106; State v. Friend, 47 Minn.
449, 50 N. W. 692; post, p. 222.
170 Com. V. Clair, 7 Allen (Mass.) 527; Rex v. Edwards, Russ. & R. 497;
Rex V. HoUoway, 1 Oar. & P. 128; Reg. v. Mansfield, Car. & M. 140.
171 Com. V. Clair, supra.
Ch. 6] DESCRIPTION OF PERSONAL PROPERTY. 219
If articles have been chemically mixed, they should be described
by the name of the mixture.^" It has been held that, where ar-
ticles have been mechanically mixed, they should be described as a
certain mixture consisting of the specific articles, describing them,
and not as a certain quantity of each article. Thus, an indictment
for stealing "one bushel of oats, one bushel of chaflE, and one bushel
of beans" was held bad where these articles were mixed together.
They should have been described, it was said, as mixed; as "a cer-
tain mixture, consisting of one bushel of oats," etc."' But this is
at least doubtful.^''* If articles, when mechanically mixed, change
their character, and are known by another name, as where wood
and iron is manufactured into a wagon, or wool and silk into an
overcoat, it is clear that they should be described as a wagon or an
overcoat; "" but where, though mixed, they still retain their nature
and qualities, and are known by the same names, they should be de-
scribed by those names. There seems no better way of determin-
ing the question than by applying the rule that the common accepta-
tion governs the description.
The description of property is subject to the rule that the law
only requires such certainty as the nature and circumstances of the
case will permit.^''* In all cases, of course, the description must
be sufficient to show that the offense was committed; but a more
particular description than is necessary to meet this requirement is
not essential if it is impossible. The excuse, however, should be
stated, as that further particulars are unknown.^'"
Written Instruments.
In indictments for the larceny or possession of written instru-
ments, it is never necessary, as in the case of forgery, to set forth
172 Reg. v. Bond, 1 Denison, Crown Cas. 521.
"s Rex V. Kettle, 3 Chit. Cr. Law, 947a.
"4 Reg. V. Bond, supra.
17B See note 171, supra.
17 6 Com. V. Grimes, 10 Gray (Mass.) 470; Wilson v. State, 69 Ga. 224;
Com. V. Sawtelle, 11 Gush. (Mass.) 142; Larned v. Com., 12 Mete. (Mass.)
240; Hamblett v. State, 18 N. H. 384; Low v. People, 2 Parker, Cr. R. (N.
Y.) 37.
ITT Hamblett v. State, 18 N. H. 384; Low r. People, 2 Parker, Cr. R.' (N. Y.)
37.
220 PLEADING— THE ACCUSATION. [Ch. 6
the instniment verbatim; but it is sufficient to describe It like any
other chattel.^^^ An indictment under a statute for the larceny of
particular instruments therein specified must so describe the instru-
ment as to bring it within the statute. Ordinarily, to designate
it by the term employed in the statute will be sufficient.^'* Thus,
where a statute punishes the larceny of bank notes, bank bills, prom-
issory notes, receipts, acquittances, etc., these terms may be used
in describing the instrument, and many of the cases hold that
no further description is necessary. Under a statute punishing
the larceny of bank notes, it has been held sufficient to describe the
instrument simply as a bank note of a certain value; ^^^ but it
would not do to describe it as "a note commonly called a "bank
note.'"^*^ The statutes punishing the larceny of written instru-
ments vary in the different states, and, besides this, there is much
conflict in the cases. The scope and size of this work will not per-
mit us to do more than refer to some of the authorities.^**
178 Rex V. Johnson, 3 Maule & S. 539; Com. v. Richards, 1 Mass. 387; State
V. Cassel, 2 Har. & G. (Md.) 407; State v. Stevens, 62 Me. 284; Baldwin v.
State, 1 Sneed (Tenn.) 411; McDonald v. State, 8 Mo. 283; State v. Williams,
19 Ala. 15; Com. v. Brettun, 100 Mass. 206.
IT 9 Com. V. Richards, 1 Mass. 337; State v. Cassel, 2 Har. & G. (Md.) 407;
McDonald v. State, 8 Mo. 283; Com. v. Brettun, 100 Mass. 206.
ISO Com. V. Richards, 1 Mass. 337.
181 Rex V. Craven, Russ. & R. 14. And see Rex v. Chard, Id. 488; Dame-
wood V. State, 1 How. (Miss.) 262.
182 The student will find the question discussed and the cases collected in
Whart Cr. PI. & Prac. §§ 184-202. Bank notes and bank bills. Com. v. Rich-
ards, 1 Mass. 337; Lamed v. Com., 12 Mete. (Mass.) 240; Com. v. Ashton, 125
Mass. 384; People v. Holbrook, 13 Johns. (N. Y.) 90; Com. v. Boyer, 1 Bm.
(Pa.) 201; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Rout, 3 Hawks
(N. C.) 618; McDonald v. State, 8 Mo. 283; Salisbury v. State, 6 Conn. 101;
Craven's Case, 2 East, P. C. 601; State v. Stimson, 24 N. J. Law, 9; State
V. Stevens, 62 Me. 284. Promissory notes. Com. v. Brettun, 100 Mass. 206;
Spangler v. Com., 3 Bin. (Pa.) 533; Com. v. Ashton, 125 Mass. 384; Hobbs
V. State, 9 Mo. 855; Stewart v. State, 62 Md. 413; Phelps v. People, 72 N.
Y. 334. Bills of exchange, Reg. v. Harper, 44 Law T. (N. S.) 615; Reg. v.
Cooke, 8 Car. & P. 582; Rex v. Birkett, Russ. & R. 251; Rex v. Wicks, Id.
149; People v. Howell, 4 Johns. (N. Y.) 296; Com. v. Butterick, 100 Mass. 12;
Phelps V. People, 72 N. Y. 334. United States treasury notes, U. S. v. Bennett,
17 Blatchf. 357, Fed. Gas. No. 14,572; Com. v. Oahill, 12 Allen (Mass.) 540;
Hummel v. State, 17 Ohio St. 628; State v. Thomason, 71 N. 0. 146; Dull
Ch. 6] DESCRIPTION OF PERSONAL PROPERTY. 221
Mmiey.
The term "money" includes everything that is made legal tender
and is current as money.^'° It does not cover bank notes, bank
bills, promissory notes, etc., unless they are made legal tender.^**
Unless a statute provides otherwise, as it does in some states,^'"*
money cannot be described simply as so many dollars in money, or
money of a certain value, etc., but the particular kind of money
must be stated.^*' An indictment for the larceny of coin or paper
money should state the kind of coin or paper, but need not de-
scribe each particular coin or bill. It is sufficient to describe them
as sundry treasury notes, etc., or sundry pieces of silver, gold, or
copper coin, or sundry gold or silver or copper coins or coin,^*^
according to the circumstances, of the United States, or current in
the state, giving the aggregate value, with an averment that a more
V. Com., 25 Grat. (Va.) 965. Receipts, Eex v. Martin, 1 Moody, Crown Cas.
483; Reg. v. Boardman, 2 Moody & R. 147; Rex v. Goldstein, Russ. & R.
473; Testick's Case, 2 Bast, P. C. 925; Com. v. Lawless, 101 Mass. 32; State
V. Humphreys, 10 Humph. (Tenn.) 442. Acquittance, Com. v. Ladd, 15 Mass.
526. Checks, Bonnell v. State, 64 Ind. 498; Hawthorn v. State, 56 Md. 530;
Whalen-v. Com. (Va.) 19 S. B. 182. Railroad tickets, McCarty v. State, 1
Wash. 377, 25 Pac. 299; ante, p. 216.
183 Reg. V. West, 7 Cox, Cr. Cas. 183.
184 Major's Case, 2 East, P. C. 1118; State v. Jim, 3 Murph. (N. 0.) 3;
Com. V. Swinney, 1 Va. Cas. 146; McAuly v. State, 7 Yerg. (Tenn.) 526; Wil-
liams v. State, 12 Smedes & M. (Miss.) 58; Johnson v. State, 11 Ohio St. 324.
185 Lewis V. State, 113 Ind. 59, 14 N. B. 892; State v. Rush, 95 Mo. 199, 8
S. W. 221; People v. Chuey Ying Git, 100 Cal. 437, 34 Pac. 1080.
186 Eex V. Fry, Russ. & R. 482; Merwin v. People, 26 Mich. 298; Lavarre
V. State, 1 Tex. App. 685; Smith v. State, 33 Ind. 159; State v: Stimson, 24
N. J. Law, 9; State v. Longbottoms, 11 Humph. (Tenn.) 39; People v. Ball,
14 Cal. 101; Leftwich v. Com., 20 Grat. (Va.) 716; State v. Murphy, 6 Ala.
845; Wofford v. State, 29 Tex. App. 536, 16 S. W. 535; State v. Oakley, 51
Ark. 112, 10 S. W. 17. Thus, an indictment describing the stolen property
as "$200 in United States bank notes, of the value of $200; $200 United States
currency, of the value of $200; and $200 of United States treasury notes,
of the value of $200,"— is bad for not more particularly describing the prop-
erty, or alleging that a more particular description is unknown. Baggett v.
State, 69 Miss. 625, 13 South. 810. But see Goldstein v. State (Tex. Cr. App.)
23 S. W. 686.
187 Com. V. Gallagher, 16 Gray (Mass.) 240, in which it was held that "coin,"
being a collective word, was equivalent to "coins."
222 PLEADING THE ACCUSATION. [Ch. 6
particular description cannot be given, or, according to some of the
cases, without such an averment.^'*
Animals, etc.
At common law, an indictment for stealing an animal must de-
scribe it specifically, and any substantial variance between the in-
dictment and the proof will be fatal.^*" An indictment for steal-
ing a colt, without stating whether it was a mare or a horse, has
been held bad."" And where the indictment charged the larceny
of a gray horse, and the proof showed it was a gray gelding, the
variance was held fatal.^°^ And it has been held that an indict-
ment for stealing a pig cannot be sustained under an act against
stealing hogs."'' As in other cases, certainty to a common intent
only is required. At common law an animal may be described
simply as "one horse," "one mare," "one hog," etc., giving the owner-
ship and value. It is not necessary to go further into details, and
give the color, size, kind, weight, or marks.*°°
This rule is qualified as applied to indictments under a statute.
With regard to the description of animals under a statute pun-
ishing offenses in relation to them, the rule has been stated to be
that, "where a statute uses a single general term, this term is to
be regarded as comprehending the several species belonging to
the genus; but that, if it specifies each species, then the indict-
ment must designate specifically," and "that, when a statute uses
a nomen generalissimum as such (e. g. cattle), then a particular
species can be proved, but that when the statute enumerates
188 Com. V. Gallagher, supra; Com. v. Sawtelle, 11 Gush. (Mass.) 142; Mc-
Kane v. State, 11 Ind. 195; State v. Jackson, 26 W. Va. 250; Bravo v. State,
20 Tex. App. 177; Haskins v. People, 16 N. Y. 344; People v. Dimick, 107
N. Y. 13, 14 N. E. 17S.
189 Post, p. 335.
100 Rex V. Beaney, Russ. & R. 41G. Nor Is "a yearliug" sufficient StoUen-
werk V. State, 55 Ala. 142.
191 Hooker v. State, 4 Ohio, 350; Valesco v. State, 9 Tex. App. 76. But see
Baldwin v. People, 1 Scam. (111.) 304, where it was held that proof of steal-
ing a mare or gelding would sustain an indictment for stealing a horse.
102 State V. M'Lain, 2 Brev. (S. C.) 443. But see Lavender v. State, 60 Ala. 60.
103 People V. Stanford, 64 Oal. 27, 28 Pac. 106; State v. Friend, 47 Minn.
449, 50 N. W. 692; State v. Grow, 107 Mo. 341, 17 S. W. 745; State v. Baden,
42 La. Ann. 295, 7 South. 582.
Ch. 6] DESCRIPTION OP PERSONAL PROPERTY. 223
certain species, leaving out others, then the latter cannot be proved
under the nomen generalissimum, unless it appears to have been the
intention of the legislature to use it as such." ^°*
Where a statute punishes the stealing of cows, bulls, steers, and
calves, and does not specifically mention heifers, an indictment for
stealing a heifer may describe it as a cow."° But, if the statute
mentions both cows and heifers, it must be described as a heifer.^"*
So, where a statute punishes the stealing of horses only, a mare or
a gelding may be described as a horse,^'' though it is otherwise
where the statute mentions mares and geldings.^®*
Where a statute punishes larceny or other offenses in relation to
"cattle," "neat cattle," or "beasts," using one of those terms only,
any description bringing the animal within tlie general term may be
used, as horse, cow, sheep, hog, etc. It need not state, further, that
the animal is a beast or cattle or neat cattle.^°° In such a case,
however, it would not do to describe the animal as a beast or cattle,
but the kind of beast or cattle would have to be specified. It cannot
in reason be supposed that the legislature, in using so general a term,
intended to so far do away with the requirement of certainty.^""
"Four head of neat cattle" is a sufficient description, for neat
cattle means a particular kind of cattle; it applies to animals of the
genus bos only.^"^
18* Whart. Cr. PI. & Prac. § 237; State v. Plunket, 2 Stew. (Ala.) 11.
195 People V. Soto, 49 Cal. 70.
198 Cooke's Case, 2 East, P. C. 616.
197 People V. Pico, 62 Cal. 50; Jordt v. State, 31 Tex. 571; State v. Plunket,
2 Stew. (Ala.) 11.
198 state V. Plunket, 2 Stew. (Ala.) 11.
199 Moyle's Case, 2 East, P. C. 1076; State v. Hambleton, 22 Mo. 452; Rex
V. Whitney, 1 Moody, Crown Cas. 3; Bex v. Chappie, Russ. & R. 77; Mott's
Case, 2 East, P. C. 1075; Taylor v. State, 6 Hnmph. (Tenn.) 285; State v.
Bowers (Mo. Sup.) 1 S. W. 288.
200 As we have already stated, "it is an elementary principle of criminal
pleading that where the definition of an offense, whether it be at common
law or by statute, 'includes generic terms, it is not sufficient that the indict-
ment shall charge the ofCense in the same generic terms as in the definition;
but it must state the species,— it must descend to particulars.' " U. S. v.
Oruikshank, 92 U. S. 542; ante, p. 159; post, p. 264.
201 State V. Hoffman (Kan.) 37 Pac. 138. Under a statute punishing larceny
of "neat cattle," to describe the property stolen as "certain cattle, to wit, one
cow," is sufficient State v. Crow (Mo. Sup.) 17 S. W. 745.
224 PLEADING THE ACCUSATION. [Ch. 6
An indictmeiit for stealing a dead animal should state that it was
dead, for, in the absence of any averment to the contrary, it will be
presumed that a live animal is intended, and proof that a dead
animal was stolen will be a fatal variance. The presumption being
that the animal was alive, an indictment for stealing a live animal
need not state that it was alive. An indictment for stealing two
turkeys, it has been held, will be taken to mean living turkeys, and
will not be sustained by proof of stealing dead ones.^°^ So, on in-
dictment for stealing a pheasant, of the goods and chattels of the
prosecutor, it was held that from the description it must be taken
to be a pheasant alive, and so ferae naturae, and not the subject of
larceny; that, to show the offense, the indictment should have shown
that the bird was dead or reclaimed, and the stating it to be the
goods and chattels of the prosecutor did not supply the deficiency.^ "^
This doctrine respecting the description of animals in an indict-
ment applies only to living animals, not to dead animals or parts of
the carcasses of animals.^"* An indictment for stealing a ham may
describe it simply as a ham, without describing the animal of which
it had been a part.^"^ An indictment for stealing meat would not
be sufficient. ^"^
Where an animal or bird alleged to have been stolen exists in a
wild state, like the fox or the pheasant, it is necessary to show that
it had been killed or reclaimed, for animals ferae naturae are not
the subject of larceny.""'
Miner ak, Trees, etc.
Since only personal property is the subject of larceny, the indict-
ment must show that the property stolen was personal. An indict-
ment, therefore, for stealing coal or other minerals, must state that
202 Rex V. HaUoway, 1 Car. & P. 128; Rex v. Edwards, Russ. & R. 497; Com.
T. Beaman, 8 Gray (Mass.) 497.
203 Rough's Case, 2 East, P. C. 607.
204 Reg. V. Gallears, 1 Denison, Crown Cas. 501.
20 5 Reg. V. Gallears, supra.
20 e state v. Morey, 2 Wis. 494; State v. Patrick, 79 N. C. 656.
207 Rough's Case, 2 East, P. C. 607; Clark, Cr. Law, 245; Reg. v. Cox, 1 Car.
& K. 494. In this case an indictment for stealing eggs without otherwise
describing them was held bad, because the eggs of birds ferae naturae are not
the subject of larceny.
Ch. 6] DESCEIPTION OF PERSONAL PROPERTY. 225
they had been severed" from the realty."" And at common law an
indictment for the larceny of trees, shrubbery, fruit, or vegetables
must show that they had been severed.^"* As we have seen in an-
other work, a severance and carrying away by the thief as part of
one and the same transaction is not sufficient,^^" and it follows that
the indictment must show a severance prior to the carrying away,
and not as a part of the same transaction.
Number, Quantity, and Value.
Not only must the kind of property be stated in an indictment for
larceny or other offense in relation to personal property, but gen-
erally the number or quantity must also be stated; and, where sev-
eral different kinds of property are alleged, the number or quantity
of each must be given.^^^ This is necessary in order to meet the
requirement of certainty. Thus, an indictment for engrossing,
which charged that the accused did engross and get into his hands
by buying, etc., "a great quantity of fish, geese, and ducks," with in-
tent to sell them again, was held bad, because it failed to state the
quantity of each.^^^ And so it has been held where an indictment
charged the stealing of "twenty sheep and ewes," without stating
the number of each,"^" and where it charged the sale of "diversas
quantitates" of beer in unlawful' measures.^^* "It is not suflQcient to
say 'felonice furatus est oves,' without saying how many." "^^ A
charge of stealing a "parcel of oats," however, was held sufficiently
certain.*^'
208 People v. WiUiams, 35 Cal. 671; State v. Burt, 64 N. C. 619; Clark, Or.
Law, 243.
2 00 State V. Foy, 82 N. C. 679.
210 Clark, Or. Law, 243, 244.
211 2 Hale, P. C. 182, 183; Rex v. Gilbert, 1 East, 583; Anon., Cro. Car. 881;
Rex v. Foster, 1 Ld. Raym. 475; Rex v. Gibbs, 1 Strange, 497; Com. v. Max-
well, 2 Pick. (Mass.) 139, 143; Stewart v. Com., 4 Serg. & R. (Pa.) 194; Left-
wich v. Com.. 20 Grat. (Va.) 716.
212 Rex V. Gilbert, 1 East, 583. And see Anon., Cro. Car. 381; Rex v, Foster,
1 Ld. Raym. 475.
213 2 Hale, P. C. 182.
«i4 Rex V. Gibbs, 1 Strange, 497.
216 2 Hale, P. C. 183; Com. v. Maxwell, 2 Pick. (Mass.) 139, 143; Stewart
▼. Com., 4 Serg. & R. (Pa.) 194.
216 State V. Brown, 1 Dev. (N. 0.) 137.
CKIM.PBOC— 15
226 PLEADING THE ACCUSATION. [Ch. 6
Whenever the value of property is material, it must be stated;
and, where several different kinds of property are described, the
value of each should be given.^^' In case of larceny the value must
be shown, not only in order that it may appear whether the offense
is grand or petit larceny, but also that it may appear on the face of
the indictment that the property has value, for property that is of
no value is not the subject of larceny.^*'
And, where several articles of a different kind are alleged to have
been stolen, the value of each article, and not the aggregate value of
all the articles, should be stated; for, unless there is a conviction
of the larceny of all the articles, the indictment will be insufl-
cient.^^* With respect to indictments for larceny under statutes, it
has been said that the statutes punish for larceny "with reference to
the value of the property stolen; and for this reason, as well as
because it is in conformity with long-established practice, the court
are of opinion that the value of the property alleged to be stolen must
be set forth in the indictment, and thaj; where an indictment alleges
a larceny in vaiious articles, and adds only the collective value of the
whole, such allegation is not sufficient, where the defendant is not
found guilty of the larceny as to the whole." ""
Where a number of articles of the same kind are alleged to have
been stolen, and it is impossible to give the exact number, and the
value of each, or probably even where the value of each can be
given, they may be described and valued collectively. Thus, an
indictment for stealing bank notes or coin may describe them as
sundry bank notes, sundry gold coin, etc., of the aggregate value
of a certain sum, and the indictment will be sustained by proof
of the larceny of any of such articles if a sufficient value is shown.'*^
21T 1 Hale, P. 0. 531; 2 Hale, P. 0. 185. And see the cases hereafter cited.
2i« 1 Hale, P. C. 531; 2 Hale, P. C. 185; Rex v. Fuller, Russ. & R. 40T;
Payne v. People, 6 .Tohns. (N. Y.) 103; State v. Tlllery, 1 Nott & McC. (S. C.)
0; State v. Thomas, 2 McCord (S. G.) 527; Wilson v. State, 1 Port. (Ala.) 118;
State v. Allen, R. M. Charlt. (Ga.) 518; People v. Wiley, 3 Hill (N. Y.) 194:
State v. Goodrich, 46 N. H. 186; Merwin v. People, 26 Mich. 298; State v.
Fenn, 41 Conn. 590.
210 Com. V. Smith, 1 Mass. 245; Hope v. Com., 9 Mete. (Mass.) 134; Cam.
V. CahiU, 12 Allen (Mass.) 540; Collins v. People, 39 111. 233.
220 Hope V. Com., supra.
221 Com. V. O'Connell, 12 Allen (Mass.) 451; Com. v Grimes, 10 Gray
(Mass.) 470; Lamed v. Com., 12 Mete. (Mass.) 240; State v. Taunt, 16 Minn.
Ch. 6] OWNEESHIP OF PROPERTY. 227
As we have just seen, this does not apply where the articles are of
a different kind..
In discussing the general rules of pleading, we saw that it is not
necessary to state matters of which the court must take judicial
notice.''" If from the facts stated, or. the character of the prop-
erty described, the court must take judicial notice of its value, the
value need not be alleged. Thus, an indictment for stealing "eighty
dollars in money, consisting of ten-dollar bills and twenty-dollar
bills, currency of the United States," need not state the value of the
money, for the court will take judicial notice that such bills are
worth their face value.^^^
When the value of property described in an indictment is alto-
gether immaterial, it need not be stated. Thus, where a statute
punishes the stealing of certain property, or property in a certain
place, without regard to its value, the value need not be alleged.*'*
Accuracy of Description — Variance.
We shall hereafter consider the necessity to prove the property
as described in the indictment, and the number, quantity, and value
stated, and the effect of a variance between the pleading and proof
in this respect."""
OWNEESHIP or PEOPEETT.
93. In indictments for offenses committed upon prop-
erty, real or personal, the name of the general or special
o"wner must be accurately stated.
To constitute larceny, robbery, embezzlement, obtaining money by
false pretenses, malicious mischief, etc., the property obtained must
be that of another, and indictments for such offenses must name the
109 (Gil. 99). But see Hamblett v. State, 18 N. H. 384; Low v. People, 2
Parker, Or. K. (N. Y.) 37.
2 22 Ante, p. 165.
223 Gady v. State, 83 Ala. 51, 3 South. 429; Grant v. State, 55 Ala. 201;
State V. Stimson, 24 N. J. Law, 9.
22 4 Ritchey V. State, 7 BlacUf. (Ind.) 168; State v. Hill (La.) 15 South. 145.
And see State v. Bowers (Mo. Sup.) 1 S. W. 288; Territory v. Pendry, 9
Mont. 67, 22 Pac. 760; Walker v. State, 50 Ark. 532, 8 S. W. 939; State v.
Castor, 93 Mo. 242, 5 S. W. 906.
22 5 Post, p. 335.
228 PLEADING THE ACCUSATION. [Ch. 6
owner; and a variance in this respect between the indictment and
the proof will be fatal.^^'' It is also necessary in order to identify
the offense.
The property may be described as the real owner's, though he
never had the actual possession.^^' And property may be laid in a
special owner or possessor, as well as in the general owner. Prop-
' erty in the hands of a bailee, for instance, may be laid either in the
bailor or bailee.^^' Personal property stolen from a corpse, or be-
longing to the estate of a dead person, should be laid, not in the
decedent, but in the executor or administrator, or, if necessary, in
a person unknown.^^" Property of a corporation must be laid in
the corporation.^'^ At common law, if the goods stolen were the
227 1 Hale, P. C. 512; 1 Chit. Or. Law, 213; Rex v. Baxter, 2 Leach, Crown
Cas. 578; Com. v. Morse, 14 Mass. 217; State v. Ryan, 4 McCord (S. 0.) 16;
Flora V. State, 4 Port. (Ala.) Ill; Haworth v. State, Peck (Tenn.) 89; Long
V. State (Tex. Cr. App.) 20 S. W. 576; Boles v. State, 58 Ark. 35, 22 S. W.
887. Contra, in robbery, Clemons v. State, 92 Tenn. 282, 21 S. W. 525. But
see Boles v. State, supra. An indictment for larceny alleging that the de-
fendant stole certain property from a person named, without alleging that
such person was the owner, is fatally defective. State v. Ellis, 119 Mo. 437,
24 S. W. 1017.
2 28 Rex V. Remnant, Russ. & R. 136.
229 2 Hale, P. C. 181; Re'x v. Remnant, Russ. & R. 136; Rex v. Bramley,
Id. 478; Rex v. Adams, Id. 225; Reg. v. Webster, 9 Cox, CSr. Cas. 13; Com.
v. Morse, 14 Mass. 217; Fowler v. State (Ala.) 14 South. 860; Kennedy v.
State, 31 Fla. 428, 12 South. 858; Com. v. Blanchette, 157 Mass. 486, 32 N. E.
658; State y. MacRae, 111 N. C. 665, 16 S. E. 173; State v. Allen, 103 N. C.
433, 9 S. E. 626. A carrier, lessee for years, or a party to whom goods are
pawned or bailed, may be described as owner, or the property may be laid
in the person beneficially interested. 1 Hale, P. C. 512; 2 East, P. C. 652.
Goods stolen from a laundress who has them in charge to wash them may
be described as hers. 3 Chit. Or. Law, 947b. So property of a guest stolen
from an inn may be laid in the innkeeper or in the guest, 3 Chit. Cr. Law,
947b; property stolen from a coach, in the driver or in the owner. Rex
V. Deakin, 2 Leach, Crown Cas. 862. A servant having custody of his master's
property holds it for his master, and has not even a special property, and the
property cannot be laid in him. 1 Hale, P. C. 513; Com. v. Morse, 14 Mass.
217; Norton v. People, 8 Cow. (N. Y.) 137; Poole v. Symonds, 1 N. H. 289.
230 1 Hale, P. 0. 515; 2 Hale, P. C. 181; 2 East, P. C. 652; Hayne's Case,
12 Coke, 113; State v Davis, 2 Carr. Law Repos. 291.
281 Rex V. Patrick, 2 East, P. 0. 1059, 1 Leach, Crown Cas. 253; Rex v. Wil-
kins. Id. 523.
Ch. 6] OWNERSHIP OP PROPERTY. 229
property of a partnersMp or of other joint owners, the names of all
the partners or joint owners must be stated. If, therefore, an in-
dictment lays the ownership of the goods stolen in A. B. "& Co.,"
without stating the names of the partners composing the firm, or
alleging that A. B. & Co. is a corporation, it is bad.^^^
Property of a convicted felon, undergoing his sentence, is in
England laid in the king or queen; "^^ but in this country, where a
conviction of crime does not cause a forfeiture of property, it would
be otherwise. Property stolen from one who has himself stolen it
may be laid in him.^** At common law, a married woman's prop-
erty must be laid in her husband, except where she is regarded un-
der particular circumstances as owner at common law."'" The mar-
ried women's acts have had the effect of changing this rule to a
great extent. Where a married woman's property does not vest
in her husband, but remains in her, it may be laid in her in the
indictment.^'* If the owner of property is unknown, it may be laid
in a person to the jurors unknown; for, as we have seen, the law
generally requires such certainty only as the circumstances will per-
mit.'"
The rule applies as well to offenses committed upon real property.
Thus, the offense of burglary is not committed by one who breaks
and enters his own house, nor by a woman who breaks and enters
her husband's house; and therefore an indictment for burglary
must describe the owner of the building, so that the court may see
from the indictment itself that the offense has been committed, and
any variance between the allegation and proof in this respect will
28 2 People V. Bogart, 36 Cal. 248; McCowan v. State, 58 Ark. 17, 22 S. W.
955. By the weight of authority, it Is otherwise where the statute provides
that an indictment is sufficient if it contains a statement of the acts con-
stituting the offense in ordinary and concise language, and in such a manner
as to enable a person of ordinary understanding to know what is Intended.
Reed v. Com., 7 Bush. (Ky.) 641; People v. Ah Sing, 19 Cal. 598. But see
McCowan v. State, supra.
s«8 Beg. V. Whitehead, 9 Car. & P. 429.
28* Com. V. Finn, 108 Mass. 466; Ward v. People, 3 Hill (N. Y.) 396.
28 B 1 Hale, P. 0. 513.
28 8 Kollins v. State, 98 Ala. 79, 13 South. 280.
28T 2 Hale, P. 0. 181; State v. Hadcock, 2 Hayw. (N. O.) 162; ante p. 168;
post, pp. 233, 340.
230 PLEADING THE ACCUSATION. [Ch. 6
be fatal. An allegation of ownership is also necessary in order to
render the charge certain.^'' The same rule applies to statutory
housebrealcings and to statutory larcenies in buildings.-'" In like
manner, and for like reasons, an indictment for arson at common
law, and generally for statutory burnings, must state the ownership
of the dwelling house or other building, and a variance between the
indictment and the proof will be fatal.^*" Arson and burglary are
offenses against the habitation, and must therefore describe the
building as the dwelling house of the person in possession of it as
his dwelling, and not of the person who has the legal title, but is
not in possession. The former is regarded as the owner for the
purpose of the charge.^*^ Where a building was described in an
indictment for arson as the building of the owner, and the proof
showed that it was in the possession of a tenant, the variance was
held fatal. ^*^ An indictment for arson in burning a jail was held
to properly describe the building as the dwelling house of the jailer
who lived there. "If one be indicted for burning the dwelling house
of another," it was said, "it is sufficient if it be in fact the dwelling
house of such person. The court will not inquire into the tenure or
interest which such person has in the house burnt. It is enough
that it was his actual dwelling at the time." ^*'
Where an indictment for an offense with reference to real or
personal property, like arson or larceny, alleges the property to
have been in one person, and the proof shows that snch person was
joint genernl or special owner with another, the variance is fatal
23 8 Rex V. White, 1 Leach, Crown Cas. 252; Rex v. Jenks, 2 Leach, Crown
Cas. 774; Rex v. Stock, 2 Leach, Crown Cas. 1018; Rex v. Stocli, Russ. & R.
1S.5; Bosgett v. Fi-ier, 11 East, 301; 2 East, P. C. 514; People v. Parker, 91
Cal. 91, 27 Pac. 537; Winslow v. State, 26 Neb. 308, 41 N. W. 1116; Thomas
r. State, 97 Ala. 3, 12 South. 409.
2 3 0 Com. v. Hartnett, 3 Gray (Mass.) 450, and cases there cited; 2 Hale, P.
C. 244; Rex v. Rogers, 1 Leach, Crown Cas. 89; Rex v. Jenks, 2 Leach, Crown
Cas. 774; Com. v. Perris, 108 Mass. 1; Rex v. Belstead, Russ. & R. 411.
= 40 Rex V. Rickman, 2 East, P. C. 1034; People v. Gates, 15 Wend. (N. Y.)
150; People v. Fairchild, 48 Mich. 36, 11 N. W. 773; Carter v. State, 20 Wis.
650; Com. v. Mahar, 16 Pick. (Mass.) 120; State v. Keena, 63 Conn. 329, 28
AU. 522; Smoke v. State, 87 Ala. 143. 6 South. 376.
241 People V. Gates, 15 Wend. (N. Y.) 159; Woodford v. People, 62 N. Y. 12T.
24 2 People V. Gates, supra.
243 People V. Van Blaa-cum, 2 Johns. (N. Y.) 105.
Ch. 6] DESCRIPTION OF THIRD PERSONS. 231
at common law.^** But in some jurisdictions this is changed by
statute. In Massachusetts, for instance, it is provided that, in the
prosecution of offenses in relation to or affecting real or personal es-
tate, it shall be suflQcient, and shall not be deemed a variance, if it
is proved on the trial that either the actual or constructive posses-
sion or the general or special property in the whole or in part of
such real or personal estate was in the person alleged to be the
owner thereof.''*"
Ownership of personal property is usually alleged by using the
words "of the goods and chattels of" the owner, or "of the moneys,"
"of the cattle," etc.^*° The words "belonging to" are sufficient.^*'
No particular words are necessary in any case. Thus, it has been
held that an indictment for burglarizing "a certain building of one
N., there situate, the same being used and occupied by the said N.
as a saloon," sufficiently alleged the ownership.^**
DESCRIPTION or THIRD PERSONS.
94. The indictment must correctly state the full Chris-
tian name and surname of the person against ■whom the
offense -was committed, or -who must be described in order
to state the offense -with certainty, if his name is kno-wn,
and, if his name is unknoAvn, it must be so stated.
In some cases it is necessary to name third persons in order to
show on the face of the indictment that an offense has been com-
mitted. This, as we have seen, is one of the reasons why it is nec-
essary to state the name of the owner of the property in an indict-
ment for an offense against property, or against the habitation.
24* Com. V. Trimmer, 1 Mass. 476; Com. v. Arrance, 5 Allen (Mass.) 517.
See note 232, supra.
24 B Com. V. Arrance, 5 Allen (Mass.) 517. This provision applies to the un-
divided property of tenants in common. Com. v. Arrance, supra; Com. v.
Harney, 10 Mete. (Mass.) 426; Com. v. Goldstein, 114 Mass. 272.
246 Long's Case, Cro. Eliz. 490; Eex v. Sadi, 1 Leach, Crown Gas. 468; Coon.
V. Morse, 14 Mass. 217; Com. v. Manley, 12 Pick. (Mass.) 173.
247 Gom. V. Hamilton, 15 Gray (Mass.) 480; State v. Fox, 80 Iowa, 312, 45
N. W. 874.
24 8 State V. Tyrrell, 98 Mo. 354, 11 S. W. 734.
232 PLEADING THE ACCUSATION. [Ch- 6
It is necessary not only in these cases, but in every other case, for
the further reason that without such certainty the offense would not
be, identified with sufficient certainty.
Wherever, therefore, the name of the party injured by the of-
fense, or of any other third person whom it is necessary to mention
in describing the offense, is known, it is absolutely necessary to
state it, and to state it accurately. A failure to state it, or a ma-
terial variance between the statement and the proof, will be fa-
tal.''*" In an indictment for larceny, as we have seen, the goods
may be laid to be the property of persons unknown, if that is ac-
tually the case; but, if the owner be really known, he must be
named and correctly named, or the accused must be discharged
from that indictment, and tried upon a new one rectifying the mis-
take.'^" And indictments for burglary, arson, and similar offenses
must correctly state the name of the owner of the house entered or
burned.^"^ An indictment for murder, manslaughter, assault, rape,
or any other offense against the person would be fatally defective
if it failed to correctly name the person killed, assaulted, or raped.
And an indictment for taking divers sums of money from divers
persons for toll, or for selling intoxicating liquors to divers persons
without a license, is fatally defective, and would not support a con-
viction.""* As will be seen from the latter of these cases, the rule
is not limited to the names of the persons against whom the offense
was committed, but extends to every case in which it is necessary
to name a person or persons in order to describe the offense with
sufficient certainty.""'
2*9 2 Hawk. P. C. c. 25, § 72; 1 Chit. Cr. Law, 213, and authorities there
cited; Com. v. Shearman, 11 Cush. (Mass.) 546. An indictment for bigamy
must accurately name the person to whom the defendant was bigamously
married. Rex v. Deeley, 4 Car. & P. 579. But it has been held that it need
not name his or her first wife or husband. Hutchins v. State, 28 Ind. 34;
Com. V. Whaley, 6 Bush (Ky.) 266. But see, contra, State v. La Bore, 26 Vt
265.
2 50 Ante, p. 227.
261 Ante, pp. 214, 229.
262 1 Chit Cr. Law, 211; State v. Stucky, 2 Blackf. and.) 289.
2BsAn indictment under a statute punishing embezzlement by a bailee,
which charged a person who had executed a chattel mortgage, and who was
Intrusted with its delivery to the recorder, with failure to deliver the same,
Ch. 6] DESCEIPTION OF THIRD PERSONS. 233
If the names of third persons are unknown, it is sufflcient to de-
scribe them as persons to the jurors unknown.^"* Thus, an indict-
ment for harboring thieves unknown is sufficient from the neces-
sity of the case, and the fair presumption which exists that their
names cannot be ascertained.^ "^ So, upon the same ground, if the
dead body of a person murdered be found, and it is impossible to
discover who he was, an indictment for killing a person unknown
would be sufflcient.""' And, as we have already seen, if stolen
goods are found on a person, and it is not known to whom they be-
long, he may be indicted for stealing the goods of a person or per-
sons unknown.""^ If a person is described as unknown, and it shall
appear that he was known, the variance will be fatal."'' There is
the best authority for the further proposition that a person can-
not be described as unknown if, though unknown, the grand jury
have constructive notice of his name, and it may by reasonable dili-
gence be ascertained; and this would seem to be a good rule, but
some courts have held the contrary."""
In naming a third person, all that is generally necessary is that
he be described with such certainty that it is impossible to mis-
take him for any other; or, as it is generally expressed, there must
be certainty to a common intent. Nothing more than this is re-
quired."'" He' may, like the accused, be described by the name by
which he is usually known; "°^ and, if he is well known by more
was held fatally defective because it did not state by whom the mortgage
was delivered to the accused, since it did not meet the constitutional right of
the accused to be informed of the nature and cause of the accusation. State
V. Grlsham, 90 Mo. 163, 2 S. W. 223.
2 0* Com. V. Tompson, 2 Gush. (Mass.) 551; Rex v. Smith, 6 Car. & P. 151;
Holford V. State, 2 Blackf. (Ind.) 103.
2 6 5 1 Chit. Cr. Law, 212; 2 Hale, P. C. 181.
2 08 1 Chit. Cr. Law, 212; 2 Hale, P. C. 181.
267 Ante, p. 229.
2 68 Post, p. 340.
269 Post, p. 340.
280 1 Chit. Or. Law, 215; Rex v. Sulls, 2 I^each, Crown Cas. 861; State v.
Crank, 2 Bailey (S. C.) 66.
281 Ante, p. 147; Rex v. Berriman, 5 Car. & P. 601; Rex v. Lovell, 1 Leach,
Crown Cas. 248; Rex v. Norton, Russ. & R. 510; WUlls v. People, 1 Scam.
234 PLEADING THE ACCUSATION. [Ch. 6
than one name, he may be described by either.^'^ It has been held,
for instance, that an indictment for an assault on John, parish
priest of D., without giving his surname, was sufficiently certain; **'
and an indictment for larceny, laying the goods stolen to be the
property of Victory Baroness Tuckheim, by which appellation she
was generally known, was held good, though her real name was
Selima Victoire.'"* So an indictment for forgery of a draft ad-
dressed to Messrs. Drummond & Co., Charing Cross, by the name of
Mr. Drummond, Charing Cross, without stating the names of his
partners, was held sufficient.^"" A mere statement of the Christian
name, without any addition to show the precise individual, is bad
for uncertainty. ""^
Much of what we have already said in treating of the name and
description of the defendant applies as well to the name and de-
scription of third persons. If a man has initials for his Christian
name, or is in the habit of using initials therefor, and is known by
them, they may be used to describe him.^°^ In some states, as we
have seen, a middle name or initial is recognized by the law as a
part of the name, and its omission, or a mistake in stating it, will
render the indictment defective.^"* But in most jurisdictions the
law recognizes but one Christian name. The middle name or ini-
(111.) 401; Rex v. , 6 Car. & P. 408; Clark's Case, Russ. & R. 358; Com.
V. Lampton, 4 Bibb (Ky.) 261; Kex v. Williams, 7 Car. & P. 298; State v.
France, 1 Overt. (Tenn.) 434; Com. v. Gould, 158 Mass. 499, 33 N. B. 656;
Slaughter v. State (Tex. Cr. App.) 21 S. W. 247; State v. Davis, 109 N. C. 780,
14 S. E. 55.
26 2 Ante, p. 147; 2 Hale, P. C. 244, 245; Rogers v. State, 90 Ga. 463, 16 S.
E. 205; State v. France, 1 Overt. (Tenn.) 434. And see the cases cited in the
preceding note. This applies to names of corporations. Rogers v. State,
supra.
2 63 Anon., Dyer, 285a; 1 Chit. Or. Law, 215.
J6 4 Rex V. Sulls, 2 Leach, Crown Cas. 861.
265 Rex V. Lovell, 1 Leach, Crown Cas. 248; 1 Chit. Cr. Law, 215.
26 6 1 Chit. Cr. Law, 215.
267 Reg. V. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; City Council
T. King, 4 McCord (S. C.) 487; State v. Kean, 10 N. H. 347.
26 8 Com. V. Perkins, 1 Pick. (Mass.) 388; Com. v. Hall, 3 Pick. (Mass.) 262;
Com. v. Shearman, 11 Cush. (Mass.) 546.
Ch. 6] DESCRIPTION OF THIRD PERSONS. 236
tial is no part of the name, and need not be stated.^'' The words
"junior," "senior," etc., are no part of the name.^^"
Where it is necessary to state the name of a corporation, as in
indictments for stealing the property of a corporation, the name of
the corporation, it has been held, must be stated with absolute pre-
cision. To describe the "Boston & Worcester Railroad Corpora-
tion" as the "Boston & Worcester Railroad Company" was held a
fatal variance.'''^
What constitutes a variance between the name or description of
third persons, as given in the indictment and as shown by the evi-
dence, will be further considered when we come to treat of vari-
ance."'*
Addition of Third Persons.
The statute of additions (1 Hen. V. c. 5)^'^ extends only to the ac-
cused, and does not at all affect the description either of the prose-
cutor, or any other individuals whom it may be necessary to
289 Choen v. State, 52 Ind. 347; Franklin v. Talmadge, 5 Johns. (N. Y.) 84;
Roosevelt v. Gai-dinier, 2 Cow. (N. T.) 463; Langdon v. People, 133 111. 382,
24 N. E. 874; Edmundson v. State, 17 Ala. 179; Thompson v. Lee, 21 111. 242;
Brskine v. Davis, 25 111. 251; Bletch v. Johnson, 40 HI. 116; Wood v. Fletcher,
3 N. H. 61; State v. Martin, 10 Mo. 391; Dilts v. Kinney, 15 N. J. Law, 130;
Isaacs V. Wiley, 12 Vt. 674; AUen v. Taylor, 26 Vt. 599; Hart v. Lindsey, 17
N. H. 235; Bratton v. Seymour, 4 Watts (Pa.) 329; Keene v. Meade, 3 Pet.
1; McKay v. Speak, 8 Tex. 376; State v. Manning, 14 Tex. 402; People v.
Lockwood, 6 Oal. 205. But in a few states, if it is unnecessarily alleged,
it becomes material matter of description. Price v. State, 19 Ohio, 423; State
v. Hughes, 1 Swan (Tenn.) 261.
270 Com. V. Perkins, 1 Pick. (Mass.) 388; Geraghty v. State, 110 Ind. 103,
11 N. E. 1; De Kentland v. Somers, 2 Root (Conn.) 437; Kincaid v. Howe, 10
Mass. 205; Cobb v. Lucas, 15 Pick. (Mass.) 7; State v. Grant, 22 Me. 171;
Brainard v. StilpMn, 6 Vt. 9; People v. Collins, 7 Johns. (N. Y.) 549; Pad-
gett V. Lawrence, 10 Paige, 170; Headley v. Shaw, 39 lU. 354; Com. v. Par-
menter, 101 Mass. 211. But see State v? Vittum, 9 N. H. 519; Jackson v. Pre-
vost, 2 Caines (N. Y.) 164.
271 Com. V. Pope, 12 Cush. (Mass.) 272. But it has been held that. If the
corporation Is commonly known by the name given, there is no misnomer.
Rogers v. State, 90 Ga. 463, 16 S. E. 205; ante, p. 234. As to necessity to allege
fact of incorporation, see Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098;
Duncan v. State, 29 Fla. 439, 10 South. 815. See ante, p. 148, note 43. '
27 2 Post, p. 339.
27 3 Ante, p. 148.
236 PLEADING THE ACCUSATION. [Ch.. 6
name.*'* No addition, therefore, is necessary in any case unless
two or more persons whose names are similar are referred to.^"
Even this does not seem absolutely necessary, for where, upon an
indictment for assaulting Elizabeth Edwards, it appeared that there
were mother and daughter of that name, and that the assault was
upon the daughter, the indictment was held suflScient.^"
274 1 Chit. Cr. Law, 211; 2 Hale, P. C. 182; Bex v. Sulls, 2 Leach, 861; Rex
V. Ogilvie, 2 Car. & P. 230; Com. v. Vamey, 10 Cush. (Mass.) 402.
2T6 1 Chtt. Cr. Law, 211; 2 Hale, P. C. 182; Rex v. Sulls, 2 Leach, Crown Cas.
861.
276 Rex T. Peace, 3 Barn. & Aid. 579. And see Rex v. Bailey. 7 Car. & P.
264.
Ch. 7] STATEMENT OF TIME. ii37
CHAPTER Vn.
PLEADING— THE ACCUSATION (Contiaued).
95. Statement of Time.
96. Statement of Place.
97. Repeating Time and Place.
STATEMENT OF TIME.
95. At common law an indictment must state the day,
month, and year in which the offense is supposed to have
been committed; but a variance betw^een the statement
and the proof in this respect is immaterial, unless the
time is of the essence of the offense.
At commoii law, it is necessary that the indictment shall state
that the offense was committed on a specific day, month, and year,^
though, as we shall see, the time need not in all cases be accurately
stated. The year alone is not enough, and, if the day and month
alone be given, without the year, the indictment is bad, and can-
12 Hale, P. O. 177; 2 Hawk. P. C. c. 25, § 77; Id. c. 23, § 88; 4 Bl. Comm.
306; State v. Roach, 2 Hayw. (N. C.) 352; State v. G. S., 1 Tyler (Vt.) 295;
State V. Johnson, 32 Tex. 96; State v. Brown, 3 Murph. (N. C.) 224; State v.
Baker, 34 Me. 52; Shelton v. State, 1 Stew. & P. (Ala.) 208; State v. Anthony,
1 McCord (S. C.) 285; State v. Hanson, 39 Me. 337; Allen v. Com., 2 Bibb
■(Ky.) 210; State v. Beaton, 79 Me. 314, 9 Atl. 728; State v. Dodge, 81 Me. 391,
17 Atl. 313; State v. Beckwith, 1 Stew. (Ala.) 318; Roberts v. State, 19 Ala,
526; State v. OfCutt, 4 Blackf. (Ind.) 355; Jane v. State, 3 Mo. 45; State v.
■O'Donnell, 81 Me. 271, 17 Atl. 66. An averment that the acts charged were
■committed "on sundry and divers days and times between" certain specified
days is not sufficient. State v. Beaton, 79 Me. 314, 9 Atl. 728. But it has
'been lately held (citing no authorities, however) that, where time Is not of the
essence of the offense, the indictment is not bad because the day of the month
Is left blank. U. S. v. Conrad, 59 Fed. 458. "On or about" a certain speci-
fied day is sufficient, since the words "on or about" may be rejected as sur-
;plusage, and the time taken to be the day specified. State v. McCarthy, 44
La, Ann. 323, 10 South. 673. See Pruitt v. State (Ark.) 11 S. W. 822; State
■V. Thompson, 10 Mont. 549, 27 Pac. 349.
238 PLEADING THE ACCUSATION. [Ch. 7
not be aided by intendment* An allegation, for instance, tbat an
offense was committed "on the lOth day of September now past,"
is insuflflcient, for failure to state the year." It has been said that
there is an exception to the rule that time must be stated in cases
where a mere negative or omission is averred; that in such a case,
as a rule, no time need be mentioned;* but this is doubtful. It
cannot be, for instance, that an indictment against a public ofBcer
for neglect to perform his duty need not state a certain day on
which, or certain days between which, he was guilty of the omis-
sion, or that time may be dispensed with in an indictment for man-
slaughter by negligence."
Generally, as we shall see, the time when the offense was com-
mitted need not be accurately stated. A time must always be
stated at common law, but any time before the finding of the indict-
ment and within the period of limitation may be given, and a differ-
ent time may be shown at the trial. This, however, only applies
where the precise time is not material. If the offense could only
be committed at a certain time, it must be alleged to have been
then committed. An act prohibited by statute on certain days
only must be charged as having been committed on one of those
days, for the time laid is a material element in the offense, and,
unless laid on a day within the statute, no offense would be charged.
Thus, where a statute prohibited the maintenance of closed weirs
in certain waters on Saturdays and Sundays between the 1st of
April and the 15th of July, and an indictment alleged that the
offense was committed on the 1st day of June (Tuesday), and "on
divers other days" between the 1st of June and the 15th of July,
the indictment was held bad, because it did not show on its face
that the acts were done on Saturday or Sunday." The rule also
2 1 Chit. Cr. Law, 217; Com. v. Griffin, 3 Gush. (Mass.) 523; Com. v. Hut-
ton, 5 Gray (Mass.) 89; Serpentine v. State, 1 How. (Miss.) 260; Clark v.
State, 34 Ind. 436. Contra, by statute, whei-e day of month is blank. State
V. Parker, 5 Lea (Tenn.) 568.
8 Com. V. Griffin, supra.
4 Kex V. HoUond, 5 Term R. 616; 2 Hawk. P. C. c. 25, § 79; U. S. v. Smith,
2 Mason, 146, Fed. Cas. No. 16,338.
0 See Com. v. Inhabitants of Sheffield, 11 Gush. (Mass.) 178; State v. Behm,
72 Iowa, 533, 34 N. W. 319; State v. McDowell, 84 N. C. 798.
9 State V. Dodge, 81 Me. 391, 17 Atl. 313.
Ch. 7] STATEMENT OF TIME. 239
applies to indictments for violation of tlie Sunday laws. The acts
must be shown by the indictment to have been committed on that
particular day of the week.''
To constitute a homicide at common law, the death must occur
within a year and a day after the stroke, and an indictment for
homicide must show that it did so occur, or it will state no offense.'
Sometimes it is of the essence of the offense that several acts
shall have been simultaneous, and in such cases the indictment
must show that they were so, or it will fail to describe the offense.
An indictment under a statute, for instance, for having in posses-
sion ten or more counterfeit bank bills, must show that the accused
had them in his possession at the same time, and an averment that
he had them in his possession on the same day is not sufficient.*
Where the time of the day is not necessary to ascertain the
offense, the indictment need not set forth the hour of the day; ^"
but where the time of the day does give complexion to the crime,
1 Megowan v. Com., 2 Mete. (Ky.) 3; State v. Land, 42 Ind. 311. "Sabbath"
for "Sunday," or vice versa, has been held suflacient. State v. Drake, 64 N.
C. 589. The proof need not show commission of the offense on the particular
day stated, but some other day, on which the offense could be committed,
may be proven. Post, p. 344.
s 1 Chit. Or. Law, 223; Brassfield v. State, 55 Arl£. 556, 18 S. W. 1040; State
v. Luke, 104 Mo. 563, 16 S. W. 242; Palmer v. People, 138 111. 3o6, 28 N. E.
130; State v. Blakeney, 33 S. 0. Ill, 11 S. B. 637; Timmerman v. Territory,
3 Wash. T. 445, 17 Pac. G24. The indictment, as will be seen from the above
cases, need not allege in direct terms that death ensued within a year and a
day from the fatal blow. The allegation of the respective dates of the injury
and of the death are enough, if it appears from this that the death was with-
in a year and a day from the blow. "This may be done either by stating
that the deceased died instantly of the wound, or that he languished of the
same till the day mentioned, when he died of the said mortal woimd." 1
Hale, P. C. 343, 344. In an Arkansas case the indictment alleged that the
blow was given on October 25, 1890, but did not expressly state when the
death occurred. It did, however, allege that death ensued, and the caption
of the indictment showed that it was returned by the grand jury at the Feb-
ruary term, 1891, which term could not, under the law, have continued to
October 26, 1891. It was held that it sufficiently appeared that the death oc-
curred within a year and a day from the blow. Brassfield v. State, 55 Ark.
556, 18 S. W. 1040.
» Edwards v. Com., 19 Pick. (Mass.) 124.
10 1 Chit. Cr. Law, 219; 2 Hawk. P. C. c. 25, § 76.
240 PLEADING THE ACCUSATION. [Ch. 7
as in case of burglary, the hour, or an hour, must be stated.^ ^ This
applies not only to burglary, but also to statutory offenses which
must be committed in the nighttime or in the daytime, as the case
may be.*'' Where the nighttime is defined by statute, an indict-
ment for burglary need not allege, as at common law, the hour at
which the offense was committed, but it will be sufficient to state
that it was committed in the nighttime, since, "whenever 'nighttime'
is now used in an indictment, as descriptive of the time of the
commission of an offense, it is to be understood of the nighttime as
defined by this statute." *'
It was said by Chitty, and it seems to be established by the
weight of authority, that, where the time for the prosecution is
limited by statute, the time averred in the indictment should appear
to be within the limit, or else the facts necessary to take the case
out of the operation of the statute should be alleged, otherwise the
indictment shows on its face that the prosecution is barred.** In
11 2 Hale, P. C. 179; 2 East, P. C. 513; State v. G. S., 1 Tyler (Vt.) 295;
Shelton v. Com., 89 Va. 450, 16 S. E. 355; State v. Bancroft, 10 N. H. 105. But
see People v. Burgess, 35 Cal. 115. "The reason for this seems to have been
that one might, with a felonious intent, have broken and entered a building
at a time properly called in popular language 'nighttime,' and yet not have
committed the crime of burglary; the time in which that offense can be com-
mitted being not so far extended as to embrace the nighttime in the ordinary
use of that word, but a period when the light of day had so far disappeared
that the face of a person was not discernible by the light of the sun or twi-
light." Com. V. Williams, 2 Gush. (Mass.) 589. See Clark, Cr. Law, 237.
12 2 Hale, P. C. 179.
13 Com. V. Williams, 2 Cush. (Mass.) 589.
14 1 Chit. Cr. Law, 223; People v. Gregory, 30 Mich. 371; State v. Davis,
44 La. Ann. 972, 11 South. 580; State v. Robinson, 29 N. H. 274; State v.
Beckwith, 1 Stew. (Ala.) 318; Shelton v. State, 1 Stew. & P. (Ala.) 208; State
V. Hobbs, 39 Me. 212; State v. Roach, 2 Hayw. (N. 0.) 352; McLane v. State,
4 Ga. 335; State v. Ingalls, 59 N. H. 88; Hatwood v. State, 18 Ind. 492; Lam-
kin V. People, 94 111. 501; People v. Miller, 12 Cal. 291. In some states it is
held, contrary to some of the above cases, that an indictment need not state
the facts bringing the case within the exceptions contained in the statute.
Blackman v. Com., 124 Pa, St. 578, 17 Atl. 194. In some states the indict-
ment is not necessarily the commencement of the prosecution, and for this
reason it was held in Vermont that an indictment is not bad because it does
not show that the offense was committed within the prescribed time before
It was presented. State v. Stevens, 64 Vt. 590, 25 Atl. 838.
Ch. 7] STATEMENT OF TIME. 241
New York, however, it has been held that the time laid in the in-
dictment is wholly immaterial for all purposes, and that an indict-
ment, therefore, at least on motion in arrest of judgment, is not
defective because it alleges that the offense was committed at such
a time that the prosecution appears to be barred by the statute of
limitations, since a later time may have been shown at the trial.^'
When the alleged offense may have continuance, as is the case,
for instance, with the offense of keeping a disorderly house, the
time may be laid with a continuando; that is, it may be alleged
to have been on a single day certain and also on divers other days;
but those other days must be alleged with the same legal exactness
as is required in alleging a single day.^° Such exactness is ob-
tained by alleging that the offense was committed on a day certain
and on divers other days between two days certain.^^ The fact
that the continuando is not sufficiently certain will not render the
whole indictment bad, if it can be rejected as surplusage, and the
indictment be sustained as to the day certain. "And the general
rule is well established that when an offense, which may have
continuance, is alleged to have been committed on a day certain
and on divers other days, which are uncertainly alleged, the indict-
ment is effectual for the act alleged on the day certain, and void
only as to the act alleged on the other days." ^* If a continuance
of acts is necessary to constitute the offense, it is essential to lay
them with a continuando.^' Cumulative offenses, which can be
committed only by a repetition of acts of the same kind, — such as
the offense of being a common seller of intoxicating liquors, to con-
stitute which there must be at least three sales, — should be thus laid.
If an indictment for this offense alleges that the accused was a
1 B People V. Van Santvoord, 9 Cow. (N. Y.) 655. And see Blackman v. Com.,
124 Pa. St. 578, 17 Atl. 194; U. S. v. Cook, 17 Wall. 168.
18 Wells V. Com., 12 Gray (Mass.) 326; Com. v. Adams, 4 Gray (Mass.) 27.
17 Wells V. Com., supra. To allege that the acts were committed "on sundry
and divers days between" certain specified days is not enough. State v. Bea-
ton, 79 Me. 314, 9 Atl. 728.
18 Wells V. Com., supra; Rex v. Dixon, 10 Mod. 335; People v. Adams, 17
Wend. (N. Y.) 475; State v. Munger, 15 Vt. 290; State v. May, 4 Dev. (N. C.)
328; U. S. V. La Coste, 2 Mason, 140, Fed. Cas. No. 15,548.
19 2 Hawk, P. C. c 25, S 62; State v. Munger, 15 Vt. 290; State v. Tem-
ple, 38 Vt. 37.
CRIM.PROC. — 10
242 PLEADING THE ACCUSATION. [Ch. 7
common seller on a single day certain, and on divers other days
uncertainly alleged, it will not support a verdict and judgment, for
the accused may have been found guilty, on proof, of sales, some
or all of which were made on a day or days insuflSciently alleged."*
An indictment in such a case, alleging that the accused was a com-
mon seller on a single day only, omitting the continuando alto-
gether, would be sufScient, for it would be presumed that three
sales were proven on the day alleged. ''^
If the indictment lay the offense to have been committed on an
impossible day, as on the 30th day of February, or the 31st day of
June, or on a future day, it is just as bad as if no time at all were
stated."'' And the indictment will also be insufficient if the same
offense, is alleged to have been committed at different times,"' or
20 Com. V. Adams, 4 Gray (Mass.) 27; Wells v. Com., supra,
21 Wells V. Com., supra.
22 1 Chit. Cr. Law, 225; 2 Hawk. P. C. c. 25, § 77; Pennsylvania v. McKee,
Add. (Pa.) 36; State v. Litch, 33 Vt. 67; State v. Sexton, 3 Hawks (N. 0.)
184; Jacobs v. Com., 5 Serg. & E. (Pa.) 316; Serpentine v. State, 1 How.
(Miss.) 256; State v. O'Doimell, 81 Me. 271, 17 Atl. 66; Com. v. Doyle, 110
Mass. 103; Markley v. State, 10 Mo. 291; Lee v. State, 22 Tex. App. 547, 3
S. W. 89; State v. Pratt, 14 N. H. 456; State v. Blaisdell, 49 N. H. 81; Peo-
ple V. Mather, 4 Wend. (N. Y.) 229; State v. Noland, 29 Ind. 212; State v.
Smith (Iowa) 55 N. W. 198; Andrews v. State (Tex. App.) 14 S. W. 1014.
This is changed by statute in some states. See State v. Crawford, 99 Mo. 74,
12 S. W. 354; post, p. 245. As will be found from the cases above cited, an
indictment charging the ofCense to have been committed on the same day the
indictment was found is bad if It does not show that it was committed before
the finding of the indictment, since it may, so far as the charge shows, have
been committed afterwards; and the indictment cannot be aided by argument
or inference, ante, p. 162; but where it does expressly show commission of
the offense before indictment, though on the same day, it is good. See Com.
V. Miller, 79 Ky. 451; Gill v. State (Tex. Cr. App.) 20 S. W. 578. But see
People V. Squires, 99 Cal. 327, 33 Pac. 1092. It was held in Kentucky that
an indictment alleging that the offense was committed on a day subsequent
to its return was not bad where it alleged that the defendant "did" do the
acts alleged, since it was thought that this showed that the offense was com-
mitted before the Indictment was found. Williams v. Com. (Ky.) 18 S. W.
1024; Vowells v. Com., 84 Ky. 52. This, however, Is contrary to the cases
cited above.
23 1 Term R. 316; State v. Dandy, 1 Brev. (S. C.) 395; Hutchinson v. State,
62 Ind. 556.
Ch. 7] STATEMENT OF TIME. 243
otherwise on such a day as renders it repugnant.^* And no defect
of this nature is aided by verdict.^" An indictment for murder is
vitiated by a repugnancy in this respect in the conclusion, as, if
the assault and stroke be alleged on the 10th of December, and the
death on the 20th of December following, and it is then alleged
that the accused so murdered the deceased on the 10th of December
aforesaid, since the felony is not complete until the death occurs.''*
An allegation that the offense was committed between a day
certain and "the day of finding this indictment" fixes the time with
sufiScient certainty, notwithstanding the grand jury may have power
to find an indictment at any time during the term of the court, and
even for an offense committed after the term has commenced.
When there is nothing on the record showing the contrary, the
time of finding the bill is to be taken to be the first day of the
term. When, therefore, an averment is made that an offense was
committed between a day certain and the day of finding the indict-
ment, and there is nothing on the record showing the day when the
indictment was found, it is equivalent to an averment that it was
committed between the first day alleged and the day on which the
term of the court commenced.^' It is always competent to resort
to the record for the purpose of fixing the exact day on which the
indictment was found, whenever it becomes necessary to prove that
it was found after the first day of the term, as it is sometimes
done in order to avoid the objection that the offense was actually
committed after the finding of the bill. The actual time can be
shown by the certificate of the clerk indorsed on the indictment,
or other proper entry.^* Since the day of finding and presentment
of an indictment by the grand jury is not necessarily, or by any
reasonable intendment, identical with the day of the filing of it by
the clerk, but, on the contrary, several days may elapse between
2* 2 Hawk. P. C. c. 25, § 7; Rex v. Stevens, 5 East, 244; JefCries v. Com.,
12 Allen (Mass.) 145; State v. Jones, 8 N. J. Law, 307; McGehee v. State,
26 Ala. 154.
2» 1 Chit Cr. Law, 225; 2 Hawk. P. C. c. 25, § 77; Rex v. Stevens, 5 East,
244; State v. Litch, 33 Vt. 67.
2 6 Heydon's Case, 4 Coke, 42a; 2 Hawk. P. C. c. 23, § 88.
27 Com. v. Wood, 4 Gray (Mass.) 11.
28 Com. V. Wood, supra; Com. v. Stone, 3 Gray (Mass.) 453.
244 PLEADING THE ACCUSATION. [Ch. 7
them, an allegation that an offense was committed between a speci-
fied day and "the day of the finding, presentment, and filing of this
indictment" is bad for uncertainty.^'
The mere fact that the time is ungrammatically stated, if it is so
stated that the time cannot be mistaken, will not vitiate the indict-
ment; as, for instance, where an offense is alleged to have been
committed on "the 1st March" instead of "the 1st day of March." '"
But an indictment laying the offense on the 2d day of March, A. D.
"one thousand eight," instead of "eighteen hundred," ** or an indict-
ment omitting the words "in the year," or the letters "A. D.," or
words "Anno Domini," before the number of the year,'^ is insuffi-
cient. The words "in the year" need not be used if the letters
"A. D.," or words "Anno Domini," are used, as they mean "in the
year of our Lord"; ^^ nor need the latter be used if the word "year"
is used, or the figures as generally used for dates, for it will be
taken to mean "year of our Lord." '* As we have already stated,
by statute in England indictments must be in words at length,
and abbreviations or figures cannot be used. All dates, therefore,
must be expressed in words at length.^ '^ This should be the rule
everywhere, for it is always safer; but in this country, where we
have no statute on the subject, it is generally held that the usual
initials and figures may be used for dates.^" "On the 1st day of
•S8 Com. V. Adams, 4 Gray (Mass.) 27; Com. v. Keefe, 9 Gray (Mass.) 290.
so Simmons v. Com., 1 Rawle (Pa.) 142; ante, p. 174.
SI State V. G. S., 1 Tyler (Vt.) 295.
8 2 Com. v. McLoon, 5 Gray (Mass.) 91; Wells v. Com., 12 Gray (Mass.)
326; State v. Lane, 4 Ired. (N. C.) 121; Whitesides v. People, 1 Breese (111.)
21. But see, to the effect that the "year of our Lord," or its equivalent, may
be omitted, note 34, infra.
S3 State v. Reed, 35 Me. 4S9; State v. Hodgeden, 3 Vt. 481; Com. v. Clark,
4 Cush. (Mass.) 596; Eawson v. State, 19 Conn. 292; State v. Tuller, 34 Conn.
2S0; Winfield v. State, 3 Iowa, 339; State v. Seamons, 1 Iowa, 418.
84 Com. v. Doran, 14 Gray (Mass.) 38; Hall v. State, 3 Ga. 18; Engleman
V. State, 2 Ind. 91.
SB Ante, p. 172.
88 State v. Hodgeden, 3 Vt. 481; State v. Gilbert, 13 Vt. 647; Com. v, Clark,
4 Cush. (Mass.) 596; State v. Haddock, 2 Hawks (N. 0.) 461; State v. Reed,
35 Me. 489; Barnes v. State, 5 Yerg. (Tenn.) 186; State v. Munch, 22 Minn.
■67; Hall v. State, 3 Kelly (Ga.) 18; Lazier v. Com., 10 Grat. (Va.) 708. For
the conflict on this point, see the cases cited in the preceding notes.
Ch. 7] STATEMENT OF PLACE. 245
January, A. D. 1895," for instance, would be sufficient. It is better,
however, always to write out the date at length, particularly in the
body of an indictment. Any other practice shows carelessness,
and may result in error.
Though the allegation of a specified time is necessary in nearly
all cases, yet, except where the time enters into the nature of the
offense, it is not necessary to prove that the offense was committed
on the precise day or year mentioned in the indictment.' ' In
other words, it is immaterial, except in those cases, whether the
time is correctly stated or not. The rule applies to cases in which
it is necessary to state the time of the day at which the offense
was committed, as in an indictment for burglary.' ' It does not
apply, however, to continuing offenses, such as that of being a com-
mon seller of intoxicating liquors.'* -
In some states it is provided by statute that an indictment shall
not be held bad for stating the time imperfectly, unless time is of
the essence of the offense. Under such a statute, where an indict-
ment for illegal voting, returned on November 3, 1886, charged
that the offense was committed on November 4, 1886, "the same
being the day upon which the general election was then and there
held in said state * * » for the election of governor • » *^
as was then and there required and authorized by law," it was held
that this portion of the indictment had reference to a past offense,
and showed that the offense had been committed before the return
of the indictment; and that, time not being of the essence of the
offense, the indictment must be upheld.^"
STATEMENT OP PLACE.
96. The indictment must always state the place where
the offense was committed with sufficient particularity to
show that it was committed within the jurisdiction of the
f Post, p. 344. " Post, p. 344. 39 Post, p. 345.
40 State v. Patterson, 116 Ind.-45, 10 N. E. 289, and 18 N. E. 270. And see
State V. McDaniel, 94 Mo. 301, 7 S. W. 634. And under such a statute. Indict-
ments giving no date at all have been sustained. Fleming v. State (Ind. Sup.)
36 N. B. 154. As to the constitutionality of such statutes, see ante, p. 140;
post, pp. 316, 322.
246 PLEADING THE ACCUSATION. [Ch. 7
cotirt. Where the particular place within the jurisdic-
tional limits of the court is of the essence of the offense,
it must be stated in order to state the oflFense. The par-
tictilar place should also be stated, not as venue, but as
matter of local description, in an indictment for a local
offense, such as burglary, arson, larceny from a building,
etc. Except where the particular place thus enters into
the nature of the offense, or is alleged as matter of local
description, it is sufB.cient to prove that the offense was
committed at any place within the jurisdiction of the
court, though not at the place alleged.
The venue should be stated, not only in the margin and com-
mencement of the indictment, as already explained, but also in the
statement. Its omission will be fatal, and may be taken advantage
of even in arrest of judgment.*^ This is necessary, in order that
it may appear that the grand jury had jurisdiction to inquire into
, the oifense and present the indictment, for a grand jury can only
inquire into offenses committed within their county; and it is also
necessary in order that it may appear that the court has jurisdiction
to try the accused, for generally an offense must be tried in the
county in which it was committed. It is further necessary in some
cases in order to make the accusation certain, and inform the
*i2 Hawk. P. C. c. 25, §§ 34, 83; Rex v. Burrldge, 3 P. Wms. 496; Rex v.
HoUond, 5 Term R. 624; Reg. v. O'Connor, 5 Q. B. 16; Rex v. Haynes, 4
Maule & S. 214; McCoy v. State, 22 Neb. 418, 35 N. W. 202; Thompson v.
State, 51 Miss. 353; People v. Craig, 59 Cal. 370; State v. Hobbs, 37 W. Va.
812, 17 S. E. 380; Connor v. State, 29 Fla. 455, 10 South. 891; Jones v. Com.,
86 Va. 950, 12 S. B. 950. Place must be repeated expressly or by reference
In. each count. .Tones v. Com., 86 Va. 950, 12 S. B. 950; post, p. 298. In some
states, however, it is provided by statute that It shall not be necessary to
state any venue in the body of the indictment, but tlie jurisdiction named in
the margin shall be taken to be the venue of all the facts alleged, except
where a local description is required. People v. Schultz, 85 Mich. 114, 48 N.
W. 293; State v. Arnold (Mo. Sup.) 2 S. W. 269; State v. Beaucleigh, 92 Mo.
490, 4 S. W. 666. And see Territory v. Pratt, 6 Dak. 483, 43 N. W. 711. And
In some states the statute dispenses altogether with the necessity for a state-
ment of venue, only requiring that it be proved at the trial. Toole v. State,
89 Ala. 131, 8 South. 95.
Ch. 7] STATEMENT OF PLACE. 247
accused of the charge against him.*^ For this reason, if the
offense is alleged to have been committed at a certain town or
other place, without naming the county by reference or otherwise,
the indictment will be fatally defective,*^ and will not be aided by
the statement of the county in the margin.**
If the jurisdiction of the court does not extend over the entire
county, the place of the commission of the offense must be laid with
sufficient particularity to show that it was committed within the
jurisdiction of the court.*"
Where the county is mentioned in the margin or commencement,
or perhaps even in the caption only, it will be sufficient to refer to
it afterwards by the words, "in the county aforesaid," or "then and
there." *' It has been held that where two counties are mentioned,
— as where one is stated in the margin, and then a fact is alleged
to have arisen in another county, — a subsequent averment that the
offense was committed at a certain place "in the county aforesaid"
*zGom. V. Reily, 9 Gray (Mass.) 1; State v. Jolinson, 32 Tex. 96; U. S. v.
Burns, 54 Fed. 351.
*3 Com. V. Barnard, 6 Gray (Mass.) 488. But see Tower v. Com., Ill Mass.
417. Where the indictment alleges that "P., of New Braintree, in county of
Worcester, sold intoxicating liquor at New Braintree," it will be understood
that he sold at the same New Braintree previously mentioned, and failure to
repeat the county is not bad. Com. v. Cummings, 6 Gray (Mass.) 487.
" Rex V. Burridge, 3 P. Wms. 496; 2 Hawlj. P. C. c. 25, § 34; 2 Hale, P. G.
166; Reg. v. O'Connor, 5 Q. B. 16; Stephen's Case, 2 Leigh (Va.) 759; State
v. Godfrey, 3 Fair. (Me.) 361. Otherwise by statute. Note 41, supra.
«» People V, Wong Wang, 92 CaL 277, 28 Pac. 270; McBride v. State, 10
Humph. (Tenn.) 615; Taylor v. Com., 2 Va. Cas. 94.
48 2 Hale, P. C. 180; 2 Hawk. P. 0. c. 25, § 34; Rex v. Burridge, 3 P. Wms
496; Haskins v. People, 16 N. Y. 344; Barnes v. State, 5 Yerg. (Tenn.) 186;
Strickland v. State, 7 Tex. App. 34; State v. Conley, 39 Me. 78; Turns v.
Com., 6 Mete. (Mass.) 224; State v. Ames, 10 Mo. 743; State v. Cotton, 4
Fost. (N. H.) 143; State v. Slocum, 8 Blackf. (Ind.) 315; Evarts v. State, 48
Ind. 422; State v. Bell, 3 Ired. (N. C.) 506; State v. Tollever, 5 Ired. (N. C.)
452; Noe v. People, 39 111. 96; Hanrahan v. People, 91 111. 142; State v. Salts
(Iowa) 39 N. W. 167; State v. Reid, 20 Iowa, 413. An information that did
not state in its body the place where the offense was committed was neverthe-
less held sufficient, where the county was mentioned in the caption, and the
words of reference, "then and there," were used in charging the crime. State
V. S. A. L., 77 Wis. 467, 46 N. W. 49a
248 PLEADING THE ACCUSATION. [Ch. 7
will be insufficient.*' But in New York it has been beld that, where
two counties are mentioned, and it is then alleged that the offense
was committed at a certain town "in said county," the indictment
is sufficient if the town is one created by statute, since the court
will take judicial notice of the statute, and can determine the
county.** If an indictment laid the offense in a certain town, with-
out stating any county at all, it is doubtful whether this decision
would be followed, even though there might be an incorporated
town of that name in the county in which the indictment was
found. There are many towns of the same name in the different
states, and in some states there are more than one town of the
same name. Such an indictment would certainly be uncertain.
The statement that the offense was committed in the county must
be certain, and cannot be aided by inference. Thus, where the
offense was alleged to have been committed "near the town of
Arizona City, in said county of Yuma, and territory of Arizona,"
Arizona City being situated near the boundary of the county, the
averment was held not sufficiently certain, since the offense might
have been committed near the town, and yet not in the county.**
Formerly the trial jury were summoned from the neighborhood
in which the offense was committed, and not, as is now the practice,
from the county at large. It was at that time necessary, therefore,
to state in the indictment, not only the county, but also the partic-
ular parish, vill, hamlet, or other place within the county at which
the offense was committed. It was not sufficient to give the
county only."" The practice, though possibly not necessary, still
exists in England, but to a much less extent than formerly."
If the offense is transitory in its nature, not even the form re-
mains in this country. Since the trial jury are drawn from the
county at large, and not from any particular neighborhood, the
offense need only be laid in the county, and the charge will be
*il Chit. Cr. Law, 194; Reg. v. Rhodes, 2 Ld. Raym. 888; 2 Hale, P. 0.
180; State v. McCracken, 20 Mo. 411; note 75, infra,
*8 People v. Breese, 7 Cow. (N. Y.) 429. And see Com. v. Inhabitants of
Springfield, 7 Mass. 9.
*» Territory v. Doe, 1 Ariz. 507, 25 Pac. 472.
»o 1 Chit. Cr. Law, 196; 2 Hawk. P. 0. c. 25, § 83; 2 Hale, P. 0. 180.
51 1 Chit. Cr. Law, 196.
Ch. 7] STATEMENT OF PLACE. 249
sustained by proof that it was committed at any place in the
county." By the weight of authority, robbery/^ assaults,^* homi-
cide,'*^ simple larceny," disturbance of an assemblage for religious
worship, or of any other public assemblage,"' gaming,"** etc., are
transitory offenses, and it is sufficient to allege that they were com-
mitted in the county, without stating the particular place in the
coimty; and generally, if a particular place is stated, it need not
be proved."'
Where the offense is not transitory, but local, — that is, where it
is of such a character that the place in which it is committed
colors it, or "is of the essence of the crime," ^° — the particular place
within the county at which it was committed must be stated.
Some offenses can only be committed in a certain place. Here, of
course, the particular place must be stated in order to state any
offense at all. Thus, where a statute punishes the keeping of
closed weirs in a particular part only of a river, an indictment
charging that they were kept in the river, without showing in
52 Rex V. Wardle, Kuss. & R. 9; Carlisle v. State, 32 Ind. 55; State v.
Goode, 24 Mo. 361; State v. Smith, 5 Har. (Del.) 490; Com. v. ToUiver, 8
Gray (Mass.) 386; Barnes v. State, 5 Yerg. (Tenn.) 186; State v. Lamon, 3
Hawks (N. C.) 175; Heikes v. Com., 26 Pa. St. 513; People v. Honeyman,
3 Denio (N. Y.) 121; Wingard v. State, 13 Ga. 396; Com. v. Lavery, 101
Mass. 207; Covy v. State, 4 Port (Ala.) 186. In Massachusetts, howeveri
It has been said that in indictments for capital offenses the strictness of re-
quiring the indictment to lay the offense, not only in a certain county, but also
in a cettain town, has always been there adhered to, and in favor of life
the court perhaps would not feel authorized to depart from the ancient rule.
Com. V. Inhabitants of Springfield, 7 Mass. 9.
53 Rex V. Wardle, Russ. & R. 9.
5 4 Com. V. ToUiver, 8 Gray (Mass.) 386.
55 state V. Lamon, 3 Hawks (N. C.) 175; Carlisle v. State, 32 Ind. 55. Con-
tra, Com. V. Inhabitants of Springfield, 7 Mass. 19.
56 Rex V. Bullock, Moody, Crown Cas. 324, note; People v. Honeyman, 3 •
Denio (N. Y.) 121; Haskins v. People, 16 N. Y. 344; Com. v. Lavery, 101 Mass.
207.
o' state V. Smith, 5 Har. (Del.) 490.
is Covy V. State, 4 Port. (Ala.) 186; Wingard v. State, 13 Ga. 396. Riot,
Barnes v. State, 5 Yerg. (Tenn.) 186. Fornication and bastardy, Fleikes v.
Com., 26 Pa. St. 513.
69 Post, p. 347.
6 0 1 Chit. Cr. Law, 200.
250 PLEADING THE ACCUSATION. [Ch. 7
what particular part of it, is insufficient. It states no offense, for
they may, for all that appears, have been kept in a place where
they were not prohibited.'^
Again, there are offenses which, though they may be committed
in different parts of the county, can only be committed in relation
to property which has a fixed location. This property must be
described in stating the offense, and its location must be stated,
not as venue, however, but by way of description. By the weight
of authority, burglary and house breaking,*^ arson,"' statutory lar-
cenies from a shop, warehouse, dwelling house, etc.,°* nuisances
with respect to highways,"" such as failure to repair highways,"
and, according to some of the cases, other nuisances,*'' including
the keeping of a disorderly house, and similar offenses," desecra-
tion of, disfiguring, and other offenses in relation to cemeteries,"
being found armed in a close at night,'" etc., — are offenses of this
character. Place must be stated, not as venue but as matter of
local description. As we shall see, the particular locality must not
only be stated, but, being stated by way of local description, and
not as venue, it must be proved as stated.'^
As already stated, if the jurisdiction of the court does not extend
over the whole county, then the place where the offense was com-
mitted must in all cases be more particularly alleged, for the indict-
•1 State V. Turnbull, 78 Me. 1, 6 Atl. 1.
«2 Rex V. Bullock, Moody, Crown Gas. 324, note; Reg. v. St. John, 9 Car.
& P. 40. But see State v. Meyers (Wash.) 36 Pac. 1051.
83 Rex V. Woodward, Moody, Crown Cas. 323; People v. Slater, 5 Hill (N.
Y.) 401. Contra, State v. Meyers (Wash.) 36 Pac. 1051.
84 Rex V. Napper, 1 Moody, Crown Cas. 44; People v. Honeyman, 3 Denio
CN. Y.) 121.
8 5 Rex V. White, 1 Burrows, 333.
80 Com. V. Inhabitants of North Brookfield, 8 Pick. (Mass.) 462; Rex v.
Great Canfield, 6 Esp. 136; Rex v. Marchioness Dowager, 4 Adol. & E. 232;
Rex V. Inhabitants of St. Weonard's, 6 Car. & P. 582.
8T Com. V. Heffron, 102 Mass. 148; Cornell v. State, 7 Baxt (Tenn.) 520.
But see, contra, State v. Sneed, 16 Lea (Tenn.) 450, 1 S. W. 282; State v.
Jacobs, 75 Iowa, 247, 39 N. W. 293.
88 state V. Nixon, 18 Vt. 70; Com. v. Logan, 12 Gray (Mass.) 136.
e» 1 Chit. Cr. Law, 201; Com. v. Wellington, 7 Allen (Mass.) 300.
'0 Rex V. Ridley, Russ. & R. 515.
71 Post, p. 348.
Oh. 7] REPEATING TIME AND PLACE '.'THEN AND THEBE." 251
ment must show on its face that the offense was committed within
the jurisdiction of the court. ''^
If the indictment fails to allege that the offense was committed
in the county in which it was found and in which the trial is had,
the defect is fatal, for the court acquires no jurisdiction; and the
objection may, therefore, be raised at any time. It is not a defect
that can be aided by verdict or judgment.'^ The same is true
where the place is stated with repugnancy or uncertainty.''* If,
for Instance, two places are named, and afterwards a fact is laid
as having happened "then and there," the indictment is bad, because
it is uncertain to which it refers.'"' So it is, also, where an indict-
ment lays an offense at B. "aforesaid," when B. has not been pre-
viously mentioned;^' or where an indictment for murder lays the
stroke in one county, and the death in another, and concludes that
so the accused murdered the deceased in the former county.''^
The words "from" and "into" are construed in an exclusive sense.
Thus an allegation from H. "into" G. has been held to exclude the
latter place, and the words "to and from the town of B." have been
held to exclude that town itself* The questions of repugnancy
and of variance between the allegation and proof with respect to
place are elsewhere considered.'"
REPEATING TIME AND PLACE— " THEN" AND THEBE."
97. The statement of time and place should be repeated
to every issuable and triable fact. It may be so repeated
by using the words "then and there."
T2 Note 45, supra.
78 Rex v. Cartwright, 4 Term R. 490; Rex v. Mathews, 5 Term R. 162;
Rex V. Harris, 2 Leach, Crown Cas. 800; People v. Gregory, 30 Mich. 371.
Cases cited in note 41, supra, and in the succeeding notes.
1* 2 Hawk. P. C. c. 25, § 83; Jane v. State, 3 Mo. 45.
"62 Hale, P. C. 180; Cases cited in note 47, supra.
76 Cholmley's Case, Cro. Car. 465; Wingfield's Case, Cro. Eliz. 739; 2 Hawlj.
P. O. c. 25, § 83; Com. v. Pray, 13 Pick. (Mass.) 359.
77 2 Hawk. P. C. c. 25, § 83; Hume v. Ogle, Cro. Eliz. 196.
7 8 2 RoUe, Abr. 81; Rex v. Inhabitants of Gamlingay, 3 Term R. 513; Ham-
mond V. Brewer, 1 Burrows, 376; State v. Bushey, 84 Me. 459, 24 Atl. 940;
State V. Landry, 85 Me. 95, 26 Atl. 998.
78 Post, p. 346; ante, p. 171.
252 PLEADING THE ACCUSATION. [Ch. 7
Tn general, the place ought not merely to be mentioned at the be-
ginning of the indictment, or in connection with the first allegation
of fact, but it should be repeated to every issuable and triable fact;
and the same is true of time, for, as a rule, wherever a venue is
necessary, time should be united with it.'" The mere conjunction
"and" will in many cases be insufficient to apply previous state-
ments of time and place to an allegation following it. In an
indictment for robbery, for instance, it has been held that it is
not suflScient to allege that the accused made an assault on the
person robbed at a certain time and place, and took the property
from him ; but the taking must also be alleged to have been at that
time and place.*^ And in an indictment for murder it has been
held that it is not sufficient to allege that the accused, at a certain
time and place, made an assault on the deceased, and feloniously
struck him, but the time and place must be repeated to the stroke.'^
In an indictment for homicide it is not sufficient merely to state
the day and place of the stroke, but the day and place of the death
must also be stated, so that it may appear that the death was within
a year and a day of the stroke, and within the jurisdiction of the
court.*' And an indictment for a rescue must show the year and
day both of the arrest and the rescue.'*
In indictments for misdemeanors there is not the same strictness-
in requiring repetition of time and place as there is in cases where
the life or liberty of the prisoner is in danger. "* Thus, where a
mere trespass was charged, it was held sufficient to state that the
80 Rex V. Hollond, 5 Term R. 620; State v. Bacon, 7 Vt. 219; Crichton v.
People, 6 Parker, Or. R. (N. Y.) 363; Rex v. Haj-nes, 4 Maule & S. 214; State
V. Welker, 14 Mo. 398; State v. Beckwith, 1 Stew. (Ala.) 318; Roberts v. State,
19 Ala. 526; State v. Lyon, 45 N. J. Law, 272.
81 2 Hale, P. C. 178; 2 Hawk. P. C. c. 23, § 88; Wingfield's Case, Cro. Ellz.
739; State v. WiUls, 78 Me. 70. But see Com. v. Bugbee, 4 Gray (Mass.) 206.
82 2 Hale, P. C. 178, 180; 2 Hawk. P. O. c. 23, § 88. But see Com. v. Barker,.
12 Cush. (Mass.) 186.
S3 2 Hale, P. 0. 179; 2 Hawk. P. C. c. 25 § 77; Ball v. U. S., 140 U. S. 118,
11 Sup. Ct. 761; State v. Orrell, 1 Dev. (N. C.) 139; State v. Blakeney, 33-
S. C. Ill, 11 S. E. 637; ante, p. 239. But see Davidson v. State, 135 Ind. 254,
34 N. E. 972; Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122.
84 2 Hawk. P. O. c. 25, § 77.
SB 1 Chit. Cr. Law, 221; 2 East, P. C. 780; 2 Hale, P. 0. 178: Chamling-
ton's Case, Cro. Jac. 345.
Ch. 7] REPEATING TIME AND PLACE "THEN AND THEEE." 253
accused, at a certain place and time, made an assault on the prose-
cutor, and beat him, without saying that he beat him at that time
and place, because the time and place mentioned in the beginning
refer to all subsequent averments.*' In some states the rule has
been disregarded even in cases of felony; *'' and under statutes pro-
viding that it shall be suflScient if the indictment contain the charge
against the accused expressed in a plain, intelligible, and explicit
manner, it has been held that the strict rule of the common law
does not apply.**
In repeating the place it is not necessary to repeat the whole
description. Where the town and county, for instance, have once
been mentioned, it will be sufficient to afterwards use the words
"at [the town] aforesaid." *° And the same is true in re-
peating time. And generally, after the time and place have once
been named with certainty in the statement, it is sufficient to after-
wards refer to them by the words "then and there," which will have
the same effect as if the time and place were repeated in full.*"
An indictment for murder, for instance, instead of alleging that the
accused, "on the day of , A. D. 1895, at , in the
county of , made an assault, and on the day of ,
A. D. 1895, at in the county of , feloniously struck" the
deceased, may allege, after stating the assault, that he "then and
there struck," etc. This, of course, cannot apply where two times
or places have been previously mentioned, because it would be
86 2 Hale, P. C. 178; Stout v. Com., 1 Serg. & R. (Pa.) 127. And in an in-
dictment for a forcible entry it is enough to state that the accused entered
and dispossessed, without a second statement of time and venue. Baude's
Case, Cro. Jac. 41.
87 Com. V. Bugbee, 4 Gray (Mass.) 206; Com. v. Barker, 12 Ciish. (Mass.)
186; State v. Price, 11 N. J. Law, 210.
88 State V. Cherry, 3 Murph. (N. C.) 7.
89 People V. Baker, 100 Cal. 188; 34 Pac. 649.
90 2 Hale, P. C. 178; 1 Chit. Cr. Law, 220; 2 Hawk. P. 0. c. 25, § 78; Id.
c. 23, § 88; Jacobs v. Com., 5 Serg. & R. 315; State v. Cotton, 4 Post (N. H.)
143; Stout V. Com., 11 Serg. & R. (Pa.) 177; State v. Johnson, 1 Walk. (Miss.)
392; State v. Ferry, 61 Vt 624, 18 Atl. 451; State v. Bacon, 7 Vt. 219; State
V. Bailey, 21 Mo. 484; State v. Williams, 4 Ind. 235; Davidson v. State, 135
Ind. 254, 34 N. E. 972; State v. Blakeney, 33 S. C. Ill, 11 S. S. 637; Palmer
V. People, 138 lU. 356, 28 N. E. 130.
254 PLEADING THE ACCUSATION. [Ch. 7
uncertain to which the words referred.*^ Nor can it apply where
it is necessary to show the particular act to hare been done, not
merely on the day named before, but at a certain time of that day.'*
The word "immediately" is too uncertain an allegation when time
constitutes part of the offense, and therefore, where, on an indict-
ment for robbery, the special verdict found the assault, and then
in a distinct sentence that the prisoners then and there immediately
took up the prosecutor's money, this was held to be insufficient to
fix the prisoners with the offense of robbery, because of the great
latitude of the word "immediately." "^ Nor is the word "instantly"
or "whilst" equivalent to the words "then and there." ** And it is
said that the word "being" (existens) will, unless necessarily con-
nected with some other matter, relate to the time of the indictment,
rather than of the offense. It was therefore held that an indict-
ment alleging a forcible entry on land "being" the prosecutor's free-
hold, without saying "then being," was insufficient. "^
If the indictment allege that the defendant feloniously and of
malice aforethought made an assault, and with a certain sword,
etc., then and there struck, the previous omission will not be mate-
rial; for the words "feloniously and of malice aforethought," pre-
viously connected with the assault, are by the words "then and
there" sufficiently applied to the murder.®* In a Massachusetts
case, an indictment for manslaughter, which, after averring an
»i 2 Hale, P. O. 180; Jane v. State, 3 Mo. 45; Connor v. State, 29 Fla. 455,
10 South. 891; State v. McCracken, 20 Mo. 411; State v. Hayes, 24 Mo. ^o6;
Com. V. Goldstein, 114 Mass. 272; State v. Jackson, 39 Me. 291; Bell v. Com.,
8 Grat. (Va.) 600.
82 Thus, in an indictment on a statute for having in possession 10 or more
counterfeit bank bills, it is necessaiy to show that the defendant had them
in his possession at the same time of the day, and an averment that he
had them In his possession on the same day is not sufficient. Edwards v.
Com., 19 Pick. (Mass.) 124.
•a 1 Chit. Cr. Law, 220; Rex v. Francis, 2 Strange, 1015.
9* Reg. V. Brownlow, 11 Adol. & E. 119; Reg. v. Pelham, 8 Q. B. 959; Lester
V. State, 9 Mo. CG6; State v. Lakey, 65 Mo. 217.
SB 1 Chit. Cr. Law, 220; Rex v. Ward, 2 Ld. Raym. 1467; Bridge's Case,
Cro. Jac. 639. But see Rex v. Boyall, 2 Burrows, 832.
86 1 Chit. Cr. Law, 220; Heydon's Case, 4 Coke, 41b; 1 East, P. 0. 346;
Buckler's Case, 1 Dyer, 69a.
Ch. 7] HEPEATING TIME AND PLACE — "THEN AND THEEB." 255
assault at a certain time and place, alleged tliat the accused then
and there struck the deceased, "giving" him a mortal wound, etc.,
was held sufficient."^ In some cases the words "then and there"
are even more certain than a repetition of the day and year, for
the latter will not be sufficient where, in order to complete the
offense, connected acts must be shown to have been done at the
same time, but the terms "then and there" must be used."* Repeti-
tion of time and place in different counts is elsewhere considered."
»7 Turns v. Com., 6 Mete. (Mass.) 224.
»s 1 Chit Cr. Law, 221; Rex v. Williams, 1 Leach, Crown Oas. 529; Com.
V. Butterick, 100 Mass. 12; Com. v. Goldstein, 114 Mass. 2T2.
»» Ante, p. 142; post, p. 298.
256 PLEADING THE ACCUSATION. [^Ch. 8
CHAPTER Vm.
PliEADING— THE ACCUSATION (Continued).
98. Indictments on Statutes.
INDICTMENTS ON STATUTES.
98. An indictment based on a statute is subject to the
following rules:
(a) It is generally subject to the rules already stated
as applying to indictments at common law.
(b) It need not recite the statute upon which it is
founded.
(c) It must state all the facts and circumstances
w^hich go to make up the offense as defined in
the statute, so as to bring the defendant pre-
cisely -within it; and the fact that it concludes
"contra formam statuti" w^ill not aid a defect
in this respect.
{d) The exact offense defined in the statute must be
described with precision and certainty, and it is
therefore generally necessary to use the tech-
nical terms employed in the statute. Where,
how^ever, the offense may be exactly described
by other expressions they may be used. It is
al^ways safer to follow^ the language of the stat-
ute.
(e) It is not alw^ays sufficient merely to follow^ the
language of the statute, ■vrithout more. It will
be sufficient to do so if the indictment will
thereby comply with rule (c) above stated, and
will state the particulars of the offense suffi-
ciently to meet the requirement of certainty,
but not otherwise.
Ch. 8] INDICTMENTS ON STATUTES. 257
(f) Where the statute on ■which an indictment is
founded, or some other statute, contains excep-
tions or provisos, which are not so connected
with the clause defining the offense, generally
called the "enacting clause," that they are a
part of the description of the offense, it is not
necessary to negative them; but it is otherwise
if they are so connected with that clause, either
by being contained in it, or by being made a
part of it by reference.
In treating of indictments founded on a statute, we shall only
show the cases in which they differ from indictments at common
law, and mention those rules which are peculiar to them. Gen-
erally the rules which we have discussed as applicable to indict-
ments at common law also apply to indictments on statutes.
Reciting or Referring to the Statute.
An indictment on a public statute need never recite the statute,
— ^that is, state its date, title, contents, etc., — or by any other express
reference show the particular statute upon which it is based, for
the court is bound to take judicial notice of all public statutes;
and, as we have seen, it is never necessary to state facts of which
the court must take judicial notice.^ By recital of a statute is
meant stating its contents, quoting it, referring to it by its title,
etc. The statute must be counted upon, and must be pleaded;
but this is very different from reciting it. By saying that the
statute must be counted upon, we mean that the indictment must
purport to be based upon it. This is done, as we shall see, by
simply stating in the conclusion of the indictment that the offense
was committed "contra formam statuti," or, as it is now generally
expressed, "contrary to the form of the statute in such cases made
and provided." ^ By saying that the statute must be pleaded, we
lAnte, p. 165; 2 Hale, P. C. 172; 2 Hawk. P. C. c 25, § 100; Reg. v. Pugh,
6 Mod. 140; Farr v. East, Cro. Bliz. 186; Vander v. Griffith, Id. 23G; Com.
V. Griffin, 21 Pick. (Mass.) 523; Com. v. Colton, 11 Gray (Mass.) 1; U. S. v.
Nickerson, 17 How. 204; Com. v. Hoye, 11 Gray (Mass.) 462; Rex v. Sutton,
4 Maule & S. 542.
2 Poet, p. 309.
CBIM.PKOC. — 17
258 PLEADING THE ACCUSATION. [Ch, 8
mean simply that the indictment must state the facts necessary
to bring the case within the statute, not that it must expressly
refer to the statute. If the indictment does recite the statute, and
counts upon that particular statute, as by concluding "contrary to
the form of said statute," a variance will be fatal if it is material,
though not if it is immaterial; but if it concludes, "contrary to
the form of the statute in such case made and provided," omitting
any reference to the recital, the recital may be rejected as surplus-
age, and a variance will be disregarded.^ If a statute, though
unnecessarily recited, is so misrecited as to make it senseless, as
where it is referred to as an act entitled an act concerning the
manufacture and sale of "spritious and intoxitating" liquor, the
indictment will be bad.* If, in any case, an indictment can be
founded on a private statute, it must set out the act specially,
since the court can take judicial notice of public acts only.'
It is never necessary to indicate in the indictment the particular
statute, or section of the statute, on which it is founded. It is
only necessary to set out such facts as bring the case within the
provisions of some statute which was in force when the act was
done, and when the indictment was found ; and if the facts properly
laid in the indictment, and found by the verdict, show that the
act done was a crime punishable by any statute, it is sufficient to
warrant the court in rendering judgment."
Where by different statutes, or by different sections of the same
statute, there is a gradation of offenses of the same species, as in
the various degrees of punishment annexed to the offense of
malicious burning of buildings, or in the various grades of the
offense of larceny, it is not necessary to set forth a negative allega-
tion that the case is not embraced in some other statute or section
8 2 Hale, P. C. 172, 173; 2 Hawk. P. O. c. 25, § 104; Piatt v. Hill, 1 Ld.
Raym. 382; Rex v. Hill, Cro. Car. 232; Rex v. Marsack, G Term R. 773; Peo-
ple V. Walbridge, 6 Cow. (N. Y.) 512; Reg. v. Westley, Bell, Crown Cas. 193;
Com. V. Burke, 15 Gray (Mass.) 408; note 4, infra,
* Com. V. , 6 Gray (Mass.) 489; Murray v. Fitzpatrick, 3 Calnes (N.
Y.) 38.
0 1 Chit Cr. Law, 277; 2 Hale, P. C. 172; 2 Hawk. P. C. c. 25, § 103; Goshen
& S. Turnpike Co. v. Sears, 7 Conn. 92; State v. Cobb, 1 Dev. & B. (N. 0.)
115.
• Com. V. Grlffln, 21 Pick. (Mass.) 523; Com. v. Thompson, 108 Mass. 461.
Ch. 8] INDICTMENTS ON STATUTES. 259
than that which, upon the evidence, may be found to apply, and
by virtue of which the punishment is to be imposed.' So if certain
acts are by force of the statute made punishable with greater
severity when accompanied with certain aggravating circumstances,
thus creating two grades of crime, it is no objection to an indict-
ment that it charges the acts which constitute the minor offense,
unaccompanied by any averment that the aggravating circum-
stances did not exist. In such cases the offense charged is to be
deemed the minor offense, and punishable as such.' On this prin-
ciple jt has been held that, where there are two statutes, one
punishing the offense of breaking in the nighttime into an oflftce
adjoining a dwelling house, and the other that of breaking in the
nighttime into an office not adjoining a dwelling house, each im-
posing a similar punishment, it is not necessary to state in the
indictment whether or not the office was adjoining a dwelling
house.'
In no case is it necessary to state the time when the statute
was enacted so that it may appear on the face of the indictment
that it was enacted before the offense was committed. This is
also a matter of which the court will take judicial notice.^'
Description of the Offense.
It is the rule that all indictments upon statutes must state all
the facts and circumstances which go to make up the offense as
defined in the statute, so as to bring the defendant precisely within
it. "I take it for a general rule," it is said by Hawkins, "that,
unless the statute be recited, neither the words 'contra formam
statuti' nor any periphrasis, intendment, or conclusion will make
good an indictment, which does not bring the fact prohibited or
commanded, in the doing or not doing of which the offense con-
sists, within all the material words of the statute." ^^ Offenses
7 Lamed v. Com., 12 Mete. (Mass.) 241; Com. v. Squire, 1 Mete. (Mass.) 258.
State v. Kane, 63 Wis. 260, 23 N. W. 488; Com. v. Thompson, 108 Mass. 461.
8 Lamed v. Com., supra; Com. v. Cox, 7 Allen (Mass.) 577.
» Larned v. Com., supra. And see Com. v. Hamilton, 15 Gray (Mass.) 480;
State V. Kane, 63 Wis. 260, 23 N. W. 488. But see Rex v. Marshall, 1 Moody,
Crown Cas. 158.
10 Reg. V. Westley, Bell, Crown Cas. 193; Com. v. Keefe, 7 Gray (Mass.)
332; People v. Reed, 47 Barb. (N. Y.) 235; post, p. 261.
11 2 Hawk. P. C. c. 25, § 110; 2 Hale, P. C. 170; 2 East, P. C. 985; Brown
260 PLEADING — THE ACCUSATION. [Gh. 8
created by statute, as well as offenses at common law/'' must be
accurately and clearly described in the indictment. It is a uni-
versal rale that no indictment, whether at common law or under
a statute, can be good if it does not accurately and clearly allege
all the ingredients of which the offense is composed.^ ^
Thus, under a statute making the failure to sound the whistle
or ring the bell upon a locomotive, as it approaches a highway
crossing, a public offense, an indictment charging that a railroad
company "did unlawfully fail and neglect to ring the bell and
sound the whistle," is bad, since it charges a failure to do both
acts, when either one of them would have been a compliance with
the law.^* An indictment under a statute for violation of a
written contract to serve as a laborer must set out the contract,
and show that it was of such a character as that described in the
statute.^"
So, where a man was indicted for robbery "in a certain king's
footway leading from London to Islinton," he was admitted to the
benefit of clergy, because the statute which took it away from the
crime described the place as "in" or "near a king's highway." ^'
And, where a statute provided that if any person "shall, with any
offensive weapon or instrument, unlawfully and maliciously assault,
or shall by menaces, or in or by any forcible or violent manner,
demand any goods or chattels, he shall be adjudged guilty of
felony," it was held not enough to state an assaulting and men-
acing with intent to rob, but that it must be alleged either that
the assault was made with an offensive weapon, or that money
or goods were demanded.^' And an indictment is bad if it charges
the defendant with killing deer in a certain place where they are
V. Com., 8 Mass. 65; State v. Kansas City, S. & M. Ey. Co., 54 Ark. 546, 16
S. W. 567; State v. O'Bannon, 1 BaUey (S. C.) 144; State v. Bagwell, 107 N.
C. 859, 12 S. E. 254; UpdegrafC v. Com., 6 Serg. & R. (Pa.) 5; GUes v. State,
.89 Ala. 50, 8 South. 121; State v. Jacksoa, 43 La. Ann. 183, 8 South. 440.
12 Ante, p. 153.
IS D. S. V. Cook, 17 Wall. 168.
1* State V. Kansas City, S. & M. E. Co., 54 Ark. 546, 16 S. W. 567.
15 State V. Williams, 32 S. C. 123, 10 S. E. 870.
18 1 Chit. Cr. Law, 282; FuUambe's Case, Moore, 5; 1 Hale, P. C. 535.
17 1 Chit. Cr. Law, 282; Eex v. Thomas, 1 Leach, Crown Cas. 330; 1 East,
P. C. 419.
Ch. 8] INDICTMENTS ON STATUTES. 261
usually kept, without describing the place as "inclosed," as in the
statute; ^^ or with unlawfully killing fish, without adding, as in
the statute, "without the consent of the owner of the water;" ^*
or with having a gun in his house, when the words of the statute
are, "use to keep a gun in his house;" ^° or with insuring a ticket
in the lottery without saying "the state lottery." ^^
Where the scienter, or knowledge of particular facts, is by the
statute expressly or impliedly made an essential ingredient of the
offense, it must always be expressly alleged in the indictment.''^
"Where a general word is used, and afterwards more special
terms, defining an oflfense, an indictment charging the offense
must use the most special terms; and if the general word is used,
though it would embrace the special term, it is inadequate." ''^
If a statutory offense is correctly described in the indictment
in the words of the statute, or their equivalent, or if the acts con-
stituting it are stated, the indictment will not be vitiated by the
fact that a name is given to the offense which is technically wrong,
for the name may be rejected as surplusage.^*
It is said by Chitty that where the statute is recent it is usual
to allege expressly that the offense was committed after the making
of the statute, but where the statute is ancient this is not usual;
and, he adds, it does not seem to be necessary in any case."* It is
IS Reg. V. Moore, 2 Ld. Eaym. 791.
i» Rex V. Mallinson, 2 Burrows, 679.
20 Rex V. Lewellin, 1 Show. 48.
21 Rex V. Trelawney, 1 Term R. 222.
2 2 Ante, p. 192; Gatewood v. State, 4 Ohio, 386.
asWhart. Cr. PI. & Prac. § 223; State v. Bryant, 58 N. H. 79; State v.
Raiford, 7 Port. (Ala.) 101; Rex v. Cook, 1 Leach, 105; State v. Plunket, 2
Stew. (Ala.) 11; ante, pp. 159, 161. "When a statute uses a nomen generalis-
slmum as such (e. g. cattle), then a particular species can be proved; but
when the statute enumerates certain species, leaving out othess, then the
latter cannot be proved under the nomen generalissimum, unless it appears
to have been the intention of the legislature to use it as such." Whart. Cr.
PI. & Prac. § 237; Rex v. Welland, Russ. & R. 494; Rivers v. State, 10 Tex.
App. 177.
24 U. S. v. Elliot, 3 Mason, 156, Fed. Cas. No. 15,044; U. S. v. Lehman, 39
Fed. 768; State v. Shaw, 35 Iowa, 575; State v. Davis, 41 Iowa, 311; State
V. Wyatt, 76 Iowa, 328, 41 N. W. 31; ante, p. 181.
2B 1 Chit. Or. Law, 285.
262 PLEADING THE ACCUSATION. [Ch. 8
now well settled that it is not necessary."' The indictment, as we
have seen, should state the time of the offense, and it would not
do for the time to be laid prior to the enactment of the statute,
for it would then appear on the face of the indictment that the
act was not prohibited when committed. Where a particular
time is limited for the prosecution, the indictment, as we hare seen,
need not expressly allege that the prosecution was commenced
within that period, but this should appear on the face of the pro-
ceedings.^' If the indictment shows on its face that the prosecu-
tion is barred, by the weight of authority, it is bad.**
Necessity to Follow Language of Statute,
It is generally necessary, subject to exceptions which we shall
explain, not only to set forth all the facts and circumstances which
go to make up the offense as defined in the statute, but also to
pursue the precise and technical language of the statute in which
they are expressed. If the words are technical, and have no equiv-
alent, it is well settled that no other words can be substituted
for them, for no others are exactly descriptive of the offense."
28 Ball V. Cobus, 1 Burrows, 366; State v. Chandler, 2 Hawks (N. O.) 439;
ante, p. 259.
27 Lee V. Clarke, 2 East, 333; Eex v. Steventon, Id. 302.
2 8 Ante, p. 240.
2 8 1 Chit Cr. Law, 283; 2 Hale, P. C. ITO; 2 Hawk. P. C. c. 25, § 110; Rex
V. Johnson, 2 Leach, Crown Cas. 1107; U. S. v. Bachelder, 2 Gall, 15, Fed
Cas. No. 14,490; U. S. v. Lancaster, 2 McLean, 431, Fed. Cas. No. 15,556; U.
S. V. Britton, 107 U. S. 655, 2 Sup. Ct 512; U. S. v. Staats, 8 How. 41; Com.
V. Twitchell, 4 Cush. (Mass.) 74; Com. v. Burlington, 136 Mass. 435; State
V. Brown, 4 Port. (Ala.) 410; State v. Brilly, 8 Port. (Ala.) 472; Mason v.
State, 42 Ala, 543; Com. v. Walters, 6 Dana (Ky.) 291; Com. v. Turner, 8
Bush (Ky.) 1; Respublica v. Tryer, 3 Yeates (Pa.) 451; Hamilton v. Com.,
3 Pen. & W. 142; UpdegrafC v. Com., 6 Serg. & R. (Pa.) 5; State v. Shuler,
19 S. C. 140; State v. Casados, 1 Nott & McC. (S. C.) 91; State v. Raines, 3
McCord (S. C.) 533; Chambers v. People, 4 Scam. (111.) 351; Whiting v. State,
14 Conn. 487; State v. Cady, 47 Conn. 44; State v. Rougher, 3 Blackt (Ind.)
308; State v. Rust, 35 N. H. 438; State v. Keneston, 59 N. H. 36; State v.
Perkins, 63 N. H. 368; People v. Allen, 5 Denio (N. Y.) 76; Phelps v. People,
72 N. Y. 334; People v. West, 106 N. Y. 293, 12 N. E. 610; State v. Stanton,
1 Ired. (N. C.) 424; Ike v. State, 23 Miss. 525; State v. Hover, 58 Vt.
496, 4 Atl. 226; Sharp v. State, 17 Ga. 290; Jackson v. State, 76 Ga. 551;
Com. V. Hampton, 3 Grat. (Va.) 590; Howel v. Com., 5 Grat. (Va,) 664; State
C'h. 8] INDICTMENTS ON STATUTES. 263
So an indictment for rape must use the word "ravished," contained
in the statute, and no expression of force and carnal knowledge
will supply its omission.'" And, by the better opinion, an indict-
ment under a statute using the word "willfully" or "maliciously"
or "wantonly," or two or more of such terms, in defining the offense,
must also use the same term or terms, though at common law that
precise term is not necessary, but may be supplied by others con-
veying the same idea.'^ The term "maliciously" will not supply
the place of the term "willfully," or the term "wantonly," used in
a statute to define an offense.' '^ So, if the term "unlawfully" ia
used in a statute to define the offense, it is, by the weight of
opinion, absolutely essential to use it in an indictment thereon."
All that is required in any indictment, whether under a statute
or at common law, is that it shall describe the offense with suffi-
cient certainty, as we have explained that termj that it shall
state everything necessary to constitute the offense, and state it
with certainty. To do this, technical words used in the statute
to describe the offense must be used in the indictment. This is
the reason, and the only reason, why the technical language of
the statute must be followed. If it were necessary to use the exact
language of the statute, other than the technical terms, in order to
V. Buster, 90 Mo. 514, 2 S. W. 834; State v. Davis, 70 Mo. 467; Kinney v.
State, 21 Tex. App. 348, 17 S. W. 423; People v. Murray, 67 Cal. 103, 7 Pac.
178; People v. Burk, 34 Cal. 661.
8 0 2 Hawk. P. G. c. 23, §§ 77, 110.
31 2 Hale, P. C. 87; 2 Hawk. P. C. c. 25, § 110; 3 Inst. 167; Rex v. Davis, 1
Leach, Crown Cas. 493; Lembro & Hamper's Case, Cro. Eliz. 147; Anon., Id.
201; Roberts v. Trenayne, Cro. Jac. 508; U. S. v. Bachelder, 2 Gall. 15, Fed.
Cas. No. 14,490; State v. Parker, 81 N. C. 548; State v. Massey, 97 N. C.
465, 2 S. E. 445; State v. Morgan, 98 N. C. 641, 3 S. B. 927; State v. Gove,
34 N. H. 510; State v. Nickleson, 45 La. Ann. 1172, 14 South. 134. But see,
contra, Chapman v; Com., 5 Whart (Pa.) 427; State v. Brown, 41 La. Ann.
345, 6 South. 541.
32 Rex V. Davis, 1 Leach, Crown Cas. 492; 1 Bast, P. C. 412. And see the
cases above cited.
88 2 Hawk. P. C. c. 25, § 96; Rex v. Ryan, 2 Moody, Crown Cas. 15; Rex
V. Turner, 1 Moody, Crown Cas. 239; Com. v. Twitchell, 4 Cush. (Mass.) 74.
Contra, where there is a statute providing that the words of a statute defin-
ing the offense need not be strictly followed. Davis v. People, 151 U. S. 262,
14 Sup. Ct. 328.
264 PLEADING THE ACCUSATION. [Ch. 8
fully and certainly describe the offense as defined in the statute,
then it would be necessary to use it; but this is not always the
case. Technical terms must generally be used, because no other
terms exactly express their meaning. Other expressions need not
necessarily be followed with verbal accuracy. If the words sub-
stituted for them express the same meaning, and are an exact
equivalent, they are sufficient.'* It has been held, for instance,
that in an indictment against an accessory before the fact in murder
the words "excite, procure, and move" were equivalent to "com-
mand, hire, or counsel," which were used in the statute." So,
in an indictment for obtaining money by false pretenses, it is not
necessary to allege, as in the statute, that the defendant "falsely
pretended," but it may be alleged that he pretended, and then that
the pretenses were false.^° And under a statute punishing the
disinterment and removal of "the remains of any dead person" it
is sufficient to charge disinterment and removal of "the dead body
of" a person named.* ^ And an indictment may use the word
"violently" instead of "forcibly," as in the statute.'*
We have already seen that where a statute employs a general
term, and afterwards more special terms, defining the offense, an
indictment which uses the general term only is bad, though in its
meaning it comprehends the special term.*°
While, as we have seen, it is not always absolutely necessary to
follow the exact language of the statute in describing the offense,
8 4 U. S. V. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490; State v. Little, 1 Vt
331; Rex v. Fuller, 1 Bos. & P. 180; State v. Hickman, 8 N. J. Law, 299;
TuUy V. People, 67 N. Y. 16; State v. Fames, 39 La. Ann. 986, 3 South. 93;
People V. Enoch, 13 Wend. (N. Y.) 172; State v. McGaffin, 36 Kan. 315, 13
Pac. 560; State v. Keen, 34 Me. 500; Eckhardt v. People, 83 N. Y. 462; Wil-
liams V. State, 64 Ind. 553; State v. Welch, 37 Wis. 196; McCutcheon v.
People, 69 IlL 601; State v. Shaw, 35 Iowa, 575; State v. De Lay, 30 Mo.
App. 357; State v. Watson, 65 Mo. 115; Roberts v. State, 55 Miss. 421; State
V. Thome, 81 N. C. 558. It is sufficient to charge shooting "on" a highway,
instead of "in" a highway. Woods v. State, 67 Miss. 575, 7 South. 495.
36 1 Hale, P. C. 521, 522; McDaniel's Case. Fost. Crown Cas. 130; 1 And.
195.
S8 Rex V. Alrey, 2 East, 30; Rex v. Perrott, 2 Maule & S. 379.
87 state V. Little, 1 Vt 331.
8 8 U. S. V. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490.
89 Ante, pp. 161, 223; note 23, sipra.
Ch. 8] INDICTMENTS ON STATUTES. 265
it is always safer to do so, for by substituting other words and
plirases there is danger of failing to describe the offense by em-
ploying terms which the court may not deem equivalent to those
used in the statute. A few illustrations will show how great this
danger is. An indictment charging that the defendant had posses-
sion of tools for the purpose of counterfeiting current silver coins
"of this state and of the United States" was held bad because
the statute used the words, "which shall be made current by the
laws of this or the United States," since "money may be current
in the United States that is not made so by any law." *° And an
indictment charging the defendant to have caused a vessel to sail
away, with intent that she "should be employed" in the slave
trade, was held bad because the statute used the words "with
intent to employ," which import an intent on the defendant's part
to employ her, whereas an intent that she should be employed by
a third person would come within the indictment.*^ So, where a
statute punished as a felony the shooting at a person "willfully
and maliciously," and the indictment used the words, "unlawfully,
maliciously, and feloniously," it was held bad.*^
When Sufficient to Follow Language of Statute.
It is often said, and sometimes without qualification, that an
indictment on a statute is sufficient if it sets out the offense in the
language of the statute; but this is by no means true in all cases,
for the rule that an indictment must state all the facts necessary
to constitute the offense, and must state them with certainty, ap-
plies to indictments on statutes as well as to indictments at com-
mon law. There is no exception to this rule, nor, under most of
our constitutions, can there be any; and any rule that may be laid
down in the text-books, or opinions of the judges, must be taken
to be subject to it.** "It is an elementary principle of criminal
*o state v. Bowman, 6 Vt. 594.
<i U. S. V. Gooding, 12 Wheat. 460.
*2 Kex V. Davis, 1 Leach, Crown Cas. 493.
*3 1 Chit. Or. Law, 275; 2 Hawk. P. 0. c. 25. §§ 99, 111; Com. v. Pray, 13
Pick. (Mass.) 359; State v. Benjamin, 49 Vt. 101; State v. Bennett (Mo. Sup.)
11 S. W. 264; Com. v. Clifford, 8 Cnsh. (Mass.) 215; Com. v. Barrett, 108
Mass. 303; U. S. v. Britten, 107 U. S. 655, 2 Sup. Ct 512; Com. v. Bean, 11
Cush. (Mass.) 414; State v. Goulding, 44 N. H. 284; Com. v. Bean, 14 Gray
266 PLEADING THE ACCUSATION. [Ch. 8
pleading that where the definition of an offense, whether it be at
common law or by statute, 'includes generic terms, it is not sufficient
that the indictment shall charge the offense in the same generic
terms as in the definition; but it must state the species, — ^it must
descend to particulars.' " **
Under a statute punishing any person "who shall act as the
agent of any other person or persons for the sale of intoxicating
liquors," it is not sufiScient merely to follow the language of the
statute, for this would leave the indictment uncertain. The in-
dictment must go further, and name the person for whom the
defendant acted, or aver that his name is unknown.*" So, also, an
indictment under a statute, for disturbing a family by offensive
conduct, must allege what constituted the offensive conduct, and
not merely follow the language of the act; ** and indictments
under the statutes punishing the obtaining of money by false tokens
or false pretenses must always set out the particular false tokens
or pretenses used.*^ And under a statute making it a crime to
break open, or to counsel, aid, or assist in breaking open, any jail
or place of confinement, it certainly would not be enough to follow
the words of the statute, without specifying how the defendant
aided or assisted, or what counsel he gave.** And an indictment
alleging in the words of a statute that the defendant did knowingly
aid a person named in procuring intoxicating liquor, to be dis-
posed of for other purposes than those recognized as lawful by the
laws of the state, is bad for not setting out the facts, and for not
alleging that the defendant knew that the liquor was to be dis-
s.) 52; U. S. v. Goggin, 9 Biss. 269, 1 Fed. 49; Com. v. Clark, 6 Grat.
(Va.) 675; Com. v. Stout, 7 B. Mon. (Ky.) 248; TJ. S. v. Hess, 124 U. S. 488,
8 Sup. Ct 571; Whiting v. State, 14 Comi. 487; State v. Bierce, 27 Gomi. 319;
Lagrone v. State, 12 Tex. App. 426; Com. v. Milby (Ky.) 24 S. W. 625; ante,
pp. 141, 159.
<4 u. S. V. Cruikshank, 92 U. S. 542; Com. v. Chase, 125 Mass. 202; Hex
V. Chalkley, Russ. & R. 258.
<5 State V. Hlggins, 53 Vt. 191.
<8 Finch V. State, 64 Miss. 461, 1 South. 630.
4T 2 East, P. C. 837; Rex v. Mason, 1 Leach, Crown Cas. 487, 2 Term B.
581; Rex v. Munoz, 2 Strange, 1127; Rex v. Perrott, 2 Maule & S. 379,
*8 State v. Benjamin, 49 Vt 101.
Ch. 8] INDICTMENTS ON STATUTES. 267
posed of for an unlawful purpose, and for not alleging what that
purpose was.*"
Sometimes the words used on indictment may not convey the
same idea as was intended to be conveyed by exactly the same
words in the statute on which it is founded, and further allegations
will be necessary for this reason."" A city by-law punished any
person having the care of certain cattle who should "permit or
suffer the same to go at large or stop to feed on any street" within
the city. A complaint thereon alleged that the defendant, having
the care of two cows, "did permit and suffer the same to stop and
feed" in certain streets, and it was held insufficient. "The offense,"
it was said, "is charged nearly in the words of the by-law. But
it is not always sufficient to charge the offense in the words of the
statute. We are first to ascertain by a careful examination of the
statute what act the legislature had in view, and intended to make
penal, and then see if that act, thus ascertained, is charged in the
complaint or indictment. If there is nothing in the context, or in
other parts of the statute, or in statutes in pari materia, to control
or modify the sense and meaning of the terms in which the offense
is defined, then it may be presumed that the terms in the complaint
are used in the same sense with those in the statute, and what-
ever that prohibits the complaint charges. In such case the
offense may be described and charged in the words of the statute;
otherwise it may be necessary to frame the complaint in such terms
as to designate the offense intended with precision. The effective
words declaring the penalty in this law are, 'no owner or person
having the care of any cows,' etc., 'shall permit or suffer the same
to stop to feed in the public streets.' But in looking at the
enumeration, it is, 'any horses, cows, or other grazing animals.'
Then upon the ordinary rule of construction, taking the whole
clause together, it is manifest that it was intended to prohibit
cattle to go at large in the streets, or to stop to feed in the streets,
by grazing, by permitting them to stop for the purpose of feeding
on the grass growing in the street. If this is the act prohibited,
BO In addition to the cases hereafter referred to, see Com. v. Collins, 2 Cush.
(Mass.) 556; State v. Griffin, 89 Mo. 49, 1 S. W. 87; Com. v. Slack, 19 Pick.
(Mass.) 304; State v. Turnbull, 78 Me. 392, 6 Atl. 1.
268 PLEADING THE ACCUSATION. [Ch. S
and the offense intended by the by-law to be punished, the com-
plaint, we think, should in some form charge that the accused
suffered and permitted his cows to stop on their way for the pur-
pose of feeding. But this complaint does not so charge. Suppose
the defendant had suffered his cows to eat grain from a trough or
bucket standing in the street named. Such an act would be within
the words of this complaint, but not the offense prohibited by thi»
by-law." "
And in another case, an indictment charging, in the language of
the statute, the malicious breaking of glass "in a certain building,"^
without stating that tihe glass was a part of the building, was held
bad, because from the context of the statute it was evident that it
was only intended to punish the brealdng of glass which was in a
building in the sense of being a part of the building.""
As a general rule, if every allegation in an indictment may be
taken t6 be true, and yet the defendant be guilty of no offense,
then the indictment is insufScient, though it follows the very words-
of the statute.^* Of course, this rule must be taken subject to the
rules that facts necessarily implied need not be stated, and mat-
ters of defense need not be negatived.'*
Often the statute does not set out the facts and circumstances
necessary to constitute the crime for which it prescribes a punish-
ment, but merely describes it by its common-law name, as "murder,"^
"rape," "larceny," "burglary," "robbery," etc. An indictment based
upon the statute must therefore describe the offense as at common
law. It is not enough to charge it simply in the language of the
statute."" Thus, under a statute punishing any person who "shall
by force or violence, or by assault and putting in fear, feloniously
rob, steal, and take from the person of another any money," etc., an
indictment must, instead of merely following the language of the
Bi C!om. V. Bean, 14 Gray (Mass.) 52.
B! Com. V. Bean, 11 Gush. (Mass.) 414.
B3 Com. V. Harris, 13 Allen (Mass.) 539.
»* See Jones v. Reg., Jebb & B. 161.
05 Reg. V. Nott, 4 Q. B. 783; Reg. v. Powner, 12 (3ox, Gr. Gas. 235; Tully^
V. Gom., 4 Mete. (Mass.) 358; State v. Simpson, 73 N. G. 269; State v. Hig-
gins, 53 Vt. 191; State v. Absence, 4 Poi-t. (Ala.) 397; State v. Stedman, T
Port (Ala.) 495; Bates v. State, 31 Ind. 72; Gom. v. Stout, 7 B. Mon. (Ky.>
247; Davis v. State, 39 Md. 355.
Ch. 8] INDICTMENTS ON STATUTES. 269
statute, allege that the money was the property of the person robbed,
or of some third person, and that it was carried away by the
defendant; since these facts are necessary to constitute the offense
intended to be punished. The statute does not set forth, nor is it
intended to set forth fully, directly, and expressly, all that is
necessary to constitute the offense."
It is sufficient to pursue the very words of the statute if, by
doing so, the act in the doing of which the offense consists is fully,
directly, and expressly alleged, without any uncertainty or am-
biguity. In many cases no allegation of anything more than the
words of the statute ex vi terminorum import is necessary in order
to show that the defendant has committed the offense, and to
charge the offense with certainty. Here it is always sufficient to
charge the offense in the words of the statute.^' The indictment is
sufficient in these cases, not merely because it uses the words of
the statute, but because, in using those words, it states everything
necessary to constitute the offense, and states it with sufficient cer-
tainty. Thus, under a statute declaring it an offense to "keep a
house of ill fame, resorted to for the purpose of prostitution or
lewdness," it was held sufficient to follow the language of the stat-
ute, without further alleging, according to precedents, that the house
was resorted to by divers citizens, men as well as women, and that
the defendant kept and maintained said house for her own lucre
and gain.^^ So, where a statute punishes "every person, who shall
willfully and maliciously administer poison" to any horse, the lan-
guage of the statute is sufficient, because those words ex vi termi-
norum import all that is necessary to a legal description of the
offense. It need not be further averred that the poison was ad-
ministered with intent to kill or injure the horse, or with any
0 6 Com. V. Clifford, 8 Cush. (Mass.) 215. But see Rex v. Rosslter, Jebb,
Crown Gas. 50.
67 2 Hawk. P. 0. c. 25, § 111; Com. v. Ashley, 2 Gray (Mass.) 357; U. S. v.
Mills, 7 Pet 142; People v. Taylor, 3 Denio (N. Y.) 91; People v. West, 106
N. X. 293, 12 N. E. 610; State v. Click, 2 Ala. 26; State v. Scribaer, 2 Gill
& J. (Md.) 246; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Kesslering, 12
Mo. 565; Com. v. Hai-ris, 13 Allen (Mass.) 534; HufCman v. Com., 6 Rand.
(Va.) 685; U. S. v. Gooding, 12 Wbeat. 460; State v. Lockbaum, 38 Conn. 400;
State V. Jackson, 39 Conn. 229.
0 8 Com. v. Ashley, 2 Gray (Mass.) 356.
270 PLEADING THE ACCUSATION. [Ch. 8
other intent than the words "willfully and maliciously" import, nor
that the horse was injured or killed.""
Where several circumstances are mentioned disjunctively in a
statute, any one of which is sufficient to constitute the offense, it is
sufficient, following the language <it the statute, to charge them
disjunctively in the indictment Thus, in an indictment for rob-
bery, it is sufficient to allege that it was committed "in or near" a
highway, as in the statute. ""
NegaMving Exceptions and Provisos.
We come now to treat of the necessity to negative in an indict-
ment exceptions or provisos '^ contained in the statute on which it
is founded, or in some other statute which applies to the offense.
As we have seen, the indictment must state everything necessary
to make out the offense.®^ This rule admits of no departure from
it, and if, therefore, a statutory oiiense cannot be correctly de-
scribed without negativing an exception or proviso, then such a
negative is necessary. "Offenses created by statute, as well as
offenses at common law, must be accurately and clearly described
in an indictment; and if they cannot be in any case without an
allegation that the accused is not within an exception contained in
the statute defining the offense, it is clear that no indictment
founded upon the statute can be a good one which does not con-
tain such an allegation, as it is universally true that no indictment
is sufficient if it does not accurately and clearly allege all the in-
gredients of which the offense is composed." °' On the other hand,
Bs Com. V. Brooks, 9 Gray (Mass.) 302.
8 0 1 Hale, P. G. 535; 2 East, P. 0. 785. As to this matter, see ante, p. 169.
61 "Doubtless ihei-e is a technical distinction between an exception and a
proviso, as an exception ought to be of that which would otherwise be in-
cluded in the category from which it is excepted; and the office of a proviso
is either to except something from the enacting clause, or to qualify or re-
strain its generality, or to exclude some ground of misinterpretation of it, as
extending to cases not intended to be brought within its operation. But there
are a great many examples where the distinction is disregarded, and where
the words are used as if they were of the same signification." U. S. v. Cook,
17 Wall. 168, citing Gurley v. Gurley, 8 Clark & F. 764; Minis v. U. S., 15
Pet 445.
82 Ante, p. 153.
•3 U. S. V. Cook, 17 Wall. 168.
Ch. 8] INDICTMENTS ON STATUTES. 271
as we have seen, an indictment need not anticipate and negative
matters of defense, for they must come from the defendant.'* By
force of these two rules, the rule of pleading as regards the nega-
tiving of exceptions and provisos contained in a statute is as
follows:
Where the statute on which an indictment is founded, or some
other statute, contains exceptions or provisos which are not so
incorporated with the clause or clauses of the statute which define
the offense that they enter into the description of the offense, and
cannot be separated from it, it is not necessary to state in the
indictment that the defendant does not come within the exceptions,
or to negative the provisos, for the offense can be accurately and
clearly described without doing so. "A prima facie case is stated,
and it is for the party for whom matter of excuse is furnished by
the statute to bring it forward in his defense." *'
Where, however, the exceptions are themselves stated in the
clause which defines the offense, and, in addition to this, are so
incorporated with it that one cannot be read without the other, or
if, even when contained in a subsequent clause, section, or statute,
they are clothed in such language, and so incorporated with the
words used to define the offense, that they become a part of the
definition, then it is necessary to negative them in order that the
description of the offense in the indictment may correspond with the
description in the statue.'"
84 Ante, p. 166.
6 5 Com. V. Hart, 11 Cush. (Mass.) 130; 2 Hawk. P. C. c. 25, § 112; 2 Hale,
P. C. 171; Rex V. Pemberton, 2 Burrows, 1035; Rex v. Bryan, 2 Strange,
1101; Rex v. Baxter, 5 Term R. 83; Gee Wo v. State, 36 Neb. 241, 54 N. W.
513; Com. v. Jennings, 121 Mass. 47; People v. Jefferson, 101 N. X. 19; Hew-
itt V. State, 121 Ind. 245, 23 N. E. 83; Matthews v. State, 2 Yerg. (Tenn.) 233;
Com. V. Shannihan, 145 Mass. 99, 13 N. E. 347; State v. Adams, 6 N. H. 533;
Com. V. Hill, 5 Grat (Va.) 682; Carson v. State, 69 Ala. 235; State v. Som-
mers, 3 Vt. 156; Barber v. State, 50 Md. 170; Swartzbaugh v. People, 85 111.
457; Beasley v. People, 89 111. 571; State v. Jackson, 1 Lea (Tenn.) 680; State
v. O'Brien, 74 Mo. 549; Kopke v. People, 43 Mich. 41, 4 N. W. 551; Nelson
V. U. S., 30 Fed. 112; Harding v. People, 10 Colo. 387, 15 Pac. 727; State v.
Maddox, 74 Ind. 105.
6 8 Com. v. Hart, supra; 2 Hale, P. C. 170; Rex v. Jarvis, 1 Burrows, 148;
Steel V. Smith, 1 Bam. & Aid. 99; Gee Wo v. State, 36 Neb. 241, 54 N. W.
513; Com. V. Maxwell, 2 Pick. (Mass.) 141; Him v. State, 1 Ohio St 15; Com.
272 PLEADINCS THE ACCUSATION. [Ch. 8
''Text writers and courts of justice have sometimes said that, if
the exception is in the enacting clause, the party pleading must
show that the accused is not within the exception; but, where the
«xception is in a subsequent section or statute, that the matter-
contained in the exception is matter of defense, and must be shown
by the accused." Undoubtedly that rule will frequently hold
good, and in many cases prove to be a safe guide in pleading, but it
is clear that it is not a universal criterion, as the words of the
statute defining the offense may be so entirely separable from the
•exception that all the ingredients constituting the offense may be
accurately and clearly alleged without any reference to the excep-
tion.^' Cases have also arisen, and others may readily be supposed,
where the exception, though in a subsequent clause or section, or
■even in a subsequent statute, is nevertheless clothed in such lan-
guage, and is so incorporated as an amendment with the words
antecedently employed to define the offense, that it would be impos-
sible to frame the actual statutory charge in the form of an indict-
ment with accuracy and the required certainty, without an allega-
tion showing that the accused was not within the exception con-
tained in the subsequent clause, section, or statute. Obviously,
such an exception must be pleaded, as otherwise the indictment
would not present the actual statutory accusation, and would also
be defective for the want of clearness and certainty."" * • ♦
■Commentators and judges have been sometimes led into error by
supposing that the words 'enacting clause,' as frequently employed,
mean the section of the statute defining the offense, as contradis-
tinguished from a subsequent section in the same statute, which is
a, misapprehension of the term, as the only real question in the
v. Thurlow, 24 Pick. (Mass.) 374; Com. v. Jennings, 121 Mass. 47; Reynolds
V. State, 2 Nott & McG. (S. C.) 3G5; Jefferson v. People, 101 N. Y. 19; State
V. Munger, 15 Vt. 290; Carson v. State, 69 Ala. 235; Matthews v. State, 2
Yerg. (Tenn.) 233; Barber v. State, 50 Md. 170; State v. Webster, 10 N. J.
Law, 293; Beasley v. People, 89 111. 571; State v. Bloodworth, 94 N. C. 919;
Jensen v. State, 60 Wis. 577, 19 N. W. 374; State v. O'Brien, 74 Mo. 549;
People V. Telford, 56 Mich. 541, 23 N. W. 213; State v. Meek, 70 Mo. 355;
■State V. Narrows Island Club, 100 N. 0. 477, 5 S. E. 411.
67 See U. S. V. Nelson, 29 Fed. 202; Bell v. State (Ala.) 15 South. 557.
«8 Citing Com. v. Hart, 11 Cush. (Mass.) 132.
«9 Citing State v. Abbey. 29 Vt. 66; 1 Bish. Cr. Proc. (2d Ed.) § 639, note 3.
Ch. 8] INDICTMENTS ON STATUTES. 273
case is whether the exception is so incorporated with the substance
of the clause defining the offense as to constitute a material part
of the description of the acts, omission, or other ingredients which
constitute the offense. Such an offense must be accurately and
clearly described, and, if the exception is so incorporated with the
clause describing the offense that it becomes in fact a part of the
description, then it cannot be omitted in the pleading; but, if it is
not so incorporated with the clause defining the offense as to be-
come a material part of the definition of the offense, then it is a
matter of defense, and must be shown by the other party, though it
be in the same section, or even in the succeeding sentence." ''"
Whether, therefore, exceptions in a statute are to be negatived
in pleading, or whether they are a mere matter of defense, depends
upon their nature, and not upon their location with reference to
the enacting clause.'^ "In saying that an exception must be nega-
tived when made in the enacting clause, reference is not made to
sections of the statute, as they are divided in the act; nor is it
meant that, because the exceptions are contained in the section
containing the enactment, it must for that reason be negatived.
This is not the meaning of the rule. The question is whether the
exception is so incorporated with, and becomes a part of, the enact-
ment, as to constitute a part of the definition or description of the
offense; for it is immaterial whether the proviso be contained in
the enacting clause or section, or be introduced in a different
manner. It is the nature of the exception, and not its location,
which deterniines the question. Neither does the question depend
upon any distinction between the words 'provided' or 'except' as
they may be used in the statute. In either case, the only inquiry
arises whether the matter excepted, or that which is contained in
the proviso, is so incorporated with, as to become, in the manner
above stated, a part of the enacting clause. If it is so incorporated,
it should be negatived; otherwise it is a matter of defense." ''^
In an indictment, for instance, under a statute declaring that the
TO u. S. V. Cook, 17 Wall. 168.
Ti State V. Abbey, 29 Vt. 60; U. S. v. Cook, supra; State v. O'Donnell, 10
R. I. 472; State v. Rush, 13 R. I. 198; State v. Walsh, 14 R. I. 507; and cases
above cited.
72 State V. Abbey, supra.
CRIM.PKOa— 18
274 PLEADING THE ACCUSATION. [Ch. 8
receiver of stolen goods shall be liable as for a misdemeanor if the
principal be not taken, it is not necessary to allege that the prin-
cipal has not been taken." So, under a statute in the time of
Queen Elizabeth, punishing persons for not going to church, "hav-
ing no reasonable excuse to be absent," it was held unnecessary to
negative the existence of an excuse, since this was matter of de-
fense.'^ And under a statute providing in the enacting clause
that no person shall sell intoxicating liquors "without being duly
authorized," and in a subsequent clause stating, "provided, that noth-
ing in this act shall be construed to prevent the manufacture or sale
of cider for other purposes than that of a beverage, or the sale
and use of the fruit of the vine for the commemoration of the Lord's
supper," and in another section providing that the act shall not ap-
ply to the importation of liquor in original packages, it would be
necessary to allege that the defendant was not authorized to make
the sales with which he is charged, but it would not be necessary to
allege that the liquors were not imported in original packages, or
that they were not cider for other purposes than a beverage, or
were not the fruit of the vine for commemoration of the Lord's
supper.'*
On the other hand, in an indictment under a statute which pro-
vided that if any person should take, receive, pay, or put off any
counterfeit milled money, or any milled money whatsoever unlawful-
ly diminished, "and not cut in pieces," for a lower rate than its
nominal value, he should be guilty of a felony, it was held necessary
to state that the money was not cut in pieces." It would also be
necessary to state that the money was milled money. So, where a
statute provides that "no person shall do any manner of labor,
business, or work, except only work of necessity or charity, on the
Lord's day," or that "no person shall travel on the Lord's day, ex
cept from necessity or charity," the exception must be negatived.
"Here the exception is in the enacting clause, and that clause can-
not be read without reading the exception. In an indictment on
7 8 Rex V. Taylor, 2 M. Raym. 1370. And see Rex v. Baxter, 5 Term R.
83, 2 Leach, Crown Cas. 578.
74 2 Hawk. P. 0. c. 25, § 112.
'6 Com. V. Hart, 11 Cush. (Mass.) 130; Com. v. Byrnes, 126 Mass. 248.
'6 Rex V. Palmer, 1 Leach, Crown Cas. 102.
Ch. 8] INDICTMENTS ON STATUTES. 275
either of these sections it is doubtless necessary to negative the ex-
ception, otherwise the case provided for is not made out. Labor
or traveling merely is not forbidden, but unnecessary labor and
traveling, and labor and traveling not demanded by charity. The
absence of necessity and charity is a constituent part of the acts
prohibited, precisely as if the statute had, in totidem verbis, for-
bidden unnecessary labor and traveling, and labor and traveling not
demanded by charity." ^^ So, also, an indictment under a statute
making it unlawful to catch certain kinds of lobsters, and requiring
them, if caught, to be liberated alive, under a certain penalty for
each lobster "so caught * * * or in possession not so liber-
ated," must negative that the lobsters were liberated alive.^* And
under a statute making it unlawful to remove buildings from land
on which there is an unsatisfied mortgage, without first obtaining
permission from the mortgagee, an indictment must negative such
permission."*
The word "except," as will have been seen from these Ulustrar
tions, is not necessary in the statute in order to constitute an ex-
ception within the rules stated. The words "unless," "other than,"
"not being," "not having," etc., have the same legal effect, and re-
quire the same form of pleading.'"
It has been said that it is not necessary to negative exceptions
and provisos simply because the purview or enacting clause ex-
pressly notices them.'^ This is sometimes — perhaps generally —
true/'' but it is not necessarily so.°^ The contrary has also been said
TT Com. V. Hart, 11 Gush. (Mass.) 135. But under a statute prohibiting the
keeping open of a shop on Sunday, and malsing, in a separate section, cer-
tain exceptions to the general provision, an indictment need not negative the
exceptions. Com. v. Shannihan, 145 Mass. 99, 13 N. E. 347.
T8 state V. Trefethen (Me.) 8 Atl. 547.
70 State V. Declier, 52 Kan. 193, 34 Pac. 180. And see Blackman v. State,
98 Ala. 77, 13 South. 316.
80 Com. V. Hart, 11 Gush. (Mass.) 136; Gill v. Scrivens, 7 Term R. 27;
Spieres v. Parker, 1 Term R. 141; Rex v. Palmer, 1 Leach, Crown Gas. 120;
Com. V. Maxwell, 2 Pick. (Mass.) 139; State v. Butler, 17 Vt. 145.
81 1 Chit Cr. Law, 283.
82 2 Hawk. P. 0. c. 25, § 113; Steel v. Smith, 1 Bam. & Aid. 94; Ward v.
Bird, 2 Chit. 582; Com. v. Tuttle, 12 Gush. (Mass.) 502; Hart v. Gleis, 8 Johns.
(N. Y.) 41; Com. V. Jennings, 121 Mass. 47; Fleming v. People, 27 N. Y. 330;
State v. Abbey, 29 Vt. 60.
83 Eex V. Pratten, 6 Term K. 559; Vavasour v. Ormrod, 9 Dowl. & R. 597.
276 PLEADING THE ACCUSATION. [Ch. 8
to be tiie rule. "There is a middle class of cases," said the Massa-
chusetts court, "namely, where the exception is not, in express
terms, introduced into the enacting clause, but only by reference
to some subsequent or prior clause, or to some other statute, as when
the words 'except as hereinafter mentioned,' or other words re-
ferring to mat'ter out of the enacting clause, are used. The rule ta
these cases is that all circumstances of exemption and modifica-
tion, whether applying to the offense or to the person, which are
incorporated by reference with the enacting clause, must be dis-
tinctly negatiyed. 'Verba relatur inesse videntur.' " ** But neither
is the rule thus stated necessarily true. Indeed, it is generally other-
wise.*" Each case must be determined by applying the rule here-
tofore stated, and will depend upon whether because of the lan-
guage, or otherwise, the exception enters into and becomes a part
of the definition of the offense.'^
When Indictment Professedly on a Statute is Good at Common Law.
It was at one time held that where an indictment was professedly
framed upon a statute, and concluded contra formam statuti, if it
was insuflScient, under the statute, for failure to charge the statutory
offense with accuracy, it could not be maintained at common law; "
but it is now well settled that the conclusion may be rejected as sur-
plusage, and that, where the indictment upon the facts stated may
be supported at common law, judgment may be giyen against the
defendant for the common-law offense.*' It may be, howerer, that
the common law is altogether superseded by the statute, so that the
offense can no longer be punished except under the statute.*'
8* Com. V. Hart, 11 Gush. (Mass.) 137.
80 Note 83, supra; Com. t. Jennings, 121 Mass. 47.
«« Ante, p. 273.
8T 1 Chit. Cr. Law, 2S6.
88 1 Chit Cr. Law, 286; 2 Hale, P. C. 191; 2 Hawk. P. C. c. 25, § 115; Ben-
net V. Talbot, 1 Salk. 212, 213, 1 Ld. Raym. 149; Rex v. Mathews, 5 Term
R. 162, 2 Leach, Crown Cas. 585; Reg. v. Wlgg, 2 Salk. 460, 2 Ld. Raym.
1163; Rex v. Harris, 4 Term R. 202; Com v. Hoxey, 16 Mass. 385; Haslip
V. State, 4 Hayw. (Tenn.) 273; People v. Enoch, 13 Wend. (N. Y.) 159; State
V. Phelps, 11 Vt 116; Gregory v. Com., 2 Dana (Ky.) 417; Davis v. State,
3 Har. & J. (Md.) 154; State v. Buckman, 8 N. H. 203; Southworth v. State,
5 Conn. 325; Kilbourn v. State, 9 Conn. 560.
89 Clark, Cr. Law, 29, 30.
Ch. 8] INDICTMENTS ON STATUTES. ' 277
Conclitsion of Indictment — Statute or Common Law.
We shall in another place consider the conclusion of indictments
based upon statutes,'" and the question whether an indictment must
count upon a statute or be based upon the common law.*^
»o Post, p. 309. »i Post, p. 31L
278 PLEADING THE ACCUSATION. [Ch. 9
CHAPTER IX.
PLEADING— THE ACCUSATION (Continued).
99-103. Duplicity.
104-110. Joinder of Counts— Election.
111-113. Joinder of Parties.
114. Conclusion of Indictment.
115-116. Amendment.
117. Aider by Verdict
118. Formal Defects Cured by Statute.
DUPLICITY.
99. Duplicity is the joinder of two or more offenses in
the same count.
100. A count is not double because it charges more acts
than one, or acts -with respect to more persons than one,
if such acts -were all part of the transaction constituting
the offense charged.
101. Nor is a count double where it charges, in addi-
tion to the specific act, aggravating circumstances, which
merely affect the penalty.
lOS. Nor is a count double where one of the offenses is
insufficiently charged.
103. Allegations which may be rejected as surplusage
do not render a count double.
The question of duplicity is often treated with joinder of counts,
under the head of "Joinder of Offenses," but this is confusing.
And there are judgments of the courts in which the joinder of
offenses in separate counts of an indictment is spoken of as
duplicity. This is wrong. Duplicity is the joinder of more than
one offense in the same count. The term does not apply to several
counts, each of which charges only one offense, however distinct
the offenses may be. An indictment consisting of a single count,
Ch. 9] DUPLICITY. 279
charging that the defendant robbed and then murdered a person
would be bad for duplicity, but an indictment charging the murder
in one count and the robbery in another would not. There would
be a misjoinder of counts, but no duplicity, as that term is used
in the law.
It is well settled that an indictment is bad on motion to quash
or demurrer if it charges more than one offense in a single count,
even though the offenses are of the same nature, and arise out of
the same facts. ^ An indictment charging in the same count two
distinct offenses, descriljed in two distinct sections of a statute,
and for which distinct and different fines are provided, is bad for
duplicity. It was so held where an indictment charged in the same
count the offense of rudely behaving in a house of public worship,
which offense was defined in one section of a statute, and made
punishable by a fine of not more than forty nor less than five
shillings, and the interruption of public worship, which another
section of the statute made punishable by a fine of not more than
ten pounds, nor less than twenty shillings.^
And since, under a statute prohibiting the sale of intoxicating
liquors each sale is a separate offense, an indictment charging sev-
eral sales, or laying a sale with a continuando, is bad for duplicity.'
This rule does not prevent the charging in one count of more acts
than one, or of acts with respect to more persons than one, if such
acts were all part of the transaction constituting the offense
1 Com. v. Symonds, 2 Mass. 163; State v. Nelson, 8 N. H. 163; State v. Smith,
61 Me. 386; People v. Wright, 9 Wend. (N. Y.) 193; Miller v. State, 5 How.
(Miss.) 250; Heineman v. State, 22 Tex. App. 44, 2 S. W. 619; State v. Haven,
59 Vt. 399, 9 Atl. 841; People v. Jackman, 96 Mich. 269, 55 N. W. 809; Peo-
ple v. Parker, 67 Mich. 222, 34 N. W. 720.
2 Com. V. Symonds, 2 Mass. 163. So where one section of a statute pun-
ished any person who should, by application to a woman, of any means, pro-
cure an abortion, and another section punished as an accomplice any person
who should furnish the means for procuring an abortion, an indictment char-
ging that the defendant furnished to A., a pregnant woman, an instrument for
the purpose, on A.'s part, of procuring an abortion of herself therewith, etc.,
and did, by means of such instrument, procure an abortion of A., was held
bad for duplicity. Wandell v. State (Tex. Or. App.) 25 S. W. 27.
a People v. Hamilton (Mich.) 59 N. W. 401. It would seem, however, that
the continuando might be rejected as surplusage (ante, p. 241), in which case
the defect would be cured (post, p. 345).
280 PLEADING THE ACCUSATION. [Ch. 9
charged.* "Where two crimes are of the same nature, and neces-
sarily so connected that they may, and, when both are committed,
must, constitute but one legal offense, they should be included in
one charge." ' Familiar examples of these are assault and battery
and burglary. 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 vice versa. They may,
therefore, be charged as one offense.* So, in burglary, the break-
ing and entering with intent to commit a felony, and the actual
commission of the felony, — larceny, for instance, — ^may be charged
in the same count. The jury may convict of the burglary, or may
acquit of the burglary and convict of the larceny, but they cannot
convict of the burglary and larceny as two distinct offenses. The
latter is merged in the former, and they constitute but one offense.''
* Barnes v. State, 20 Conn. 232; State v. Palmer, 35 Me. 9; Farrell v. State,
54 N. J. Law, 416, 24 Atl. 723; Francisco v. State, 24 N. J. Law, 30; Jillard
V. Com., 26 Pa. St. 169; State v. Hodges, 45 Kan. 389, 26 Pac. 676; State v.
Parker, 42 La. Ann. 972, 8 South. 473; State v. Baldwin, 79 Iowa, 714, 45 N.
W. 297; State v. Stout, 112 Ind. 245, 13 N. E. 715; Early v. Com., 86 Va. 921.
11 S. E. 795.
5 Com. V. Tuck, 20 Pick. (Mass.) 360.
« Com. V. Tuck, supra; Bull. N. P. 15; Com. v. Eaton, 15 Pick. (Mass.) 275.
And see State v. Inskeep, 49 Ohio St. 228, 34 N. E. 720. But an indictment
charging an assault and battery and an aggravated assault with a dangerous
weapon with intent to do great bodily harm was held bad. State v. Marcks,
3 N. D. 532, 58 N. W. 25.
7 Com. v. Tuck, supra; Com. v. Hope, 22 Pick. (Mass.) 1; Jennings v. Com.,
105 Mass. 587; Rex v. Withal, 1 Leach, Crown Cas. 102; Reg. v. Bowen, 1
Denison, Crown Cas. 28; Speers v. Com., 17 Grat. (Va.) 570; Vaughan v. Com.,
Id. 576; State v. Johnson, 3 Hill (S. C.) 1; State v. Brady, 14 Vt. 353; Breese
V. State, 12 Ohio St. 146; Walker v. State, 97 Ala. 85, 12 South. 83; Parris
V. Com., 90 Ky. 637, 14 S. W. 681; Turner v. State, 22 Tex. App. 42, 2 S. W.
619; Becker v. Com. (Pa. Sup.) 9 Atl. 510. A general verdict of guilty is
a conviction of the burglary, and judgment may be entered for that offense.
On the other hand, on such a verdict, the prosecuting attorney may enter a
nolle prosequi on so much of the indictment as charges the breaking and en-
tering, and the defendant may be sentenced for the larceny. Jennings v.
Com., supra. In a late case, under a statute declaring that the indictment
must charge but one offense, ^e North Dakota court held that an indictment
charging burglary and larceny was bad as charging more than one offense.
State V. Smith (N. D.) 52 N. W. 320.
Ch. 9] DUPLICITY. 281
The same principle applies to statutory breakings. An indictment
charging the breaking and entering of a shop or other building, or
railroad car, etc., with intent to steal, is not bad for duplicity
because it also charges an actual dealing.'
Nor is an indictment double because it charges both conspiracy
and the overt act.°
A charge of an assault and battery on two or more different
persons is not double.^" And if a person assaults two persons,
and robs one of them of one shilling, and the other of two shillings,
at the same time, he may be charged in the same count with the
assault upon and the robbery of both of them.*^
There is no duplicity in a count which charges the same offense
to hare been committed by differejit methods or means; ^^ nor in
a count for libel on several persons by the same publication;^'
nor, by the weight of authority, in a count for the larceny of several
articles from the same person, or even different persons, at the
same time and place; ^* nor in a count for the unlawful sale of
liquor to several persons at the same time and place.^"
8 Com. V. Tuck, supra. And see Aiken v. State (Neb.) 59 N. W. 888; State
V. Crawford, 38 S. C. 330, 17 S. E. 36.
» Hoyt V. People, 140 111. 588, 30 N. E. 315; State v. Grant, 86 Iowa, 216,
53 N. W. 120; Anthony v. Com., 88 Va. 847, 14 S. E. 834.
10 Rex v. Benfield, 2 Burrows, 980 (overruling Rex v. Clendon, 2 Ld. Raym.
1572); Com. v. McLaughlin, 12 Cush. (Mass.) 619; Com. v. O'Brien, 107 Mass.
208; Anon., LofCt, 271.
11 Steph. Dig. Cr. Proa 153; Reg. v. Giddins, Car. & M. 634.
12 Com. V. Brown, 14 Gray (Mass.) 419; Thomas v. State (Tex. Cr. App.)
26 S. W. 724; State v. McDonald, 67 Mo. 13; Heath v. State, 91 Ga. 12G, 16
S. E. 657; State v. O'Neil, 51 Kan. 651, 33 Pac. 287; People v. Casey, 72 N.
Y. 393. Charge of use of different means in committing abortion. Com. v.
Brown, supra. The different means so charged must not render the indict-
ment repugnant. State v. O'Neil, supra. If they are inconsistent, different
counts should be used. Post, p. 287.
18 Rex v. Jenour, 7 Mod. 400; Rex v. Benfield, 2 Burrows, 983; Tracy v.
Com., 87 Ky. 578, 9 S. W. 822.
14 Com. v. Williams, 2 Gush. (Mass.) 588; State v. Stevens, 62 Me. 284; State
V. Cameron, 40 Vt. 555; State v. Williams, 10 Humph. (Tenn.) 101; State v.
10 State V. Bielby, 21 Wis. 206; State v. Boughner (S. D.) 59 N. W. 736;
State V. Anderson, 3 Rich. (S. C.) 172. But see Com. v. Holmes, 119 Mass.
198.
282 PLEADING THE ACCUSATION. [Ch. 9
The rule was applied in Massachusetts to an indictment charging
an offer to sell, and an actual sale of, a lottery ticket, either of
which acts was made an offense by statute. "It is true," it was
said, "that an offer to sell, without selling, a ticket, is an offense
by the statute; but an offer to sell and actually selling is but one
offense. A sale ex vi termini includes an offer to sell." ^' So,
where an indictment charged the defendants with singing and pub-
lishing divers scandalous, obscene, and libelous songs, the court
held that but one offense was charged; that, though the publishing
of any one of the songs would have been an offense, several being
published at the same time constituted but one offense.^^ And
in an indictment for libel the defendant may be charged in one
count with writing, publishing, and causing to be published a
libel."
If, therefore, an offense, whether it be a statutory or a common-
law offense, is cumulative with respect to the acts done, although
any one of those acts may be sufScient to constitute the crime, the
cumulative offense may be charged.^' Under this rule, a com-
plaint'alleging that the defendant permitted swine "to go upon
Hennessey, 23 Ohio St. 339; State v. Wagner, 118 Mo. 626, 24 S. W. 219; Lor-
ton V. State, 7 Mo. 55. Some courts hold that it is otherwise if the articles
are charged to have been stolen from difEerent persons. State v. Thurston, 2
McMulL (S. C.) 382; Com. v. Andrews, 2 Mass. 409; State v. Newton, 42 Vt
537. But see, contra. State v. Nelson, 29 Me. 329; State v. Hennessey, 23 Ohio
St. 339; Ben v. State, 22 Ala. 0; Lorton v. State, 7 Mo. 55; State v. Mor-
phln, 37 Mo. 373; State v. Merrill, 44 N. H. 624; State v. Warren, 77 Md. 121,
26 Atl. 500; Fisher v. Com., 1 Bush (Ky.) 212; State v. Egglesht, 41 Iowa,
574; Fulmer's Case, 97 Ta. St. 503; State v. Ward, 19 Nev. 297, 10 Pac. 133;
Alexander v. Com (Va.) 20 S. E. 782; People v. Johnson (Mich.) 45 N. W.
1119; State v. Smith (Ohio Com. PI.) 23 Wkly. Law Bui. 85. If the articles
are charged to have been stolen at different times, the count is bad for du-
plicity. State V. Newton, 42 Vt. 537.
IS Com. V. Eaton, 15 Pick. (Mass.) 273.
IT Rex V. Benfield, 2 Burrows, 980.
18 Rex V. Home, Cowp. 672.
10 State V. Haney, 2 Dev. & B. (N. C.) 403; State v. Nelson, 29 Me. 329;
State v. Matthews, 42 Vt 542; State v. Conner, 30 Ohio St. 405; Hoskins v.
State, 11 Ga. 92; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Com. v.
Hall, 4 Allen (Mass.) 305; State v. Murphy, 47 Mo. 274; Hinkle v. Com., 4
Dana (Ky.) 518; State v. Wood, 14 R. I. 151; State v. Murphy, 17 R. I. 098,
24 Atl. 473.
Ch. 9] DUPLICITY. 283
and injure" the sidewalks in violation of a city by-law forbidding
any person to permit swine "to go upon any sidewalk in the city,
or otherwise occupy, obstruct, injure, or incumber any such side-
walk," was sustained against objection for duplicity.^" And,
under a statute prescribing a punishment for any person who
should "willfully destroy, deface, or injure" a register of baptisms,
etc., it was decided that a single oiiense only was charged in an
indictment which alleged that the defendant willfully destroyed,
defaced, and injured such a register."^ So, under a statute pre-
scribing a punishment for every person who should "buy, receive,
or aid in the concealment of any stolen money, goods, or property,
knowing the same to have been stolen," it was held that an indict-
ment which alleged that the defendant did buy, receive, and aid in
the concealment of certain enumerated goods, knowing them to be
stolen, charged only one offense.'^ And where a statute provides
a punishment for forging, causing to be forged, or assisting in the
forgery of instruments, an indictment charging a person with
forging, and causing to be forged, and assisting in the forgery of
an instrument, charges but one offense.'' There are many similar
decisions.'*
And if an act is made criminal by the common law or by statute
when committed with any one of several specific intents, — as is the
case with burglary, — a count charging the act with several intents
so Com. V. Curtis, 9 Allen (Mass.) 266.
21 Reg. V. Bowers, 1 Denison, Crown Cas. 22.
22 Stevens v. Com., 6 Mete. (Mass.) 241; State v. Nelson, 29 Me. 329. But
see State v. Murphy, 6 Ala. 845.
2 3 Rex V. Fauntleroy, 1 Moody, Crown Caa. 52; State v. Morton, 27 Vt. 314.
24 See 2 Gabb. Cr. Law, 234; Com. v. Hope, 22 Pick. (Mass.) 1; Hinkle v.
Com., 4 Dana (Ky.) 518. Charge that the defendant "did unlawfully keep,
offer for sale, and sell" adulterated milk, Com. v. Nichols, 10 Allen (Mass.) 199;
that he "unlawfully did expose and keep for sale intoxicating liquors," Com.
v. Curran, 119 Mass. 206; that he "did set up and promote" an unlawful ex-
hibition, or a lottery, etc., Com. v. Twitchell, 4 Cush. (Mass.) 74; Com. v.
Harris, 13 Allen (Mass.) 534; charge of assault with intent to rape, and a
battery, Com. v. Thompson, 116 Mass. 346; charge of administering or caus-
ing to be administered poison, Ben v. State, 22 Ala. 9; charge of selling liq-
uor in a place where women are both employed and allowed to assemble.
State V. Marion (Mont.) 30 Pac. 1044; charge of having In custody a forged
writing and uttering the same, State v. Murphy. 17 R. I. 698, 24 Atl. 473.
284 PLEADING THE ACCUSATION. [Ch. 9
is not double."" Under a statute punishing any one who shall
bring into a town intoxicating liquor "with intent to sell the same
himself, or have the same sold by another, or having reasonable
cause to believe that the same is to be sold in violation of law," an
indictment may charge all of these intents in a single count.'"
Certainly a count can never be bad for duplicity where it merely
charges, in addition to the specific act, aggravating circumstances,
which merely affect the penalty, as, for instance, where it charges
a former conviction for a similar offense.*'
Allegations which may be rejected as surplusage cannot render
an indictment bad for duplicity."* And if an indictment attempts
to set out two distinct offenses in a single count, but sets out one of
them insufficiently, it is not double. To be so, it must set out both
sufficiently."'
Where the charge is such that it would be sustained by proof of
any one of a number of simUar offenses the court should not al-
low them all to be proved and submitted to the jury, but should
at the proper time require the prpsecuting officer to elect upon
which act he will rely. This question frequently arises in prosecu-
tions for unlawful sale of intoxicating liquors. By the weight of
authority, the prosecuting officer cannot go to the jury on proof of a
number of separate and distinct sales, either one of which would
sustain the charge; but should, when the evidence discloses several
sales, be required to elect upon which sale he will rely.'" This, of
2B State V. Christmas, 101 N. C. 749, 8 S. E. 361; State v. Fox, 80 Iowa, 312,
45 N. W. 874.
28 Com. V. Igo, 158 Mass. 199, 33 N. B. 339.
27 state V. Moore, 121 Mo. 514, 26 S. W. 345; Reg. v. Clark, 6 Cox, Cr. Gas.
210.
28 Com. V. Simpson, 9 Mete. (Mass.) 138; Com. v. Tuck, 20 Pick. (Mass.) 356;
Green v. State, 23 Miss. 509; Breese v. State, 12 Ohio St 146; State v. Com-
ings, 54 Minn. 359, 50 N. W. 50; Com. v. Brown, 14 Gray (Mass.) 429; State
V. Flanders, 118 Mo. 227, 23 S. W. 1086; Griffin v. State (Tex. Cr. App.) 20
S. W. 552.
2» State V. Palmer, 35 Me. 9; State v. Henn, 39 Minn. 464, 40 N. W. 564.
And see the cases above cited.
80 King V. State, 66 Miss. 502, 6 South. 188; State v. Crimmins, 31 Kan.
376, 2 Pac. 574; State v. Chisnell, 36 W. Va. 659, 15 S. B. 412; Lebkovltz v.
State, 113 Ind. 26, 14 N. E. 363. There is some conflict of opinion on this
point. Sanders v. State, 88 Ga. 254, 14 S. B. 570. The rule does not prevent
Ch. 9] DUPLICITY. 285
course, could not apply to prosecutions for liquor nuisance.'^ The
question will be further considered in another place." ^
Effect of Duplicity.
There is some conflict of opinion as to the effect of duplicity. By
the weight of authority, where the two offenses charged are dis-
tinct in kind, and require distinct punishments, the objection may
be raised even after a verdict of guilty, by motion in arrest of judg-
ment, or on error or appeal. °* On the other hand, where the two
offenses are similar, the only reason against joining them in one
count is that it subjects the defendant to confusion and embarrass-
ment in his defense, and the objection is not open after a verdict of
guilty. It must be raised by demurrer, motion to quash the indict-
ment, or to compel the prosecutor to elect upon which charge he
will proceed ; and the fault is cured by his electing to proceed upon
one charge only, and entering a nolle prosequi as to the other, or
by verdict.^* This distinction is not expressly drawn in all of the
cases, but is based on sound reasons, and will, no doubt, be gener-
ally applied in proper cases. The student should consult the stat-
utes and decisions in his own state.
evidence of several sales, but merely requires an election after the several
sales have been disclosed. State v. Chisnell, supra.
31 State V. Estlinbaum, 47 Kan. 291, 27 Pac. 996; State v. Lund, 49 Kan.
209, 30 Pac. 518.
3 2 Post, p. 346.
33 Com. V. Holmes. 119 Mass. 198; Com. v. Symonds, 2 Mass. 163; State
V. Nelson, 8 N. H. 163; People v. Wright, 9 Wend. (N. Y.) 193. This rule
has been applied, for instance, where a count charged the ofCense of rudely
behaving in a church, which offense was defined in one section of a statute,
and made the subject of a certain fine as punishment, and also the ofCense of
Interrupting public worship, which another section of the statute made pun-
ishable by a different fine. Com. v. Symonds, 2 Mass. 163; and where a count
■charged the forging of a mortgage and of a receipt indorsed thereon, which
were distinct offenses, subject to different punishments. People v. Wright, 9
Wend. (N. Y.) 193; and where a count charged ordinary larceny and horse-
stealing, for which different punishments were prescribed. State v. Nelson, 8
N. H. 163.
34 Com. V. Holmes, 119 Mass. 198; Com. v. Tuck, 20 Pick. (Mass.) 356;
State V. Men-ill, 44 N. H. 624; Com. v. Powell, 8 Bush (Ky.) 7; State v. Brown,
286 PLEADIKG THE ACCUSATION. £Ch. 9
JOINDER or COUNTS— ELECTION".
104. SAME OFFENSE— Any number of counts charg-
ing the same offense in different "w^ays may be joined in
the same indictment, in order to meet the evidence, and
avoid a variance in the proof; and the prosecutor cannot
be required to elect upon -wrhich count he "will proceed.
105. DIFFERENT OFFENSES— Any number of counts
charging the same transaction as constituting different
offenses may be joined, provided the offenses charged
are cognate, or of the same nature, and the mode of trial
is the same, but not otherwise; and in such a case an
election Tvill not ordinarily be required.
106. By the great weight of authority, a person cannot
be tried for separate and distinct felonies at the same
time; but w^here distinct felonies of the same nature are
committed at the same time, or as part of the same trans-
action, the court will not quash the indictment, or compel
an election before hearing the evidence, though it will,
after hearing the evidence, confine the prosecutor to one
charge.
EXCEPTION — In Massachusetts and a few other
states distinct felonies may be joined in the same
indictment, and the defendant may be convicted on
each count, where the offenses are of the same
nature, and the mode of trial and nature of the
punishment is the same, subject to the power of
the court, in its discretion, to compel an election
vsrhere the defendant may be erabarrassed in his
defense.
8 Humph. (Tenn.) 89; State v. Cooper, 101 N. C. 684, 8 S. E. 134; State v.
Henn, 39 Minn. 464, 40 N. W. 564; State v. MUler, 24 Conm. 522; Aiken v.
State (Neb.) 59 N. W. 888; State v. Armstrong. 106 Mo. 395, 16 S. W. 604;
Tomlinson v. Territory (N. M.) 33 Pac. 950. This rule has been applied, for
instance, where a count charged a number of sales of intoxicating liquors to
different persons. Com. v. Holmes, supra.
^^- -^l JOINDEK OF COUNTS EI,F.CTION. 287
107. By tlie weight of authority, any number of mis-
demeanors, though separate and distinct, may be thus
joined, and the defendant may be convicted on each
count. But it is believed that the court may, in the ex-
ercise of its discretion, compel an election as in other
cases.
EXCEPTION" — In a few states joinder of separate and
distinct misdemeanors is not allowed, but they are
placed, in this respect, on the same footing as fel-
onies.
108. FELONY AND MISDEMEANOR — At common
law^, felonies and misdemeanors could not be joined in
the same indictment, and this rule has been recognized
in some of our states. In most states, however, the rule
either is not recognized, or has been changed by statute,
so that it is no longer any objection that one count
charges a felony and the other a misdemeanor, provided,
as in other cases, they are cognate offenses.
109. EFFECT OF MISJOINDER— Misjoinder of counts
charging separate and distinct offenses does not render
the indictment bad as a matter of law. Objection, there-
fore, must be taken by motion to quash, or to compel the
prosecutor to elect upon w^hich count he will proceed.
The objection cannot be raised by demurrer, nor, where
there has been no motion to quash or compel an elec-
tion, can it be raised in arrest of judgment, or on writ of
error.
110. STATUTES— The rules above stated have been
more or less changed by statute in some of the states.
Same Offense.
Whenever it is uncertain what facts may be shown by the evi-
dence, it is advisable to insert two or more counts, charging the
offense in different ways, so as to meet the facts as they may ap-
pear, and thus avoid the effect of a variance between the pleading
288 PLEADING THE ACCUSATION. [Ch. 9
and proof.'" Each count is a separate and distinct charge, and is,
in effect, a separate indictment.^* In an indictment for a homi-
cide, for instance, it may be alleged in one count that the death was
i/aused by striking with a stone or stick; in another, that it was
caused by shooting; in another, by poison, etc.°^ And in an indict-
ment for larceny, embezzlement, burglary, or arson the ownership
of the goods or of the premises may be laid differently in several
counts.'* And in an indictment for burglary, where it is uncertain
whose goods the evidence may show that the defendant intended to
steal, or whether the evidence may show that he intended to steal or
to commit some other felony, the offense may be charged in different
ways in different counts, to meet the evidence. In one count it may
be charged that the breaking and entry were with intent to steal
the goods of one person; in another count that they were with in-
tent to steal the goods of another person; in another count that
they were with intent to commit murder; in another that they were
with intent to commit rape, etc.*"
If the counts do not charge separate and distinct offenses, but
charge the same offense in different ways, to meet the evidence as it
may appear at the trial, — as, where a murder is alleged in different
counts to have been committed in different ways, or an indictment
for larceny, burglary, etc., lays the ownership of the goods or the
premises, as the case may be, in different persons in different counts,
— ^the prosecutor will not be required to elect upon which count he
will proceed. The defendant will be put to his trial upon all of
them, and convicted upon that one upon which he is shoWn to be
guilty."
«B2 East, P. C. 515; Castro v. Reg., 6 App. Cas. 229; Kane v. People, 8
Wend. (N. Y.) 210; Mershon v. State, 51 Ind. 14; State v. Early, 3 Har. (Del.)
561; State v. Stewart, 59 Vt. 273. 9 Atl. 559; State v. Haney, 2 Dev. & B.
(N. C.) 390; State v. Hogan, R. M. Charlt. (Ga.) 474.
80 Post, p. 298.
87 Smith v. Com., 21 Grat. (Va.) 809; Lazier v. Com., 10 Grat. (Va.) 708;
Reg. v. O'Brien, 1 Denison, Crown Cas. 9; Hunter v. State, 40 N. J. Law, 495,
Donnelly v. State, 26 N. J. Law, 463, 601; Merrick v. State, 63 Ind. 327:
MersLon v. State, 51 Ind. 14; Webster v. Com., 5 Cush. (Mass.) 311.
8 8 Com. v. Dobbins, 2 Pars. Eq. Cas. (Pa.) 380; Reg. v. Trueman, 8 Oar. &
P. 727; State v. Nelson, 29 Me. 329; Newman v. State, 14 Wis. 393.
88 2 East, P. C. 515.
*o State V. Nelson, 29 Me. 329; Upshur v. State (Ala.) 14 South. 541; Stew-
Ch. 9] JOINDER 01" COUNTS ELECTION. 289
Different Offenses.
Not only may the same offense be thus charged in different ways
to meet the evidence, but the same transaction may, when it is
uncertain what the evidence will show, be charged in different
counts, as constituting 'different offenses, provided the offenses are
of the same nature, and the mode of trial is the same. The offenses,
though different, are not actually distinct. The same transactioh is
relied upon, and the charge is varied merely to avoid a possible
variance between the pleading and proof. In such cases the prose-
cutor will not generally be required to elect, for the defendant cannot
well be embarrassed in his defense by the multiplicity of charges.*^
Thus an election will not be required where one count charges larceny
and another count charges the receiving of the same goods know-
ing them to have been stolen, and another count charges the aiding
another person to conceal the same goods knowing them to have
been stolen.*" In such a case the offenses are legally different, but
the charges are not actually distinct, and cannot confound the de-
fendant, or distract the attention of the jury; and, where this is the
art V. State, 58 Ga. 577; Newman v. State, 14 Wis. 393; Carleton v. State
(Ala.) 14 South. 472; Hunter v. State, 40 N. J. Law, 495; State v. Bailey, 50
Ohio St. 636, 36 N. E. 238; Vaden v. State (Tex. Or. App.j 25 S. W. 777;
Thompson v. State (Tex. Or. App.) 26 S. W. 987; State v. Harris, 106 N. 0.
682, 11 S. E. 377; Thompson v. State, 32 Tex. Or. R. 265, 22 S. W. 979;
Lascelles v. State, 90 Ga. 347, 16 S. E. 945; State v. Franzreb (Ohio Com. PI.)
29 Wkly. Law Bui. 129; Green v. State, 21 Tex. App. 64, 17 S. W. 262; Mur-
ray V. State, 25 Fla. 528, 6 South. 498.
41 Dowdy V. Com., 9 Grat. (Va.) 727; Kane v. People, 8 Wend. (N. Y.) 211;
People V. Rynders, 12 Wend. (N. T.) 425; Com. v. Gillespie, 7 Serg. & R. (Pa.)
479; Pointer v. V. S., 151 U. S. 396, 14 Sup. Ct 410; Com. v. Hills, 10 Cush.
(Mass.) 530; Young v. Rex, 3 Term R. 106, 1 Leach, Crown Cas. 510'; Rex
V. Kingston, 8 East, 41; Beasley v. People, 89 111. 571; People v. Costello,
1 Denio (N. Y.) 83; Armstrong v. People, 70 N. Y. 38; State v. Daubert, 42
Mo. 242; State v. .Tackson, 17 Mo. 544; Miller v. State, 51 Ind. 405; State v.
Fiye, 26 Me. 312; State v. Bell, 27 Md. 675; Mayo v. State, 30 Ala. 32; Sarah
V. State, 28 Miss. 267.
*2 Dowdy V. Com., 9 Grat. (Va.) 727. And see Owen v. State, 52 Ind. 379;
iKeefer v. Stiite, 4 Ind. 246; State v. Daubert, 42 Mo. 242; State v. Barber,
113 N. C. 711, 18 S. E. 515; Womack v. State (Tex. Cr. App.) 25 S. W. 772;
Sanderson v. Com. (Ky.) 12 S. W. 136; Kenmegar v. State, 120 Ind. 176, 21
N. E. 917; State v. Hazard, 2 R. I. 474; Hampton v. State, 8 Humph. (Tenn.)
69.
CRIM.PKOC. — 19
290 PLEADING THE ACCUSATION. [Ch. 9
case, an election will not be required. For this reason the courts
have also allowed the joinder of counts for burglary, larceny, and
forcible entry and detainer;*^ of counts for robbery and stealing
privately from the person;** of counts for arson at common law
and- statutory burnings; *° counts for embezzlement and larceny; *'
counts for embezzlement and false pretenses; " counts charging
the defendant as accessory after the fact, and accessory before the
fact, to the same felony; ** counts for forging an instrument and
for uttering it.*°
By the weight of authority, it is no objection that one count
charges a statutory offense, while the other charges an offense at
common law.^"
If the offenses are not cognate, — that is, of the same nature, —
or the mode of trial is diilerent, they cannot be joined. If they are
joined, and the court refuses to compel the prosecutor to elect
upon which count he will proceed, a conviction on one of the counts
will be set aside. Clearly, it would not be permissible to charge
murder and robbery, or rape and robbery, or murder and burglary
in the same indictment, for the oifenses are not cognate; and in a
late Rhode Island case a conviction of burglary on an indictment
charging in one count burglary and in another assault with intent
*3 2 Hale, P. C. 162, 173; McCullough v. State, 132 Ind. 427, 31 N. E. 1116;
Speers v. Com., 17 Grat. (Va.) 570; Com. v. Birdsall, 69 Pa. St. 482; Lyons
V. People, 68 111. 271.
*i Rex V. Sterne, 1 Leach, Cro-wn Cas. 473; Womack v. State (Tex. Cr. App.)
25 S. W. 772.
*!i Rex V. Pedley, 1 Leach, Crown Cas. 244.
4« Rex V. Johnson, 2 Leach, Crown Cas. 1108, 3 Maule & S. 539; Griffith v.
State, 36 Ind. 406; State v. Porter, 20 Mo. 201; Coats v. People, 4 Parker,
Cr. R. (N. Y.) 662.
i^ State V. Lincoln, 49 N. H. 464.
4 8 Rex V. Blackson, 8 Car. & P. 43; Tompkins v. State, 17 Ga. 356.
*» State V. Nichols, 38 Iowa, 110; Barnwell v. State, 1 Tex. App. 745; Peo-
ple V. Adler, 140 N. Y. 331, 33 N. K. G44.
00 Rex T. Sterne, 1 Leach, Crown Cas. 473; Rex v. Johnson, 2 Leach,
Crown Cas. 1103, 1108, 3 Maule & S. 539; State v. Smalley, 50 Vt. 736; State
V. Thompson, 2 Strob. (S. C.) 12; People v. Rynders, 12 Wend. (N. Y.) 425;
State V. Williams, 2 McCord (S. C.) 301; Com. v. Sylvester, 6 Pa. Law J. 283;
and cases cited in notes 46, 47, supra. But see, contra, Marler v. Com. (Ky.)
24 S. W. 608; Combs v. Com. (Ky.) 25 S. W. 276.
Ch. 9] JOINDER OF COUNTS — ELECTION. 291
to rape was set aside because the court refused to compel an
election."^
In some states it is expressly provided by statute that an indict-
ment must charge but one crime, and in one form, except that the
crime may be charged in separate counts to have been committed
in a different manner or by different means. It has been held,
however, that it was not the intention of the legislature to change
the common-law rule that the same transaction may be alleged in
different ways in separate counts, so as to meet the evidence,
though this may result in charging different offenses. And it was
therefore held that with a count charging the forgery of an instru-
ment could be joined a count charging the uttering of the same
instrument at the same time and place.°^
Same — Distinct Offenses.
Q-enerally, where the offenses are actually separate and distinct,
both in fact and in law, and are felonies, the indictment should be
quashed on motion of the defendant, or the prosecutor should be
required to elect upon which charge he will proceed. A person
should not be tried for two separate and distinct felonies at one
time. And if a motion to quash or to compel an election is denied,
and the defendant is convicted on one of the counts, the conviction
should be set aside. "^ A conviction was thus set aside, for in-
stance, where the information contained two counts, charging crim-
inal abortion under a statute, and an additional count charging
manslaughter at common law, committed upon a day subsequent
to the time mentioned in the former counts.^*
There are cases, even of felony, where the court will not quash
" state v. Fitzsimon (R. I.) 27 Atl. 446.
62 Feople V. Adler, 140 N. Y. 331, 35 N. B. 644.
B3 People V. Aiken, 66 Mich. 460, 33 N. W. 821; People v. Rohrer (Midi.)
58 N. W. 661; State v. Fitzsimon (R. I.) 27 Atl. 446; Mayo v. State, 30 Ala.
32; State v. Smith, 8 Blaclif. (Ind.) 480; Sarah v. State, 28 Miss. 267; M'Gregg
V. State, 4 Blackf. (Ind.) 101; Baker v. State, 4 Ark. 56; Kane v. People, S
Wend. (N. T.) 203; People v. Rynders, 12 Wend. (N. Y.) 425; State v. Nel-
son, 8 N. H. 163; State v. Flye, 26 Me. 312; State v. Fowler, 8 Fost. (N. H.)
184; Bailey v. State, 4 Ohio St. 440; Bainbridge v. State, 30 Ohio St. 264;
People V. Austin, 1 Parker, Or. R. (N. Y.) 154; Com. v. Sullivan, 104 Mass.
552; State v. Henry, 59 Iowa, 391, 13 N. W. 343.
5 4 People v. Aiken, 66 Mich. 460, 33 N. W. 821.
292. PLEADING THE ACCUSATION. [Ch. 9
the indictment, nor compel an election at the opening of the trial,
though the offenses charged in the different counts are separate
and distinct in law, and, to some extent, in fact. These are cases
in which the offenses are of the same general nature, and were
committed at the same time, or as part of the same transaction.
The court will not let the defendant be tried and convicted for sep-
arate offenses, but it will not compel an election at the beginning
of the trial. It will hear the evidence, and at the proper time
confine the prosecutor to one of the charges. "When the several
offenses charged, though distinct in point of law, yet spring out of
substantially the same transaction, or are so connected in their
facts as to make substantially parts of the same transaction, or
connected series of facts, the defendant cannot be prejudiced in
his defense by the joinder, and the court will neither quash nor
compel an election." '"' A motion to quash or compel an election
has been denied, for instance, where the defendant was charged
in separate counts with robbing two different persons, it appearing
that the offenses were committed at the same time, and as part of
the same transaction;'^" where different counts charged separate
and distinct burglaries on the same night, and in the same neigh-
borhood; "' where two murders were charged in separate counts,
but it appeared that they were so closely connected in point of
time, place, and occasion that it would be difficult, if not impossible,
to separate the proof of one from the proof of the other; ^' and
where the defendant was charged with burning several houses, it
appearing that one of them had been set on fire and the fire had
communicated to the others. "As it was all one transaction," it
was said in the case last mentioned, "we must hear the evidence;
and I do not see how, in the present stage of the proceedings, I can
call on the prosecutor to elect. I shall take care that, as the
case proceeds, the prisoner is not tried for more than one felony.
BB People V. McKinney, 10 Mich. 94; People v. Aiken, 66 Mich. 460, 33 N.
W. 821; and see Pointer v. V. S., 151 U. S. 396, 14 Sup. Ct. 410; Reg. v. Gid-
liins. Car. & M. 634; Rex v. Tnieman, 8 Car. & P. 727; Rex v. Folkes, 1
Moody, Crown Cas. 354; Martin v. State, 79 Wis. 165, 48 N. W. 119.
06 Eex V. Giddins, Car. & M. 634.
IS7 Martin v. State, 79 Wis. IGo, 48 N. W. 119.
B8 Pointer v. U. S., 151 U. S. 306, 14 Sup. Ot. 410.
Ch. 9] JOINDEU OF COUNTS ELECTION. 293
The application for a prosecutor to elect is an application to the
discretion of the judge, founded on the supposition that the case
extends to more than one charge, and may, therefore, be likely to
embarrass the prisoner in his defense." °'
It has been held that in cases of misdemeanor no objection at all
can be made because of the joinder of separate and distinct offenses,
and this is the general rule. "In point of law," it has been said,
"there is no objection to a man being tried on one indictment for
several offenses of the same sort. It is usual, in felonies, for the
judge, in his discretion, to call upon the counsel for the prosecution
to select one felony, and to confine themselves to that; but this
practice has never been extended to misdemeanors. It is the daily
usage to receive evidence of several libels, and of several assaults,
upon the same indictment." *° It is believed, however, that even
in cases of misdemeanor the court should, in the exercise of its dis-
cretion, quash the indictment, or put the prosecutor to an election,
where the defendant may be prejudiced in his defense."^ In some
states misdemeanors are put, in this respect, upon the same footing
as felonies, and a conviction on one of several counts for separate
and distinct misdemeanors has been set aside on the ground that
there was a misjoinder, and the prosecutor should, on the defend-
ant's motion, have been required to elect before trial."*
Same — Exceptional Doctrine in Massachusetts and Other States,
In Massachusetts and a few other states it is allowed, even in
cases of felony, to charge in different counts separate and distinct
B» Reg. V. Trueman, 8 Car. & P. 727.
60 Rex V. Jones, 2 Camp. 131. And see Rex v. Kingston, 8 East, 41; 1 CWt.
Cr. Law, 254; Rex v. Levy, 2 Starkie, 458; Rex v. Benfield, 2 Burrows, 984;
People V. Costello, 1 Denio (N. Y.) 83: Kane v. People, 8 Wend. (N. Y.) 211;
Harman v. Com., 12 Serg. & R. (Pa.) 69; State v. Gummer, 22 Wis. 441:
Quinn v. State, 49 Ala. 353; Com. v. McChord, 2 Dana (Ky.) 242; State v.
Kibby, 7 Mo. 317; Kroer v. People, 78 lU. 294; Waddell v. State, 1 Tex. App.
720. Distinct sales of intoxicating liquors. Barnes v. State, 19 Conn. 398;
MuUinix v. People, 76 111. 211; Com. v. Tuttle, 12 Cush. (Mass.) 505.
• 1 Castro V. Reg., 6 App. Cas. 229; State v. Farmer, 104 N. C. 887, 10 S.
B. 563.
• 2 People V. Rohrer (Mich.) 58 N. W. 661. In this case the information
charged in one count that the defendant kept open his saloon on Sunday, and
in another count that he kept his windows curtained on the same day.
294 PLEADING THE ACCUSATION. [Ch. 9
offenses of the same general description, where the mode of trial
and the nature of the punishment is the same, and the defendant
may be convicted of any one or more of the felonies charged.
Whether the offenses shall be tried separately or together is a mat-
ter within the discretion of the presiding judge, and, if they are
tried together, and a general verdict of guilty is returned, and no
inquiry is made of the jury as to the counts upon which they found
their verdict, the general verdict will apply to each count."* This,
as we have seen, is an exceptional doctrine. Even here the court
should require the prosecutor to elect, if it sees that there is danger
that the defendant may be embarrassed by the multiplicity of the
charges against him; but the matter rests within its discretion.**
Joinder of Felony and Misdemeanor.
At common law, as we have shown, the general rule was to allow
several felonies or several misdemeanors to be charged in different
counts of the same indictment, but a count for felony could not be
joined with a count for misdemeanor. The reason for the rule was
that persons indicted for misdemeanors were entitled to certain ad-
vantages at the trial, such as the right to make a full defense by
counsel, to have a copy of the indictment, and to have a special
jury^ — ^privileges not accorded to those indicted for a felony.*' The
rule has been recognized as in force in a few of our states." In
most states, however, the courts have refused to recognize the rule,
on the ground that the reasons upon which it was based do not exist
here, or else the rule has been expressly abrogated by statute, so
«3 Benson v. Com., 158 Mass. 164, 33 N. E. 384; Com. v. Costello, 120 Mass.
358; Com v. Jacobs, 152 Mass. 2TG, 25 N. B. 463; Speers v. Com., 17 Grat
(Va.) 570. And see State v. TuUer, 34 Conn. 280; Cash v. State, 10 Humph.
(Tenn.) Ill; Davis v. State, 85 Tenn. 522, 3 S. W. 348.
«■» Benson v. Com., supra.
6 5 2 Hale, P. C. 173; Rex v. Fuller, 1 Bos. & P. 180; Rex v. Benfield, 2
Burrows, 980; 1 Chit. Cr. Law, 208, 254; Rex v. Gough, 1 Moody & R. 71;
Rex V. Johnson, 3 Maule & S. 550; Castro v. Reg., 6 App. Cas. 229; Hunter
V. Com., 79 Pa. St 503; Storrs v. State, 3 Mo. 9; Scott v. Com., 14 Grat.
(Va.) 687; Harman v. Com., 12 Serg. & R. (Pa.) 69; State v. Smalley, 50 Vt
736.
66 See U. S. V. Scott, 4 Hiss. 29, Fed. Cas. No. 16,241; Hllderbrand v. State,
5 M3. 548; State v. Montague, 2 McCord (S. O.) 257; Davis v. State. 57 Ga.
66; Scott V. Com., 14 Grat. (Va.) 687.
Ch. 9] JOINDER OF COUNTS ELECTION. 295
that now, in most states, counts for cognate offenses may be joined,
though one may be a felony and the other a misdemeanor.'^
The decisions on the question of joinder of felonies and mis-
demeanors are not uniform, but by the weight of authority they may
be joined "in all cases, 'except where the offenses charged are re-
pugnant in their nature and legal incidents, and the trial and judg-
ment so incongruous as to deprive the defendant of some legal ad-
vantage.' In other words, the general rule is that felonies and
misdemeanors forming part of the development of the same trans-
action may be joined in the same indictment." "^
Where the offenses are cognate, whether or not an election will
be required rests in the discretion of the court. But where they
are not cognate offenses, — as where one count charges burglary, and
the other charges assault with intent to commit rape, — a refusal to
compel an election will be ground for setting aside a conviction on
one of the counts.""
In sustaining an indictment joining a count for common assault,
which was a misdemeanor, with a count for assault with intent to
rob, which was a statutory felony, the Massachusetts court said : "It
is true that, generally speaking, offenses differing in their natures,
one being a felony and the other a misdemeanor, ought not to be
joined. But the practice in this commonwealth has fully sustained
a joinder of such counts where they have been a kindred line of-
offenses. It is allowed always where several counts are introduced
for the purpose of meeting the evidence as it may transpire on the
trial, all the counts being substantially for the same offense. » • •
07 Buck V. State, 2 Har. & J. (Md.) 426; Herman v. People, 131 111. 594,
22 N. E. 471; Stevick v. Com., 78 Pa. St. 460; Hunter v. Com., 79 Pa. St. 503;
State V. Fitzsimon (R. I.) 27 Atl. 446; State v. Smalley, 50 Vt 736; Hen-
wood V. Com., 52 Pa. St. 424; Harmon v. Com., 12 Serg. & R. (Pa.) 69; State
V. Bell, 27 Md. 675; Wall v. State, 51 Ind. 453; Com. v. McLaughlin, 12 Cush.
(Mass.) 612; State v. Lincoln, 49 N. H. 464; Stevens v. State, 66 Md. 202, 7
Atl. 254; Cawley v. State, 37 Ala. 152; State v. Stewart, 59 Vt. 273, 9 Atl.
559; State v. Sutton, 4 Gill (Md.) 494; Dowdy v. Com., 9 Grat. (Va.) 727;
Com. v. Adams, 7 Gray (Mass.) 43; State v. Daubert, 42 Mo. 243; State v.
Hood, 51 Me. 363; People v. Rynders, 12 Wend. (N. Y.) 426.
6 8 State V. Fitzsimon, supra; Herman v. People, supra; and other cases
above cited.
«» State V. Fitzsimon, supra.
296 PLEADING THE ACCUSATION. [Ch. 9
Certainly, where the offense charged in the second count is neces-
sarily embraced in the charge in the first count, and all the evi-
dence to sustain it might have been given under the first count, and
a conviction of the charge well authorized as a substantive part of the
first count, it cannot be objected that the same is stated in a second
count; nor is a verdict of not guilty on the first count inconsistent
with a verdict of guilty on the second count." '"
Effect of Misjoinder.
A few of the cases hold, or seem to hold, that felonies arising from
distinct transactions, even though they may be of the same nature, —
as, for instance, where several counts charge distinct larcenies, —
cannot be joined without making the indictment bad as a matter of
law.''^ By the great weight of authority, however, an indictment
is never bad, as a matter of law, because of the joinder of several
separate and distinct offenses in different counts, where they are
of the same general nature, and where the mode of trial and the
nature of the punishment is the same.'^ An indictment may, there-
fore, join several distinct felonies or several distinct misdemeanors,
without being bad as a matter of law. Since such a joinder does
not render the indictment bad as a matter of law, it is no ground
for demurrer, motion in arrest of judgment, or writ of error. The
only way in which the objection can be raised is by motion to
70 Com. V. McLaughlin, 12 Cush. (Mass.) 612.
'1 State Y. Montague, 2 McCord (S. O.) 257; McKenzie v. State, 32 Tex. Cr.
R. 568, 25 S. W. 426; James v. State (Ala.) 16 South. 94; Davis v. State, 57
Ga. 66.
72 Dowdy V. Ckjm., 9 Grat. (Va.) 727; Young v. Rex, 3 Term R. 106; Kane
V. People, 8 Wend. (N. Y.) 211; People v. Ryuders, 12 Wend. (N. Y.) 425; Cas-
tro V. Reg., 6 App. Cas. 229; 1 Chit. Cr. Law, 253; 2 Hale, P. C. 173; Rex
V. Johnson, 2 Leach, Crown Cas. 1103; Rex v. Kingston, 8 East, 41; 2 East,
P. C. 515; Rex v. Jones, 2 Camp. 131; Kitchingman v. State, 6 Wis. 426;
Com. V. Hills, 10 Cush. (Mass.) 530; Carlton v. Com., 5 Mete. (Mass.) 532;
Lazier v. Com., 10 Grat. (Va.) 70S; Com. v. Brown, 121 Mass. 69; State v.
Nelson, 14 Rich. (S. C.) 172; State v. Scott, 15 S. C. 435; Benson v. Com., 158
Mass. 164, 33 N. E. 384; State v. Smalley, 50 Vt. 736; State v. Stewart, 59
Vt 273, 9 Atl. 559; U. S. v. West, 7 Utah, 437,, 27 Pac. 84; State v. Wood-
ard, 38 S. C. 353, 17 S. E. 135; State v. Frazier, 79 Me. 95, 8 Atl. 347; Mills
V. Com., 13 Pa. St. 031; Mershon v. State, 51 Ind. 14; Johnson v. State, 29
Ala. 62; State v. Nelson, 29 Me. 329; State v. Hodges, 45 Kan. 389, 26 Paa
676; Orr v. State, 18 Ark. 540; State v. Kibby, 7 Mo. 317.
Ch. 9] JOINDER OF COUNTS ELECTION. 297
quash the indictment, or to compel the prosecutor to elect upon
which count he will proceed. It has been held, for instance, that
demurrer, motion in arrest, or writ of error will not lie because
of the joinder of a count for burglary with a count for larceny; '^
counts for separate and distinct arsons; '^ counts for separate and
distinct receipts of stolen goods; ^° forgery of an instrument, and
the uttering of it; '"^ counts for separate embezzlements; " counts
for larceny and obtaining money by false pretenses."
As we have seen, by the weight of authority, it makes no differ-
ence that some of the offenses are statutory while others are com-
mon-law offenses."
It has been held that a misjoinder of counts is cured by a verdict
of acquittal on the count improperly inserted; that, "having been
negatived by the jury, it is as if it had never been inserted in the
indictment." *" But, except in Massachusetts and a few other
states, where, as we have seen, the doctrine as to joinder of counts
is exceptional, and a person is allowed to be tried, in the discre-
tion of the court, for sesparate and distinct offenses at the same
time, an error in overruling a motion to compel an election would
not be so cured.*^ Of course, it would be otherwise if no such mo-
tion was made.'*
If offenses for which the punishment is different are joined, it
would seem that a demurrer will lie, for, in case of a general verdict
of guilty the court could not know what punishment to impose;
and, after a general verdict of guilty, such a misjoinder is ground
for motion in arrest of judgment. But judgment will not be ar-
rested if the verdict specifies upon which count the defendant is
found guilty, nor where the verdict is general, if one of the counts
T3 Carlton v. Com., 5 Mete. (Mass.) 532; State v. Woodard, 38 S. 0. 353, 17
S. E. 135.
7 4 State V. Smalley, 50 Vt. T36.
7 5 Com. V. Hills, 10 Cusb. (Mass.) 530.
7 6 People V. Rynders, 12 Wend. (N. Y.) 425.
77 State V. Hodges, 45 Kan. 389, 26 Pac. 676.
78 Johnson v. State, 29 Ala. 62.
7» Note 50, supra.
80 Com. V. Packard, 5 Gray (Mass.) 103; Com. v. Chase. 127 Mass. 7.
81 See the cases cited in notes 53, 54, 62, supra.
8 2 See the cases cited in notes 72-78, supra.
298 PLEADING THE ACCUSATION. [Ch. 9
is insufficient, for, as we shall see, the verdict will be referred to
the good count.''
Oondruction and Form of Separate Counts — Partial Insufficiency.
Every separate count should charge the defendant as if he had
committed a distinct offense, for it is upon the principle of the
joinder of offenses that the joinder of counts is admissible;** and
to the supposed second or third offense in each count should be
prefixed a statement that the jury present upon oath, thus: "And
the jurors aforesaid, upon their oath aforesaid, further present,"
etc.; and there should, by the weight of opinion, be added a
formal conclusion, "against the peace of the state," or "against
the peace of the state, and contrary to the form of the statute;" '°
for each count is in fact a separate indictment The fact, however,
that the former words are prefixed to a statement does not neces-
sarily show that it is a second count.'"
Though every count should appear upon its face to charge the
defendant with a distinct offense, yet one count may refer to mat-
ter in another count, so as to avoid unnecessary repetitions; as,
for instance, to refer to the county stated in a prior count as "the
county aforesaid," or to the time stated in a prior count as "on the
day and date aforesaid," or to describe the defendant as "the said,"
giving merely his Christian name, where his full name has been
stated in a preceding count.'^ And the fact that the count thus
referred to is defective, or is rejected by the grand jury, wiU not
vitiate the succeeding count.*'
83 James v. State (Ala.) IG South. 94; Adams v. State, 55 Ala. 143; State
V. Montague, 2 McCord (S. 0.) 257; Davis v. State, 57 Ga. 66.
84 1 Chit Cr. Law, 249; Rex v. Jones, 2 Camp. 132; Young v. Rex, 3 Term
R. 106, 107; U. S. v. Pirates, 5 Wlieat. 201; Com. v. Burke, 16 Gray tMass.)
33; Com. v. Carey, 103 Mass. 215.
85 state V. McAllister, 26 Me. 374; State v. Wagner, 118 Mo. 626, 24 S. W.
219. As to the conclusion, see cote 176, infra.
86 Rex V. Haynes, 4 Maule & S. 221.
87 state V. Hertzog, 41 La. Ann. 775, 6 South. 622; Boggs v. State (Tex.
Or. App.) 25 S. W. 770; Redman v. State, 1 Blackf. (Ind.) 431. And see,
as to reference to other counts. People v. Graves, 5 Parker, Cr. R. (N. Y.) 134;
People V. Danlhy, 63 Hun, 579, 18 N. Y. Supp. 467.
88 Phillips V. Fielding, 2 H. Bl. 131; Com. v. Miller, 2 Pars. Eq. Gas. (Pa.)
480. But see State v. Longley, 10 Ind. 482.
Ch. 9] JOINDEE OF COUKTS ELECTION. 299
Statements in one count cannot aid defects and omissions in an-
other, unless incorporated in the latter by some proper reference to
them contained in the latter; ^° and the reference must be such as
to draw to it the particular statement contained in the first counh
Any qualities or adjuncts averred to belong to any subject in one
count will not, if they are separable from it, be supposed to be al-
leged as belonging to it in a subsequent count, which merely in-
troduces it by reference as the same subject "before mentioned," or
"the said" subject, or the subject "aforesaid." There must be a
repetition of or reference to the quality or adjunct, and not merely
to the subject."" The words, "the said infant female child," in one
count of an indictment, were held not to import into that count a
description of the child in a preceding count as being of tender
years.°^ And the words "articles aforesaid," used in a count with
reference to a prior count, will not draw into the count the allega-
tions of value in the prior count." ^
If one count is bad for failure to state any offense, or to state it
with sufficient precision, this will not render a good count bad."^
And, generally, a defect in some of the counts will not affect the
validity of the remainder, or prevent judgment on a general verdict
■ of guilty, for judgment may be rendered on those counts which are
good."* It has been said that if one count in an indictment be
80 People v. Smith, 103 CaL 563, 37 Pac. 516; State v. McAllister, 26 Me.
374. Thus an allegation, in the first count of an indictment, as to the county
in which the offense was committed, cannot aid the second count, which con-
tains no averment, by reference or otherwise, as to place. Jones v. Com., 80
Va. 950, 12 S. W. 950.
90 See Reg. v. Waverton, 2 Denison, Crown Cas. 339; State v. Nelson, 29
Me. 329; State v. Lyon, 17 Wis. 2S7; State v. Wagner, 118 Mo. 626, 24 S.
W. 219.
01 Reg. V. Waters, 1 Denison, Crown Cas. 356.
02 State V. Wagner, 118 Mo. 626, 24 S. W. 219.
0 3 Com. V. Gable, 7 Serg. & R. (Pa.) 423; State v. Nelson, 8 N. H. 163; Mil-
ler V. State, 5 How. (Miss.) 250; People v. Wright, 9 Wend. (N. Y.) 193.
84 Rex V. Fuller, 1 Bos. & P. 187; Reg. v. Jones, 8 Car. & P, 776; Claassen
T. U. S., 142 U. S. 140, 12 Sup. Ct. 169; Brown v. Com., 8 Mass. 63; State
V. Coleman, 5 Port. (Ala.) 40; Jennings v. Com., 17 Pick. (Mass.) SO; Mead
V. State, 53 N. J. Law, GDI, 23 Atl. 264; U. S. v. Pirates, 5 Wheat. 184; Kane
V. People, 3 Wend. (N. Y.) 363; Curtis v. People, 1 Breese (111.) 256; Town-
send V. People, 3 Scam. (111.) 328; Hudson v. State, 1 Blackf. (Ind.) 318; Har-
300 PLEADING THE ACCUSATION. [Ch. &
quashed or stricken out, the whole indictment will be vitiated, for
the court cannot alter the finding of the grand jury; but this is
not generally true.'*
JOINDER OP PABTIES.
111. Where several persons join in the commission of
an offense, -whether it be a felony or a misdemeanor,
they may be joined, in the same indictment, and one or
all may be convicted.
112. Some offenses — ^perjury, for instance — are of such a
nature that one person only can commit them, and every
person who commits any such offense must be indicted
separately.
113. Some offenses — conspiracy and riot, for instance —
cannot be committed by one person alone, and one de-
man V. Com., 12 Serg & E. (Pa.) 69; State v. Crank, 2 Bailey (S. C.) 66; Turk
V. State, 7 Ohio, 240; Hornsby v. State, 94 Ala. 55, 10 South. 522. But see
Mowbray v. Com., 11 Leigh (Va.) 654; Clere v. Com., 5 Grat. (Va.) 615; Jones-
V. Com., 86 Va. 950, 12 S. E. 950. In this respect there Is a difference between,
an indictment and a declaration in a civil action, for, if one part of a dec-
laration is bad, and the jury find entire damages, the judgment must be ar-
rested; and the reason of the distinction is that the court cannot apportion
the damages, whereas it can impose such a sentence as is warranted by the
good counts in an indictment. 1 Chit. Cr. Law, 249; Eeg. v. Ingram, 1 Salk.
384. This was the common-law rule in England at the time this country was
settled, and became a part of our common law. Since then the rule has been
changed in England, and the rule in civil cases is also applied in criminal-
cases. O'ConneU v. Reg., 11 Clark & F. 155. But the old rule is still recog-
nized with us. U. S. V. Pirates, 5 Wheat. 201; U. S. v. Plumer, 3 ClifC. 28,
Fed. Cas. No. 16,056; People v. Curling, 1 Johns. (N. Y.) 320; Jennings v.
Com., 17 Pick. (Mass.) 80; Com. v. Hawkins, 3 Gray (Mass.) 463. Where, on
the trial of an indictment containing two counts, one of which is defective,
evidence pertinent to both is received under a ruling that both are good, a
verdict cannot be sustained because the evidence is sufficient to sustain a con-
viction on the cpunt which is good. People v. Smith, 103 Cal. 563, 37 Pac»
516. See post, p. 488.
»» Rex V. Pewtress, 2 Strange, 1026; Rex v. Pewterus, Cas. t Hardw. 203j
Rex V. Green, Id. 209; Rose v. State, 1 Minor (Ala.) 29; Duncan v. People,
1 Scam. (111.) 457. But see contra. State v. McKiernan, 17 Nev. 224, 30 Pac
831.
Ch. 9] JOINDEK OF PARTIES. HOI
fendant only could not be convicted and the others ac-
quitted.
Where the act constituting the offense was such that several
persons could join in its commission as principals in the first or sec-
ond degree,* ° all who so joined in it may be indicted either jointly
or severally. And a joint indictment against them all is also
an indictment against each of them severally."^ Thus a joint in-
«» It must be remembered that these terms apply, In case of treason or
misdemeanor, to all persons who join in the commission of the offenses, for
they are all guilty as principals. It is in felonies only that there are acces-
sories. A person who so joins in treason or a misdemeanor that, if the of-
fense were a felony, he would be an accessory before the fact, is a principal.
See Clark, Cr. Law, 82.
07 2 Hale, P. C. 173; 2 Hawk. P. C. c. 25, § 89; Rex v. Benfield, 2 Burrows,
984; Rex v. HoUond, 5 Term R. 607; Kane v. People, 8 Wend. (N. Y.) 203;
State V. Gay, 10 Mo. 440: Com. v. Weatherhead, 110 Mass. 175; State t.
O'Brien (R. I.) 25 Atl. 910; Hess v. State, 5 Ohio, 5; State v. Woodard, 38
S. O. 353, 17 S. E. 135; State v. Wadsworth, 30 Conn. 55; State v. Nowell.
60 N. H. 199; Fletcher v. People, 52 111. 395; Casily v. State, 32 Ind. 62;
Weatherford v. Com., 10 Bush (Ky.) 196; note 138, infra. Husband and wife
are no exception to the rule. Com. v. Murphy, 2 Gray (Mass.) 510; Reg. v.
Cohan, 11 Cox, Cr. Cas. 99; Reg. v. Williams, 1 Salk. 384; Com. v. Tryon, 99
Mass. 442; Com. v. Ray, 1 Va. Cas. 262. Whether a wife can be convicted
separately or jointly with her husband depends solely on whether she was
coerced by him. Clark, Cr. Law, 77; Com. v. Murphy, supra. "Notwith-
standing the offense of several persons cannot but in all cases be several, be-
cause the offense of one man cannot be the offense of another, but every one
must answer severally for his own crime, yet if it wholly arise fromi any such
joint act which in itself is criminal, without any regard to any particular
personal default of the defendant, as tiie joint keeping of a gaming house,
or the unlawful hunting and carrying away of a deer, or maintenance, or
extortion, etc., the indictment or information may either charge the defend-
ants jointly and severally, * * * or may charge them jointly only, without
charging them severally, because it sufficiently appears, from the construction
of law, that if they joined in such act they could but be each of them guilty;
and from hence it follows that on such indictment or information some of the
defendants may be acquitted and others convicted, for the law looks on the
charge as several against each, though the words of it purport only a joint
charge against all. But where the offense indicted doth not wholly arise
from the joint act of all the defendants, but from such act joined with
some personal and particular defect or omission of each defendant, without
which it would be no ofit'ense,— as the following a joint trade without having
302 PLEAUIKG THE ACCUSATION. [Ch. 9
dictment will lie against the parties to an act of adultery, or to
illicit cohabitation, and similar offenses,'* for conspiracy or riot,"
for extortion,^ '"' for libel, where all join in publishing it,^"^ for
obtaining money by false pretenses,^"^ for selling intoxicating
liquors without a license,^"' or for being common sellers of intoxi-
cating liquors,^"^ for receiving stolen goods, ^"^ for Tiolation of the
law against labor on Sunday.^"' And in all cases of felony, such
as murder, assaults, robbery, burglary, arson, etc., where several
were present aiding or abetting, they may be joined with the prin-
cipal in the first degree, and charged in the indictment either as
actual perpetrators or as aiders and abettors.^ "^
The parties need not necessarily act jointly in all cases, but it is
sufficient if one and the same offense is committed by each. In the
served a seven-years apprenticeship required by the ' statute, in which case
it must be the jaarticular defect of each trader which must malie him guilty,
and one of them may offend against the statute and the others not,— the in-
dictment or information must charge them severally, and not jointly; for it
is absurd to charge them jointly, because the offense of each defendant arises
from a defect peculiar to himself. And for the like reason a joint indict-
ment against several for not repairing the street before their houses hath
been quashed." 2 Hawk. P. C. c. 25, § 89.
08 Com. V. Elwell, 2 Mete. (Mass.) 190; State v. Mainor, 6 Ired. (N. C.) 340.
8 9 State V. Allison, 3 Yerg. (Tenn.) 428; People v. Howell, 4 Johns. (N. Y.)
296; Turpin v. State, 4 Blackf. (Ind.) 72; Com. v. Manson, 2 Ashm. (Pa.) 31.
100 Reg. V. Atkinson, 1 Salk. 382, 2 Ld. Raym. 1248.
101 Rex V. Benfield, 2 Buitows, 984. And for jointly singing libelous words.
"Cannot several persons join in singing one and the same song? Forty people
may join in the same chorus. And if such song or chorus be libelous, the
doing so is one joint act, criminal in itself, without regard to any peculiar
personal default," Rex v. Benfield, supra.
102 Rex V. Young, 1 Leach, Crown Cas. 505, 3 Term R. 98.
103 Com. V. Sloan, 4 Cush. (Mass.) 52; State v. Brown, 49 Vt. 437; State
V. Simmons, 66 N. C. 622; Peterson v. State, 32 Tex. 477.
104 Com. V. Brown, 12 Gray (Mass.) 135.
100 Reg. V. Dovey, 2 Denison, Crown Cas. 92; Com. v. Slate, 11 Gray (Mass.)
63. To sustain a joint charge of receiving stolen goods, there must have been
a joint receipt at one and the same time. Com. v. Slate, supra.
106 Com. V. Sampson, 97 Mass. 407.
107 2 Hawk. P. C. c. 25, § 64; Young v. Kex, 3 Term R. 98; Coal-Heavers'
Case, 1 Leach, Crown Cas. 64; Rex v. Taylor, Id. 360; Rex v. Young, Id. 505;
2 Hale, P. C. 173; Com. v. Chapman, 11 Oush. (Mass.) 428; State v. Blan, 69
Mo. 317; White v. People, 32 N. Y. 4G5; State v. Pile, 5 Ala. 72.
Ch. 9] JOINDER OF PARTIES. £03
case of a nuisance, for instance, occasioned by tlie several acts of
a number of persons, all of them may be jointly indicted.^""
The parties, however, must commit the same crime, and not mere-
ly similar crimes, by their several acts.^"^ If two persons play at
the same game of cards at the same time, they may be jointly in-
dicted; ^^^ but, if neither is present when the other plays, a joint
indictment will not lie.^" So, if two persons assault a third at
the same time, they may be jointly indicted; ^^^ but it is otherwise
if one of them commits the assault on one day, and the other com-
mits it on another day.^^' So, if two persons at the same time, act-
ing together, kill a man, they may be jointly indicted for the murder;
but it is otherwise if they each inflict a mortal blow at different
times, and not acting in concert.^'*
Many offenses are of such a nature that they cannot be jointly
committed; so that, even though several parties commit them at
the same time, the indictments must be several.^" A joint in-
dictment will not lie against two persons for jointly exercising a
trade, as partners, for instance, without having served an appren-
ticeship, "for not being apprentices is that which occasions the
crime, and that must of necessity be several." ^^° Nor will a joint
indictment lie for perjury, though it may have been committed by
swearing to the same thing at the same time.^^' Nor will it lie for
being common barretors or common scolds,^^' or for drunkenness,^^"
108 Rex v. TrafCord, 1 Barn. & Adol. 874.
109 Elliott v. State, 26 Ala. 78; Stephens v. State, 14 Ohio, 38G; Baker v.
People, 105 111. 452; People v. Hawkins, 34 Cal. ISl; Reg. v. Devett, 8 Car.
& P. 639; Lindsey v. State, 48 Ala. 169.
110 Com. V. M'Guire, 1 Va. Cas. 119; Covy v. State, 4 Port. -(Ala.) 186.
111 Elliott V. State, 26 Ala. 78; State v. Homan, 41 Tex. 155; Galbreath v.
State, '36 Tex. 200. But see Com. v. McChord, 2 Dana (Ky.) 242.
112 Fowler v. State, 3 Heisk. (Tenn.) 154.
113 Reg. v. Devett, 8 Car. & P. 639.
114 Id.
11 B 2 Hawk. P. C. c. 25, § 89. And see the quotation therefrom In note 97,
supra. See, also, Elliott v. State, 26 Ala. 78; State v. Deaton, 92 N. C. 788.
118 2 Rolle, Abr. 81; Reg. v. Atkinson, 1 Salk. 382, 2 Ld. Raym. 1248.
117 Young V. Rex, 3 Term R. 103; Rex v. Philips, 2 Strange, 921; Rex v.
Benfield, 2 Burrows, 983.
118 Rex V. Philips, 2 Strange, 921.
119 State V. Deaton, 92 N. C. 788.
304 PLEADING THE ACCUSATION. [Ch. 9
or against several persons holding different offices, and charged with
different duties, like the judges, inspectors, and clerks of an elec-
tion, for malfeasance in office.' '"
Where partners, as such, publish an obscene, seditious, or defam-
atory book or other libel, or, it has been held, where several per-
sons jointly utter libelous words, as where they join in singing a
libelous song, they may be jointly indicted.'^' But if several per-
sons at different times, and not by one and the same joint act,
publish the same libel, or utter the same obscene, blasphemous, se-
ditious, or defamatory words, they must be indicted separately.'"
It is difficult to see how words can in any way be jointly uttered by
several persons.
Where the principal in the second degree is not charged, as we
have seen that he may be, as an actual perpetrator of the crime,
but as an aider and abettor, it is not necessary to set forth in the
indictment the means or manner by which he became thus guilty,
but it is sufficient to merely charge that he was present, aiding and
abetting, at the felony and murder (as the case may be), committed
in the manner and form aforesaid.'^' It will not do to merely
charge him with being present, for that is not enough to make him
guilty.'^* It is not necessary to repeat, as to the principal in the
second degree, the acts stated as constituting the crime.'^"
Several persons may be charged with different degrees of crime
in the same indictment. Thus, if one person with malice abets an-
other, who, without malice, unlawfully gives a blow causing death,
it is murder in the foririer, and manslaughter in the latter, and it
may be so charged in an indictment against them jointly.'^"
It seems that in some cases several persons who have committed
different offenses of the same kind may be included in the same in-
dictment, if the word "severally" is inserted, since that makes the
120 Com. v. Miller, 2 Pars. Eq. Gas. (Pa.) 481.
121 Rex V. Benfleld, 2 Burrows, f)S5.
122 State v. Roulstone, 3 Snoed (Tonn.) 107; Cox v. State, 76 Ala. 60.
123 1 Hale, P. C. ryn. .522; 2 Ilnwk. P. C. c. 25, § 64; Id. c. 29, § 17; Hey-
"Jon's Case, 4 Coke, 42b; Rex v. Towle, Russ. & R. 314.
12*2 Hawk. P. C. c. 25, § 64; Heydon's Case, 4 Coke, 42b.
126 Everett v. State, 33 Fla. 661, 15 South. 543.
126 1 Chit. Cr. Law, 270; Mnckalley's Case, 9 Coke, 67b; Rex v. Cary, o
Bulst. 20G; Rex v. Taylor, 1 Leach, Crowu Cas. 360.
Ch. 9] JOINDEK OF PARTIES. 305
indictment several as to each of them, though the court may, in
its discretion, quash the indictment if it may cause inconven-
ience."' It has been held, for instance, that four persons could be
joined for erecting four inns, which were common nuisances, where
the word "severally" was inserted; and the rule has been applied
to an indictment against several for keeping disorderly houses.^"*
"As, at common law, the accessory cannot be tried before the
principal, without his own consent, and as the crime of the former
depends upon the guUt of the latter, and an accessory must be con-
victed of a felony of the same species as the principal, it is both
usual and proper to include them in the same indictment." ^^° Both
may be tried together, but at common law the principal must be
first convicted. If he is acquitted, both must be acquitted.^'" The
rules of the common law in this respect have been greatly modified
by statutes.^ '^ These statutes, however, do not prevent joint in-
dictments against principals and accessories. Where the principal
and an accessory before the fact are thus joined as such in the
same indictment, the proper course is to first state the offense by
the principal, and then to aver that "C. D. (the accessory) before the
committing of the said felony and murder (or other felony, as the
case may be) in form aforesaid, to wit, on, etc., did maliciously and
feloniously incite, move, procure, aid and abet (or counsel, hire, and
command) the said A. B. (the principal) to do and commit the said
felony in manner aforesaid, against the peace," etc.^°^ And where a
person is indicted as accessory after the fact together with his prin-
cipal, the principal's offense is stated in the same way, and it is
127 1 Chit Cr. Law, 271; Young v. Rex, 3 Term R. 106; Rex v. Kingston,
8 East, 46.
128 2 Hale, P. C. 174; Higges v. Henwood, 2 Rolle, 345; Rex v. Kingston, 8
East, 47; State v. Nail, 19 Ark. 563; Johnson v. State, 13 Ark. 684; Com. v.
McChord, 2 Dana (Ky.) 242; Lewellen v. State, 18 Tex. 538.
129 1 Chit. Cr. Law, 272; 1 Hale, P. C. 623; 2 Hale, P. O. 173; Com. v.
Adams, 7 Gray (Mass.) 44; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; Id.,
19 S. E. 691; State v. Lang, 65 N. H. 284, 23 Atl. 432; Com. v. Devine, 155
Mass. 224, 29 N. E. 515. Thus a thief and the receiver of the stolen goods
may be joined. Com. v. Adams, supra.
ISO 1 Hale, P. C. 624; 2 Hale, P. C. 222; 2 Hawk. P. C. c. 29, § 47.
131 Clark, Cr. Law, 93.
»S2 1 Chit. Cr. Law, 272.
CRIM.PBOC. — 20
306 PLEADIKG THE ACCUSATION. [Ch. 9
averred that the accessory did receive, harbor, and maintain, etc.,
the principal, well knowing that he had committed the felony, etc.
The averment of knowledge is absolutely essential, for without it a
person cannot be an accessory after the fact.^" In no case is it
necessary to use the word "accessory" in the indictment,^** or to
set forth the means by which the accessory before the fact incited
the principal, or the accessory after the fact received, concealed, or
assisted him.^"
In an indictment against the accessory alone after the principal
has been convicted, it is not necessary to aver that the latter com-
mitted the felony, or on the trial to enter in detail into the evi-
dence against him. It is sufficient to recite with accuracy the record
of the conviction, because the court will presume everything on
the former occasion to have been rightly and properly transacted.^"
It is always open to the accessory, however, to show positively that
the principal was innocent, and was erroneously convicted, in which
case he must be acquitted.^'^
On an indictment against two, charging them with a joint offense,
either may be found guilty; for "it is a well-established principle, in
all cases, civil as well as criminal, that a charge in tort against
two is several, as well as joint, against all and each of them. All
or part may be convicted, and all or part may be acquitted."*"
iss Ante, p. 192; 1 Hale, P. C. 622; 2 Hawk. P. C. c. 29, § 33; Rex v. Thomp-
son, 2 Lev. 208.
IS* Rex V. Burrldge, 3 P. Wms. 477.
136 1 Chit. Cr. Law, 273.
136 1 Chit. Cr. Law, 273; Holmes v. Walsh, 7 Term R. 465; Com. v. Knapp,
10 Pick. (Mass.) 477.
187 4 Bl. Comm. 324; Rex v. Baldwin, 3 Camp. 265; Com. v. Knapp, 10
Pick. (Mass.) 477.
138 Com. v. Brown, 12 Gray (Mass.) 135; Rex v. Hempstead, Russ. & R. 344;
Reg V. Dovey, 2 Denison, Crown Oas. 86; Com. v. Slate, 11 Gray (Mass.)
63; 2 Hawk. P. C. c. 25, § 89; Brown v. State, 5 Yerg. (Tenn.) 367; Com.
V. Griffin, 3 Cush. (Mass.) 523; State v. Smith, 37 Mo. 58; Com. v. Cook, 6
Serg. & B. (Pa.) 577; State v. O'Brien (R. I.) 25 Atl. 910; State v. Bradley,
9 Rich. (S. C.) 168. "The case of Reg. v. Dovey, 2 Denison. Crown Cas. 92,
and other cases subsequent to that of Rex v. Messingham (1 Moody, Crown
Cas. 257) explain and illustrate the principle and the extent to which It is to
be carried in the matter of charging a joint felony in receiving stolen goods
knowing them to be such. To sustain a joint charge against two for one
Ch. 9] JOINDER OF PARTIES. 307
It has been said that where two or more persons are jointly indicted
for the same offense, each cannot be found guilty of separate parts
of the charge, subjecting them to distinct punishments; "° nor each
be convicted of a separate and distinct felony, as the one of larceny
and the other of robbery."" But as to the truth of this proposi-
tion there is a doubt The rule has been stated that, "except in
indictments for offenses necessarily joint, joint defendants may be
convicted of different grades; and they may be convicted of differ-
ent degrees of criminality in the same offense, where the defendants
may act different parts in the same transaction." ^*^ Thus, on a joint
indictment for burglary and larceny, one of the defendants may be
convicted of burglary and larceny, and the other of simple lar-
ceny.^*" And on a joint indictment for larceny one may be con-
victed of larceny, and the other of an attempt to commit larceny.^*^
And on a joint indictment for murder one may be convicted of
murder and the other of manslaughter.^**
The rule that one of several joint defendants may be convicted,
and the others acquitted, does not apply to the full extent in the
case of crimes which cannot be committed by one person alone, as
in the case of riot, which cannot be committed by less than three,^*'
and conspiracy, which requires at least two.'*' If so many are
acquitted that there remains less than the number necessary to
commit the crime, all must be acquitted."'
and the same offense, there mnst he a joint receipt at one and the same time;
and a receipt of goods by one of the parties at one time and place, and a sub-
sequent receipt by another, -will not sustain the joint charge, but will au-
thorize the conviction of the party who first received them. He is properly
found guilty of receiving stolen goods. So the entire acquittal of one of two
parties charged exonerates that party, but leaves the indictment valid and
effectual as against the one found guilty by the jury." Com. v. Slate, supra.
1S9 1 Chit Cr. Law, 270; Rex v. Hempstead, Russ. & R. 344.
140 Eex V. Hempstead, Russ. & R. 344; Rex v. Quail, 1 Craw. & D. 191.
141 Klein v. People, 31 N. Y. 229. See Shouse v. Com., 5 Pa. St. 83; Rex v.
Butterworth, Russ. & R. 520; White v. People, 32 N. Y. 465.
142 1 Chit. Cr. Law, 270; Rex v. Butterworth, Russ. & R. 520.
143 Klein v. People, 31 N. Y. 229.
144 u. S. V. Harding, 1 Wall. Jr. 127, Fed. Cas. No. 15,301; Mask v. State,
32 Miss. 406.
145 Clark, Cr. Law, 342.
146 Id. 117.
147 Rex V. Kinnersley, 1 Strange, 193; Rex v. Heaps, 2 Salk. 593; Rex v.
308 PLEADING THE ACCUSATION. [Ch. 9
Effect of Misjoind&r of Parties.
If the fact that there is a misjoinder of parties appears on the
face of the indictment, the objection, at common law, may be raised
by demurrer, or by motion in arrest of judgment, or on writ of
error; or the court, in its discretion may quash the indictment on
motion.^** If the objection does not so appear, it may be raised
by plea in abatement, or the defendants may wait until the fact of
misjoinder appears from the evidence, and then claim an acquit-
tal.^*" There is some conflict in the authorities on these points,
and in some jurisdictions the common-law rules have been changed
by statute.
Severance.
Where several persons are rightly joined in one indictment, the
court may, in its discretion, grant them a severance; that is, sep-
arate trials.^""
Several Counts.
The fact that several defendants are charged in different counts
of the same indictment with different offenses of the same nature
does not render the indictment bad in law, so that objection may
be taken by demurrer, motion in arrest of judgment, or on writ
of error; but the court, in the exercise of its discretion, may quash
the indictment.^ °^ In overruling a demurrer to such an indict-
ment it was said that "this would have been a good ground of appli-
cation to the discretion of the court to quash the indictment for
the inconvenience which may arise at the trial from joining different
counts against different offenders; but where, to the offenses so
charged in different counts, there may be the same plea and the
same judgment, there is no authority for saying that such joinder
in one indictment is bad in point of law, nor is there any legal
Nichols, 13 East, 412, note; State v. O'Donald, 1 McCord (S. O.) 532; State
V. Allison, 3 Yerg. (Tenn.) 428; Pennsylvania v. Huston, Add. (Pa.) 334; Tur-
pin V. State, 4 Blackf. (Ind.) 72; Stephens v. State, 14 Ohio, 388.
1*8 Young V. Rex, 3 Term R. 103; Rex v. Weston, 1 Strange, 623;" Reg. v.
Devett, 8 Car. & P. 639; People v. Hawkins, 24 Cal. 181; Galbreath v. State,
36 Tex. 200; Elliott v. State, 26 Ala. 78.
140 Elliott V. State, supra; Stephens v. State, 14 Ohio, 386; Llndsey v.
State, 48 Ala. 169; Baker v. People, 105 lU. 452.
100 Post, p. 431.
i" Rex v. Kingston, 8 East, 41.
Ch. 9] CONCLUSION OP INDICTMENT. 309
incongruity on the face of it, to warrant us in giving judgtoent
for the defendants on demurrer." ^"^
CONCLUSION OF INDICTMENT.
114. An indictment for an offense, either at common
law or by statute, except for mere nonfeasance, must
conclude, "against the peace of the state; ""^ and an in-
dictment for an offense against a statute must also ex-
pressly count upon the statute, and must therefore con-
clude, "against the form of the statute, and against the
peace of the state."
In the absence of statutory proTision to the contrary, every
indictment, whether under a statute or at common law, except for
a mere nonfeasance,^'* must conclude, "against the peace of the
state." In England it is, "against the peace of the king," and in
some of our states it is the practice to use the word "common-
wealth," or the words "people of the state," instead of "state."
This conclusion is essential at common law.^°° It is usual to use
the words "against the peace and dignity," but the latter term is not
necessary.^^® "Against the peace," without adding "of the state,"
would not be suflQcient.^" In most states a form of conclusion is
prescribed by the constitution or by statute, and the form so pre-
1B2 Rex V. Kingston, supra,
163 Or "of the commonwealth," or "of the people of the state," where it Is
the practice in the particular state to use these terms.
164 Reg. T. Wyat, 1 Salk. 380.
166 2 Hale, P. C. 188; 2 Hawk. P. C. c. 25, § 92; Holmes' Case, Cro. Car.
377; Palfrey's Case, Cro. Jac. 527; Reg. v. Langley, 3 Salk. 190; Rex v. Cook,
Russ. & R. 176; Damon's Case, 6 Greenl. (Me.) 148; State v. Evans, 5 Ired.
(N. C.) 603; Rogers v. Com., 5 Serg. & R. (Pa.) 463; Com v. Carney, 4 Grat
(Va.) 546; State v. Washington, 1 Bay (S. C.) 120; Browne's Case, 3 Greenl.
(Me.) 177; State v. Soule, 20 Me. 19; State v. Kean, 10 N. H. 347.
166 2 Hale, P. C. 188; 2 Hawk. P. C. c. 25, § 94; 2 Rolle, Abr. 82; Com. v.
Caldwell, 14 Mass. 330.
167 2 Hale, P. C. 188; Damon's Case, 6 Greenl. (Me.) 148.
310 PLEADING THE ACCUSATION. [Ch. 9
scribed must be followed.^"* A variance, however, in immaterial
particulars, will not render the indictment bad.^"
Whoever commits an offense indictable either by statute or 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 oflfense is committed; and in setting forth the offense
an omission to charge it as having been done against the peace
of that government is fatal.^"" Thus, where an indictment, in
England, for an offense committed in the reign of a previous sov-
ereign, concluded against the peace of the sovereign reigning at
the time of the indictment, the defect was held fatal.^'^ And an
indictment in Maine, after it had become a state, for an offense
committed when its territory was a portion of Massachusetts, was
held bad because it concluded against the peace of Maine, instead
of against the peace of Massachusetts.^*^
Every indictment on a statute, except for mere nonfeasance,^"'
must also have this conclusion.^'* In addition to this, every indict-
ment founded on a statute, including indictments for nonfeasance,
must conclude contra formam statuti, by the words "against the form
of the statute in such case made and provided," or words to that
effect."^ Both of these conclusions are necessary. The latter will
not supply an omission of the former, nor the former an omission
158 state V. Kean, 10 N. H. 347; State v. Lopez, 19 Mo. 254; State v. Allen,
8 W. Va. 680; Lemons v. State, 4 W. Va. 755; Com. v. Carney, 4 Grat (Va.)
546; Thompson v. Com., 20 Grat. (Va.) 724; Anderson v. State, 5 Fike (Ark.)
444; State v. Phelps, 11 Vt. 118; People v. Enoch, 13 Wend. (N. Y.) 159;
Rogers v. Com., 5 Serg. & R. (Pa.) 4C3; State v. McCoy, 29 La. Ann. 593;
Zarresseller v. People, 17 111. 101.
159 State v. Kean, supra; State v. Cadle, 19 Ark. 613; Anderson v. State,
5 Pike (Ark.) 445; Buzzard v. State, 20 Ark. 106.
180 Damon's Case, 6 Greenl. (Me.) 148; Reg. v. Lane, 3 Salk. 190, 2 Ld.
Raym. 1034; 2 Hawk. P. C. c. 25, § 95; 2 Hale, P. C. 188; lies v. Lookup, 3
Burrows, 1903.
i«i Rex v. Lookup, supra.
162 Damon's Case, supra.
188 1 Chit. Cr. Law, 246.
i«<2 Hale, P. C. 188; Palfrey's Case, Ci-o. Jac. 527; Reg. v. Lane, 2 Ld.
Raym. 1034; Reg. v. Laugley, 3 Salk. 190; Rex v. Cook, Russ. & R. 170.
165 2 Hawk. P. C. c. 25, § 116. And see cases hereafter cited.
Ch. 9] CONCLUSION OF INDICTMENT. 311
of the latter.*^* The conclusion contra formam statuti is to show
that the prosecution proceeds upon a statute in contradistinction to
the common law, and is essential. "A judgment by statute shall
never be given on an indictment at common law, as every indictment
which doth not conclude contra formam statuti shall be taken to be.
And therefore, if an indictment do not conclude contra formam
statuti, and the offense indicted be only prohibited by statute, and
not by common law, it is wholly insufiScient, and no judgment at all
can be given upon it." *'^
The conclusion contra formam statuti is necessary at common
law where an offense is entirely created by statute, and did not
exist at common law; ^^^ or where an offense at common law is by
statute made an offense of a higher nature, as where a misdemeanor
is made a felony; ^^° or where the statute expressly or impliedly
repeals the common law in relation to the offense.^'" But this con-
clusion is only necessary where the indictment is founded on a stat-
ute. It is not necessary where the offense exists at common law,
and a statute merely deprives the offender, under particular circum-
stances, of some benefit to which he was entitled, as formerly of the
188 Com. V. Town of Northampton, 2 Mass. 116; Eex v. Cook, Russ. & R.
176.
18T 2 Hawk. P. C. c. 25, § 116; 1 Hale, P. C. 172, 189, 192; Rex v. Clerk,
1 Salk. 370; Rex V. Winter, 13 East, 258; Reg. v. Harman, 2 Ld. Raym. 1104:
Wells V. Iggulden, 8 Barn. & C. 186; Com. v. Springfield, 7 Mass. 9; State
V. Soule, 20 Me. 19; State v. Evans, 7 Gill & J. (Md.) 290; McCuUougli v.
Com., Hardin (Ky.) 102; State v. Jim, 3 Murph. (N. C.) 3; Crain v. State, 2
Yerg. (Tenn.) 390; State v. Humphreys, 1 Overt. (Tenn.) 307. The same is
true of a complaint for violation of a city by-law or ordinance, where the
prosecution can only be maintained by virtue of a statute. It must conclude,
not merely "against the form of the by-laws of said city," but also "against
the form of the statute." Com. v. Worcester, 3 Pick. (Mass.) 475; Com. v.
Gay, 5 Pick. (Mass.) 44; Stevens v. Dimond, 6 N. H. 330.
18 8 2 Hawk. P. C. c. 23, § 99, Id. c. 25, § 116; 1 Hale, P. C. 172, 189, 192;
Com. V. Northampton, 2 Mass. 116; Com. v. Springfield, 7 Mass. 13.
i8» 2 Hale, P. C. 189; 2 Hawk. P. C. c. 25, § 116; State v. Wright, 4 McCord
(S. C.) 358; Anderson v. State, 5 Pike (Ark.) 445; State v. Kean, 10 N. H. 347;
State V. Johnson, 1 Walk. (Miss.) 392; State v. Ripley, 2 Brev. (S. C.) 300;
State V. Jim, 3 Murph. (N. C.) 3; State v. Evans, 7 Gill & J. (Md.) 290; State
V. Soule, 20 Me. 19.
170 Com. V. Cooley, 10 Pick. (Mass.) 37; Com. v. Ayer, 3 Cush. (Mass.) 152;
Com. V. Dennis, 105 Mass. 162.
312 PLEADING THE ACCDSATION. [Ch. 9
benefit of clergy; "^ or where a common-law offense committed
abroad is made punishable here;^^" or where a statute merely
changes a rule of evidence in relation to a common-law offense;^'*
or where a common-law offense is merely declared by statute;*^*
or where the punishment of a common-law offense is merely fixed
by statute.""
Where an indictment contains several counts, each count is a
separate charge, and must have a proper conclusion. By the weight
of authority, the conclusion of one count cannot supply the omission
of a conclusion in another.*'"
, These exact words need not be used, but the words substituted
must be an equivalent. "It may be going too far," it has been said,
"to say that no other form of words can be devised which would be
equivalent to contra formam statuti; but it is certain that no words
would be sufficient unless they clearly and explicitly refer to the
statute as the foundation of the suit." *'' The words "against the
law in such case provided" are not sufficient, "" but "against the
peace and the statute" are sufficient.*'*
We have already seen that a conclusion contra formam statuti
cannot aid an indictment which does not contain sufficient aver-
ments to bring the case within a statute.**"" We have also seen
1712 Hale, P. C. 190; Rex v. Dickenson, 1 Saund. 135, note 3.
i'2 Rex V. Sawyer, Russ. & R. 294.
173 2 Hale, P. C. 190. 288; 2 Hawk. P. C. c. 46, § 43; J. Kel. 32.
IT* 2 Hale, P. C. 189; People v. Enoch, 13 Wend. (N. Y.) 175; State v.
Evans, 7 Gill & J. (Md.) 290.
ITS Russel V. Com., 7 Serg. & R. (Pa.) 489; Rex v. Chatburn, 1 Moody,
Crown Gas. 403; Williams v. Reg., 7 Q. B. 250; Rex v. Berry, 1 Moody & R.
463; State v. Burt, 25 Vt. 373; Chiles v. Com., 2 Va. Cas. 260; State v. Ratts,
63 N. C. 503; Com. v. Searle, 2 Bin. (Pa.) 332; White v. Com., 6 Bin. (Pa.)
179. But see 2 Hale, P. C. 190; 2 RoUe, Abr. 82.
176 State V. Soule, 20 Me. 19; State v. Johnson, 1 Walk. (Miss.) 392. But
see McGuire v. State, 37 Ala. 161.
177 Com. V. Stockbridge, 11 Mass. 279; Lee v. Clarke, 2 East, 333; State v.
Holly, 2 Bay (S. C.) 262. But see State v. Turnage, 2 Nott & McC. (S. O.)
158; U. S. V. Smith, 2 Mason, 143, Fed. Gas. No. 16,338.
178 Com. V. Stockbridge, supra. But sec Hudson v. State, 1 Blackf. <Ind.)
318; Fuller v. State, Id. 65.
17 9 Com. V. Caldwell, 14 Mass. 330.
ISO Ante, p. 259.
Ch. 9] CONCLUSION OF INDICTMENT. 31S
that an indictment need not recite the particular statute on which it
is founded.^*^
"Where there are two statutes which relate to the offense, there
have been various distinctions taken respecting the conclusion
against the form of the statutes in the plural or statute in the
singular only. Thus it was formerly holden by several authorities
that where an offense is prohibited by several independent statutes,
it is necessary to conclude in the plural; ^^^ but now the better opin-
ion seems to be that a conclusion in the singular will suffice, and it
will be construed to refer to that enactment which is most for the
public benefit." ^*' It has been held that where an offense is cre-
ated by one statute, and the punishment prescribed or affixed by
another, the conclusion should be in the plural;^** but this is not
necessary "where the statute creating the offense is only amended
or regulated, or altered in parts thereof which do not relate to the
offense or to the punishment thereof." ^^° It has been held that
where an indictment or information is founded on a single statute,
a conclusion contra formam statutorum is fatal,^*° but on this point
there is a direct conflict in the authorities, and the weight of opin-
ion is to the contrary.^ *^
181 Ante, p. 257.
182 Broughton v. Moote, Cro. Jac. 142; Dormer's Case, 2 Leon. 5; Petchet
V. Woolston, Aleyn, 49; Rex v. Oox, 2 Bulst. 258; State v. Cassel, 2 Har. &
G. (Md.) 407.
183 1 Chit. Cr. Law, 291; 1 Hale. P. C. 173; 2 Hawk. P. C. c. 25, § 117;
Horthbury v. Levingham, Sid. 348; Owen, 135; Rex v. Collins, 2 Leach, Crown
Cas. 827; 4 Coke, 48a; People v. Walbridge, 6 Cow. (N. Y.) 512; XJ. S. v. Fur-
long, 5 Wheat. 184; Kenrick v. U. S., 1 Gall. 268, Fed. Cas. No. 7,713; State
V. Dayton, 23 N. J. Law, 49, 61; State v. Berry, 9 N. J. Law, 374.
184 2 Hale, P. C. 173; Dormer's Case, 2 Leon. 5; Broughton v. Moore, Cro.
Jac. 142; State v. Cassel, 2 Har. & G. (Md.) 407; Kane v. People, 8 "Wend.
(N. Y.) 212. But see 1 Chit. Cr. Law, 292; 2 Hawk. P. C. c. 25, § 117; Par-
ker V. Webb, 3 Lev. 61; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204;
Butman's Case, 8 Greenl. (Me.) 113.
18 6 "Kane v. People, supra; Dingley v. Moor, Cro. Bliz. 750; Pinkney v. In-
habitants, 2 Saund. 377, note 12; Rex v. Dickenson, 1 Saund. 135, note 3.
i8« 2 Hawk. P. C. c. 25, § 117; Andrews v. Hundred of Lewknor, Cro. Jac
187, Yel. 116.
18T 2 Hale, P. 0. 173; Com. v. Hooper, 5 Pick. (Mass.) 42; Townley v. State,
18 N. J. Law, 311; Kenrick v. U. S., 1 Gall. 268, Fed. Cas. No. 7,713; V. S.
v. Gibert, 2 Sumn. 21, 89, Fed. Cas. No 15,204.
314 PLEADING THE ACCUSATION. [Ch. 9
Where the conclusion contra formam statuti is unnecessarily in-
serted, and the indictment may be sustained at common law, these
words may be rejected as surplusage, and the judgment given as at
common law.^*"
In England, and in some of our states, statutes have been enacted
declaring in substance that no indictment, information, or complaint
shall be held insufiScient for want of a proper conclusion.^" In
some states, on the other hand, as we have seen, not only is there
no such statute, btit there are constitutional provisions declaring
the formal conclusion necessary, so that no statute dispensing with
the necessity for it would bs valid.
Though it has sometimes been customary, it is altogether unneces-
sary, to insert in the conclusion of an indictment the words, "to the
great damage of" the party injured by the crime, "to the evil exam-
ple of all others," or "to the great displeasure of Almighty Grod." ^'°
Nor, it seems, is it necessary, though it is customary, to insert the
words "to the common nuisance of the citizens of the state," or, in
England, "of all the liege subjects of our lord the king," in indict-
ments against common barretors, common scolds, and for other com-
mon nuisances, though on this point there is a conflict^"^
188 2 Hale, P. C. 190; Reg. v. Wyat, 1 Salk. 381 r 2 Hawk. P. C. c. 25, §
115; Rex v. Mathews, 5 Term R. 162, 2 Leach, Crown Cas. 584; Reg. v. Wigg,
2 Ld. Raym. 1163; Rex v. Harris, 4 Term R. 202; Com. v. Hoxie, 16 Mass.
385; Pennsylvania v. Bell, Add. (Pa.) 171; State v. Gove, 34 N. H. 510; Has-
lip v. State, 4 Hayw. (Tenn.) 273; Respublica v. Newell, 3 Yeates (Pa.) 407;
Davis V. State, 3 Har. & J. (Md.) 154; Soutliworth v. State, 5 Conn. 325:
Knowles v. State, 3 Day (Conn.) 103; Fuller v. State, 1 Blackf. (Ind.) 65;
State V. Phelps, 11 Vt. 116; Gregory v. Com., 2 Dana (Ky.) 417; State v.
Buchman, 8 N. H. 203; State v. Burt, 25 Vt. 373; State v. White, 15 S. C.
381. But where an offense which was a misdemeanor at common law Is made
a felony by statute, there can be no judgment as for a misdemeanor at com-
mon law. See the cases cited in note 169, supra.
180 See State v. Cadle, 19 Ark. 613; Com. v. Kennedy, 15 B. Mon. (Ky.) 531;
State V. Dorr, 82 Me. 341, 19 Atl. 861.
180 1 Chit. Cr. Law, 245; Rex v. Cooper, 2 Strange, 1246.
101 2 Hawk. P. C. c. 25, § 59; Com. v. Haynes, 2 Gray (Mass.) 73; Com. v.
Reynolds, 14 Gray (Mass.) 91; Com. v. Pai'ker, 4 Allen (Mass.) 313. Contra,
1 Chit. Cr. Law, 245; Rex v. Pappineau, 2 Stmnge, 688; Rex v. Cooper, Id.
1246; Com. v. Faris, 5 Rand. (Ya.) 691; Reg. v. Ho'm-s, 6 Cox, Cr. Cas. 216;
Com. V. Smith, 6 Cush. (Mass.) 81; Com. v. Buxton. 10 Gray (Mass.) 9.
Ch. 9] AMENDMENT. 315
AMENDMENT.
115. At common law, an information could be amended
by the prosecuting ofl&cer at any time by leave of the
court; but an indictment, being a finding by the grand
jury on oath, could not be so amended.
116. By statute, in most jurisdictions, either an indict-
ment or information may no-vr be amended in matter of
form, but not in matter of substance.
Since an indictment is a finding by the grand jury upon oath,
and, at common law, depends upon this fact, among others, for its
validity, it follows that it cannot, at common law, be amended
by the court, without the concurrence of the grand jury that pre-
sented it; and the rule, because of its reason, necessarily applies
to every offense, whether it be a felony or merely a misdemeanor.^"^
Not even can it be amended with the defendant's consent, where
the prosecution is required to be by indictment.^"' It is, or was at
one time, the practice in England for the grand jury to consent at
the time they were sworn that the court should amend matters of
form, altering no matter of substance ; and mere informalities could
be amended by the court at any time before trial, or perhaps during
the trial."* Some of the courts in this country have held it com-
petent for the court to amend matters of form, but the weight of
authority is to the contrary, where such an amendment is not
expressly allowed by statute. The omission of an averment which
192 1 Chit. Or. Law, 298; 2 Hawk. P. C. c. 25, § 98; Rex v. Wilkes. 4 Bur-
rows, 2570; State v. Sexton, 3 Hawks (N. C.) 184; People v. Campbell, 4 Par-
ker, Cr. R. (N. Y.) 386; Ex parte BaiB, 121 U. S. 1, 7 Sup. Ct. 781; Com. v.
Mahar, 16 Pick. (iMass.) 120; Patrick v. People, 132 111. 529, 24 N. E. 619;
Com. V. Pliillipsburg, 10 Mass. 78; State v. Squire, 10 N. H. 558; Sanders v.
State, 26 Tex. 119; State v. McCarthy, 17 R. I. 370, 22 Atl. 282; State v.
Kennedy, 36 Vt. 563; Com. v. Buzzard, 5 Grat. (Va.) 694; State v. Terre-
boone, 45 La. Ann. 25, 12 South. 315. But see Miller v. State, 08 Miss. 221,
8 South. 273.
193 Com. T. Maher, 16 Pick. (Mass.) 120; People v. Campbell, 4 Parker, Cr.
R. (N. T.) 386; Com. v. Adams, 92 Ky. 134, 17 S. W. 276.
194 2 Hawk. P. G. c. 25, § 98.
316 PLEADING THE ACCUSATION. [Ch. 9
ia essential is fatal at common law, though the averment is purely
technical and formal.^*'
The caption of an indictment may, as we have seen, be amended
at any time, so as to conform to the other records of the court;
but this is no violation of the rule, for the caption is no part of
the indictment.^ °'
Informations, since they are not found upon the oath of a grand
jury, may, at common law, be amended by leave of the court, at
any time before trial, even after plea. "There is a great differ-
ence," said Lord Mansfield in a leading case, "between amending
indictments and amending informations. Indictments are found
upon the oaths of a jury, and ought only to be amended by them-
selves; but informations are as declarations in the king's suit. An
oflflcer of the crown has the right of framing them originally, and
may, with leave, amend, in like manner as any plaintiff may do.
If the amendment can give occasion to a new defense, the defendant
has leave to change his plea." ^"
In England, and in most of our states, statutes have been en-
acted, allowing mistakes in the statement of time and place, names
and description of persons, description of property, statements of
ownership, etc., to be cured by amendment at the trial, in the dis-
cretion of the court, if the defendant cannot be prejudiced thereby
in his defense on the merits. In some states it is merely pro-
vided that indictments, etc., may be amended in matters of form,
where the defendant cannot be prejudiced thereby. These stat-
utes must be read in connection with, and subject to, the consti-
tutional provisions of the particular state. In some states, as we
have heretofore shown, the constitution requires all prosecutions
to be by indictment. Clearly, in these states, a statute cannot be
so construed as to authorize an indictment to be amended by the
10 B Com. V. Phillipsburg, 10 Mass. 78; State v. Hughes, 1 Swan (Tenn.) 261.
188 Ante, p. 123.
107 Eex. V. Wilkes, 4 Burrows, 2527, 2569. And see Anon., 1 Salk. 50; Rex
V. Nixon, 1 Strange, 185; Rex v. Charlesworth, 2 Strange, 871; Rex v. Har-
ris, 1 Salk. 47; Rex v. Holland, 4 Term R. 457; State v. Rowley, 12 Conn.
101; Com. V. Rodes, 1 Dana (Ky.) 595; State v. Terrebonne, 45 La, Ann. 25,
12 South. 315; State v. Weare, 38 N. H. 314; State v. White, 64 Vt 372, 24
Ati. i;.-)0.
Ch. 9] AMENDMENT. 317
court, even with the defendant's consent, either during the trial
or before plea, in any matter of substance, for the accusation as
amended would not be a finding by the grand jury.^°' In most, if
not all, of the states, the constitution guaranties to persons accused
of crime the right to be fully and substantially informed of the
charge against them, before they can be called upon to answer,
either by an express provision to that effect, or impliedly by the
provision that no person shall be deprived of life, liberty, or prop-
erty without due process of law. In no state, therefore, can the
legislature authorize either an indictment or an information to be
amended during the trial in matter of substance.^" It may author-
ize amendments in matters of form.^""
The difficulty is in determining what defects are mere matter of
form and what are matter of substance, and the authorities are con-
flicting. We may state as a rule, that no omission or misstatement
which prevents the indictment from showing on its face that an of-
fense has been committed, or from showing what offense is intended
to be charged, is mere matter of form. It is matter of substance,
and cannot be cured by amendment at the trial.""^ And in no case
can an indictment or information be amended at the trial so as to
change the identity of the offense.^"''
The name of the defendant is clearly mere matter of form, and
IBS Ante, pp. 107, 140; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386.
199 Ante, p. 140, and cases there cited; People v. Campbell, 4 Parker, Cr.
B. (N. Y.) 386; Sharp v. State, 6 Tex. App. 650; Collins v. State, 25 Tex. 205;
Startup V. State, 39 N. J. Law, 423; McLaughlin v. State, 45 Ind. 338; State
V. Van Cleve, 5 Wash. 642, 32 Pac. 461; State v. McCarthy, 17 R. I. 370, 22
Atl. 282; Com. v. Harrington, 130 Mass. 35; Drummond v. State, 4 Tex. App.
150.
200 Com. V. Holley, 3 Gray (Mass.) 458; Peebles v. State, 55 Miss. 434;
State V. Nulty, 57 Vt. 543; McKinley v. State, 8 Humph. (Tenn.) 72; State
V. Schricker, 29 Mo. 265; State v. Chamberlain, 6 Nev. 257; Rough v. Com.,
78 Pa. St. 495; State v. Maiming. 14 Tex. 402; State v. Freeman, 59 Vt 661,
10 Atl. 752; and cases hereafter referred to.
201 state V. Learned, 47 Me. 426. And see Com. v. Harrington, 130 Mass.
35; McLaughlin v. State, 45 Ind. 338; State v. Startup, 39 N. J. Law, 432;
Bates V. State, 12 Tex. App. 26; cases cited in note 199, supra. And see ante,
pp. 104, 107, 140.
202 Blumenberg v. State, 55 Miss. 528.
318 PLEADING THE ACCUSATION. [Ch. 9
may be amended, if a statute permits.*"* Some of the courts have
allowed the names of third persons to be supplied or changed by
amendment, — as the name of the owner of property in an indict-
ment or information for larceny, and similar crimes; ""* the name
of the owner of the premises in an indictment for burglary or
arson; *'" the name of the thief in an information for receiving
stolen goods; ^'" the name of the purchaser in an indictment for
an unlawful sale of intoxicating liquors; ^"^ the name of the per-
son assaulted in a complaint for assault and battery. '''"
Amendment has also been allowed to correct a mistake in the al-
legation of a former conviction in an indictment for a second of-
fense,'"'" but not to supply an entire omission of such an allega-
tion; ^^'' to supply the certificate of oath to a complaint or informa-
tion;'^^ to change the description of property in an indictment or
information for larceny, where it was considered that the defend-
ant could not be prejudiced;'^" to change the name of the coun-
203 State V. Manning, 14 Tex. 402; State v. Schricker, 29 Mo. 265; Shlff-
lett V. Com. (Va.) 18 S. E. 838; People v. Kelly, C Cal. 210; State v. Johnson
(Mo. Sup.) 6 S. W. 77; MUler v. State, 68 Miss. 221, 8 South. 273; State v.
McLain, 43 Kan. 439, 23 Pac. 651.
2 0* State V. Casavant, 64 Vt. 405, 23 Atl. 636; State v. Christian, 30 La. Ann.
367; State v. Hanks, 39 La. Ann. 235, 1 South. 458; State v. Ware, 44 La.
Ann. 954, 11 South. 579; Baker v. State (Wis.) 59 N. W. 570. Contra, State
V. Van Cleve, 5 Wash. 642, 32 Pac. 461. And see, as contra, McLaughlin v.
State, 45 Ind. 338; State v. McCarthy, 17 R. I. 370, 22 Atl. 282.
20 0 People v. Hagan, 60 Hun, 577, 14 N. Y. Supp. 233. Contra, State v.
McCarthy, supra. And see, as contra, State v. Van Cleve, supra; McLaugh-
lin V. State, supra.
206 State V. Jenkins, 60 Wis. 599, 19 N. W. 406. But see, as being contra.
State V. McCarthy, supra; McLaughlin v. State, supra; State v. Van Cleve,
supra.
20T Rough V. Com., 79 Pa. St. 495. Contra, McLaughlin v. State, supra.
208 Rasmussen v. State, 63 Wis. 1, 22 N. W. 835.
20 8 Com. V. Holley, 3 Gray (Mass.) 458.
210 Com. V. Harrington, 130 Mass. 35.
211 State V. Freeman, 59 Vt. 601, 10 Atl. 752.
212 State V. Carter (La.) 9 South. 128; Baker v. State (Wis.) 59 N. W. 570.
Contra, People v. Campbell, 4 Parker, Cr. R. (N. Y.) 38G. And see, as contra.
State V. McCarthy, supra; McLaughlin v. State, supra; State v. Van Cleve,
supra.
Ch. 9] AIDER BY VERDICT. 319
ty; "' and to change the time at which the offense (murder) was
alleged to have been committed.''^*
AIDER BY VERDICT.
117. A defective statement in an indictment will, at
common law, in most jurisdictions, be cured by a verdict
of guilty, if the statement is sufficient to show that the
offense has been committed, and to apprise the defendant
of the charge against him, but not otherwise. In some
states the doctrine of aider by verdict is not recognized
in criminal cases.
When we speak of a defect in pleading being cured by verdict,
or a pleading being aided by verdict, we mean "the healing or re-
mission, by a verdict rendered, of a defect or error in pleading,
which might have been objected to before verdict," or "the pre-
sumption of the proof of all facts necessary to the verdict as it
stands, coming to the aid of a record in which such facts are not
distinctly alleged." '^"
With respect to such imperfections as are aided by verdict at
common law, it has been said that: "Where there is any defect,
imperfection, or omission in any pleading, whether in substance or
form, which would have been a fatal objection upon demurrer, yet,
if the issue joined be such as necessarily required on the trial proof
of the facts so defectively or imperfectly stated or omitted, and
without which it is not to be presumed that either the judge would
direct the jury to give, or the jury would have given, the verdict,
such defect, imperfection, or omission is cured by the verdict by
the common law." ^^^ "Where an averment which is necessary for
the support of the pleading is imperfectly stated, and the verdict
on an issue involving that averment is found, if it appears to the
»" State V. Chamberlain, 6 Nev. 257.
214 Myers v. Com., 79 Pa. St 308. Contra, Di-ummond v. State, 4 Tex. App.
150.
21 B Black, Law Diet. "Alder by Verdict"
2i« Stennel v. Hogg, 1 Wms. Saund. 228; Smith v. Cleveland, 6 Meta
(Mass.) 334.
320 PLEADING THE ACCUSATION. [Ch. 9
court after verdict that the verdict could not have been found on
this issue without proof of this averment, there, after verdict, the
defective averment which might have been bad on demurrer is
cured by the verdict." ''^^ "Where a matter is so essentially neces-
sary to be proved that, had it not been given in evidence, the jury
could not have given a verdict, there the want of stating that
matter in express terms in the declaration (or indictment), pro-
vided the matter contains terms sufficiently general to comprehend
it in fair and reasonable intendment, will be cured by a verdict;
and where a general allegation must, in fair construction, so far
require to be restricted that no judge or jury could have properly
treated it in an unrestrained sense, it may be reasonably presumed,
after verdict, that i«t was so restrained at the trial." *^*
The doctrine of aider by verdict is founded on the common law,
and is independent of any statutory enactment. Defects in plead-
ing are aided by intendment; that is, the court will, after ver-
dict, presume or intend that the particular thing which is imper-
fectly stated was duly proved at the trial, because it was within
the issue made by the pleadings, and must have been proved to au-
thorize the verdict
There is some authority for the proposition that a defective in-
dictment cannot be aided by verdict; that no fault which would
have been fatal on demurrer can be cured by the verdict; and,
consequently, that any such fault may be taken advantage of by
motion in arrest of judgment, or by writ of error.''^* And such
has been recognized as the rule in some of our states.^^" But in
England it is well settled that the common-law doctrine of aider
by verdict applies equally to civil and to criminal cases,^^^ and the
same rule is recognized in some of our states.^^* Of course, the
217 Heymann v. Reg., L. R. 8 Q. B. 105.
218 Jackson v. Pesked, 1 Maule & S. 234.
210 1 Starkie, Or. PI. 361. And see 2 Hale, P. C. 193.
220 Com. V. Child, 13 Pick. (Mass.) 198; Com. v. Collins, 2 Cush. (Mass.) 557;
Com. V. Bean, 14 Gray (Mass.) 52; People v. Wriglit, 9 Wend. (N. Y.) 193;
State V. Gove, 34 N. H. 511; State v. Barrett, 42 N. H. 466.
221 Reg. V. Waters, 1 Denison, Crown Cas. 356; Reg. v. Goldsmith, L. E.
2 Crown Cas. 74; Reg. v. Aspinall, 2 Q. B. Div. 48; Bradlaugh v. Reg., 3
Q. B. Div. 607; Heymann v. Reg., L. R. 8 Q. B. 105.
222 state V. Freeman, 63 Vt. 496, 22 AU. 621; Nichols v. State, 127 Ind.
Ch. 9] AIDER BY VERDICT. 321
doctrine is affected to some extent by the requirement in most of
our constitutions that no person shall be held to answer for a
crime until the same is fully and plainly, formally and substan-
tially, made known to him.'^' An indictment which fails to meet
this requirement could not be aided by verdict, but defects which
do not make the indictment insufficient in this respect can be so
aided.
It will be noticed that the verdict cures imperfect and defective
averments only, and it cures them because the facts alleged being
in issue will be presumed to have been so proved as to warrant the
verdict. The verdict cannot cure the total omission of an essential
averment, for a fact not stated at all cannot have been in issue,
and there can be no room for presumption or intendment."'* The
following statement with reference to pleading in civil cases clearly
shows the distinction: "Where the statement of the plaintiff's
cause of action, and that only, is defective or inaccurate, the defect
is cured by a general verdict in his favor; because, to entitle him
to recover, all circumstances necessary, in form or substance, to
complete the title so imperfectly stated, must be proved at the
trial, and it is therefore a fair presumption that they were so
proved. But, where no cause of action is shown, the omission is
not cured; and, if a necessary allegation is altogether omitted from
the pleading, or if the latter contains matter adverse to the right
of the party pleading it, and so clearly expressed that no reason-
able construction can alter its meaning, a verdict will afford no
help. A more simple statement of the rule is that a verdict will
cure the defective statement of a title, but not the statement of a
defective title." "=
In a prosecution for publishing an obscene book the indictment
described the book by its title, but did not show its contents.
This omission was held fatal, and not cured by a verdict of guilty.
"The rule is very simple," it was said, "and it applies equally to
406, 26 N. E. 839; State v. Townsend, 50 Mo. App. 690; Lavelle v. State (Ind.
Sup.) 36 N. E. 135; Graeter v. State, 105 Ind. 271, 4 N. E. 461; State v. Dunn,
109 N. C. 839, 13 S. B. 881.
223 Com. V, Child, 13 Pick. (Mass.) 198.
224 Bradlaugh v. Reg., 3 Q. B. Dlv. 636.
»2B Shipm. Com. Law PI. 155.
CKIM.PKOC— 21
322 PLEADING THE ACCUSATION. [Ch. 9
civil and criminal cases. It is that the verdict only cures defective
statements. In the present case the objection is not that there
is a defective statement, but an absolute and total want in stating
that which constitutes the criminal act, namely, the words com-
plained of. * * * Here we have not the substance set out, we
have not a mere defective averment; we have an absolute omission
to aver that which was relied upon as lewd and indecent. My
opinion is that the defect is not a matter cured by the verdict,
and it is perfectly open to the plaintiffs in error to rely on this as
a fatal defect in the indictment even after verdict." ^^°
On the other hand, where a complaint for profane swearing
charged that the defendant "did profanely curse," without setting
forth the language used, and no objection was made at the trial
to the defect in the complaint, it was held that though the words
should have been set out, and though the complaint would, because
of the omission to do so, have been bad on demurrer, the defect
was cured by a verdict of guilty.''^' So, where an information
charged that the defendant had enticed a female of chaste char-
acter to a certain city, for the purpose of prostitution, it was held
that, though the failure to state the particular place or house in
the city to which she was enticed would have been fatal on motion
to quash or demurrer, the defect was cured by a verdict of guilty,
since the information contained all the essential elements of the
offense.^^'
Cure of formal defects under the statute of jeofails and amend-
ments and waiver of objections by failure to raise them in a certain
way must be distinguished from aider by verdict. The doctrine
of aider by verdict is founded, as we have seen, upon the common
law, and is independent of any statutory enactment
FORMAL DEFECTS CUBED BY STATUTE.
118. By statute, in most jurisdictions, objections because
of formal defects in pleading must be raised at a certain
2 26 Bradlaugh v. Reg., 3 Q. B. Div. 007, 642. And see Reyes v. State (Fla.)
15 South. 875.
22' State V. Freeman, 63 Vt. 496, 22 AtL 621.
228 Nichols V. State, 127 Ind. 406, 26 N. E. 839.
Ch. 9] FOllMAL DEFECTS CURED BY STATUTE. 323
time, or in a certain way, as by demurrer or motion to
quash, or they vdll be waived. And by statute, in some
states, no objection at all can be raised because of formal
defects.
At an early day, statutes called tlie "statutes of jeofails and
amendments" were passed in England, for the purpose of curing
defects in civil pleadings. They provided, inter alia, that after ver-
dict no judgment should be arrested or reversed for any defect
in form. These statutes did not extend to criminal cases, ''^® but
in most, if not in all, jurisdictions there are modern statutes enacted
for a similar purpose.
"Statutes of amendments and jeofails are distinct things, though
a statute may be both of amendments and jeofails. One of amend-
ments authorizes the cure of a defect by an amendment actually
made in the record; of jeofails, directs the court not to recognize
the defect after a time or step mentioned." ^^^ "Jeofails" comes
from the expression, "J'ai faille," which was at one time used by
pleaders when they found that they had made an error or slip in
the proceedings. The statutes of jeofails were so called because,
when a pleader discovered, and thus acknowledged, a slip in his
proceedings, he was allowed by these statutes to amend it. The
amendment was seldom actually made, but the benefit of the stat-
ute was attained by the court's considering the amendment as hav-
ing been made, and overlooking the mistake.^'^ Some statutes re-
quire an actual amendment, and are called "statutes of amend-
ment." Others, even though they may in terms allow amendment,
do not require actual amendment, but allow the court to overlook
formal defects.^''' Others, in their terms, merely require the latter
229 1 Chit Cr. Law, 297; 4 Bl. Comm. 375; 1 Hale, P. C. 193; 2 Hawk. P.
C. c. 25, § 97; Reg. v. Tuchin, 1 Salk. 51, 2 Ld. Raym. 1061; State v. Sexton,
3 Hawks (N. C.) 184; Com. v. Tuck, 20 Pick. (Mass.) 356; Brown v. Com.,
8 Mass. 65; State v. Squire, 10 N. H. 560; People v. Wright, 9 Wend. (N. Y.)
196.
2S0 1 Bish. New Cr. Proc. § 705.
281 Black, Law Diet tit. "Jeofails"; 3 Bl. Comm. 407; Rex t. Landaff, 2
Strange, 1011; Steph. PI. Append. 38.
232 Rex V. Landaff, 2 Strange, 1011; Eakin t. Burger, 1 Sneed (Tenn.) 425;
1 Bish. New Cr. Proc. § 705, et seq.
324 PLEADING THE ACCUSATION. [Gh. 9
course. We have already dealt with statutes of amendment.^ ^' In
addition to the statutes which may thus be described as statutes of
jeofails there are modern statutes, in most jurisdictions, providing
that certain objections must be raised, if at all, at a certain time,
or in a certain way, or be deemed waived; as that objections for
formal defects must be taken by demurrer or motion to quash be-
fore pleading to the merits.
As we have already shown, statutes thus curing merely formal
defects are constitutional; ^'* but it is not in the power of the leg-
islature to thus cure defects in matter of substance. If an indict-
ment omits an averment which is essential to the description of the
offense, or fails to state the offense with such particularity as may
be necessary in order to give the accused notice of the charge
against him, the objection may be made at any time, notwithstand-
ing a statute to the contrary.''"
The following defects have been held to be merely formal, and
therefore curable under the statutes : Failure of an information for
embezzling mortgaged chattels to state where the crime was com-
mitted, or the value of the property, or that the crime was com-
mitted with intent to defraud the mortgagee, since these defects
could have been cured by amendment if made at the trial before
plea; '^^ failure of an information for receiving stolen goods to al-
lege when, where, and by whom they were stolen; ^'^ failure of an
indictment alleging that the defendant "unlawfully solicited K.
falsely to depose" to allege that he did so corruptly; ^'* failure to
allege the day or month on which the offense was committed, where
time was not of the essence of the offense; ^^' chaining the offense
2SS Ante, p. 315.
284 Ante, pp. 140, 316; Com, v. Walton, 11 AUen (Mass.) 238; State v. Sides,
64 Mo. 883; Lambert v. People, 29 Mich. 71; State v. Smith, 63 N. C. 234.
23 6 Collins V. State, 6 Tex. App. 647; Newcomb v. State, 37 Miss. 383; Pat-
tee V. State, 109 Ind. 545, 10 N. E. 421; Com.-v. Doyle, 110 Mass. 103; State
V. Eeynolds, 106 Mo. 146, 17 S. W. 322; Hawthorn v. State, 56 Md. 530; State
V. Amidon, 58 Vt 524, 2 Atl. 154; People v. McKenna, 81 Cal. 158, 22 Pac.
488; Phillips v. Com., 44 Pa. St. 197.
286 People V. Schultz, 85 Mich. 114, 48 N. W. 293,
287 People V. Smith, 94 Mich. 644, 54 N. W. 487.
288 Com. V. Lane, 157 Mass. 462, 32 N. E. 655.
239 Phillips V. State, 86 Ga. 427, 12 S. E. 650; State v. Peters, 107 N. C.
876, 12 S. E. 74; Arrington v. Com., 87 Va. 96, 12 S. E. 224.
Ch. 9] FORMAL DEFECTS CURED BY STATUTE. .325
in the alternative, where some of the alternative averments were
good and some were bad;^*" duplicity.''** Other illustrations of
formal defects will be found under the head of "Amendment." ^**
S40 Homsby v. State, 94 Ala. 55, 10 South, 522.
8*1 People V. Tower, 135 N. Y. 457, 32 N. E. 145. See ante, p, 169.
»42 Ante, p. 317.
326 PLEADING AND PROOF. [Ch. 10
CHAPTER X.
PLEADING AND PROOF— VARIANCE— CONVICTION OF MINOR OF-
FENSE.
119-121. Pleading and Proof— Variance.
122.' Conviction of Minor Offense.
123. Conviction of Higtier Offense.
PLEADING AND PROOF— VARIANCE.
119. An omission to prove any essential allegation of
the indictment, or, -what amounts to the same thing, any-
material variance between the allegation and the proof,
will entitle the defendant to an acquittal.
. 120. An allegation which is wholly unnecessary and
redundant, and is not descriptive of that which is essen-
tial, may be rejected as surplusage, and need not be
proved. But if an unnecessary allegation is descriptive
of the identity of anything which it is necessary to state
and prove, it cannot be so rejected, but must be proved.
121. It is not necessary to prove the w^hole of the
charge, if that which is proved is sufficient to constitute
the offense, and the part not proved is not essential to
the charge, and does not describe or limit that w^hich is
essential.
To authorize a conviction it is absolutely essential to prove so
much of the indictment as is sufiScient to show that an offense
charged in it has been committed by the defendant. The proof
must correspond with the charge, for to put a person on trial for
cne offense and convict him of another offense would be to try him
and convict him without an accusation. Any variance, therefore,
between the allegations and the proof with respect to those facts
and circumstances which are, in point of law, essential to the
charge, will be fatal, and will entitle the defendant to an acquittal.
It will not do to prove that some crime has been committed. It
Ch. 10] PLEADING AND PROOF VARIANCE. 327
must be shown that a crime charged in the indictment has been
committed.
Mode of Committing Offense,
"By the familiar rules of pleading, a party charged with an
offense is entitled to a statement in the indictment of the facts
which constitute the offense; and if an offense may be committed
in either of various modes, the party charged is entitled to have
that mode stated in the indictment which is proved at the trial;
and when one mode is stated, and proof of the commission of the
offense by a different mode is offered, such evidence is incompetent
by reason of the variance." ^
In a Massachusetts case, the indictment charged that the defend-
ant "unlawfully and scandalously did print and publish certain
obscene pictures of naked girls, manifestly tending to the corrup-
tion of the morals of youth." The court admitted evidence that
the defendant took pictures of girls naked down to the waist, and
instructed the jury that if they found such pictures to be obscene
and indecent, and to have been published, they should convict the
defendant. The conviction was set aside on the ground that the
proof did not correspond with the allegation. "The government,"
it was said, "having described the pictures, is bound by the descrip-
tion, and the defendant could not be convicted upon proof that he
printed and published pictures substantially different from the de-
scription, though the jury might find such pictures to be obscene." ^
So, where the defendant is charged with shooting "into" a dwell •
ing house at a person, and the proof shows that he shot "in" the
house, there is a fatal variance.'
In a prosecution for perjury, a description of the court and judge
before whom, and the action or proceeding in which, the false oath
was taken, is essential, and a variance in this respect between the
indictment and the proof will be fatal.* So, on an indictment for
1 Com. V. Richardson. 126 Mass. 34.
2 Com. v. De Jardin, 126 Mass. 46.
s State V. Kye (La.) 14 South. 883.
* Kex V. Bellamy, 1 Ryan & M. 171; Rex v. Eden, 1 Esp. 98; Rex v. Alford,
1 Leach, Crown Oas. 150; Walker v. State, 96 Ala. 53, 11 South. 401. In the
latter case the Indictment described the action as being by G. against the
defendant, and the proof showed that it was by "G. et al." See, also, State
328 PLEADING AND PROOF. [Ch. 10
malicious prosecution, the defendant is entitled to an acquittal if
there is a variance between the description and the proof of the
prosecution, or of the court in which the prosecution took place; '
or on indictment for obtaining property by false pretenses, a vari-
ance between the allegation and proof of the pretenses used."
On indictment for assault or homicide the means used must be
substantially proved as stated. An indictment for assault or
murder by poison would not be sustained by proof of assault or
murder by shooting or stabbing, and an indictment for assault or
murder by shooting would not be sustained by proof of an assault
or murder by poison or with a knife or stick.'^
T. Peters, 107 N. C. 876, 12 S. E. 74. For variance as to authority under
which the judge was sitting, see Rex v. Lincoln, Russ. & R. 421.
0 Woodford v. Ashley, 2 Camp. 193; Thompson v. Richardson, 96 Ala. 488,
11 South. 728.
8 Rex r. Plestow, 1 Camp. 494; Sharp v. State, 53 N. J. Law, 511, 21 Atl.
1026; State v. Metsch, 87 Kan. 222, 15 Pac. 251; Com. v. Wood, 142 Mass.
459, 8 N. E. 432. On indictment for obtaining credit under false representa-
tions, by mortgaging "a darii bay mare mule" and representing it to be de-
fendant's, conviction cannot be had on proof of mortgaging a "mouse-colored
mare mule, named Mag." Berrien v. State, 88 Ga. 381, 9 S. E. 609. But, as
we shall presently see, part only of the pretense may be proved. Note 11,
infra.
7 Reg. V. Bird, 5 Cox, Cr. Cas. 11; Phillips v. State, 68 Ala. 469. And see
Morgan v. State, 61 Ind. 447; Porter v. State, 57 Miss. 800. If the means
are substantially proved, it is sufficient. Reg. v. Warman, 2 Car. & K. 195;
Patterson v. State, 3 Lea (Tenn.) 575. Thus the charge of cutting with a
linife would be sustained by proof of cutting with some other sharp instru-
ment. Mackalley's Case, 9 Coiie, 67a. See Hernandez v. State, 32 Tex. Cr.
R. 271, 22 S. W. 972. And an allegation of shooting with a pistol will be sus-
tained by proof of shooting with a gun, for the weapons are of the same
character, and inflict the same kind of wound. Turner v. State, 97 Ala. 57,
12 South. 54. But see Morgan v. State, 61 Ind. 447. An allegation of strang-
ling and choking with the hands is supported by proof of strangling and chok-
ing with a scarf. Thomas v. Com. (Ky.) 20 S. W. 226. The fact that the
wound which caused death was In the throat, instead of on the head, as
alleged, or that its size or shape was not exactly as alleged, does not consti-
tute a variance. Com. v. Coy, 157 Mass. 200, 32 N. E. 4. Under an indict-
ment charging murder by poison, by mingling it with water in a bucket,
proof is admissible that the death was caused by poison mixed with coffee
in a kettle. The manner In which the poison was administered Is not de-
scriptive of the offense, and need not be proved as charged. Johnson v. State,
29 Tex. App. 150, 15 S. W. 647.
Ch. 10] PLEADING AND PROOF VARIANCE. 329
Surplusage.
It is never necessary to prove those allegations which are wholly
redundant and useless, and may be rejected as surplusage.* We
have already fully considered the question of surplusage, and it is
unnecessary to do more than refer to what we have said on the
subject It will be remembered that allegations which, though
altogether unnecessary, are descriptive of that which is essential,
cannot be rejected, but must be proved as laid.'
Proof of Part of Charge.
The fact that the whole charge is not sustained by the proof does
not entitle the defendant to an acquittal, if enough is proved to
make out the offense charged, and the part not proved is not essen-
tial to the charge, and does not describe or limit that which is
essential.^"
Upon an indictment for obtaining money by false pretenses, for
instance, it is not necessary to prove the whole of the pretenses
charged.^^ And on indictment for perjury it is sufiflcient to prove
one of the assignments.^*
8 Ante, p. 178, where the subject Is explained at length; Scott v. Com., 6
Serg. & R. (Pa.) 224; Com. v. Randall, 4 Gray (Mass.) 36; Com. v. Adams, 127
Mass. 15; Stevens v. Com., 4 Leigh (Va.) 683; Com. v. Jeffries, 7 Allen
(Mass.) 571; Com. v. Baker, 10 Cush. (Mass.) 405. Allegation of intent as
sm:plusage. Notes 20, 21, Infra. Allegation of knowledge as surplusage.
Note 24, infra. Allegation as to property as surplusage. Notes 49, et seq.
infra. Allegation as to ownership of property. Notes 64-66, infra. Names
and description of persons. Notes 81, 86-89, infra. Allegations as to time.
Notes 91, 99. Allegations as to place. Notes 108-126.
» Ante, p. 182; post, pp. 336, 339, 343, 349; U. S. v. Howard, 3 Sumn. 12,
Fed. Cas. No. 15,403; Alkenbrack v. People, 1 Denio (N. Y.) 80; State v.
Moore, 11 Ired. (N. 0.) 70; Com. v. Gavin, 121 Mass. 54; Com. v. Luscomb,
130 Mass. 42.
10 Com. V. Morrill, 8 Cush. (Mass.) 573; Reg. v. Rhodes, 2 Ld. Raym. 887;
People V. Wiley, 3 Hill (N. Y.) 194; Haskins v. People, 16 N. Y. 344; State
V. Cameron, 40 Vt. 555; Com. v. Williams, 2 Cush. (Mass.) 583; Lorton v.
State, 7 Mo. 55; Rex v. Gillham, 6 Term K. 267; Com. v. McKenney, 9
Gray (Mass.) 114; Murphy v. State, 28 Miss. 638.
11 Rex V. Hill, Russ. & R. 190; People v. Haynes, 11 Wend. (N. Y.) 557;
Com. V. Morrill, 8 Cush. (Mass.) 573; Webster v. People, 92 N. Y. 422.
12 Reg. V. Rhodes, 2 Ld. Raym. 887; Com. v. Johns, 6 Gray (Mass.) 274;
Williams v. Com., 91 Pa. St. 493; State v. Hascall, 6 N. H. 358; De Bemie v.
State, 19 Ala. 23; Marvin v. State, 53 Ark. 395, 14 S. W. 87; Harris v. Peo-
ple, 64 N. Y. 148.
330 PLEADING AND PROOF. [Ch. 10
So, if an indictment charge that the defendant did and caused to
be done a certain act, as that he forged and caused to be forged,
it is enough to prove either; ^° and the same is true where, on a
charge of composing, printing, and publishing a libel, publication
only is proved.^*
And as we shall presently see more at length, it is not necessary
in a prosecution for larceny to prove that all the property alleged
was stolen. We shall find other illustrations of the rale in the
following pages. Conviction of a distinct minor offense included
in the charge will be separately considered-
Name and Addition of the Defendant.
As we have already seen, a variance between the statement of
the defendant's name and addition and the proof will not prevent
a conviction. A misnomer or misdescription of the defendant can be
taken advantage of only by plea in abatement.*'
Intent.
Where a particular intent is necessary to constitute the offense
charged, it must not only be alleged, but must be proved. A
material variance between the allegation and proof will be fatal.*'
On indictment for assault with intent to rape, there could be no
conviction on proof of an intent to rob or to murder, nor on indict-
ment for assault with intent to murder could there be any conviction
on proof of intent to maim, or of an intent to kill under such circum-
stances that an actual killing would not have been murder. So, on
indictments for attempts, the specific intent alleged must be proved.
In an indictment under a statute for an assault, where the intent
I
13 Rex V. Hunt, 2 Camp. 584; Rex v. Middleliurst, 1 Burrows, 399; People
V. Rynders, 12 Wend. (N. Y.) 430; Hoskins v. State, 11 Ga. 92.
14 Rex V. Hunt, 2 Camp. 584; Rex v, Williams, Id. 646; Com. v. Morgan,
107 Mass. 205.
IB Ante, p. 149.
18 Rex V. Williams, 1 Leach, Crown Cas. 529; Robinson v. State, 53 Md.
151. But see Woodburne's Case, 16 How. State Tr. 54. An allegation of in-
tent to defraud one person will not be sustained by proof of intent to defraud
another person. Schayer v. People (Colo. App.) 37 Pac. 43; State v. Reynolds,
106 Mo. 146, 17 S. W. 322; Com. v. Harley, 7 Mete. (Mass.) 506; Com. v.
Kelldgg, 7 Cush. (Mass.) 476; ante, pp. 190, 191. From some &.cts a criminal
intent is presumed. Here proof of the act is sufficient proof of the intent.
Ante, p. 186.
Ch. 10] PLEADING AND PROOF VARIANCE. 331
laid in several counts was to murder, to disable, or to do some
grievous bodily harm, and the intent found by the jury was to
prevent being apprehended, the variance was held fatal, because
the intent should be stated according to the fact.^'' So, on indict-
ment for burglary, if the entry be alleged to have been made with
intent to commit a specific felony, the indictment will not be sus-
tained by proof of intent to commit some other and altogether
different felony.^'
To avoid a possible variance it is usual, as we have seen, to lay
the same act with different intents in different counts of the indict-
ment."
It is not necessary to prove the whole intention as stated in the
indictment if it is divisible, but it will be enough to prove so much
as is sufiBcient to constitute the offense.^'" On an indictment char-
ging an assault with intent to abuse and to carnally know, the
accused may be convicted of an assault with intent to abuse
simply.^^
And generally if the allegation of intent is wholly immaterial,
IT Rex v. Duffin, Russ. & R. 365.
18 1 Hale, P. C. 561; 2 East, P. C. 51; Rex v. Monteth, 2 Leach, Crown Cas.
702; Rex v. Jenks, Id. 774; Robinson v. State, 53 M6. 151; People v. Crow-
ley, 100 Cal. 478, 35 Pac. 84; State v. Carroll, 13 Mont. 246, 33 Pac. 688;
State V. Halford, 104 N. C. 874, 10 S. E. 524; Neubrandt v. State, 53 Wis. 89,
9 N. W. 824; People v. Mulkey, 65 Cal. 501, 4 Pac. 507. It has been held
that where the Intent alleged and the Intent proved are substantially the same,
as where an intent to commit larceny is alleged, and an intent to commit
robbery is proved, there is no variance. People v. Crowley, supra; State v.
Halford, supra. But see State v. Carroll, supra, in which it was held that,
where the indictment alleges intent to steal an overcoat, that specific intent
must be proved. And see Neubrandt v. State, supra, in which it was held
that an allegation of intent to steal the goods of a person named must be spe-
cifically proved.
i» Ante, p. 280.
20 1 Chit. Cr. Law, 233; Rex v. Dawson, 3 Starkie, 62; State v. Dineen, 10
Minn. 407 (Gil! 325); State v. Moore, 12 N. H. 42; People v. Hall, 94 Cal. 595,
30 Pac. 7. Where an indictment for burglary alleges an intent to commit
both grand and petit larceny, proof of an intent to commit either is sufficient.
People V. Hall, supra. And see generally, as to conviction of minor offense
not Involving the whole intent charged, post, p. 351.
21 Rex V. Dawson, supra.
332 PLEADING AND PEOOF. £Ch. 10
it may be rejected as surplusage, and a rariance between the alle-
gation and the proof will not be fatal."
Knowledge,
When knowledge is necessary to constitute the offense it is not
only necessary to allege it, but it is also essential that it be proved.**
But where knowledge is unnecessarily 8ta;ted, as where it must be
presumed, because the event, fact, or circumstance lay alike in the
knowledge of all men, or where it is not necessary at all to con-
stitute the offense, the allegation may be rejected as surplusage^
and Heed not be proved.**
Written Instruments and Spoken Words.
When a written instrument is professedly given according to it»
tenor, as heretofore explained, in an indictment for forgery, threat-
ening letters, libel, etc., it must be proven verbatim as laid. Any
material variance between the instrument as set out and the instru-
ment introduced in evidence will be fatal.*" Thus, when an indict-
ment alleges the forgery of an indorsement, "B. F. Humes, Mgr.,"
on a draft, the abbreviation, "Mgr.," being a material part of the
indorsement, must be proved.*"
As we shall presently see, the offense need not generally be
sht)wn to have been committed on the day alleged in the indictment.
This rule, however, does not dispense with the necessity to prove the
date of a written instrument as alleged in the indictment. The
date is a part of the description of the instrument, and a variance
will be fatal.*'
2 2 Rex V. Higgins, 2 East, 5.
2 5 Ante, p. 192.
24 Com. V. Squire, 1 Mete. (Mass.) 258; ante, p. 194.
2 6 2 East, P. C. 976; Rex v. Hunter, Russ. & R. 511; Rex v. Po-well, 1 Leach,
Crown Cas. 78; Rex v. Gilchrist, 2 Leach, Crown Cas. 660, 661; Rex t. Bir-
kett, Russ. & R. 251; Com. v. Stow, 1 Mass. 54; Com. v. Gillespie, 7 Serg. &
R. (Pa.) 469; Clay v. People, 86 111. 147; Reg. v. Drake, 2 Salk. 660; Id., 3
Salk. 224; Rex v. Beach, Cowp. 229, 1 Leach, Crown Cas. 133; Luttrell v.
State, 85 Tenn. 232, 1 S. W. 886; State v. Townsend, 86 N. C. 676; State v.
Holier, 1 Dev. (N. C.) 263; State v. Weaver, 13 Ired. (N. C.) 491; Dana v.
State, 2 Ohio St. 91; People v. Marion, 28 Mich. 255; Com. v. Kearns, 1 Va.
Gas. 109; State v. Owen, 73 Mo. 440; State v. Snell, 9 R. I. 112.
»8 Roush V. State, 34 Neb. 325, 51 N. W. 755.
21 Whart. Cr. Bv. § 103a; Dill v. People, 19 Colo. 469, 36 Pac. 229.
Ch. 10] PLEADING AND PROOF VARIANCE. 333
The rariance must be material. A mere variance of a Irtter, or
even of a word, will not be fatal, if the meaning is not in any
degree altered or obscured.^*
On an indictment for forging a bill of exchange, where the tenor
was "value received," but the bill introduced in evidence was "for
value received," the variance was held immaterial.^* So, where
an indictment charged the forgery of an order signed "McNicole &
Co.," and the order introduced in evidence was signed "McNicoll &
•Co.," and where an indictment charged the forgery of a note signed
"0. E. Droun," and the note introduced was signed "0. E. Drown,"
the variances were disregarded.'" If the sense is altered at all, a
variance even in a letter or a word will be fatal.' ^ Indeed, in an
early English case it was held that any variance would be fatal,
whether it altered the sense or not, as where the word "nor" was
substituted for the word "not." °^
We have seen that matter appearing on an instrument, but form-
ing no part of it, need not be set out in the indictment; and of
course a difference in this respect between the instrument as set
out and the instrument introduced in evidence cannot constitute a
variance."
2s Rex V. Hart, 1 Leach, Crown Gas. 145; State v. Bean, 19 Vt. 530; State
V. Bibb, 68 Mo. 286; State v. Weaver, 13 Ired. (N. O.) 491; State v. Leak, 80
N. C. 403; Com. v. Parmenter, 5 Pick. (Mass.) 279; Baker v. State, 14 Tex.
App. 332; AUgood v. State, 87 Ga. 668, 13 S. E. 569; People v. Pliillips, 70
•Cal. 61, 11 Pac. 493.
2 9 Rex V. Hart, 1 Leacli, Crown Cas. 145.
30 Beg. V. Wilson, 1 Denison, Crown Cas. 284; Com. v. Woods, 10 Gray
(Mass.j 482. And see State v. Collins (N. C.) 20 S. B. 452.
81 Potter V. State, 9 Tex. App. 55.
3 2 Reg. V. Drake, 2 Salk. 660; Id., 3 Salk. 224; Rex v. KInnersley, 1 Strange,
201.
S3 Com. V. Bailey, 1 Mass. 62; Com. v. Stevens, Id. 203; People v. Franklin,
-3 Johns. Cas. (N. Y.) 299; Com. v. Ward, 2 Mass. 397; Langdale v. People,
100 111. 263; State v. Wheeler, 35 Vt. 261; Wilson v. People, 5 Parker, Cr.
R. (N. y.) 178; Perkins v. Com., 7 Grat. (Va.) 651; Miller v. People, 52 N. Y.
304; Mee v. State, 23 Tex. 'App. 566, 5 S. W. 243; State v. Grant, 74 Mo. 33;
Tobart v. Tipper, 1 Camp. 350; Com. v. Adams, 7 Mete. (Mass.) 51; White
■V. Territory, 1 Wash. St. 279, 24 Pac. 447; Trask v. People (111. Sup.) 38 N.
E. 248; State y. Jackson, 90 Mo. 156, 2 S. W. 128; Smith v. State, 29 Fla. 408,
aO South. 894; Hennessey v. State, 23 Tex. App. 340, 5 S. W. 215; Griffin v.
834 PLEADING AND PROOF. [Oh. 10
Where the purport or substance of a written instrument may be
and is given in the indictment, verbal accuracy is not necessary.
If the proof agrees in substance with the allegations it is enough.'*
Where an instrument when introduced in evidence does not on
its face appear to be that which the indictment states it purports
to be, the variance is fatal.'" Such is the case where an instru-
ment is described as a bond, and it is not under seal.'* So where
an indictment for forging a railroad ticket describes the ticket as
signifying to the holder that it must be used continuously, and
without stopping at intermediate stations, after once entering the
car, and the ticket introduced in evidence merely expresses on its
face the limitation, "Good this day only," the variance is fatal.''
As we have seen, where the purport of an instrument is stated,
and does not agree with the purport of the instrument as after-
wards set out according to its tenor, the indictment is bad. This,
however, is not a question of variance, but a question of repug-
nancy between the allegations of the indictment."
By the weight of authority, where spoken words ar^ alleged in
the indictment, as in an indictment for perjury, slander, profane
cursing, obtaining money by false pretenses, all that is necessary
is to prove the words substantially as alleged, and to prove so much
of them as is sufficient to make out the offense.'^ A variance in
state, 14 Ohio St. 55; Buckland v. Com., 8 Leigh (Va.) 732; Com. v. Searle,
2 Bin. (Pa.) 332; Com. v. Taylor, 5 Cush. (Mass.) 605; Ante, pp. 209, 210.
Si Edsall's Case, 2 East, P. C. 984; ante, p. 207.
3 6 Rex V. Jones, Doug. 300; Edsall's Case, 2 Bast, P. C. 984; Com. v.
Kearns, 1 Va. Cas. 109; Com. v. Ray, 3 Gray (Mass.) 441; State v. Molier,
1 Dev. (N. C.) 2G3; State v. Wimberly, 3 McCord (S. C.) 190; People v. Wiley,
3 Hill (N. Y.) 194; Downing v. State, 4 Mo. 572. An indictment for obtaining
by false pretenses a note described as the note of S. P. is not sustained by
proof of obtaining the joint note of S. P. and another. People v. Reed, 70
Cal. 529, 11 Pac. 676.
86 People v. Wiley, supra.
3' Com. V. Ray, supra.
as Becker v. State (Tex. A pp.) 18 S. W. 550; English v. State, 30 Tex. App.
470, 18 S. W. 94; State v. Horan, 64 N. H. 548, 15 Atl. 20; State v. Parrand,
8 N. J. Law, 333; ante, pp. 171, 218.
so Whart. Cr. Ev. § 120a; Reg. v. Drake, 2 Salk. 660; Re Crowe, 3 Cox, Or.
Cas. 123; People v. Warner, 5 Wend. (N. Y.) 271; Litman v.. State, 9 Tex.
App. 461; People v. Fay, 89 Mich. 119, 50 N. W. 752; Com. v. MorriU, 8
Ch. 10] PLEADING AND PKOOF VAEIANCE. 335
a word, or in several words, where the sense is not in any degree
changed, will not be fatal. But if the sense is changed, or if the
words proved are not in substance the same as the words alleged,
even though they may be sufficient to constitute the offense, the
variance will be fatal.*"
Description of Real or Personal Property.
Where real property is the subject of the offense charged, the
description of it in the indictment must be borne out by the evi-
dence. A variance between the description of the premises and
the proof, on indictment for burglary, or statutory housebreakings,
arson, or statutory burnings, forcible entry and detainer, etc., will
be fatal, for the description of the premises is essential to the
charge.*^
The same rule applies to indictments for offenses relating to
personal property. In prosecutions for larceny, embezzlement,
false pretenses, etc., a description of the property stolen, embezzled,
or obtained is essential to the charge, and must be borne out by the
evidence. Any material variance will be fatal.* ^ An indictment
for the larceny or embezzlement of cloth and other materials is
not supported by proof of the larceny or embezzlement of an over-
Oush. (Mass.) 573; People v. Haynes, 11 Wend. (N. Y.) 557; Rex v. Hill,
Russ. & R. 190.
4 0 Reg. V. Fussell, 3 Cox, Cr. Cas. 291; Reg. v. Bird, 17 Cox, Cr. Oas. 387;
Riddle V. State, 30 Tex. App. 425, 17 S. W. 1073; Berry v. State, 27 Tex. App.
483, 11 S. W. 521; Frisby v. State, 2C Tex. App. 180, 9 S. W. 463; Wohlge-
muth V. U. S. (N. M.) 30 Pae. 854; Sharp v. State, 53 N. J. Law, 511, 21 Atl.
1026; Leverette v. State, S2 Tex. Cr. R. 471, 24 S. W. 416; State v. Frishy,
90 Mo. 530, 2 S. W. 833; note 6, supra. Where an indictment for slander
alleged words as spoken in English, and the proofs showed that they were
spolsen in German, the variance was held fatal, though when translated into
English the words were substantially as alleged. Stichtd v. State, 25 Tex.
App. 420, 8 S. W. 477.
*i Ante, p. 214, and cases there cited.
42 Rex V. Furneaux, Russ. & R. 335; Rex v. Tyers, Id. 403; Com. v. Clair,
7 Allen (Mass.) 527; State v. Harris, 3 Har. (Del.) 559; State v. Cockfleld,
15 Rich. (S. C.) 316; Com. v. Luscomb, 130 Mass. 42; McGee v. State, 4 Tex.
App. 625. An indictment for obtaining by false pretenses the note of a cer-
tain person is not sustained by proof of obtaining the joint note of that person
and another. People v. Reed. 70 Cal. 529, 11 Pac. 676.
336 PLEADING AND PROOF. [Ch. 10
coat made from such materials.*' So where an indictment charged
the larceny of "one bushel of oats, one bushel of chaff, and one
bushel of beans," and the proof showed that they were all mixed
together, the variance was held fatal. They should have been de-
scribed, it was said, as "a certain mixture, consisting of one bushel
of oats," etc.** So where an indictment charges the larceny of a
gray horse and the proof shows that it was a gray gelding; *° or
the larceny of a pig, when it was a hog, or vice versa; *' or of a live
bird or animal, when it was dead when stolen.*' So where an
indictment charged the larceny of a plowshare, and the proof
showed the larceny of a plow, the variance was held fatal.**
The fact that the property is described with unnecessary par-
ticularity will not dispense with strict proof, for the description is
of something which is essential.*"
Where, for instance, a complaint charged the larceny of "one
white woolen flannel sheet," and the evidence showed the larceny
of a blanket made of cotton and wool, the warp being cotton and
the filling woolen, the variance was held fatal. "A sheet, it was
said, "may be composed of various substances, as linen, cotton, or
wool, singly or in combination. The word has reference to the
form and not the material of which the article is made; had this,
therefore, been described by the term 'sheet' alone, it would have
been sufQciently certain. Eut the accused was put on her trial for
stealing a sheet composed wholly of wool, for it is described as
'one white woolen flannel sheet,' and she was convicted of stealing
an article, part cotton and part wool, called a cotton and woolen
blanket. The quality and description of the property stolen must
be shown with accuracy and certainty. * • * if the property is
described as a cow, and proved to be a heifer, the variance is fatal;
*> Com. V. Clair, 7 AUen (Mass.) 527.
** Rex V. Kettle, 3 Chit. Cr. Law, 947a.
«6 Hooker v. State, 4 Ohio, 350; Valesco v. State, 9 Tex. App. 76. But see
Baldwin v. People, 1 Scam. (111.) 304, where It was held that proof of stealing
a mare or gelding would sustain a charge of stealing a horse.
*8 See State v. M'Lain, 2 Brev. (S. C.) 443.
*i Rex V. Halloway, 1 Car. & P. 128; Rex v. Edwards, Russ. & R. 497;
Rough's Case, 2 East, P. C. 607; Com. v. Beaman, 8 Gray (Mass.) 497.
is State V. Cockfield, 15 Rich. (S. C.) 316.
<8 Ante, p. 182,
Ch. 10] PLEADING AND PROOF VABIANCE. 337
80 it is if described as a sheep and proved to be a lamb. And
where a party was indicted for stealing one bushel of oats, one
bushel of chaff, and one bushel of beans, and the proof was that
they were mixed together when stolen, the variance was held to be
fatal. Here the property was described with unnecessary minute-
ness and particularity, but, being so described, the proof must
correspond with it." '"' So where an indictment charged the lar-
ceny of two "barrels of turpentine," and it was not shown that the
turpentine was in barrels; °^ and where an indictment charged the
larceny of a number of "bottles" of liquor, and the proof showed
that the defendant drew the liquor from casks into bottles which
he took with him for the purpose; '"' and where an indictment
charged that the defendant had in his possession, with intent to sell
the same "one pint of adulterated milk, to which milk water had
been added," and the proof showed that the milk in question was
adulterated by adding water to pure milk,"' — the variance was in
each case held fatal.
The fact that the indictment, in its description of property, 'is
not sustained as to all the articles will not be fatal if it is sustained
as to enough to make out the offense. An indictment for stealing
two horses would be sufflciently supported to warrant a, conviction,
if the evidence corresponded with the description as to one of them,
though it varied as to the other, for the larceny of one is sufficient
to make out the offense."* In like manner, though it is often
necessary that the number or quantity of property shall be stated,
in order to meet the requirement of certainty," ° it is not necessary
to prove the whole number or quantity, if, on the rejection of the
part not proved, the offense will be complete."' On indictment for
50 Alkenbrack v. People, 1 Denio (N. Y.) 80.
01 State V. Moore, 11 Ired. (N. C.) TO.
02 Com V. Gavin, 121 Mass. 54.
»» Com. V. Luseomb, 130 Mass. 42.
04 Haskins v. People, 16 N. Y. 344; Com. v. Eastman, 2 Gray (Mass.) 76;
People V. Wiley, 3 Hill (N. Y.) 194; State v. Martin, 82 N. 0. 672.
0 0 Ante, p. 225.
08 State V. Cameron, 40 Vt. 555; Com. v. Williams, 2 Gush. (Mass.) 583;
Com. V. O'Connell, 12 Allen (Mass.) 452; State v. Fenn, 41 Conn. 590; State
y. Williams, 10 Humph. (Tenn.) 101; State v. Martin, 82 N. 0. 672; Lorton v.
State, 7 Mo. 55; State v. Hennessey, 23 Ohio St. 339.
cniM.PROC— 33
338 PLEADING AND PROOF. [Ch. 10
usury, for instance, it is not necessary to prove the exact sum laid
in the indictment."^ Nor is it necessary, on a prosecution for
extortion, to prove the exact sum alleged to have been extorted."'
In like manner, it is often necessary — always in indictments for
larceny— to state the value of the property with reference to which
the offense was committed, but, in general, it is not necessary to
prove the whole value as stated, provided the value proved is
sufficient to constitute the offense.°° Where, however, value to a
particular amount is necessary to constitute the offense, and the
value is ascribed to many articles of different kinds, collectively,
the offense must be made out as to every one of those articles, for
the grand jury has only ascribed that value to all the articles col-
lectively.**
Where the articles are of the same kind, and they are thus valued
collectively, the rule does not apply. Thus where an indictment
for stealing sundry bank notes, or sundry gold coin, or a certain
number of bushels of oats, etc., states an aggregate value, it is suffi-
cient to prove the la,rceny of less than the quantity or number
alleged, if a sufficient value is shown.*^
Ownership of Property.
We have seen that indictments for larceny, embezzlement, false
pretenses, malicious mischief, or other offenses in relation to per-
sonal property, or for burglary, arson, or other offenses in relation
to real property, must state the ownership of the property or the
premises.'^ The allegation of ownership is essential to the charge,
and must be supported by the proof. Any material variance will
07 Rex V. Glllham, 6 Term E. 265.
68 Rex V. Burdett, 1 Ld. Raym. 149; Rex v. Gillham, 6 Term R. 267.
BO Com. V. McKenny, 9 Gray (Mass.) 114; Rex v. Carson, Russ. & R. 303;
State V. Harris, 64 N. C. 12T.
80 Rex V. Forsyth, Russ. & R. 274; Duppa v. Mayo, 1 Saund. 286; Pinkney
V. Inhabitants of East Hundred, 2 Saund. 379; Hope v. Com., 9 Mete. (Mass.)
134; Collins v. People, 39 111. 233; Com. v. La very, 101 Mass. 207; Com. v.
Falvey, 108 Mass. 304; State v. Longbottoms, 11 Humph. (Tenn.) 39; Shep-
pard V. State, 42 Ala. 531; ante, p. 220.
«i Com. V. O'Connell, 12 Allen (Mass.) 451; Com. v. Grimes, 10 Gray (Mass.)
470; Lamed v. Com., 12 Mete. (Mass.) 240; State v. Taunt. 16 Minn. 109
(Gil. 99); ante, p. 226.
•2 Ante, p. 227.
Ch. 10] PLEADING AND PEOOF VARIANCE. 339
be fatal. We have already explained how ownership must be
alleged, and in doing so have shown what will constitute a variance,
and collected some of the cases on the subject.'*
Where the ownership of property is not in any way material, it
not only need not be stated, but, if stated, it need not be proved,
but may be rejected as surplusage."* This rule does not apply
where the allegation of ownership is a part of the description of the
offense. Here, though unnecessarily alleged, it is material, because
descriptive of that which is material, and cannot be rejected as
surplusage." On a trial for conspiracy to commit robbery, if the
indictment alleges possession of the property intended to be stolen
in one person and the title in another, both allegations must be
proved, though the latter was unnecessary."*
Names and Description of Third Persons.
When it is necessary to name or describe third persons in the
indictment,"^ they must be named or described accurately. A
material error in the names of third persons is much more serious
than a mistake in the name of the accused. A mistalie in the name
of the accused, as we have seen, can only be objected to by a plea
in abatement, the effect of which is only to delay the trial."' A
material variance in the name of a third person, however, is in the
description of the offense, and will be sufficient ground for arrest-
ing judgment, when the objection appears on the face of the indict-
ment, or if it appears from the evidence it will cause an acquittal."
«s Ante, p. 227, and cases there cited.
8* Pye's Case. 2 East, P. C. 7S5; Reg. v. Newboult, L. R. 1 Crown Cas. 344;
U. S. V. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Stevens v. Com., 4 Leigh
(Va.) 683; Rivers v. State, 10 Tex. App. 177.
8 5 Com. V. "Wade, 17 Pick. (Mass.) 399.
86 Ward V. State (Tex. Cr. App.) 21 S. W. 250.
6T Ante, p. 231.
68 Ante, p. 149.
89 2 Hawk. P. O. c. 25, § 72; 1 East, P. C. 514; 1 Chit. Or. Law, 213, 216;
Graham v. State, 40 Ala. 659; Lewis v. State, 90 Ga. 95, 15 S. E. 697; Os-
borne V. State, 14 Tex. App. 225; Owens v. State (Tex. Cr. App.) 20 S. W.
558; State v. Sherrill, 81 N. C. 550; State v. English, 67 Mo. 136; State v. Reyn-
olds, 106 Mo. 146, 17 S. W. 322; Humbard v. State. 21 Tex. App. 200, 17
S. W. 126; Cronin v. State, 30 Tex. App. 278, 17 S. W. 410; Rex v. Berri-
man, 5 Car. & P. 601; U. S. v. Howard, 3 Sumn. 12, Fed. Gas. No. 15,403;
340 PLEADING AND PROOF. [Ch. 10
As we have seen, if the names of third i)ersons are unknown, they
may be described as persons to the grand jurors unknown; ■"• but if
a person is so described, and it appears that his name was in fact
known, the variance will be fatal.' ^ By the weight of authority,
where a person is described as unknown, and it appears that his
name could have been ascertained by the exercise of reasonable
diligence, this will constitute a variance.''' A third person, like
Reg. V. Wilson, 1 Denison, Crown Cas. 284; Timms v. State, 4 Cold. (Tenn.)
138; Rex V. Norton, Russ. & R. 509; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469;
State V. Bell, 65 N. C. 313; State v. Scurry, 3 Rich. (S. C.) 68; State v.
Trapp, 14 Rich. (S. C.) 203; State v. Owens, 10 Rich. (S. 0.) 169. Name of
the owner of the premises on indictment for arson or burglary, or larceny
from the house. Com. v. Wade, 17 Pick. (Mass.) 398; Rex v. White, 1 Leach,
Crown Cas. 252; State v. Rushing, 2 N. & McCord (S. C.) 560; State v. Elli-
son, 58 N. H. 325; Graham v. State, 40 Ala. 659. But see Com. v. Price, 8
Leigh (Va.) 757. Name of purchaser on indictment for unlawful sale of in-
toxicating liquors. Com. v. Shearman, 11 Cush. (Mass.) 546; Com. v. Brown,
2 Gray (Mass.) 358. Name of the owner or builder of a railroad on indictment
for obstructing an engine passing thereon. Com. v. Pope, 12 Cush. (Mass.) 272.
Name of woman on indictment for rape, incest, etc. Taylor v. Com., 20 Grat.
(Va.) 825; Owens v. State (Tex. Cr. App.) 20 S. W. 558. Name of person to
whom rooms were rented for gaming. Cronin v. State, 30 Tex. App. 278, 17
S. W. 410. Name of person libeled or slandered. Humbard v. State, 21 Tex.
App. 200, 17 S. W. 126. Name of person intended to be defrauded. State v.
Reynolds, 106 Mo. 146, 17 S. W. 322; note 16, supra; ante, pp. 190, 191.
Name of deceased, or person assaulted, on indictment for murder or assault.
Hardin v. State, 26 Tex. 113; Lewis v. State, 90 Ga. 95, 15 S. E. 697; Osborne
V. State, 14 Tex. App. 425; U. S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403;
Timms v. State, 4 Cold. (Tenn.) 138.
10 Ante, p. 233.
71 2 Hawk. P. C. c. 25, § 71; 2 Bast, P. 0. 561; Rex v. Walker, 3 Camp. 264;
Rex v. Bush, Russ. & R. 372; White v. People, 32 N. Y. 465; Barkman v.
State, 8 Eng. (Ark.) 703; State v. Wilson, 30 Conn. 500; Jones v. State, 63
Ala. 27; Com. v. Tompson, 2 Cush. (Mass.) 551; Moore v. State, 65 Ind. 213;
State T. Mclntire, 59 Iowa, 264, 13 N. W. 286; Jorasco v. State, 6 Tex. App.
483. But if the name was in fact unknown at the time the indictment was
found, its subsequent discovery will not constitute a variance, or render the
indictment defective. White v. People, 32 N. Y. 465; Com. v. Hill, 11 Cush.
(Mass.) 137; Cheek v. State, 38 Ala. 227; Com. v. GaUagher, 126 Mass. 54;
•State V. Bryant, 14 Mo. 340; Zellers v. State, 7 Ind. 659; Reed v. State, 16
Ark. 499.
T2 2 East, P. C. c. 16, § 163; Rex v. Walker, 3 Camp. 264; Rex v. Deakin, 2
:Leach, Crown Cas. 863; Reg. v. Campbell, 1 Car. & K. 82; Reg. v. Stroud,
Ch. 10] PLEADING AND PROOF VARIANCE. 341
the accused, may be described by the name by which he is usually
known, and if he is well known by more than one name he may
be described by either.''* And it is held generally that, if a third
person is so described that it is impossible to mistake him for any
other, a mistake in the name will be disregarded.^* Where the
name of a person is misspelled, this will not render the indictment
bad if the name as given and the correct name are idem sonans."
2 Moody, Crown Cas. 270 (but see the report of this case in 1 Car. & K. 187)
Presley v. State, 24 Tex. App. 494, 6 S. W. 540; Blodget v. State, 3 Ind. 40S
Contra, Com. v. Sherman, 13 Allen (Mass.) 248; Com. v. Glover, 111 Mass. 401
Wells T. State, 88 Ala. 239, 7 South. 272; Jackson v. State (Ala.) 15 South. 344.
T3 Rex V. SuUs, 2 Leach, Crown Cas. 861; Eex v. Norton, Russ. & R. 510
Rex V. Berriman, 5 Car. & P. 601; Rex v. , 6 Car. & P. 408; Jones v.
State, 65 Ga. 147; Taylor v. Com., 20 Grat. (Va.) 825; Com. v. Trainor, 123
Mass. 414; State v. Peterson, 70 Me. 216; State v. Bundy, 64 Me. 507; State
V. Johnson, 67 N. C. 58; Rogers v. State, 90 Ga. 463, 16 S. B. 205; State v.
Trance, 1 Overt. (Tenn.) 434; Com. v. Gould, 158 Mass. 499, 33 N. E. 656;
Slaughter v. State (Tex. Cr. App.) 21 S. W. 247; State v. Davis, 109 N. C.
780, 14 S. E. 55; ante, pp. 233, 234, and cases there cited.
T4 Ante, pp. 233, 234. Thus, where an Indictment against Charles "Herron"
alleged that he killed Lula "Herring," but expressly described the woman as
the defendant's wife, the variance in her name was disregarded on motion in
arrest. Herron v. State (Ga.) 19 S. E. 243. See Mason v. State, 55 Ark. 529,
18 S. W. 827.
TBRex V. Foster, Russ. & R. 412; Ahitbol v. Beniditto, 2 Taunt. 401; W^Il-
lams.v- Ogle, 2 Strange, 889. In the following cases the names were held idem
sonans: "Gigger" (pronounced "Jigger") for "Jiger," Com. y. Jennings, 121
Mass. 47; "WUlie Fanes" for "Willis Fain," State v. Hare, 95 N. C. 682;
"Chambles" for "Chambless," Ward v. State, 28 Ala. 60; "Herriman" for "Har-
riman," State v. Bean, 19 Vt. 530; "Lossene" for "Lawson," State v. Pullens,
81 Mo. 387; "Banhart," "Benhaxt," "Bernhardt." for "Bernhart," State v.
Witt, S4 Kan, 488; "Gidines" for "Gidings" or "Giddings," State V. Lincoln,
17 Wis. 579; "Donnelly" for "Donly," Donnelly v. State, 78 Ala. 453; "Anthron"
for "Antrum," State v. Scurry, 3 Rich. (S. C.) 68; "Whyneard" for "Win-
yard" (the latter being pronounced "Winnyard"), Rex v. Foster, Russ. & R.
412; "Segrave" for "Seagrave," Willams v. Ogle, 2 Strange, 889; "Usrey" for
"Usury," Gresham v. Walker, 10 Ala. 370; "Benedetto" for "Beniditto," Ahit-
bol V. Beniditto, 2 Taunt. 401; "McLauglin" for "McGloflin," McLauglin, v.
State, 52 Ind. 476; "Petris" for "Petrie," Petrie v. Woodworth, 3 Caines (^.
y.) 219; "Hutson" for "Hudson," State v. Hutson, 15 Mo. 512; "Georg" for
"George," Hall v. State, 32 Tex. Cr. R. 594, 25 S. W. 292; "Blankenship" for
"Blackenship," State v. Blankenship, 21 Mo. 504; "Preyer" for "Prior," Page
V. State, 61 Ala. 16; "Michal" for "Michaels," State v. Houser, Busb. (N. C.)
342 PLEADING AND PROOF. [Ch. 10
But where a person has two Christian names, a transposition of
them, as James Richard for Richard James , or Jules
Henry for Heniy Jules , is fatal,'* except in those
jurisdictions where only one Christian name is recognized, and the
other, if alleged, need not be proved.''''
If the name is stated with an alias dictus, as may be done,''* it is
suflScient to prove either name.'*
Any variance between the name of a corporation necessarily
stated in an indictment and the name as shown by the evidence
will be fatal. In Massachusetts, where the "Boston & Worcester
Railroad Corporation" was described as the "Boston & Worcester
Railroad Company," the variance was held fatal.*" This decision
certainly seems a doubtful one, in view of the other cases we have
mentioned.
If the name is immaterial, — that is, if it is not necessary to a
statement of the offense, — it may be rejected as surplusage, and a
variance therein will have no effect.*^
410; "Fourai" for "Forrest," State v. Timmens, 4 Minn. 331 (Gil. 241); "Ban-
ner" for "Dannalier," Gahan v. People. 58 111. 160.
The following have been held not to be idem sonans: "M'Cann" for
"M'Carn," Rex v. Tannet, Russ. & R. 351; "Shutliff" for "Shirtlifif," 1 Chit
Cr. Law, 216; "Lynes" for "Lyons," Lynes v. State, 5 Port (Ala.) 236;
"Woods" for "Wood," Neiderluck v. State, 21 Tex. App. 320, 17 S. W. 467;
"Sedbetter" for "Ledbetter," Zellers v. State, 7 Ind. 659; "Mclnnls" for "Mc-
Ginnis," Barnes v. People, 18 111. 52; "Tarbart" for "Tabart," Bingham v.
Dickie, 5 Taunt. S14; "Shakepear" for "Shakepeare," Rex v. Shakespeare, 10
Bast, 83; "Comyns" for "Cummins," Oruikshank v. Comyns, 24 111. 602; "Don-
nel" for "Donald," Donnel v. U. S., Morris (Iowa) 141; "Franks" for "Frank,"
Parchman v. State, 2 Tex. App. 228; "Amann" for "Ammon," Amann v.
People, 76 111. 188; "Burral" for "Burrill," Com. v. Gillespie, 7 Serg. & R. (Pa.)
469; "Melville" for "Melvin," State v. Curran, 18 Mo. 320; "Delia" for "Del-
11a," Vance v. State, 65 Ind. 460.
7 6 Jones V. Macquillin, 5 Term R. 195; Reg. v. James, 2 Cox, Cr. Cas. 227.
TT Ante, p. 234.
'« Ante, p. 147.
7 8 State V. Peterson, 70 Me. 216; Haley v. State, 63 Ala. 89; Kennedy v.
People, 39 N. Y. 245; Hunter v. State, 8 Tex. App. 75.
8 0 Com. V. Pope, 12 Cush. (Mass.) 272.
81 Savory v. Price, 1 Ryan & M. 1; 2 East, P. C. 593; Rex v. Morris, 1
Leach, Oown Cas. 109; Com. v. Hunt, 4 Pick. (Mass.) 252; U. S. v. Howard,
3 Sumn. 12, Fed. Cas. No. 15,403; Farrow v. State, 48 Ga. 30.
Ch. 10] PLEADING AND PROOF VARIANCE. 343
Where it is claimed that the true name and the name given in
the indictment are idem sonans, and that, therefore, there is no
variance,''' the question, when it arises in evidence on the general
issue, should be submitted to the jury as a question of fact, for it
is not a question of spelling, but of pronunciation, depending less
upon rule than upon usage.*' If, however, the accused does not
ask that the jury be allowed to pass on the question, he cannot,
on appeal, object because the court decided it as a matter of law.'*
On demurrer to a plea in abatement, the question is for the court.'"
Ordinarily, it is not necessary to describe third persons further
than by their name." If an addition, however, is stated, it must
be proved, because it is descriptive of the identity of the person.
Thus, in an indictment for bigamy, if the woman whom it is alleged
that the defendant bigamously married is described as a widow,
and the evidence shows that she was a spinster, the variance will
be fatal." So where the defendant was charged with procuring
Laura A. Fairbanks, "of Worcester, in said county of Worcester,"
in Massachusetts, to commit perjury, and the evidence showed that
the Laura A. Fairbanks who testified on the occasion alleged was
at the time and continued a resident of another state, the variance
was held fatal, though the woman need not have been described
further than by name." "Whenever a person or thing necessary to
be mentioned in an indictment is described with unnecessary par-
ticularity, all the circumstances of the description must be proved;
for they are essential to its identity." '*
sa Note 75, supra.
S3 Com. V. Donovan, 13 Allen (Mass.) 571; Keg. v. Davis, 2 Denison, Crown
Cas. 231, 5 Cox, Cr. Cas. 237; Girous v. State, 29 Ind. 93; Com. v. Jennings,
121 Mass. 47; State v. Thompson, 10 Mont. 549, 27 Pac. 349; Lawrence v.
State, 59 Ala. 61. In Com. v. Gill, 14 Gray (Mass.) 400, the supreme court de-
clined to pass on the question on exceptions after a conviction, on the ground
that as the question depended on pronunciation, and could only be determined
by hearing the name spoken, they had no means of determining it
«* Com. v. Gill, supra.
8 6 State V. Havely, 21 Mo. 498.
88 Ante, p. 235.
8T Eex V. Deeley, 1 Moody, Crown Cas. 303.
88 Com. V. Stone, 152 Mass. 498, 25 N. E. 967.
80 Com. V. Wellington, 7 Allen (Mass.) 299; Com. v. Stone, supra. And see
344 PLEADING AND PROOF. [Ch. 10
As to Time.
As we have seen, it is necessarj' in nearly all cases to allege that
the offense was committed at a specified time, in order that the
indictment may be certain. "' It is not necessary, however, except
where time enters into the nature of the offense, to prove the exact
time alleged. Any other time may be shown on the trial, if it is
prior to the finding of the indictment, and within the period pre-
scribed by the statute of limitations.*^
The rule applies to cases in which it is necessary "''to allege the
time of the day at which the offense was committed. Thus, though
an indictment for burglary at common law must state at or about
what hour it was committed, so that it may appear that it was
committed in the nighttime, the evidence need not correspond with
the allegation further than to show that the offense was committed
at some time of the night, and not in the daytime. Neither the day
nor the precise hour need be proved as laid."'
An indictment for acts committed on Sunday in violation of the
Sunday laws, or for acts committed on any other particular day of
the week on which alone they are prohibited,"* must, of course, state
Wallace v. State, 10 Tex. App. 255. It was held, however, that, where an
Indictment for adultery alleged that the woman with whom the defendant
committed the act was over 18 years old, the allegation might be rejected as
surplusage. State v. Ban (Iowa) 58 N. W. 89S.
»o Ante, p. 237.
•11 Chit Or. Law, 224, and authorities there cited; 3 Inst 230; Vane's
Case, Kel. 14; People v. Van Santvoord, 9 Cow. (N. Y.) 655; State v. G. S., 1
Tyler (Vt.) 295; State v. Hunger, 15 Vt 291; Willams v. State, 12 Tex. App.
226; State v. Haney, 1 Hawks (N. C.) 460; State v. Swaim, 97 N. C. 462, 2 S.
E. 68; Jacobs v. Com., 5 Serg. & R. (Pa.) 316; Turner v. People, 33 Mich. 363;
Com. V. Harrington, 3 Pick. (Mass.) 26; Com. v. Kelly, 10 Cush. (Mass.) 69;
Com. V. Sigo, 125 Mass. 210; Com. v. Dillane, 1 Gray (Mass.) 483; State v.
Farrell, 22 W. Va. 759; Cook v. State, 11 Ga. 53; Jackson v. State, 88 Ga.
787, 15 S. E. 905; Clarke v. State, 90 Ga. 448 16 S. B. 96; McDade v. State,
20 Ala. 81; Palin v. State, 38 Neb. 862, 57 N. W. 743; State v. Davis, 6 Baxt
(Tenu.) 605; Com. v. Davis (Ky.) 23 S. W. 218; Medlock v. State, 18 Ark. 363;
State V. Bell, 49 Iowa, 440; State v. Branham, 13 S. C. 389; State v. Magrath,
19 Mo. 678.
• 2 Ante, p. 239.
83 2 Hale, P. C. 179; 2 East. P. 0. 513; State v. Bancroft, 10 N. H. 105;
People V. Burgess, 35 Cal. 115.
»* Ante, p. 238.
Ch. 10] PLEADING AND PROOF VARIANCE. 345
that the acts were done on that particular day of the week, in order
to describe the offense, and must give a day of the month and year;
but the charge will be supported by proof of acts done on any such
day of the week before the finding of the indictment, and during
the period of limitation, though not on the day of the month
named.'"
It has been held that the rule does not apply to continuing
offenses,"" such as being a common seller of intoxicating liquors,
"We take the rule to be well settled in criminal cases that when a
continuing offense is alleged to have been on a certain day, and on
divers days and times between that and another day specified, the
proof must be confined to acts done within that time." " The
same is true where the indictment alleges that the continuing
offense was committed on a single day. The state cannot prove
acts on any other day than that specified.** If an offense not
necessarily continuing in its nature is laid with a continuando, the
continuando may be rejected as surplusage."'
In prosecutions for homicide the death must not only be alleged,
but must be proved, to have occurred within a year and a day of
the blow, or the crime is not proved,^"" but it need not be shown
to have occurred at the exact time after the blow alleged in the
indictment.^"'
It is said that in an indictment for perjury the day on which the
perjury was committed must be truly laid, and that a variance
will be fatal; '"" but this is very doubtful. There seems to be no
good reason why, if the offense of perjury is otherwise proved as
laid, a variance should be fatal ; and in a late case it was held that
a person charged with perjury in a proceeding alleged to have been
9»Com. v. Harrison, H Gray (Mass.) 308; State v. Bryson, 90 N. C. 747;
Megowan v. Com., 2 Mete. (Ky.) 3; Hoover v. State, 56 Md. 584; State v.
Brunker, 46 Conn. 327. As to use of "Sabbath" for "Sunday," see State v.
Drake, 64 N. C. 589.
ee Ante, p. 241.
■T Com. V. Briggs, 11 Mete. (Mass.) 573.
»8 Com. V. El well, 1 Gray (Mass.) 463; Com. v. Traverse, 11 Allen (Mass.) 260.
»» State V. Nichols, 58 N. H. 41.
100 2 Hawk. P. O. c. 23, § 90; ante, p. 239; Clark, Or. Law, 130.
101 See Cudd v. State, 28 Tex. 124, 12 S. W. 1010.
102 Whart. Cr. Ev. § 103a.
346 PLEADING AND PROOF. [Ch. 10
had on a certain day may be convicted, though it is shown that the
proceeding was had on a different day.'^"'
As we have seen, where written instruments are set out in the
indictment, the date of the instrument as given must be proved.
A variance will be fatal.^"*
While the state is not limited to proof of an offense on the day
named in the indictment, it is limited to a trial for one offense.
"When there are several offenses, for either one of which the
accused may be convicted under the indictment, the prosecution
should elect the offense which it will pursue, and the testimony
should be confined to that offense, unless the case is within some
of the exceptions which render the proof of other distinct offenses
admissible. After one offense is proved, the prosecution should
not have the liberty of the wind, to blow where it listeth. The
authorities are not harmonious as to when the prosecution will be
required to make election in such case, or as to how long a prose-
cuting officer will be permitted 'to fish with his witnesses for evi-
dence,' before electing the offense for which he will ask conviction ;
but it is believed that justice is best promoted by allowing the
testimony for the prosecution to go far enough to identify and show
one distinct offense, and when this is done to restrict the evidence
to that offense." "">
As to Place.
It is not only necessary to allege in the indictment that the
offense was committed within the jurisdiction of the court, as that
it was committed in the county, or in that particular part of the
county, over which the court has jurisdiction, in order that the
jurisdiction may appear on the face of the indictment; ^°* but it
is also absolutely essential to prove that the offense was committed
within the jurisdiction of the court. Proof that it was committed
los Com. V. Davis (Ky.) 23 S. W. 218. And see Rlchey v. Com., 81 Ky.
524.' Some courts have held that, if the date is matter of record, it must be
proved as laid. U. S. v. McNeal, 1 Gall. 337, Fed. Gas. No. 15,700.
lot Note 27, supra.
106 King V. State, 66 Miss. 502, 6 South. 188. And see State v. Crimmins,
31 Kan. 376, 2 Paa 574; State v. Lund, 49 Kan. 209, 30 Pac. 518.
106 Ante, p. 245; People v. Barrett, 1 Johns. (N. Y.) 72.
Ch. 10] PLEADING AND PROOF VAEIANCE. 347
out of the jurisdiction of the court, or an omission to prove any
venue at all, will entitle the defendant to an acquittal, and the
defect cannot be aided by verdict."^
If it is shown that the offense was committed within the juris-
diction of the court, it is not always necessary to further prove
that it was committed at the particular place within the jurisdic-
tion alleged in the indictment.
Some offenses, as we have seen, are local in their nature, while
others are transitory. In prosecutions for the former the partic-
ular place within the county must be stated, not as venue, but by
way of local description, and the place must be proved as laid;
but in prosecutions for the latter, place is not material, and if a
particular place in the county is stated it need not be proved.
Robbery,^"* assaults,^"® by the weight of authority, homicide,^^"
simple larceny,^^^ disturbance of public assemblages for religious
loT Moore v. People, 150 111. 405, 37 N. B. 909; State v. Hobbs, 37 W. Va.
812, 17 S. E. 380; Justice v. State, 99 Ala. 180, 13 South. 658; Stazey v. State,
58 Ind. 514; McCombs v. State, 66 Ga. 581; Jones v. State, 58 Ark. 390, 24
S. W. 1073; State v. Hartnett, 75 Mo. 251; State v. Burgess, Id. 541; Ran-
dolph V. State (Ala.) 14 South. 792; Tld-well v. State, 70 Ala. 33; Williamson
V. State, 13 Tex. App. 514; Henderson v. State, 14 Tex. 503; Berry v. State
(Ga.) 17 S. E. 1006; Harlan v. State, 134 Ind. 339, 33 N. E. 1102; Williams
V. State, 21 Tex. App. 256, 17 S. W. 624; Frazler v. State, 56 Ark. 242, 19 S.
W. 838. The proof of venue need not be direct, but may be inferential, as
where, on a prosecution for homicide, it is shown that the body of the de-
ceased was found in the county in such a condition, and under such circum-
stances, as to raise the inference that some one put it there. C!om. v. Cost-
ley, 118 Mass. 2. And see Sullivan v. People, 114 111. 24, 28 N. E. 381; Cluck
V. State, 40 Ind. 263; Burst v. State, 89 Ind. 133; State v. Farley, 87 Iowa,
22, 53 N. W. 1089; Hicks v. Territory (N. M.) 30 Pac. 872; State v. McGin-
niss, 74 Mo. 245; State v. Daugherty, 106 Mo. 182, 17 S. W. 303; Moore v.
State, 22 Tex. App. 117; Dumas v. State, 62 Ga. 58; State v. Sanders, 106
Mo. 188, 17 S. W. 223; Duncan v. State, 29 Fla. 439, 10 South. 815.
108 Rex V. Wardle, Russ. & R. 9. Where an indictment for robbery stated
that it was committed in a field near the king's highway, and there wds no
proof that it was committed near any highway, a conviction was nevertheless
sustained. Rex v. Wardle, supra.
109 Com. V. Tolliver, 8 Gray (Mass.) 386.
110 State V. Lamon, 3 Hawks (N. 0.) 175; Carlisle v. State, 32 Ind. 55.
Contra, Com. v. Inhabitants of Springfield, 7 Mass. 19.
111 Rex V. Bullock, 1 Moody, Crown Cas. 324, note; People v. Honeyman,
348 PLEADING AND PROOF. [Ch. 10'
worship, or for other purposes,^ ^* gaming, etc.,**' are transitory^
offenses, and if they are unnecessarily alleged to have been com-
mitted at a particular town or other place within the county, they
may nevertheless be shown to have been committed at some other
place. All that is necessary to sustain the charge is to show that
they were committed within the jurisdiction of the court.***
On the other hand, burglary and housebreaking,**" arson,**' stat-
utory larcenies from the shop, dwelling house, or other particular
place,**' nuisances with respect to highways,* *° failure to repair high-
ways,**" keeping disorderly house, and similar nuisances,*'"' accord-
ing to most of the cases, other nuisances,*"* offenses in relation tO'
cemeteries, etc.,*''^ being found armed in a close at night, etc.,*^* are-
local in their nature. An indictment therefor must not only state
3 Denio (N. Y.) 121; Haskins v. People, 16 N. Y. 344; Com. v. Lavery, 101
Mass. 207; State v. Cotton, 4 Fost. (N. H.) 143.
112 State T. Smith, 5 Har. (Del.) 490.
lis Covy V. State, 4 Port (Ala.) 186; Wlngard v. State, 13 Ga. 396. Riot,.
Barnes v. State, 5 Yerg. (Tenn.) 186. Fornication and bastardy, Heikes v.
Com., 26 Pa. St. 513.
114 Ante, p. 248; 1 Chit. Cr. Law, 200.
115 Rex V. Bullock, 1 Moody, Crown Cas. 324, note; Reg. v. St. John, 9 Car..
& P. 40. But see State v. Meyers (Wash.) 36 Pac. 1051.
118 Rex V. Woodward, 1 Moody, Crown Cas. 323; People v. Slater, 5 Hill)
(N. Y.) 401. Contra, State v. Meyers, supra. In People v. Slater, supra, the-
indictment described the building burned as situated in the Sixth ward of the
city of New York, and the evidence showed that it was in the Fifth ward,,
and the variance was held fatal.
117 Rex V. Napper, 1 Moody, Crown Cas. 44; People v. Honeyman, 3 Denio-
(N. Y.) 121.
118 Rex V. White, 1 Burrows, 333.
11 » Com. V. Inhabitants of North Brookfield, 8 Pick. (Mass.) 462; Rex v.
Great Canfield, 6 Esp. 136; Rex v. Marchioness Dowager, 4 Add. & E. 232;;
Rex V. Inhabitants of St Weonard's, 6 Car. & P. 582.
120 state V. Nixon, 18 Vt 70; Com. v. Logan, 12 Gray (Mass.) 136. But;
see State v. Crogan, 8 Iowa, 523.
121 Com. V. HefCron, 102 Mass. 148; Wertz v. State, 42 Ind. 161; Dennis v.-
State, 91 Ind. 291; Droneberger v. State, 112 Ind. 105, 13 N. E. 259; Comellt
V. State, 7 Baxt (Tenn.) 520. But see, contra. State v. Sneed, 16 Lea (Tenn.)-
450, 1 S. W. 282; State v. Jacobs, 75 Iowa, 247, 39 N. W. 293.
122 1 Chit Cr. Law, 201; Com. v. Wellington, 7 Allen (Mass.) 300.
123 Rex V. Ridley, Russ. & R. 515.
"Ch. 10] PLEADING AND PROOF VAEIANCE. 349
the particular place within the county at which they were commit-
ted, but must state it accurately. The particular place is stated
not as venue, but by way of local description, and if the proof shows
that the offense was committed at any other place, though within
the county, than the place alleged, the variance will be fatal.^^*
If the place is stated unnecessarily, or with unnecessary par-
ticularity not as venue, but as matter of local description, the state-
ment is part of the description of the offense, and, like other alle-
gations which are descriptive of that which is essential, must be
proved.^ ^° An indictment for desecrating a public burying ground,
■for instance, need not describe it by metes and bounds, but if it
■does so, the metes and bounds must be proved as alleged.^^*
In some cases the crime can only be committed in a particular
place. Here, of course, the place must not only be alleged, but it
must be proved, in order to show that the offense has been com-
mitted."^
Indictments on Statutes.
The same rules with respect to variance apply to indictments
on statutes as to indictments at common law, but there are a few
•questions peculiar to them. As we have seen, an indictment on a
public statute need not recite the statute.^ ^' If it does recite a
statute, and then counts upon that particular statute, as by con-
cluding "contrary to the form of said statute," a material variance
between the statute and the recital will be fatal. If, however, it
concludes "contrary to the form of statute in such case made and
provided," thus counting generally on some statute, the recital of a
particular statute may be rejected as surplusage, and a variance
will be disregarded.^^'
124 1 Chit. Cr. Law, 200, 201; ante, p. 250.
12 0 Moore v. State, 12 Ohio St. 387; Com. v. Wellington, 7 Allen (Mass.)
299; Withers v. State, 21 Tex. App. 210, 17 S. W. 725; State v. Crogan,
« Iowa, 523; Reg. v. Cranage, 1 Salk. 385; O'Brien v. State, 10 Tex. App. 544.
126 Com. V. Wellington, supra.
127 Ante, p. 249; State v. TurnbuU, 78 Me. 1, 6 Atl.- 1.
128 Ante, p. 257.
128 2 Hale, P. C. 172; 2 Hawk. P. C. c. 25, § 101; Vander Plunken v. Grif-
fith, Cro. EUz. 236; Boyce v. Whitaker, 1 Doug. 94; 4 Coke, 48a; Piatt v.
Hill, 1 Ld. Raym. 382; Rex v. Marsack, 6 Term R. 776; Murray v. Fitz-
350 PLEADIKG AND PROOF. [Ch. 10
Effect of Modem Statutes.
In discussing the question of variance we have merely stated the
common-law rules. These rules have to some extent been changed
by statute in most jurisdictions, so that it is necessary for the stu-
dent at this point to consult the statutes of his state.
It is provided in some jurisdictions that, whenever on the trial of
an indictment or information, there appears to be any variance
between the allegations and the evidence offered in proof thereof,
(1) in the name of any place mentioned or described therein; or
(2) in the name or description of any person or persons, or body
politic or corporate, therein stated or alleged to be the owner or
owners of any property, real or personal, which forms the subject
of any offense charged therein; or (3) in the name and description
of any person or persons, body politic or corporate, therein stated
or alleged to be injured or damaged, or intended to be injured
or damaged, by the commission of such offense; or (4) in the
Christian name or surname, or both Christian name and sur-
name, or other description whatsoever, of any person or persons
whomsoever therein named or described; or (5) in the name and
description of any matter or thing whatsoever therein named or
described; or (6) in the ownership of any property named or de-
scribed therein, — the court before which the trial is had, may, if
it considers such variance not material to the merits of the case
and that the defendant cannot be prejudiced thereby in his defense
on such merits, order such indictment or information to be amended
to conform to the proof, on such terms as to postponing the trial,
etc., as the court may think reasonable. In some states it is pro-
vided that the variance, instead of being cured by amendment, may
be disregarded. Such statutes do not exist in all the states.
We have already shown the effect of provisions like this under
our constitutional provisions.^'*
Patrick, 3 Caines (N. Y.) 41; Com. v. Washburn, 128 Mass. 421. But not If
the variance is Immaterial. Eeg. v. Westley, Bell, Crown Cas. 193; People v.
Walbridge, 6 Cow. (N. Y.) 512; Com. v. Burke, 15 Gray (Mass.) 408. And
see ante, p. 258.
ISO Ante, pp. 140, 316, 324.
Ch. 10] CONVICTION OF MINOli OFFENSE. 351
CONVICTION OF MINOR OTTENSB.
123. If the whole of the offense charged is not proved,
but so much of it as to constitute a substantive offense is
proved, the defendant may be acquitted of the offense
charged, and convicted of the offense proved, provided, at
common law, each offense is either a felony or a misde-
meanor. In most of our states, either by statute, or in-
-dependently of any statute, on indictment for felony,
there may be a conviction of a misdemeanor included
therein. The offense proved must be necessarily in-
cluded in the charge.
The jury in order to convict the defendant need not necessarily
find the whole of the offense, or the highest offense, charged in the
indictment, but may convict of any minor offense, included in the
charge.^^* "It is a general rule which runs through the whole crim-
inal law, that it is sufficient to prove so much of the indictment as
shows that the defendant has committed a substantive crime therein
specified." ^'^ "It is a general rule at common law, 'where the accu-
sation in the indictment includes an offense of inferior degree, the
jury may discharge the defendant of the higher crime, and convict
him of the less atrocious.' " ^'' This rule has been expressly declared
by statute in many of our states. At common law, as we shall pres-
ently see more at length, there could be no conviction of a mis-
181 1 Chit. Or. Law, 250; People v. White, 22 Wend. (N. Y.) 167; Wyatt v.
State, 1 Blackf. (Ind.) 257; Com. v. Hope, 22 Pick. (Mass.) 1; People Y. Mc-
Gowan, 17 Wend. (N. Y.) 386; Borum v. State, 66 Ala. 468; Clarke v. Com.,
25 Grat (Va.) 908; State v. Brannon, 55 Mo. 63; State v. Brady, 14 Vt 353;
State V. Bno, 8 Minn. 220 (Gil. 190); State v. Burk, 89 Mo. 635, 2 S. W. 10;
State v. Taylor, 3 Or. 10; Stevens v. State, 19 Neb. 647, 28 N. W. 304; Beck-
with v. People, 26 111. 500; Carpenter v. People, 4 Scam. (111.) 197; Dinkey v.
Com., 17 Pa. St. 126; Herman v. People, 131 lU. 594, 22 N. B. 471; Rogers v.
People, 34 Mich. 345; People v. Jackson, 3 Hill (N. Y.) 92; and the numer-
ous cases hereafter referred to.
132 1 Chit. Cr. Law, 250; ante, p. 329; Durham v. State, 1 Blackf. (Ind.) 33.
133 State V. Coy, 2 Aiken (Vt.) 181.
352 PLEADING AND PROOF. [Gh.'lO
demeanor on indictment for a felony, and this rule is still recog-
nized in a few states; but in most states it is not recognized, or has
been changed by statute. To thus allow a conviction for a minor
offense included in the charge, does not in any way prejudice the
rights of the defendant, or deprive him of the constitutional right
to formal notice of the charge against him, for he is not only accused
of the highest offense charged in the indictment, but he is also
formally accused of every other offense necessarily included in the
charge.^'*
Illustrations of the Rule.
In accordance with the rule above stated, it is held that the
defendant may be convicted of statutory larceny from the dwelling
house, or of simple larceny, on an indictment charging burglary
with intent to commit larceny, and an actual stealing, for the in-
dictment charges these offenses as well as the offense of burglary.
They are necessarily included in the charge.^ '° For the same
reason, there may be a conviction of a lower degree of burglary
than charged, if all the essential elements of the lower degree are
charged; ^^° of petit larceny on indictment for grand larceny; ^'^
of grand larceny in the second degree on indictment for grand lar-
ceny in the first degree; ^^* by the weight of authority, of simple
larceny on indictment for robbery, or for stealing from the person,^''
13* See State v. Burk, 89 Mo. 635, 2 S. W. 10.
13 5 2 Hale, P. O. 302; 2 East, P. C. 513; Rex v. Withal, 1 Leach, Crown
Cas. 88: Rex v. Vandercomb, 2 Leach, Crown Gas. 711; Com. v. Tuck, 20
Pick. (Mass.) 360; State v. Cocker, 3 Har. (Del.) 534; State v. Grisham,
1 Hayw. (N. C.) 17; Breese v. State, 12 Ohio St. 146; State v. Colter, 6 R. I.
195; Polite v. State, 78 Ga. 347; Com. v. Lowery, 149 Mass. 67, 20 N. E. 697;
People V. Jacks, 76 Mich. 218, 42 N. W. 1134; People v. White, 22 Wend. (N.
Y.) 176. But the actual larceny must be sufEciently charged. State v. Mc-
Clung, 35 W. Va. 280, 13 S. E. 654.
136 State V. Fleming, 107 N. O. 905, 12 S. E. 131. Of burglary, without be-
ing armed with a dangerous weapon, on indictment for burglary, being so
armed. S.tate v. Morris, 27 La. Ann. 481; State v. Miller, 45 La. Ann. 1170,
14 South. 136.
13T Boiling v. State (Ala.) 12 South. 782; People v. McCallam, 103 N. Y. 587,
9 N. E. 502.
13 8 People V. McCallam, supra. Of simple larceny on indictment for horse-
stealing. Rex V. Beaney, Russ. & R. 416.
13 » 1 Chit Cr. Law, 250; 1 Hale, P. C. 534; 2 Hale, P. 0. 203; 2 Hawk. P.
Gh. 10] CONVICTION OF MINOR OFFENSE. 353
or for the statutory offense of stealing in a shop or dwelling house,
etc.""
So, also, there may be a conviction of voluntary manslaughter
on indictment for murder; ^*^ of murder in the second degree on
indictment for murder in the first degree; ^*^ of assault with intent
to kill, or a less aggravated assault, or assault and battery, or
simple assault, on indictment for murder, at least where, as is
generally the case, there may be conviction for misdemeanor on in-
dictment for felony, and provided, of course, all the essentials of
the less offense appear in the charge; ^*' or of assault and battery
on indictment for manslaughter.^** Subject to the same limita-
tions, there may be conviction of assault with intent to rape, or a
less aggravated assault, or assault and battery, or simple assault,
or indecent assault, on an indictment for rape or carnal knowledge
of a female under the age of consent; ^*° of fornication on indictment
C. c. 47, § 6; 2 Bast, P. C. 513, 515, 516, 736, 784; Rex v. Sterne, 1 Leach,
Crown Cas. 473; Morris v. State, 97 Ala. 82, 12 South. 276; State v. Kee-
land, 90 Mo. 337, 2 S. W. 442; State v. Steifel, 106 Mo. 129, 17 S. W. 227;
Haley v. State, 49 Ark. 147, 4 S. W. 746; Stevens v. State, 19 Neb. 647, 28 N.
W. 304; Brown v. State, 34 Neb. 448, 51 N. W. 1028; Snllivan v. Com. (Ky.)
5 S. W. 365; People v. White, 22 Wend. (N. Y.) 176. Some of the courts hold
that this could not be allowed at common law. Rex v. Francis, 2 Strange,
1014; Haley v. State, supra.
140 Rex V. Etherington, 2 Leach, Grown Cas. 671; Brown v. State, 90 Ga.
454, 16 S. E. 204.
Ill 1 Hale, P. C. 449; 2 Hale, P. C. 302; Co. Litt. 282a; 2 Hawk. P. C.
c. 47, § 4; State v. Parish, 2 Hayw. (N. C.) 73; Brown v. State, 31 Fla. 207,
12 South. 640; U. S. v. Leonard, 2 Fed. 669; Boulden v. State (Ala.) 15 South.
341; White v. Territory, 3 Wash. T. 397, 19 Pac. 37.
142 State V. Talmage, 107 Mo. 543, 17 S. W. 990; State v. Lindsey, 19 Nev.
47, 5 Pac. 822.
145 Ex parte Oumow, 21 Nev. 33, 24 Pac. 430; Lang v. State, 16 Lea (Tenn.)
433, 1 S. W. 318; Bean v. State, 25 Tex. App. 346, 8 S. W. 278.
144 State V. Scott, 24 Vt. 127.
146 state V. Bagan, 41 Minn. 285, 43 N. W. 5; State v. Mueller, 85 Wis. 203,
55 N. W. 165; Poison v. State (Ind. Sup.) 35 N. E. 907; People v. Abbott, 97
Mich. 484, 56 N. W. 862; Pratt v. State, 51 Ark. 167, 10 S. W. 233; State v.
May, 42 La. Ann. 82, 7 South. 60; State v. Kyne, 86 Iowa, 616, 53 N. W. 420;
Reg. V. Williams, 5 Reports, 186 [1893] 1 Q. B. 320; Jones v. State, 118 Ind.
3&, 20 N. E. G34; State v. White, 52 Mo. App. 285.
CTHM.PROC— 23
354 PLEADING AND PEOOF. [Ch. 10
for rape/*' adultery,^*' or seduction;^** or of incest where the
defendant is charged with rape of his own daughter.^*"
And generally where an aggravated assault is charged, — as as-
sault with Intent to murder, to kill, to rape, or to rob, or any less
aggravated assault, — the defendant may be convicted of any minor
aggravated assault, all the essential elements of which appear in
the charge, or, in other words, which is necessarily included in the
charge, or of assault and battery, where actual violence is charged,
or of simple assault.^"
146 Com. V. Parker, 146 Pa. St 343, 23 Atl. 323. But the indictment must
show that the woman was not the defendant's wife. Com. v. Murphy, 2 Allen
(Mass.) 163.
147 Com. V. Roberts, 1 Yeates (Pa.) 6; State v. Cowell, 4 Ired. (N. 0.) 231.
But see Maull v. State, 37 Ala. 160.
14 8 Dinkey v. Com., 17 Pa. St. 126.
149 Com. V. Goodhue, 2 Mete. (Mass.) 193.
iBo State V. Coy, 2 Aiken (Vt.) 181; State v. Evans, 40 La. Ann. 216,
3 South. 838; Foster v. State, 25 Tex. App. 543, 8 S. W. 664; Jenkins v.
State (Ga.) 17 S. E. 693; Pittman v. State, 25 Pla. 648, 6 South. 437; Peo-
ple v. BUsworth, 90 Mich. 442, 51 N. W. 531; People v. Prague, 72 Mich. 178,
40 N. W. 243; OXeary v. People, 4 Parker, Cr. R. (N. Y.) 187; Kennedy v.
People, 122 111. 649, 13 N. E. 213. But see, for a doubtful case. State v. Al-
len, 40. La. Ann. 199, 3 South. 537. Of assault with intent to abuse on indict-
ment for assault with intent to carnally know and abuse. 1 Chit. Cr. Law,
251. Of assault on indictment for assault with intent to rape, or of assault
and battery on such an indictment, where actual violence is charged. State
V. Keen (Wash.) 38 Pac. 880; State v. McAvoy, 73 Iowa, 557, 35 N. W. 630.
Of simple assault on indictment for assault with intent to kill or to murder,
or of assault and battery in such a case, where actual violence is charged.
Stewart v. State, 5 Ohio, 241; State v. Coy, 2 Aiken (Vt.) 181; Horn v. State,
98 Ala. 23, 13 South. 329; People v. Chalmers, 5 Utah, 201, 14 Pac. 131;
State V. Brent, 100 Mo. 531, 13 S. W. 874; Malone v. State, 77 Ga. 767; State
V. Robinson, 31 S. C. 453, 10 S. E. 101; State v. Triplett, 52 Kan. 678, 35
Pac. 815; Chacun v. Territory (N. AI.) 34 Pac. 448; People v. Ellsworth, 90
Mich. 442, 51 N. W. 531. Of assault with intent to kill on indictment for
assault with intent to murder. State v. Waters, 39 Me. 54. Of assault and
battery on indictment for assault (and battery) with intent to rob. Barnard v.
Com. (Ky.) 22 S. W. 219. Of unlawfully irointing a pistol at another on in-
dictment for 'assault with Intent to murder by pointing, aiming, and dischar-
ging a loaded pistol at him. Jenkins v. State (Ga.) 17 S. E. 693. Of assault
and battery, armed with a dangerous weapon, "with intent to do bodily harm,"
on indictment for assault and battery committed with a deadly weapon, "with
Ch. 10] CONVICTION OF MINOR OFFENSE. 355
So where an indictment charged the burning of a barn adjoining
a dwelling house, which offense was made punishable by one section
of the statutes, and the proof showed that the house was not a
dwelling, it was held that the defendant could be convicted under
another section for burning a building not adjoining a dwelling
house.^"^ This, however, is doubtful.^"*^
In Iowa it has been held that on an indictment for breaking and
entering a house in the nighttime, the defendant may be con^i:ct«d^
of the minor offense of breaking and entering in the daytime;^'*
but the soundness of this decision is at least doubtful.^"*
intent to kill." State v. Johnson, 3 N. D. 150, 54 N. W. 547. And see State
v. CoUyer, 17 Nev. 275, 30 Pac. 891. Of assault with a deadly weapon on
indictment for assault with such a weapon with intent to kill. Pittman v.
State, 25 Fla. 648, 6 South. 437; State v. McLennen, 16 Or. 59, 16 Pac. 879,
and cases there collected; State v. Delaney, 28 La. Ann. 434; People v. Bent-
ley, 75 Cal. 407, 17 Pac. 436; Evans v. Territory (Ariz.) 36 Pac. 209. Of
assault on indictment for assault with a deadly weapon with intent to inflict
great bodily harm, or of assault and battery, where actual violence is charged.
Kennedy v. People, 122 111. 649, 13 N. E. 213; People v. Ellsworth, 90 Mich.
442, 51 N. W. 531. Of assault with intent to kill on indictment for assault
with intent to kill while lying in wait. State v. Evans, 40 La. Ann. 216,
3 South. 838. And see State v. Price, 45 La. Ann. 1430, 14 South. 250. Of
assault with intent to commit manslaughter on indictment for assault with
intent to murder. State v. White, 41 Iowa, 316; State v. Connor, 59 Iowa,
357, 13 N. W. 327; Horn v. State, 98 Ala. 23, 13 South. 329. Of assault with
intent to inflict great bodily injury, or to do bodily harm, on indictment for
assault with intent to murder, or to kill. People v. Davidson, 5 Cal. 133;
State V. King (Mo. Sup.) 20 S. W. 299; Bean v. State, 25 Tex. App. 346,
8 S. W. 278; People v. Prague, 72 Mich. 178, 40 K. W. 243; State v. Scheie,
52 Iowa, 608, 3 N. W. 632; Territory v. Galliff (Okl.) 37 Pac. 809. Contra,
State V. Yanta, 71 Wis. 669, 38 N. W. 333. Of assault and battery on indict-
ment for assault (and battery) with a deadly weapon with intent to kiU, or
assault (and battery) with intent to maim. O'Leary v. People, 4 Parker, Or.
R. (N. Y.) 187; State v. Jennings, 104 N. C. 774, 10 S. E. 249.
iBi State V. Thornton, 56 Vt. 35.
152 Contra, on the ground that the latter offense is not included in the for-
mer. Com. V. Hayden, 150 Mass. 332, 23 N. E. 51.
103 State V. Jordan, 87 Iowa, 86, 54 N. W. 63.
1B4 Guynes T. State, 25 Tex. App. 584, 8 S. W. 667.
356 PLEADING AND PROOF. £Ch. 10
Minor Offense Must be Charged.
In all cases the minor offense must be necessarily included in
the charge. The indictment must on its face show every essential
element of it, otherwise the defendant would be convicted of an
offense, without having been accused of it.^"" "No one can be
convicted of an offense which is not charged in the information,
where the elements of the offense are not embraced in some greater
offense charged." ^" "The lesser offense must be included in the
greater by necessary words of description, so that, if the words
defining the greater offense are stricken out of the information,
there would remain a sufficient description of the lesser offense." "''
On indictment for assault with intent to do great bodily harm,
expressly alleging that the defendant "did beat, bruise, and ill-treat"
the person assaulted, there may be a conviction of assault and bat-
tery, since a battery is charged;^"' but if the information merely
charges the assault with such intent, and does not show that there
was actual violence, there may be a conviction of simple assault,
but not of assault and battery, for a battery is not necessarily
included in the charge.^"'
So, on indictment for assault with intent to rape, though there
may be conviction for simple assault, there cannot be conviction
for assault and battery, unless actual violence is charged. Assault
with intent to commit rape does not necessarily imply a battery.^*"
1B6 State V. Ackles (Wash.) 36 Pac. 597; Com. v. Murphy, 2 Allen (Mass.)
163; Wamer v. State, 54 Ark. 660, 17 S. W. 6; State v. Melton, 102 Mo. 683,
15 S. W. 139.
166 Turner v. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310.
107 state V. Shear, 51 WiS; 460, 8 N. W. 287; State v. Yanta, 71 Wis. 669,
■38 N. W. 333. In the case last cited the rule does not seem to have been cor-
rectly applied. It was held that a charge of willfully, maliciously, and feloni-
ously assaulting, cutting, stabbing, and wounding, with intent to murder,
•did not include the charge of assault with intent to do great bodily harm.
It is difficult to suppose it possible to assault, cut, stab, and wound a man
with intent to murder him, without intending to inflict rather serious bodily
harm. See, contra, cases cited in note 150, supra.
los People V. Ellsworth, 90 Mich. 442, 51 N. W. 531. And see the cases
■cited in note 150, supra.
169 Tui-ner v. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310 (ex-
plained in People v. Ellsworth, supra).
160 State V. McAvoy, 73 Iowa, 557, 35 N. W. 630; State v. Keen (Wash.)
38 Pac. 880.
Ch. 10] CONVICTION OP MINOR OFFENSE. 357
It is otherwise, of course, where the consummated crime of rape
is charged.^"^
The same is true of assaults with intent to murder, to inflict
bodily harm, to rob, assault with a deadly weapon, etc. Conviction
of simple assault may always be authorized, but not for assault
and battery, unless the indictment shows on its face that there was
actual violence.^'*
Under this rule it would seem that the defendant should not
be convicted of burning or breaking and entering a building not
a dwelling house, on an indictment for burning or breaking and
entering a dwelling house, nor for burning or breaking and entering
a building in the daytime, on an indict-nent for doing so in the
nighttime, but, as we have seen, there is a conflict in the cases.^"'
On a charge of murder by shooting or stabbing, or other acts of
intentional violence, the defendant may well be convicted of assault
with intent to kill, or with intent to do great bodily harm; ^^* but
could he be so convicted on indictment for murder committed
unintentionally while engaged in the commission of such a felony
as rape, arson, or burglary? ^°° On an indictment for murder
which does not, as allowed by statute, set out the manner or means
by which the crime was committed, there cannot be a conviction,
under a statute, of intentionally pointing a pistol, and accidentally
discharging the same, and killing the deceased.^**
On indictment for rape, as we have seen, there may, in a proper
case, be conviction of fornication, but there cannot be such a con-
viction unless the indictment shows that the woman was not the
defendant's wife.^*^
So it has been held that on an indictment for rape (charging that
the defendant "feloniously, forcibly, and against her will, did car-
nally know J. J.," saying nothing about her age) the defendant can-
lei Note 145, supra.
162 Turner v. Muskegon Circuit Judge, supra; State v. Marclis (N. D.) 58
N. W. 25; State v. Melton, 102 Mo. 683, 15 S. W. 139.
183 Notes 151-154, supra.
18* Notes 141-143, 150, supra.
16 5 Ex parte Cumow, 21 Nev. 33, 24 Pac. 430.
168 Lucas V. State, 71 Miss. 471, 14 Soutla. 537.
167 Com. V. Murphy, 2 Allen (Mass.) 163.
358 PLEADING AND PEOOF. [Ch. 10
not be convicted of the offense of carnally knowing a female child
under the age of puberty.^"* Nor can there be conviction of mali-
cious mischief on an indictment for arson; ^°' nor of embezzlement
on indictment for larceny, or vice versa/'" unless a statute, as is
the case in some states, expressly allows it.^'* Nor of assault with
intent to murder on indictment for robbery; "^ or for maiming; "'
nor of wounding, maiming, and disfiguring on an indictment for
assault with a slung shot with intent to kill, which does not allege
the infliction of an injury;^'* nor of the statutory offense of stab-
bing another, not designing thereby to effect his death, nor in self-
defense, nor in an attempt to preserve the peace, nor in doing any
other legal act, whereby death resulted, on indictment for murder.*"
Felony and Misdemeanor.
At common law, in England, because of the fact, as explained on
a former page,^'° that the defendant had certain rights on trial
for a misdemeanor which he could not claim on trial for a felony,
a felony could not upon the trial be modified into a misdemeanor.
In olher words, on indictment for a felony the defendant could not
be convicted of a misdemeanor.^'' And this rule has been recog-
nized in some of our states.^" The Massachusetts court based the
168 Warner v. State, 54 Ark. 660, 17 S. W. 6. And see Whitcher v. State
(Wash.) 26 Pac. 268.
180 Crockett v. State, 80 Ga. 104, 4 S. E. 254.
170 Griffin v. State, 4 Tex. App. 390; Lott v. State, 24 Tex. App. 723, 14
S. W. 277; State v. Harmon, infra.
iTi State V. Williams, 40 La. Ann. 732, 5 Soutli. 16; State v. Harmon (Mo.
Sup.) 18 S. W. 128; Reg. v. Gorbutt, 1 Dears. & B. Crown Cas. 166.
1T2 Munson v. State, 21 Tex. App. 329, 17 S. W. 251.
178 Davis V. State, 22 Tex. App. 45, 2 S. W. 630.
174 State V. Melton, 102 Mo. 683, 15 S. W. 139.
17 5 Wood V. Com. (Ky.) 7 S. W. 391.
17 8 Ante, p. 294.
17 7 1 Chit. Cr. Law, 251; 2 Hawk. P. C. c. 47, § 8; Rex v. Westbeer,
1 Leach, Crown Cas. 14, 2 Strange, 1133; Rex v. Monteth, 2 Leach, Crown
Cas. 702; 2 East, P. C. 737, 738.
178 Com. V. Roby, 12 Pick. (Mass.) 496 (oven'uling Com. v. Cooper, 15 Mass.
187); Com. v. Newell, 7 Mass. 249; Com. v. Gable, 7 Serg. & R. (Pa.) 423;
State V. Valentine, 6 Yerg. (Tenn.) 533; State v. Flint, 33 La. Ann. 1288;
Black V. State, 2 Md. 376; Barber v. State, 50 Md. 161; McWhirt v. Com.,
3 Grat. (Va.) 594. In most of these states, however, the rule has been changed
by statute.
Ch. 10] CONVICTION OF MINOR OFFENSE. 359
rule on "the broader consideration tliat the offenses are, in legal
contemplation, essentially distinct in their nature and character," ^"
but this is not the reason of the rule.
Where the rule is recognized there could not be a conviction of
simple assault, assault and battery, or assault with intent to kill
(where such aggravated assault is a misdemeanor only), on indict-
ment for murder or manslaughter; ^"' nor of simple assault, assault
and battery, indecent assault, or assault with intent to rape (when
a misdemeanor only), on an indictment for rape.^^^ The same
would be true of indictments for robbery. So where several per-
sons were indicted for a burglary, in breaking and entering a
dwelling house in the nighttime with intent to maim and disfigure
the owner by cutting off one of his ears, which was charged as
a burglarious breaking and entry with a felonious intent, the court,
on demurrer, being of opinion that the offense charged did not
amount to a felony, the question was raised whether it would war-
rant a judgment for the misdemeanor of aggravated assault; but
it was decided that at common law this could not be done, and the
defendants were bound over to answer for the misdemeanor upon
another indictment.^ ^*
Many, perhaps most, of our courts have refused to recognize
the rule that there cannot be a conviction of misdemeanor on indict-
ment for felony, on the ground that the reasons which made the
rule proper in England do not exist in this country, there being no
privilege to which the defendant is entitled on trial for a misde-
meanor that he could not claim on trial for a felony; and so the
maxim, "Cessante ratione legis, cessat et ipsa lex," applies.^*' In
1T9 Com. v. Roby, 12 Pick. (Mass.) 496.
ISO Com. V. Roby, 12 Pick. (Mass.) 496; Com. v. Cooper, 15 Mass. 187.
181 Id.
182 Com. V. Newell, 7 Mass. 249.
183 Herman v. People, 131 111. 594, 22 N. E. 471; People v. Jackson, 3 Hill
(N. Y.) 92; People v. White, 22 Wend. (N. Y.) 175; Rogers v. People, 34
Mich. 345; State v. Scott, 24 Vt. 127; Prindeville v. People, 42 111. 217;
State V. Kennedy, 7 Blackf. (Ind.) 233; Hunter v. Com., 79 Pa. St. 503;
Hess v. State, 5 Ohio, 1; Stewart v. State, Id. 241; State v. Stedman,
7 Port (Ala.) 495; State v. Johnson, 30 N. J. Law, 185; State v. Wimberly,
3 McCord (S. C.) 190; State v. Shepard, 7 Conn. 54; State v. Watts, 82 N.
C..656; Cameron v. State, 8 Eng. (Ark.) 712; People v. Chalmei-s, 5 Utah,
201, 14 Pac. 131.
360 PLEADING AND PROOF. [Ch. 10
many states the rule has been expressly abrogated by statute.^'*
In some states it is expressly provided by statute that where a
person is charged with the actual commission of a crime, and the
evidence shows that he was guilty only of an attempt to commit
it, he may be convicted of the attempt.^'"
Conviction of Minor, on Proof of Higher, Offense.
In most states it is held, where there is no statute to the con-
trary, that where a person is convicted of a minor offense necessarily
included in the charge, he cannot complain that the evidence
showed him to be guilty of the higher offense charged.^*" But in
some states, where the offense charged is a misdemeanor, and the
offense proved is a felony, it is held that there can be no conviction
of the misdemeanor on the ground that it merges in the felony.*
In some jurisdictions, however, statutes have been enacted, provid-
ing, in substance, that no person shall be convicted of an assault with
intent to commit an offense, or of any other attempt to commit an
offense, when it shall appear that the offense intended or attempted
was actually perpetrated.^''' Such a statute is valid, and does not
conflict with a statute authorizing a conviction for any degree of
offense inferior to that charged in the indictment, nor with a statute
authorizing a conviction for a less offense where the charge is
for an assault with intent to commit a felony, and authorizing
the jurj' to convict "of any offense, the commission of which ia
necessarily included in that charged." ^**
18* See Com. v. Drum, 19 Pick. (Mass.) 479; State v. Crummey, 17 Minn.
72 (Gil. 50) ; Hill v. State, 53 Ga. 125; State v. Purdie, 67 N. C. 26, 326;
People V. Abbott, 97 Mich. 484, 56 N. W. 862.
isB In re Lloyd, 51 Kan. 501, 33 Pac. 307; State v. Frank, 103 Mo. 120,
15 S. W. 330.
188 Poison V. State (Ind.) 35 N. E. 907; Hamilton v. State, 36 Ind. 280;
State V. Keeland, 90 Mo. 337, 2 S. W. 442; Com. v. Creadon (Mass.) 38 N. E.
1119; Hardy v. Com., 17 Grat. (Va.) 592; State v. Archer, 54 N. H. 465;
State V. Parmelee, 9 Conn. 259; Lohman v. People, 1 N. Y. 379; Reg. v.
Neale, 1 Car. & K. 591; Com. v. Burke, 14 Gray (Mass.) 100; Com. v. M'Pike,
3 Cush. (Mass.) 181; Brown v. State, 31 Fla. 207, 12 South. 640. But see Id.,
34 Neb. 448. 51 N. W. 1028.
* Post, p. 403.
18T State V. Lacey, 111 Mo. 513, 20 S. W. 238; State v. White, 35 Mo. 500;
State T. Mitchell (Kan.) 38 Pac. 810.
188 state T. Lacey, supra.
Ch. 10] CONVICTION OF HIGHER OFFENSE. 361
Indictment Bad as to Higher Offense.
It has been held that an indictment which is bad for the higher
offense sought to be charged will not support a conviction for a
minor offeoise which, if it were good, would necessarily be included
therein; ^'' but the rule seems to be established that, if the offense
of which the defendant is convicted is sufficiently charged, it can
make no difference that the higher offense which it was intended to-
charge, and of which the defendant was acquitted, was not suflB-
ciently diarged.^'*
CONVICTION OF HIGHER OFFENSE.
123. There can be no conviction for a higher offense
than is charged in the indictment.
We should not take the space to state so obvious a proposition,,
except for the fact that an appellate court has actually been called
upon to decide that there can be no conviction for grand larceny
on an indictment for petit larceny.^'^
189 Territory v. Dooley, 4 Mont. 295, 1 Pac. 747.
i»» Crumbley v. State, 61 Ga. 582; State v. Trlplett, 52 Kan. 67S, 35 Pac.
815.
181 McOulIough V. State, 132 Ind. 427, 31 N. E. 1116.
362 MOTIO.N TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. H
CHAPTER XI.
MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS OF
DEFENDANT.
124-126. Motion to Quash.
127-128. The Arraignment and Pleas.
129. Confession— Plea of Guilty— Nolo Contendere.
130. Plea to the Jurisdiction.
131. Plea in Abatement.
132. Demurrer.
133-135. Pleas in Bar.
136-138. Pleas of Autrefois Acquit and Convict, or Former Jeopardy.
139. Plea of Pardon.
140. Agreement to Turn State's Evidence.
141. Plea of Not Guilty— General Issue.
MOTION TO QUASH.
124. A motion to quash the indictment will lie, if it is
insufficient as a matter of law, because of any defect ap-
parent on the face of it or of the record, or if counts are
joined in it which, by law, ought not to be joined; and
in the latter case the court may, in its discretion, quash
one or more counts. In some states the motion will lie
for defects not apparent on the face of the record.
135. The motion may be made at any time before ver-
dict, unless it is otherwise provided by statute.
126. All motions to quash are, at common law, ad-
dressed to the discretion of the court; and it may, if it
thinks proper, leave the defendant to his remedy by de-
murrer, motion in arrest of judgment, or writ of error.
The motion to quash is always a proper way of objecting to the
indictment for insuflBciency on its face, or on the face of the record,
in point of law, from whatever cause the insufficiency may arise; ^
1 Reg. V. Wilson, 6 Q. B. 620; Rex v. Combs, Comb. 243; Rex v. Stratton,
1 Doug. 239; State v. Dayton, 23 N. J. Law, 49; State v. Albln, 50 Mo. 419;
State V. Cole, 17 Wis. 674; Swiney v. State, 119 Ind. 478, 21 N. B. 1102.
Ch. 11] MOTION TO QUASH. 363
and it is also a proper way to object that different counts or parties
are improperly joined, though this, as we have seen, may not render
the indictment'bad, as a matter of law. In some states the motion
will not lie for defects not apparent on the face of the indictment
or record,^ but in others the rule is different.'
There are various ways in which the defendant may raise objec-
tion to the sufficiency of the indictment in point of law. He may
do so by motion to quash it, by plea, by demurrer, by motion in ar-
rest of judgment, or on writ of error or appeal. He can attack it
by demurrer or plea only after he has been arraigned or called upon
to answer the charge, and generally before he has pleaded to the
merits; by motion in arrest only after a verdict of guilty; by writ
of error or appeal only after a judgment of conviction; but he may
attack it by motion to quash at any time after the indictment is
presented, and before verdict.
It has been said that a motion to quash must be made before the
defendant has been arraigned and pleaded; that it comes too late,
for instance, after a plea of not guilty.* But this is not true.
Whenever it is clear that no judgment could be rendered on a ver-
dict of guilty, because of the insutBciency of the indictment, a mo-
tion to quash may be made and granted, in the discretion of the
court, at any time before verdict, for it would be absurd to require
the trial to proceed further, when it is clear that a conviction could
not be sustained.^ A motion to quash for misjoinder of counts or
2 See Com. v. Church, 1 Pa. St. 105; State v. Ward, 60 Vt. 142, 14 Atl. 18T;
State V. Rickey, 9 N. J. Law, 293; Com. v. Fredericks, 119 Mass. 199; Com.
V. Donahue, 126 Mass. 51; Bell v. State, 42 Ind. 335.
3 See Com. v. Bradney, 126 Pa. St. 199, 17 Ati. 600; Com. v. Green, 126 Pa.
St. 531, 17 Atl. 878; State v. Wall. 15 Mo. 208; State v. Bishop, 22 Mo. App.
435; State v. Horton, 63 N. C. 595.
4 Rex T. Frith, 1 Leach, Crown Cas. 11; Rex v. Semple, Id. 420; Rex v.
Wynn, 2 East, 226; State v. Burlingham, 15 Me. 104; People v. Walters, 5
Parker, Cr. R. (N. Y.) 661; People v. Monroe Oyer and Terminer, 20 Wend.
(N. Y.) 108; Deitz v. State, 123 Ind. 85, 23 N. E. 1086. In some states, by
statute, the time is limited. See State v. Taylor, 43 La. Ann. 1131, 10 South.
203; State v. Schumm, 47 Minn. 373, 50 N. W. 362; People v. Bawden, 90 Oal.
195, 27 Pac. 204.
6 Reg. V. James, 12 Cox, Or. Cas. 127; Nichols v. State, 5 N. J. Law, 621;
State V. Riffe, 10 W. Va. 794; Parrish v. State, 14 Md. 238; State v. Reeves,
364 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
parties may also be made at any time before verdict. It cannot,
in any case, be made after verdict."
At common law, a motion to quash an indictment is always ad-
dressed to the discretion of the court, and, by the weight of au-
thority, its ruling is not reviewable.' But the court, in the exercise
of its discretion, is guided by certain rules. Where the offense is
a serious one, such as a felony, or a misdemeanor which immediately
affects the public at large, the motion should not be granted except
upon the clearest and plainest ground, but the party should be
driven to a demurrer, or motion in arrest of judgment, or writ of
error.* The motion will be granted when it is clear that the
indictment would not support a judgment of conviction, but not
otherwise. "Such a motion should not be allowed to prevail in a
doubtful case, but only when the insufficiency of an indictment is
so palpable as clearly to satisfy the presiding judge that a verdict
thereon would not authorize a judgment against the defendant." "
Indictments have been quashed because found on the testimony
of an interested person, or of a person not under oath; ^^ because
97 Mo. 668, 10 S. W. 841; Com. v. Cbapman, 11 Gush. (Mass.) 422; State v.
Golly er (Nev.) 30 Pac. 891; State v. Eason, 70 N. C. 90.
e State V. Barnes, 29 Me. 561.
1 1 Chit. Cr. Law, 300; 2 Hawk. P. C. c. 25, § 146; Rex v. Wheatly, 2 Bur-
rows, 1127; Rex v. Inhabitants of Belton, 1 Salk. 372; Rex v. Johnson, 1
Wils. K. B. 325; Rex v. Wynn, 2 East, 226; People v. Eckford, 7 Cow. (N. Y.>
535; Com. v. Eastman, 1 Gush. (Mass.) 214; State v. Dayton, 23 N. J. Law,
49; Richards v. Com., 81 Va. 110; Strawhern v. State, 37 Miss. 422; State v.
Barnes, 29 Me. 561; State v. Hurley, 54 Me. 562; State v. Jones, 5 Ala. 666;
State V. Black (N. J. Sup.) 20 Atl. 255; Stout v. State, 96 Ind. 407; State v.
Conrad, 21 Mo. 271. In some states the rule does not obtain. See Com. v.
Bradney, 126 Pa. St. 199, 17 Atl. 600.
8 1 Chit. Cr. Law, 300; Rex v. Inhabitants of Belton, 1 Salk. 372; State v.
Dayton, supra; People v. Eckford, 7 Cow. (N. Y.) 535; State v. Colbert, 75 N.
O. 368; State v. Proctor (N. J. Sup.) 26 Atl. 804; Com. v. Litton, 6 Grat.
(Va.) 691; State v. Flowers, 109 N. G. 841, 13 S. B. 718; State v. Rector, 11
Mo. 28.
» Com. v. Eastman, 1 Gush. (Mass.) 214; Com. v. Hawkins, 3 Gray (Mass.)
464.
10 State v. Fellows, 2 Hayw. (N. C.) 340; State v. Cain, 1 Hawks (N. C.)
352; U. S. v. Coolidge, 2 Gall. 364, Fed. Gas. No. 14,858; ante, p. 112, and
cases there cited.
Ch. 11] MOTION TO QUASH. 365
the time of the offense was not stated, or the offense was laid on
a future day,^^ or appeared to be barred by the statute of limita-
tions;^^ because of repugnancy;^' because the court in which it
was found was without jurisdiction;^* because it failed to state
any offense;^" because it failed to give the addition of the defend-
ant; ^* because of a defect in the caption; " because of omission of
a material averment; ^* and for misjoinder of parties,^' or offenses.^"
In some states it is expressly provided by statute that no ground
for demurrer shall be ground for motion to quash;''* and in some
the grounds for a motion to quash are specified, and the motion will
not lie for any other cause. ^^ In some states it is provided by
statute that the first of two indictments for the same offense shall
be quashed, or shall be deemed suspended and quashed.^' Except
where there is such a provision, however, it is no ground for quash-
ing an indictment that another indictment is pending for the same
offense, unless, under the particular circumstances, the court may
think the defendant may suffer injustice.^*
11 State v. Eoach, 2 Hayw. (N. C.) 352; State v. Sexton, 3 Hawks (N. C.J
184; ante, p. 237, and cases there cited.
12 State V. J. P., 1 Tyler (Vt.) 283; ante, p. 240.
18 Ante, p. 171; State v. Johnson, 5 Jones (N. C.) 221.
1* Rex V. Williams, 1 Burrows, 389; Rex v. Bainton, 2 Strange, 1088; Bell
V. Com., 8 Grat. (Va.) 600; Justice v. State, 17 Ind. 56.
IB State V. Mitchell, 1 Bay (S. C.) 269; People v. Eckford, 7 Cow. (N. Y.) 535;
State V. Albin, 50 Mo. 419; State v. Rickey, 9 N. J. Law, 293; Smith v. State,
45 Md. 49; Williams v. State, 42 Tex. 392.
16 Rex V. Thomas, 3 Dowl. & R. 621; State v. Hughes, 2 Har. & McH. (Md.)
479.
17 Rex V. Brown, 1 Salk. 376; State v. Hickman, 8 N. J. Law, 299; Res-
publica V. Cleaver, 4 Yeates (Pa.) 69; ante, p. 123, and cases there cited.
18 Rex V. Trevilian, 2 Strange, 1268; Rex v. Lease, Andrews, 226; Rex v.
Burkett, Id. 230; note 15, supra.
i» Rex V. Weston, 1 Strange, 623; ante, p. 300.
20 Ante, p. 286.
SI See State v. Edlavitch, 77 Md. 144, 26 Atl. 406.
2 2 See People v. Schmidt (Cal.) 30 Pac. 814; State v. Security Bank, 2 S.
D. 538, 51 N. W. 337.
28 See State v. Arnold (Mo. Sup.) 2 S. W. 269; State v. Baton, 71 Mo. 45;
State V. Vincent, 91 Mo. 662, 4 S. W. 430; Ball v. State, 48 Ark. 94, 2 S. W.
462; State v. Hall, 50 Ark. 28, 6 S. W. 20.
2* Rowand v. Com., 82 Pa. St 405.
366 MOTION TO QUASH, ARRAIGNMENT, DEMUEEEE, AND PLEAS. [Ch. 11
It has been said that the court must quash the whole indictment
or none; that it cannot strike out one or more counts and leave
others;^' but by the better opinion each count being a separate
indictment, one or more of them may be quashed without affecting
the rest of them which are good.''"
"After an indictment against the defendant has been quashed,
a new and more regular one may be preferred against him.^' He
can gain therefore in general very little advantage, except delay,
by such an application, and therefore usually reserves his objec-
tions till after the verdict, when, if the indictment be found to be
insuflScient, the fiourt is bound, ex debito justitiae, to arrest the
judgment." ^* By statute now some objections are required to be
raised by demurrer or motion to quash, or they will be deemed to
be waived, and no objection can be made after verdict
THE ARRAIGNMENT AND PLEAS.
127. There can be no valid, trial until the defendant is
arraigned and pleads to the indictment. But in some
states a formal arraignment may be expressly or im-
pliedly -waived.
128. In the arraignment the defendant must be called
to the bar of the court, the indictment must be distinctly
read to him, and he must be asked -whether he pleads
guilty or not guilty. If he stands mute, and obstinately
refuses to answer, a plea of not guilty is entered for him
by the court.
A trial without a proper arraignment and plea is a nullity, unless
the defendant has expressly or impliedly waived a formal arraign-
as Rex v. Pewtress, 2 Strange, 1026, Cas. t. Hardw. 203; Kane v. People, 3
Wend. (N. Y.) 363; Dukes v. State, 11 Ind. 557.
28 Scott V. Com., 14 Grat (Va.) 687; State v. Wishon, 15 Mo. 503; Williams
V. State, 42 Tex. 392; Jones v. State, 6 Humph. (Tenn.) 435; Com. v. Lap-
Uam, 156 Mass. 480, 31 N. E. 638; Com. v. Stevenson, 127 Mass. 446; ante,
p. 298.
27 See Perkins v. State, 66 Ala. 457.
28 1 Chit. Cr. Law, 304; Rex v. Wheatly, 2 Burrows, 1127.
Ch. 11] THE AHRAIGNMENT AND PLEAS. 367
ment. Not only is the arraignment necessary,''* but the plea is
equally so, for without a plea there can be no issue to try.*" And
the fact of arraignment and plea must appear on the record.'^ By
the weight of authority, the arraignment and plea must precede
the inipaneling and swearing of the jury. An omission thereof
cannot be cured by an arraignment and plea after the trial has
commenced.^* In some states it is held that an arraignment and
plea is a mere matter of form, and may be expressly or impliedly
waived by the defendant, or be cured by statute, or by a trial and
verdict without objection.^*
Where the defendant has been arraigned, tried, and convicted,
and obtains a new trial, he need not be again arraigned before the
second trial; ^* nor need there be an arraignment in the circuit
28 2 Hale, P. C. 218; 2 Hawk. P. C. c. 28, § 6; Parkinson v. People, 135 111.
401, 25 N. E. 764; State v. Hughes, 1 Ala. 655; State v. Williams, 117 Mo.
379, 22 S. W. 1104; State v. Wilson, 42 Kan. 587, 22 Pac. 622; Stoneham v.
Com., 86 Va. 523, 10 S. B. 238; State v. Montgomery, 68 Mo. 296; Miller v.
People, 47 HI. App. 472.
30 Jefeerson v. State, 24 Tex. App. 535, 7 S. W. 244; State v. Hunter, 43 La.
Ann. 157, 8 South. 624; Territory v. Brash (Ariz.) 32 Pac. 260; Munson v.
State (Tex. App.) 11 S. W. 114; State v. Wilson, 42 Kan. 587, 22 Pac. 622;
Parkinson v. People, 135 111. 401, 25 N. E. 764; Miller v. People, 47 111. App.
472; Bowen v. State, 98 Ala. 83, 12 South. 808. Th^t the defendant's attor-
ney may plead for him in his presence, and with his acquiescence, see Stewart
V. State, 111 Ind. 554, 13 N. E. 59.
81 See the cases cited in the above notes. And see Johnson v. People, 65 111.
301; State v. Walker, 110 Mo. 467, 24 S. W. 1011; Clark v. State, 32 Tex. Cr.
E. 412, 24 S. W. 29; State v. Taylor, 111 Mo. 448, 20 S. W. 193; State v.
Pontenette, 45 La. Ann. 902, 12 South. 937; Bowen v. State, 98 Ala. 83, 12
South. 808. Sufllciency of showing on the record. Stoneham v. Com., 86
Va. 523, 10 S. E. 238. If there has been an anuignment and plea, the record
may be made to show the fact by an. entry nunc pro tunc. Long v. People,
102 111. 331; Parkinson v. People, 135 111. 401, 25 N. E. 764.
32 Parkinson v. People, 135 111. 401, 25 N. E. 764; State v. Hughes, 1 Ala.
655; State v. Montgomery, 63 Mo. 296. Contra, Morris v. State, 30 Tex.
App. 95, 16 S. W. 757.
S3 See State v. Jones, 70 Iowa, 505, 30 N. W. 751; AUyn v. State, 31 Neb.
593, 33 N. W. 212; U. S. v. Malloy, 31 Fed. 19; People v. McHale (Sup.) 15
N. Y. Supp. 496; State v. Glave, 51 Kan. 330, 33 Pac. 8; Ransom v. State,
49 Ark. 176, 4 S. W. 658; Bateman v. State, 64 Miss. 233, 1 South. 172.
34 State V. Stewart, 26 S. C. 125, 1 S. E. 468; Byrd v. State, 1 How. (Miss.)
247; Hayes v. State, 58 Ga. 35; Custis v. Com., 87 Va. 589, 13 S. E. 73.
368 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
court on appeal from a conviction in a justice's court; '" nor, where
a change of venue is demanded and granted after arraignment,
need there be a second arraignment in the court to which the case
is taken.'* But a second arraignment in these cases is not error.''
(The arraignment formerly consisted of three parts: (1) Calling
the prisoner to the bar by his name, and commanding him to hold
up his hand; (2) reading the indictment to him; and (3) demanding
of him whether he is guilty or not guilty, and asking him how he
will be tried^ It is still necessary to call the defendant to the
bar," but the practice of compelling him to hold up his hand,
which was for the purpose of identifying him, and which was
probably never absolutely necessary," is no longer customary.
When arraigned, the defendant should be free from any shackles
or bonds, unless there is evident danger of an escape.*" \In felonies
he must be brought to the bar of the court in person,*^ but in mis-
demeanors he may waive the right to be present, and appear and
plead by attorney.*^
It is always necessary to read the indictment to the defendant
distinctly, in order that he may understand the charge; *' and this
requirement is not dispensed with by the fact that he has had a
copy of the indictment, as provided by statute.** After the indict-
ment has been read, the clerk asks: "How say you, A. B.? Are
you guilty or not guilty?" If the defendant confesses the charge,
he is said to plead guilty. The confession is recorded, and judg-
ment is given as on a conviction.*" The defendant may, in some
8B State V. Haycroft, 49 Mo. App. 488.
s« Davis V. State, 39 Md. 355; State v. Stewart, 26 S. C. 125, 1 S. E. 468.
There need be no arraignment in the first court if there is an arraignment in
the second. State v. Renfrew, 111 Mo. 589, 20 S. W. 299.
S7 Shaw V. State, 32 Tex. Or. R. 155, 22 S. W. 588.
88 2 Hale, P. C. 219.
s»2 Hale, P. C. 219; 2 Hawk. P. C. c. 28, § 2; 1 Chit Cr. Law, 415; 4 Bl.
■Comm. 323.
40 2 Inst. 315; 3 Inst. 34; 2 Hale, P. 0. 119; 2 Hawk. P. C. c. 28, § 1; J.
Kelyng, 10.
41 Post, p. 423.
*2 Reg. V. St. George, 9 Car. & P. 483; post, p. 423.
48 2 Hale, P. 0. 219; 4 BI. Comm. 323.
44 Rex V. Hensey, 1 Burrows, 643.
-45 Post, p. 372.
Ch. 11] THE AEKAIGNMENT AND PLEAS. 369
cases, instead of confessing in such a way as to say expressly that
he is guilty, do so impliedly, by a nolo contendere, which has the
same effect, for the purposes of the prosecution.** If the defend-
ant denies the charge, he answers "Not guilty," to which the prose-
cuting officer replies that he is guilty. The answer of the defend-
ant, and the replication or similiter, are entered on the record, and
the general issue is thus formed. The court then proceeds to im-
panel and swear the jury and try the issue, unless a continuance
or change of yenue is asked and allowed.
Formerly, after issue was joined, the clerk asked the defendant
how he would be tried; but as the trial by jury is now the only
mode of trial in criminal cases, except in proceedings before inferior
courts, the question is not necessary nor usual.*'
By general statutory provision, if the defendant stands mute,
that is, does not answer at all, or answers irrelevantly, the court
will direct a plea of not guilty to be entered, and the effect will be
the same as if the defendant had so pleaded.*^
If the defendant is deaf and dumb, he may nevertheless, if he
understand the use of signs, be arraigned, and the meaning of the
clerk in addressing him may be conveyed to him, by some proper
person, by signs, and his signs in reply may be explained to the
court.*' If he is insane he cannot be arraigned or tried at all
until he becomes sane.""
If several persons are charged in the same indictment they ought
46 Post, p. 374.
«T U. S. V. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204.
*8 Com. v. Lannan, 13 Allen (Mass.) 563; EUenwood v. Com., 10 Mete.
(Mass.) 223; Com. v. Place, 153 Pa. St. 314, 26 Atl. 620; Com. v. McKenna,
125 Mass. 397; Com. v. Quirk, 155 Mass. 296, 29 N. B. 514. Formerly, if the
defendant obstinately, or of malice, as it was expressed, stood mute in cases
of felony, a sentence of peine forte et dure followed, and he was slowly pressed
to death with heavy weights; while In treason and misdemeanor it was
equivalent to a conviction. Later it was equivalent to a conviction in all
cases. If he was dumb ex visitatione Dei, the trial proceeded as if he had
pleaded not guilty. Now, however, by statute, even where he stands mute of
malice, a plea of not guilty will be entered in all cases.
*9 Rex V. Jones, 1 Leach, Crown Cas. 102; Com. v. Hill, 14 Mass. 207;
State V. De Wolf, 8 Conn. 93; Rex v. Pritchard, 7 Gar. & P. 303.
60 Post, p. 427.
CKIM.PBOC— 34
370 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
all to be arraigned before any of them are brought to trial."^ They
have the right to plead severally not guilty, but a plea of not guilty
by all of them will be deemed a several plea.°*
The Various Pleas.
There are various objections which the defendant may raise be-
fore answering to the merits, and which, as a rule, he must raise
before then, if he raises them at all. As we have seen, he may
move to quash the indictment, but objection may be made in this
way at any time before verdict.°^ If the court has no jurisdiction,
he may raise the question by a plea to the jurisdiction, though, as
we shall see, he may take advantage of this objection in other ways,
and the plea is not necessary." If there is any defect, whether
apparent on the face of the indictment or record, or founded upon
some matter of fact extrinsic of the record, which renders the par-
ticular indictment insuifieient, he may take advantage of it by plea
in abatement, and, if the plea is sustained, the indictment will be
abated or quashed."" The most frequent use of this plea is in cases
where the defendant is misnamed in the indictment.
If, admitting every fact properly alleged in the indictment to be
true, it appears on the face of the indictment and record that, as a
matter of law, the defendant cannot be required to answer, because
the indictment fails to charge any offense, or is otherwise insufQ-
cient, or because of want of jurisdiction, the defendant may demur."'
If, without entering into the merits of the charge, and independ-
ently of any question of guilt or innocence, there is some extrinsic
fact which prevents any prosecution at all for the offense charged,
and does not go merely to the suificiency of the indictment, as
where the defendant has already been acquitted or convicted of
the same offense, or has been pardoned, he must specially plead this
matter in bar of the indictment. This plea is called a special plea
in bar."''
After this comes the plea of not guilty, which is a plea to the
merits, and forms the general issue. We will presently take up
each of these pleadings in turn.
ei 1 Chit. Cr. Law, 418. bb Post, p. 375.
02 State V. Smith, 2 Ired. (N. C.) 402. bo Post, p. 379.
03 Ante, p. 362. »' Post, pp. 382, 407.
0* Post, p. 375.
Ch. 11] THE ABEAIGNMENT AND PLEAS. 371
Number of Pleas — Successive Pleas.
At common law it was the rule, both in civil and criminal cases,
that the defendant must rely upon one ground of defense, and
pleading double was never allowed. By the statute 4 Anne, c. 16,
§§ 4, 5, it was provided that in civil actions the defendant might,
by leave of court, plead as many matters as he should see fit, but
the statute expressly provided that it should not extend to criminal
cases, so that the rule remained that no more than one plea could
be put in to answer any indictment or information. °* The rule
was general that, in all cases of misdemeanor, if a defendant pleaded
in abatement or specially in bar, and an issue of fact thereon was
determined against him, or if he demurred, and the demurrer was
overruled, he lost any right to a trial on the offense itself, and
sentence could be pronounced as on a regular conviction,"" though
the court could, in its discretion, allow him to plead over."" In
case of felony, however, if the defendant pleaded in abatement or
specially in bar, or demurred, he was allowed at the same time, or
even afterwards, to plead over to the indictment on the merits, as
if he had never relied upon any other ground of defense; because
it was thought that, though a man might lose his property by mis-
pleading, he ought not to forfeit his life by any technical nicety or
legal error. "^
As we shall see, the defendant may, at any time before verdict,
withdraw his plea of not guilty and confess or plead guilty. A
fortiori may he withdraw a demurrer, plea to the jurisdiction, or
in abatement, or specially in bar, to do so. We shall also see that
at any time before sentence the defendant will generally be allowed
to withdraw a plea of guilty and plead not guilty.
68 1 Ohit Cr. Law, 434; Com. v. Blake, 12 Allen (Mass.) 188; Eeg. v.
Charlesworth, 1 Best & S. 460.
B92 Hawk. P. C. c. 31, § 7; 1 Chit. Cr. Law, 435; Rex v. Gibson, 8 East,
110; Kirton v. Williams, Cro. Eliz. 495. See State v. Copeland, 2 Swan.
(Tenn.) 626; Hill v. State, 2 Yerg. (Tenn.) 248.
CO Crosby v. Wadsworth, 6 East, 602; Kex v. Gibson, 8 East, 110; Reg. v.
Goddard, 2 Ld. Raym. 922.
81 1 Chit. Cr. Law, 435; 2 Hale, P. C. 255; 4 Bl. Comm. 338; 2 Hawk. P.
C. c. 23, § 128; Id., c. 31, § 6; Reg. v. Goddard, 2 Ld. Raym. 922; Rex v.
Gibson, 8 East, 110; State v. Reeves, 97 Mo. 668, 10 S. W. 841; State v. Mc-
Coy, 111 Mo. 517, 20 S. W. 240.
S72 MOTION TO QUASH, ARRAIGNMENT, DEMOEREE, AND PLEAS. [Ch. 11
Time of Pleading.
When the defendant has any special matter to plead in abate-
ment or in bar, as a misnomer, or a former acquittal or conviction,
he should plead it at the time of his arraignment, before a plea of
not guilty. He cannot so plead after a plea of guilty, unless by
leave of the court.°^ The same rule applies to a demurrer. The
rule does not apply where matter sought to be pleaded in abate-
ment or specially in bar arose after the plea of not guilty. In
such a case the matter may be set up by a plea puis darrein con-
tinuance.°*
Duplicity.
We have seen that an indictment is bad for duplicity if it charges
more than one offense in a single count.°* In like manner, and for
the same reason, a plea is bad if it sets up two distinct defenses,
either in abatement or in bar.'"
CONFESSION— PLEA OF GUILTY— NOLO CONTENDERE.
129. If the defendant confesses his guilt, either ex-
pressly by a plea of guilty, or impliedly by a plea of
nolo contendere, it is equivalent to a conviction; but he
may generally retract and plead not guilty at any time
before sentence.
A confession of the defendant may be either express or implied.
An express confession is where he pleads guilty, and thus directly,
and in the face of the court, confesses the accusation."" This is
called a plea of guilty, and is equivalent to a conviction. The
court must pronounce judgment and sentence as upon a verdict
of guilty,"^ but it will hear the facts of the case from the prose-
82 2 Hale, P. 0. 219; 1 Chit. Cr. Law, 435; Com. v. Lannan, 13 Allen
(Mass.) 567; Com. v. Blake, 12 Allen (Mass.) 188.
63 Reg. v. Charlesworth, 1 Best & S. 460.
8 4 Ante, p. 278.
8 5 State V. Emery, 59 Vt. 84, 7 Atl. 129; Reg v. Sheen, 2 Car. & P. 634.
«» 2 Hawk. P. C. c. 31 § 1; 2 Hale, P. C. 225; 1 Chit Cr. Law, 428.
«7 1 Chit Cr. Law, 429; 4 Bl. Comm. 329; People v. Luby (Mich.) 57 N. W.
1092. "A plea of guilty may be supported whenever a verdict of a jury finding
a party guilty of a crime would be held valid. A conviction of crime may be
Ch. 11] CONFESSION PLEA OF GUILTY NOLO CONTENDERE. 373
cuting officer, and any statement that the defendant or bis counsel
may wish to make. The defendant may plead guilty in a capital
case as well as in any other, and the court must pronounce the
proper judgment ar.d sentence, though it may be death.'^ It cannot
compel him to plead not guilty, and submit to a trial, but it may,
and generally will, advise him to withdraw his plea, and plead not
guilty, and, instead of immediately directing the plea to be entered,
will give him a reasonable time to consider and retract it.'"
Before sentence has been passed the defendant will generally,
but not necessarily, be allowed to retract his plea of guilty, and plead
not guilty, but he cannot do so after sentence.'" A defendant may
also retract a plea of not guilty, even after it is recorded, and plead
guilty."
A plea of guilty is a confession of guilt, but it is a formal con-
fession before the court in which the defendant is arraigned. It
is altogether different from a free and voluntary confession formally
made before a magistrate, or to some other person. The latter is
merely evidence of guilt.' ^
had in two ways; either by the verdict of a jury, or by the confession of the
offense by the party charged by a plea of guilty, 'which is the highest convic-
tion.' And the effect of a confession Ss to supply the want of evidence. When,
therefore, a party pleads guilty to an indictment, he confesses and convicts
himself of all that is duly charged against him in that indictment." In the
case from which we have quoted it was therefore held that since, under the
Massachusetts statutes, an indictment for murder, in the usual form, is suf-
ficient to charge murder in the first degree, though it also includes the second
degree, a plea of guilty is equivalent to a conviction of the first degree, and
warrants a sentence of death. Green v. Com., 12 Allen (Mass.) 155, 172.
6 8 Com. V. Green, 12 Allen (Mass.) 155. In some states, by statute, a plea
of guilty is not allowed in a capital case. But such a statute does not prevent
a plea of guilty of a minor offense included in a capital charge. People v.
Smith (Sup.) 28 N. Y. Supp. 912.
88 2 Hale, P. C. 225; 2 Hawk. P. C. e. 31, § 2; 4 Bl. Comm. 329; Com. v.
Battis, 1 Mass. 94.
TO Reg. V. Sell, 9 Car. & P. 346; State v. Shanley (W. Va.) 18 S. E. 734;
Mastronada v. State, 60 Miss. 86; Pattee v. State, 109 Ind. 545, 10 N. E. 421;
State V. Yates, 52 Kan. 566, 35 Pac. 209; Purvis v. State (Miss.) 14 South.
268; Monahan v. State, 135 Ind. 216, 34 N. E. 967; State v. Williams, 45 La,
Ann. 1356, 14 South. 32,
71 2 Hawk. P. C. q. 31, § 1; 4 Harg. St Tr. 778, 779; State v. Shanley, 38
W. Va. 518, 18 S. E. 734.
T2 Post, p. 528.
374 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
An implied confession, or, as it is termed, a plea of nolo con-
tendere, "is where, in a case not capital, a defendant does not
directly own himself to be guilty, but tacitly admits it by throwing
himself on the king's mercy, and desiring to submit to a small fine,
which the court may either accept or decline, as they think proper."
If they grant the request, an entry is made to this effect, that the
defendant 'non vult contendere cum domina regina, et posuit se in
gratiam curiae,' without compelling him to a more direct confes-
sion.'' ''* The chief advantage of such a confession is that it will
not prevent a plea of not guilty in an action of trespass for the same
injury, while a plea of guilty or direct confession will.'" The plea
of nolo contendere has the same effect in a criminal case as a plea of
guilty, to the extent that a judgment and sentence may be pronoun-
ced as if upon a verdict of guilty." It is not necessary that the
court shall adjudge that the defendant is guilty for that follows
by necessary legal influence from the implied confession. All that
the court is required to do is to pass the sentence of the law affixed
to the crime.''
Generally, after a plea of guilty, and a fortiori after a plea of
nolo contendere, the court will allow the defendant to offer evidence
in mitigation of the sentence.'^
A plea of guilty or nolo contendere will not estop the defendant
from taking exception in arrest of judgment to fatal defects appar-
ent in the record; '° but it is a waiver of all merely formal defects
to which he could have objected by some other plea.'"
7 3 Com; V. Horton, 9 Pick. (Mass.) 206.
t* 1 Chit Cr. Law, 431; 2 Hawk. P. C. c. 31, § 3; Reg. v. Templeman, 1
Salk. 55; Com. v. Horton, supra.
75 2 Hawk. P. C. c. 31, §§ 1, 3; Keg. v. Templeman, 1 Salk. 55; Com. v.
Horton, supra.
78 1 Chit. Cr. Law, 428; Com. v. Horton, supra; Com. v. Ingersoll, 145
Mass. 381, 14 N. E. 449.
77 Com. V. Horton, supra; Com. v. Ingersoll, supra.
7 8 Com. v. Horton, supra.
7» 1 Chit. Cr. Law, 431; 2 Hawk. P. C. c. 31, § 4. As that the Indictment
charges no offense. State v. Levy (Ma Sup.) 24 S. W. 1026.
80 Com. v. Hinds, 101 Mass. 210.
Ch. 11] PLEAS IN ABATEMENT. 375
PLEA TO THE JURISDICTION".
130. By a plea to the jurisdiction the defendant objects
that the court before which the indictment is preferred
has no jurisdiction of the oflfense, or of the person of the
defendant. This plea is seldom used, as the objection
may be taken in other -ways.
This plea will be proper when the court before which the indict-
ment is preferred has no cognizance of the particular crime, either
because of the nature of the crime, or because it was not committed
within the territorial jurisdiction of the court, or when the court
has no jurisdiction of the defendant's person.*^ Objection to the
jurisdiction may generally be taken advantage of under the plea
of not guilty, or the general issue, and need not be specially plead-
ed,*" or it may be successfully raised by motion in arrest of judg-
ment, or on appeal or writ of error, or by demurrer, when the want
of jurisdiction appears on the face of the indictment or in the cap-
tion."' A plea to the jurisdiction is therefore seldom resorted to.'*
The plea, being dilatory, must be certain to every intent. The
highest degree of certainty is required. "°
A plea to the jurisdiction will not lie on the ground that the
presiding judge was not entitled to the offlce, since the right of the
judge to ofiflce, at least if he is a de facto judge, cannot be tried
in a collateral way, but only in a direct proceeding in which he is
one of the parties.**
PLEAS IN ABATEMENT.
131. Any defect, -whether apparent on the face of the
indictment, or founded upon some matter of fact extrinsic
81 4 Bl. Comm. 333; 2 Hale, P. C. 256.
82 Parker v. Elding, 1 Bast, 352; Rex v. Johnson, 6 Bast, 583. But see 2
Hawk. P. C. c. 38, § 5.
83 Kex V. Fearnley, 1 Term K. 316, 1 Leach, 425.
84 Whart. Cr. Prac. & PI. § 422.
85 Ante, p. 151; post, p. 377; Taylor v. State (Md.) 28 Atl. 815.
8 6 State V. Conlan, 60 Conn. 483, 23 Atl. 150, and cases there cited.
376 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
of the record, -whicli renders the indictment insufiBLcient,
may be taken advantage of by plea in abatement.
Any defect apparent on the face of the indictment, or founded on
some matter extrinsic of the record, rendering the indictment in-
sufficient, may be made the ground of a plea in abatement, and, if
found for the defendant, will abate the indictment.*' Thus, if the
indictment does not describe the defendant by any addition, where
an addition is necessary, it is defective on its face, and the defend-
ant may plead in abatement.*' So, also, if the defendant is mis-
named or misdescribed, which is an objection founded on an ex-
trinsic fact, a plea in abatement will lie.** So, where an indict-
ment for failure to repair a highway does not sufficiently describe
the highway, the objection may be raised in this way.*" If the
defect is apparent on the face of the indictment, without reference
to any extrinsic fact, it is more usual to move to quash the indict-
ment, or to demur. But in most jurisdictions, where extrinsic facts
must be shown, the plea is necessary.
As we hare seen, all mistakes in the name or addition of the
defendant must be taken advantage of in this manner, for the
objection cannot be raised on motion in arrest, or on writ of error.*^
When a misnomer is pleaded in abatement, the state may either
allow the plea, for the defendant must give his true name therein,
and will be concluded thereby,^^ or it may reply, either denying the
truth of the plea, or alleging that the defendant is as well known
by one name as the other, so that he may be properly indicted by
either, thus raising an issue of fact."*
87 2 Hale, P. C. 236, 238; Donald v. State, 31 Fla. 255, 12 South. 695; Day
V. Com., 2 Grat. (Va.) 562; Com. v. Long, 2 Va. Cas. 318.
88 1 Chit. Cr. Law, 445; ante, p. 148.
88 2 Hawk. P. C. c. 25, § TO.
80 Eex V. Hammersmith, 1 Starkie, 357, 358. -
81 Ante, p. 149; Com. v. Dedham, 16 Mass. 146; Com. v. Gillespie, 7 Serg.
& R. (Pa.) 479; People v. Collins, 7 Johns. (N. Y.) 549; Turns v. Com., 6
Mete. (Mass.) 225; Scott v. Soans, 3 East, 111; Com. v. Fredericks, 119 Mass.
199.
82 2 Hale, P. O. 238; 4 Bl. Comm. 335; Com. v. Sayers, 8 Leigh (Va.) 722.
83 State V. Malia, 79 Me. 540, 11 Atl. 602; Com. v. Gale, 11 Gray (Mass.) 320.
Where a plea of misnomer is sufficient in form, the question of idem sonans,
Ch. 11] PLEAS IN ABATEMENT. 377
It is well settled that the pendency of one indictment is no
ground for a plea in abatement or in bar to another indictment for
the same cause,^* though it might be ground for the exercise of the
court's discretion to quash one or the other of them. No prejudice
to the defendant can well arise, for whenever either of them, and
it is immaterial which, is tried, and a judgment rendered on it, the
judgment may be pleaded in bar to the other.^"
A plea in abatement is merely a dilatory plea. If successful, the
only advantage generally gained is delay, for the defendant may be
detained in custody, and a new indictment may be presented, or, in
some cases, as we have seen, the indictment may be amended.*'
The plea must be verified by affidavit,'' and must be certain to
every intent. In these dilatory pleas the highest degree of cer-
tainty is required."*
A plea in abatement must be filed before any plea in bar.*'
If the plea is insufficient either in point of form or in substance,
the prosecuting officer may demur, thereby forming an issue of law
on the plea,^"" The court will not, on motion, quash the plea,^"^
being a question of fact, must be raised by replication, and not by demurrer.
State V. Malia, supra.
9* 1 Chit. Or. Law, 446; 2 Hawk. P. C. c. 34, § 1; Reg. v. Goddard, Ld.
Raym. 922; Rex v. Stratton, Doug. 240; Withipole's Case, Cro. Car. 134, 147;
Com. V. Drew, 3 Cush. (Mass.) 282; Dutton v. State, 5 Ind. 534; Kalloch v.
Superior Court, 56 Cal. 236; State v. Eaton, 75 Mo. 586; State v. Security
Bank, 2 S. D. 538, 51 N. W. 337; White v. State, 86 Ala. 69, 5 South. 675;
Eldrldge v. State, 27 Fla. 162, 9 South. 448; Vaughn v. State, 32 Tex. Cr. R.
407, 24 S. W. 26; ante, p. 115; post, p. 385. The rule does not apply to qui
tam and penal actions. Com. v. Drew, supra; Com. v. Churchill, 5 Mass. 175.
8 6 Com. v. Drew, supra; post, p. 382.
06 Rowland v. State, 126 Ind. 517, 26 N. E. 485; ante, p. 315.
8T Com. V. Sayers, 8 Leigh (Va.) 722.
88 4 Bac. Abr. 51; State v. Ward, 60 Vt. 142, 14 Atl. 187; State v. Emery,
59 Vt. 84, 7 Atl. 129; People v. Lauder, 82 Mich. 109, 46 N. W. 956; Dolan v.
People, 64 N. Y. 485; State v. Bryant, 10 Yerg. (Tenn.) 527; State v. Brooks,
9 Ala. 9; Hardin v. State, 22 Ind. 347; Reeves v. State, 29 Fla. 527, 10 South.
901; Tilley v. Com., 89 Va. 136, 15 S. E. 526; Brennan v. People, 15 111. 511;
Dyer v. State, 11 Lea (Tenn.) 509; State v. Duggan, 15 R. I. 412, 6 Atl. 597.
89 2 Hale, P. C. 175; 2 Hawk. P. C. c. 34, § 4; Martin v. Com., 1 Mass. 347;
State V. Dibble, 59 Conn. 168, 22 Atl. 155.
100 1 Chit Cr. Law, 449; Rex v. Dean, 1 Leach, Crown Cas. 476.
101 Rex V. Cooke, 2 Bam. & O. 618.
378 MOTION TO QUASH, AEKAIGNMENX, DEMURRER, AND PLEAS. [Ch. 11
nor can it be amended. ^"^ If the prosecuting officer denies the
plea, he replies to that effect, and an issue of fact on the plea is
thus formed.^"' If the replication is insufficient in law, the defend-
ant may demur,^"* or he may answer it on the facts, by a rejoinder,
and so on until an issue on the plea is reached. Issue must be
thus taken on a plea in abatement, either by demurrer or reply, and
the issue must be tried and determined. It is error to summarily
overrule a plea, without an issue thereon.^ '"'
At common law, when, a plea in abatement to an indictment for
misdemeanor is found in favor of the defendant, he was dischar-
ged,^ °° but in case of felony, where the objection was for a mis-
nomer, he was detained, as we have seen, until a new indictment
could be presented.^"' If a plea on the ground of misnomer by one
of several defendants is sustained, the indictment will be quashed
as to that one only.^"* If the plea is found against the defendant
on the facts, he is allowed to plead over in cases of felony,^"" but
in cases of misdemeanor the judgment is final, as upon a convic-
tion."" The latter proposition does not apply to judgment against
him on demurrer to his plea, or on his demurrer to the replication
to his plea; in such case he is entitled to plead over.*^^ These are
102 Rex V. Cooke, 2 Bam. & C. 871.
103 Rex V. Dean, 1 Leach, Crown Cas. 476; note 93, supra.
104 Rex V. KnoUys, 2 Salk. 509.
los Martin v. State, 79 Wis. 165, 48 N. W. 119; Baker r. State, 80 Wis. 416,
50 N. W. 518. If the plea Is bad on its face, the error is not ground for
reversal. Baker v. State, supra.
108 2 Hale, P. C. 238; Rex v. Shakespeare, 10 East, 88.
107 2 Hale, P. C. 176, 238; 2 Hawk. P. C. c. 34, § 2; note 96, supra.
.108 2 Hale, P. C. 177.
109 2 Hale, P. C. 239, 255; 2 Hawk. P. G. c. 31, § 6; 4 Bl. Comm. 338; Rex
V. Gibson, 8 East, 110; Rex v. Goddard, 2 Ld. Raym. 922.
110 2 Hawk. P. C. c. 31, § 7; Eichorn v. Le Maitre, 2 Wils. 367; Rex v. Gib-
son, 8 East, 107; Barge v. Com., 3 Pen. & W. 262; Guess v. State, 1 Eng.
(Ark.) 147; Com. v. Carr, 114 Mass. 280.
111 Rex V. Johnson, C Bast, 583; Bowen v. Shopcott, 1 East, 542; Eichorn
v. LeMaitre, 2 Wils. 308. "This distinction between the result of a verdict
against the defendant on his plea in abatement, and a judgment against him
on demurrer thereon, is founded on this principle, that wherever a man pleads
a fact which he knows to be false, and a verdict be against him, the judg-
ment ought to be final, for every man must be presumed to know whether his
Ch. 11] DEMURRER. 379
the common-law rules, but they may not now obtain under the prac-
tice of some of the states, and in some states they have been modi-
fied by statute.
DEMURRER.
132. By a demurrer the defendant raises the objection
that on the face of the indictment and record, admitting
the truth of every fact which is well pleaded, he ought
not, as a matter of law, be required to answer. A de-
murrer lies not only by the defendant to the indictment,
but by the state to every plea of the defendant, and by
the defendant to every plea of the state, if it is insuflBL-
cient as a matter of law.
A demurrer admits the truth of every fact which is suflflciently
alleged, but raises the objection that, as a matter of law, the
indictment does not charge an offense, or does not charge such an
offense that the defendant can be, as a matter of law, required to
answer.^ ^^ If a defendant is feloniously indicted for stealing prop-
erty which is not the subject of larceny, the indictment is bad on
demurrer; for, admitting the taking, it charges no offense. The
demurrer puts the legality of the whole proceedings in issue, and
compels the court to examine the whole record, so that, for in-
stance, if it appears from the caption of the indictment that the
court has no jurisdiction, a demurrer will be sustained.^^' Facts
which are not well pleaded, even though material, are not admitted,
nor does the demurrer admit allegations of the legal effect of the
facts pleaded.^^*
In civil pleading a demurrer may be general or special. The
plea be true or false in matter of fact; but upon demurrer to a plea in abate-
ment, there shall be a respondeat ouster, because every man shall not be
presumed to know the matter of law which he leaves to the judgment of the
court." Elchorn v. LeMaiU-e, 2 Wils. 3G8; 1 Chit Or. Law, 451.
112 4 Bl. Comm. 334; State v. Ball, 30 W. Va. 382, 4 S. E. 645; Lazier v.
Com., 10 Grat. (Va.) 708; Holmes v. State, 17 Neb. 73, 22 N. W. 232; Com.
V. Trimmer, 84 Pa. St. 65.
113 1 Chit. Cr. Law, 440; Rex v. Feamley, 1 Term R. 316, 1 Leach, Crown
Cas. 425; Com. v. Trimmer, 84 Pa. St. 65.
114 Whart. Cr. PI. & Prac. § 403; Com. v. Trimmer, 84 Pa. St. 65.
380 MOTION TO QUASH, AEEAIGNMENT, DEMOREEE, AND PLEAS. [Ch. 11
former assigns no special ground of objection, while the latter doe»
specify the objection. In criminal pleading, at common law, there
is no such distinction.^^"
At common law, in cases of misdemeanor, the defendant cannot,
as of right, plead over to the indictment, after the overruling of hi»
demurrer, where the demurrer is general, but the decision on the
demurrer operates as a conviction, for the demurrer admits the
facts; *^' nor, it seems, can he plead over, as a matter of right, in
cases of felony.^ ^' The court, however, may, in the exercise of its
discretion, allow him to plead over in cases of misdemeanor,^^* and'
generally will do so in cases of felony.^^* By statutes, in some juris-
dictions, it is provided that in all cases where a demurrer is over-
ruled the judgment shall be respondeat ouster, thus giving the right
to plead over, and in some states, even in the absence of a statute,
this is the rule.
If the indictment contains two distinct and independent charges
for two separate offenses, in separate counts, or in the same count,
and the defendant demurs generally, though one of the offenses
be not indictable, or be insufflciently alleged, the indictment will
be sustained as to the good count or charge, for it may be good in
part.""
On demurrer to an information or complaint, defects may be cured
by amendment,^^^ and the same is true of defects in the caption of
an indictment.^^'' An indictment itself, however, cannot be amend-
ed, unless it is allowed by statute.^"'
lis Eeg. V. Brown, 3 Cox, Cr. Gas. 133.
118 2 Hawk. P. C. c. 31, § 7; 2 Hale, P. C. 257; Rex v. Gibson, 8 Bast, 107;
State V. Passaic Agr. See, 54 N. J. Law, 260, 23 Atl. 680; People v. Taylor,
3 Denlo (N. Y.) 98; State v. Abresch, 42 Minn. 202, 43 N. W. 1115.
iiT Bennett v. State, 2 Yerg. (Tenn.) 472.
118 1 Obit Cr. Law, 439.
110 2 Hawk. P. C. c. 31, § 6; Wilson v. Laws, 1 Salk. 59; Hume v. Ogle,
Cro. Bliz. 196; Barge v. Com., 3 Pen. & W. 262; Foster v. Com., 8 "Watts &
S. (Pa.) 77; Com. v. Goddard, 13 Mass. 456.
120 Ingram v. State, 39 Ala. 247; Hendricks v. Com., 75 Va. 934; State v.
McClung, 35 W. Va. 280, 13 S. E. 654; Gibson v. State, 79 Ga. 344, 5 S. E.
76; ante, p. 299.
121 Rex V. Holland, 4 Term R. 458; ante, p. 315.
122 Ante, p. 126.
123 Ante, p. 315.
"Ch. 11] DEMUEEEE. 381
A demurrer should regularly be interposed before pleading to the
indictment. The defendant cannot, as a matter of right, withdraw
his plea and demur. Whether he shall be allowed to do so rests
in the discretion of the court.^^*
If the demurrer is on the ground that the facts stated do not
■constitute a crime, and it is sustained, the defendant must be dis-
charged from custody.*" But, if the objection is to the form of
the indictment, he only obtains a delay, for, though the indictment
may be quashed, he may be detained until a new indictment is
ifound,*''' or, by statute, until the indictment is amended.
At common law the defendant could take the chance of a com-
plete acquittal, and, failing in this, he could, on motion in arrest
-of judgment, obtain almost any advantage that he could have ob-
tained on demurrer,*^' so that there was little to be gained by
•demurrer, unless the indictment clearly failed to charge any offense.
In the latter case it was, and still is, advisable, for, if sustained,
the defendant, as we have just seen, must be discharged from cus-
tody, and a trial will be avoided. By statutes now, in most states,
the remedy by motion in arrest of judgment is not as effectual as
formerly, and some defects, such as duplicity, uncertainty, etc., must
be raised by motion to quash, or demurrer, if raised at all.
In some states it is provided that demurrer shall not lie for
■certain specified grounds, such as uncertainty; or the grounds of
demurrer are specified by statute, and a demurrer will not lie for
any other ground.*'''
As we have seen, misjonder of counts, since it does not render an
indictment bad as a matter of law, is not ground for demurrer.*""
12* Reg. v. Brown, 3 Cox, Cr. Cas. 127; Reg. v. Purchase, Car. & M. 617;
Com. T. Chapman, 11 Cush. (Mass.) 422; People v. Villarino, 66 Cal. 228, 5
Pac. 154.
125 Rex V. Lyon, 2 Leach, Crown Cas. 600; Rex v. Haddock, Andrews, 137;
Rex v. Fearnley, 1 Term R. 316; Rex v. Burder, 4 Term R. 778.
128 1 Chit. Cr. Law, 443; Rex v. Haddock, Andrews, 147; ante, -p. 366.
127 4 Bl. Comm. 324; 1 Chit. Cr. Law, 442.
128 See People v. Schmidt (Cal.) 30 Pac. 814; People y. Markham (CaL) 30
!Pac. 620.
i2» Ante, p. 296.
382 MOTION TO QUASH, AEEAIGNMENT, DEMUREEB, AND PI.EAS. [Ch. 11
PLEAS IN BAR.
133. A plea in bar goes to show that the defendant
cannot be punished for the offense charged. It may be:
(a) Special, or
(b) General.
134. A special plea in bar does not go to the merits,
and deny the facts alleged in the indictment, but sets up
some extrinsic fact, by reason of -which the defendant
cannot be tried at all for the offense charged. The usual
special pleas in bar are:
(a) Autrefois acquit or convict, or former jeop-
ardy.
(b) Pardon.
135. The general plea in bar is the plea of not guilty.
SAME — PLEAS OF AUTREFOIS ACQUIT AND CONVICT, OR
FORMER JEOPARDY.
136. At common la,M7 an acquittal or conviction of an
offense in a court having jurisdiction, and on a sufficient
accusation, may be pleaded in bar of any subsequent
prosecution for the same offense.
137. The constitution of the United States, and the dif-
ferent state constitutions, provide, in substance, that no
person shall be twice put in jeopardy for the same of-
fense. Most of the courts hold that this is merely a
declaration of the common law^ rule.
138. To constitute a former jeopardy —
(a) The court in which the former prosecution
took place must have had jurisdiction, and
must have been legally constituted.
(b) The indictment or other accusation must
have been sufficient to sustain a convic-
tion, and the proceedings must have been
valid.
Ch. 11] PI.EAS OF AUTREFOIS ACQUIT AND CONVICT. 383
(c) Jeopardy only begins when the defendant
has been arraigned and has pleaded, and
the jury have been sworn and charged
with his deliverance.
(d) There is no jeopardy if the prosecution fails
through the fault or procurement of tlie
defendant, or, by the weight of opinion,
through necessity, as because of the death
or sickness of a juror or inability of the
jury to agree.
(e) The offenses must be the same in fact and in
law. By the weight of authority, they are
not the same if the defendant could not
have been convicted under the first indict-
ment on proof of the facts charged in the
second. A conviction or acquittal under
one indictment w^ill bar a prosecution un-
der another for any offense of which the
defendant could have been convicted under
the first.
It is a universal maxim of the common law that no person is to
be twice placed in jeopardy for the same offense.^ ^^ Whenever a
man is once acquitted upon any indictment or other accusation,
before any court having jurisdiction of the offense, he may plead
such acquittal in bar of any subsequent accusation of the same
crime.^^^ This is called the plea of autrefois acquit. So if a per-
son has, in like manner, once been tried and convicted, he may
plead such conviction in bar of any subsequent accusation for the
same oflense.^'^ This is called a plea of autrefois convict. By
the constitution of the United States, it is declared that "no per-
son shall be * * * subject, for the same offense, to be twice
put in jeopardy of life and limb." This provision applies only to
prosecutions in the federal courts, but there are similar provisions
ISO Ex parte Lange, 18 Wall. 163.
lai 4 BL Comm. 335; Keg. v. Bird, 2 Denison, Grown Gas. 216,
182 4 Bl. CQmm. 336.
384 MOTION TO QUASH, AERAIGNMBNT, DEMURRER, AND PLEAS. [Ch. 11
in the state constitutions. Some of them omit the words "of life
or limb," and merely prohibit putting a person twice in jeopardy
for the same offense, or twice trying him for the same offense, but
the purpose and meaning are the same. They are "equivalent to
a declaration of the common-law principle that no person shall be
twice tried for the same offense." ^'* "The question recurs, what
is the meaning of the rule that no person shall be subject for the
same offense to be twice put in jeopardy of life or limb? Upon
the fullest consideration which I have been able to bestow on the
subject, I am satisfied that it means no more than this: that no
man shall be twice tried for the same offense. • * • The test
by which to decide whether a person has been once tried is perfectly
familiar to every lawyer, — it can only be by a plea of autrefois
acquit, or a plea of autrefois convict." ^^* Some of the courts thus
construe the constitutional provision as being merely declaratory
of the common-law rule. Others have given it a broader construc-
tion, and have sustained a plea of former jeopardy, when a common-
law plea of autrefois acquit or convict could not have been sus-
tained. It will not be possible for us to go at length into the cases
on the question of former jeopardy, and show the points on which
they are conflicting. All that we can do is to state and explain
the general rules. The student must then consult the decisions
of his own state.
Of course, a plea of autrefois convict can only be sustained by
showing a verdict of guilty, for without this there can be no con-
viction. A verdict of not guilty, however, was not necessary to a
plea of autrefois acquit. If, after jeopardy really attached, the
prosecution was discontinued unnecessarily, and without the de-
fendant's fault or consent, this was equivalent to an acquittal.
What Constitutes Jeopardy.
Jeopardy does not begin until the defendant is put upon his trial
before a court of competent jurisdiction, upon an accusation which
is, suflQcient to sustain a conviction, and the jury has been sworn
and charged with his deliverance. They are always so charged
IBS Com. V. Roby, 12 Pick. (Mass.) 501; People v. Goodwin, 18 Johns. (N. Y.)
202.
184 People V. Goodwin, supra.
Cb. 113 PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 386
as they are sworn. In the first place, the defendant must be put
upon his trial. The discharge of a prisoner by a committing
magistrate, or the refusal of a grand jury to indict him, does not
prevent a subsequent indictment, for there has been no jeopardy,^^"
Nor, for the same reason, does the quashing of an indictment, or the
sustaining of a demurrer or plea in abatement, or plea to the juris-
diction, before a plea to the merits and swearing of the jury, pre-
vent a subsequent indictment for the same offense.^'* And a plea
of former arraignment,^'^ or that another indictment is pending,^"
is bad. Jeopardy only begins when the defendant has been duly
arraigned, and has pleaded not guilty, and has been put upon his
trial, and this is not until the jury has been fully impaneled and
sworn. At any time before this the prosecution may be discon-
tinued without prejudice to the right to institute another prosecu-
tion.^^" Swearing part of the jurors is not enough to put the
defendant in jeopardy.^*"
By the weight of authority, as soon as the jury are entirely sworn,
and charged with the deliverance of the defendant, jeopardy at-
1SB2 Hale, P. C. 243, 246; 2 Hawk. P. O. c. 35, § 6; McCann v. Com., 14
Grat. (Va.) 570; Gaffney v. Circuit Judge Missaukee Co., 85 Mich. 138, 48 N.
W. 478; Com. v. Hamilton, 129 Mass. 479; Ex parte Crawlin, 92 Ala. 101,
9 South. 334; Com. v. Miller, 2 Ashm. (Pa.) 61; Jambor v. State, 75 Wis.
664, 44 N. W. 963; State v. Whipple, 57 Vt 637; Ex parte Clarke, 54 Cal.
412; State v. Harris, 91 N. C. 656.
136 Com. V. Gould, 12 Gray (Mass.) 171; Stuart v. Com., 28 Grat. (Va.) 950;
State V. Redman, 17 Iowa, 333.
137 Fost. Cr. Law, 104, 105.
138 Reg. V. Goddard, 2 Ld. Raym. 920; Rex v. Sti-atton, Doug. 240; Withi-
pole's Case, Cro. Car. 147; State v. Benham, 7 Conn. 418; Com. v. Drew, 3
Oush. (Mass.) 279; People v. Fisher, 14 Wend. (N. Y.) 9; O'Meara v. State,
17 Ohio St. 515; Stuart v. Com., 28 Grat. (Va.) 950; State v. Dixon, 78 N. C.
558; State v. Webb, 74 Mo. 333; Miazza v. State, 36 Miss. 614; ante, p. 377.
139 People V. Fisher, 14 Wend. (N. Y.) 9; . Com. v. Tuck, 20 Pick. (Mass.)
356; Stuart v. Com., 28 Grat. (Va.) 950; State v. Champeau, 52 Vt. 313; State
V. Hastings, 86 N. C. 596; Ferris v. People, 48 Barb. (N. Y.) 17; Gardiner v.
People, 6 Parker, Cr. R. (N. Y.) 155; Bryans v. State, 34 Ga. 323; Alexander
v. Com., 105 Pa. St. 1; State v. Main, 31 Conn. 572; State v. Burket, 2 Mill,
Const. (S. C.) 155; State v. M'Kee, 1 Bailey (S. C.) 651; Patterson t.- State,
70 Ind. 341; Clarke v. State, 23 Miss. 261; State v. Paterno, 43 La. Ann. 514,
9 South. 442.
1*0 State V. Burket, supra.
CKIM.PROC— 25
386 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
taches; and if, after that, a nolle prosequi is entered, or the jury
are unnecessarily discharged, without the defendant's consent, this
will amount to an acquittal, and he cannot be again tried either on
that indictment or on another indictment for the same offense.^*^
The discharge of the jury does not amount to an acquittal if
through the escape, death, sickness, or misconduct of a juror, or the
disqualification of a juror not discovered before the jury -are sworn,
or because of the illness of the prisoner or of the judge, or the
expiration of the term of court, or any other case of urgent neces-
sity, the progress of the trial is interrupted. In such a case an-
other jury may be impaneled, and the defendant may be again put
upon his trial.'*''
Nor, by the great weight of authority, does it amount to an acquit-
tal to discharge the jury without the defendant's consent, even in
a capital case, where they have been deliberating so long that there
141 state V. Robinson (La.) 15 South. 146; Com. v. Cook, 6 Serg. & R. (Pa.)
.577; State v. M'Kee, 1 Bailey (S. C.) 651; Morgan v. State, 13 Ind. 215;
Com. v. Hart, 149 Mass. 7, 20 N. E. 310; People v. Webb, 38 Cal. 467; Peo-
ple V. Cage, 48 Cal. 323; Bryans v. State, 34 Ga. 323; Nolan v. State, 55 Ga.
521; Mount v. State, 14 Ohio, 295; Teat v. State, 53 Miss. 439; O'Brian v.
Com., 9 Bush (Ky.) 333; Klock v. People, 2 Parker, Or. R. (N. T.) 676; Stewart
v. State, 15 Ohio St. 159; "Wright v. State, 5 Ind. 290; Price v. State, 19 Ohio,
423; People v. Barrett, 2 Caines (N. Y.) 304; Lee v. State, 26 Ark. 260; Joy
V. State, 14 Ind. 139; State v. Walker, 26 Ind. 346; Hines v. State, 24 Ohio
St. 134; Gruber v. State, 3 W. Va. 699; Bell v. State, 44 Ala. 393; State v.
Redman, 17 Iowa, 329; McFadden v. Com., 23 Pa. St. 12; People v. Ny Sam
Chung, 94 Cal. 304, 29 Paa 642. Where the jury separates after rendering a
verdict which is void because delivered to the judge outside of the court-
house, the accused, having been once in jeopardy is entitled to be discharged.
Jackson v. State (Ala.) 15 South. 351.
1*2 Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171; Rex v. Stevenson, 2
Leach, Crown Cas. 546; Nugent v. State, 4 Stew. & P. (Ala.) 72; Rex v.
Edwards, 4 Taunt. 309; Stocks v. State, 91 Ga. 831, 18 S. E. 847; State v.
Hall, 9 N. J. Law, 256; State v. Allen, 46 Conn. 531; State v. M'Kee, 1
Bailey (S. C.) 651; Com. v. Purchase, 2 Pick. (Mass.) 521; Com. v. Roby, 12
Pick. (Mass.) 502; Com. v. McCormick, 130 Mass. 61; Com. v. Fells, 9 Leigh
(Va.) 613; Stone v. People, 2 Scam. (111.) 326; People v. Cage, 48 Cal. 323;
State V. Moor, Walk. (Miss.) 134; People v. Ross, 85 Cal. 383, 24 Pac. 789;
State V. Honey cutt, 74 N. C. 391; Hector v. State, 2 Mo. 166; Barrett v.
State, 35 Ala. 406; Mixon v. State, 55 Ala. 129; Lester v. State, 33 Ga. 329;
Ex parte McLaughlin, 41 Cal. 211; Hoftman v. State, 20 Md. 425.
Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 387
is no reasonable expectation tliat they will be able to agree, and
they state in open court that they will not be able to agree.^**
"These decisions cannot be regarded as a Tiolation of the maxim
under consideration, because, although in a certain sense it may
be said that the prisoner was put in jeopardy by the first trial, yet
the event has shown that there was no legal trial, and, therefore,
that he was in no such jeopardy or danger of conviction as the
maxim regards." ^**
The discharge of the jury, even unnecessarily, does not amount
to an acquittal where the defendant consents, for he may waive his
rights in this respect.^*'
Jurisdiction of Former Court.
To constitute a former jeopardy, the court in which the former
prosecution took place must have been legally constituted, and must
have had jurisdiction of the offense and of the person of the defend-
ant; otherwise its judgment must have been null and void.^*"
143 Com. v. Purchase, 2 Pick. (Mass.) 521; People v. Goodwin, 18 Johns.
(N. Y.) 187; People v. Olcott, 2 Johns. (N. Y.) 301; U. S. v. Perez, 9 Wheat.
579; Winsor v. Reg., L. R. 1 Q. B. 289; C!om. v. Bowden, 9 Mass. 494; Com.
V. Roby, 12 Pick. (Mass.) 502; Ex parte McLaughlin, 41 Cal. 212; State v.
Woodruff, 2 Day (Conn.) 504; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,-
204; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617; State v. Whitson, 111 N.
O. 695, 16 S. E. 332; State v. Champeau, 52 Vt 313; People v. Pline, 61
Mich. 247, 28 N. W. 83; Com. v. Olds, 5 Litt. (Ky.) 137; State v. Moor,
Walk. (Miss.) 134; People v. Greene, 100 Cal. 140, 34 Pac. 630. Contra, Com.
V. Cook, 6 Serg. & R. (Pa.) 577; Com. v. Clue, 3 Rawle (Pa.) 498; Williams
V. Com., 2 Gi'at. (Va.) 570. So by statute now in Virginia. Jones v. Com.,
86 Va. 740, 10 S. E. 1004. If the court abuses its discretion in discharging
the jury for failure to agree, the discharge will operate as an acquittal.
Where a jury had been out for four days, the judge sent the sheriff to inquire
whether they could agree, and, on his bringing a reply that they could not,
discharged the jury, without further inquiry as to their ability to agree. It
was held that this amounted to an acquittal. People v. Cage, 48 Cal. 323.
The discharge must not be in the defendant's absence. Rudder v. State, 29
Tex. App. 262, 15 S. W. 717.
14* Com. V. Roby, 12 Pick. (Mass.) 502.
14 B Reg. v. Deane, 5 Cox, Cr. Cas. 501; Com. v. Sholes, 13 Allen (Mass.)
554; People r. Kerm, 8 Utah, 268, 30 Pac. 988; People v. Gardner, 62 Mich.
307, 29 N. W. 19; State v. M'Kee, 1 Bailey (S. C.) 651; Stewart v. State, 15
Ohio St. 155.
148 People V. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130,
388 MOTION TO QUASH, ARRAIGNMENT, DEMCRBEE, AND PLEAS. [Ch. 11
Thus, an acquittal or conviction in a court of the "United States,
on indictment for an offense of which that court has no jurisdiction,
is no bar to an indictment against him for the same offense in a
state court.^*^ And a trial and acquittal or conviction which is
void because one of the presiding judges was related to the defend-
ant cannot support a plea of former jeopardy.^*'
Chnrader of the Court.
If the court in which the defendant was formeriy prosecuted was
legally constituted, and had jurisdiction, it makes no difference
what court it was. The former jeopardy will bar a subsequent
prosecution by the same sovereign in any tribunal whatever.^*'
Where two separate courts of the same sovereign have concur-
rent jurisdiction of the offense, the one which first rightfully as-
sumes jurisdiction acquires control to the exclusion of the other.^^"
Errors and Irregularities on Former Prosecution.
Though the court may have had jurisdiction of the former prose-
cution, yet if the proceedings were so illegally or irregularly con-
ducted that a conviction could not have been sustained, as where
there was no arraignment or no plea, the acquittal therein will not
36 N. B. 807; Reg. v. Bowman, 6 Car. & P. 337; Dunn v. State, 2 Ark. 229;
McOlain v. State, 31 Tex. Cr. R. 558, 21 S. W. 365; Com. v. Peters, 12 Mete.
(Mass.) 387; Com. v. Dascom, 111 Mass. 404; State v. Odell, 4 Blackf. (Ind.)
156; Weaver v. State, 83 Ind. 289; State v. Green, 16 Iowa, 239; State v.
Parker, 66 Iowa, 586, 24 N. W. 225; State v. Little, 1 N. H. 257; State v.
Hodgkins, 42 N. H. 474; Phillips v. People, 88 111. 160; Campbell v. People,
109 111. 565; State v. Weatherspoon, 88 N. C. 19; Com. v. Myers, 1 Va. Cas.
188; Com. v. Jackson, 2 Va. Cas. 501; State v. Epps, 4 Sneed (Tenn.) 552;
Foust V. State, 85 Tenn. 342, 3 S. W. 657; State v. Payne, 4 Mo. 376; State
v. PhilUps, 104 N. C. 786, 10 S. B. 463; Alford v. State, 25 Fla. 852, 6
South. 857.
147 Com. V. Peters, 12 Mete. (Mass.) 387; Blyew v. Com., 91 Ky. 200, 15
S. W. 356.
148 People V. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130,
.36 N. B. 807.
148 2 Hawk. P. C. e. 35, § 10; 1 Chit. Cr. Law, 458; Wemyss v. Hopkins,
L. R. 10 Q. B. 378; Com. v. Goddard, 13 Mass. 459; Com. v. Cunningham,
Id. 247; Com. v. Miller, 5 Dana (Ky.) 320; Wortham v. Com., 5 Rand. (Va.)
669; Bailey's Case, 1 Va. Cas. 258.
160 Whart. Cr. PI. & Prac. § 441; Burdett v. State, 9 Tex. 43.
Ch. 11] PI.EAS OF AUTREFOIS ACQUIT AND CONVICT. 389
constitute a bar.^°* But errors or irregularities which do not render
the proceedings a nullity will not defeat a plea of autrefois ac-
quit."*
The same is true to a certain extent of the plea of autrefois con-
vict. If the proceedings were so irregular that the conviction is
an absolute nullity, and the sentence has not been performed, the
conviction is no bar.^°* But irregularities which do not render the
proceeding an absolute nullity, but merely render it reversible on
error, will not defeat the plea of former conviction, where the judg-
ment has not been reversed.^''* If the prosecution was carried on
without fraud on the defendant's part, and he has not only been
convicted, but has performed the judgment, he will be protected
against a subsequent prosecution, notwithstanding irregularities
in the proceedings, though they may have been such as to render the
judgment void.^°°
Insufficiency of Former Indictment — Variance.
There must have been a sufficient accusation on the former prose-
cution; otherwise the court could have no jurisdiction. If, there-
fore, the indictment was insufficient because of fatal defects in the
organization or constitution of the grand jury, or because it was so
defective in form or substance that a conviction upon it could not
have been sustained, an acquittal upon it cannot be pleaded.^" If,
151 State V. Mead, 4 Blackf. (Ind.) 309; Finley v. State, 61 Ala. 201; Com.
V. Bosworth, 113 Mass. 200.
102 2 Hawk. P. C. c. 35, § 8; 2 Hale, P. C. 274; Com. v. Goddard, 13 Mass.
458; Stevens v. Fassett, 27 Me. 266; Hines v. State, 24 Ohio St. 134; O'Brian
v. Com., 9 Bush (Ky.) 333; State v. Brown, 16 Conn. 54.
163 People V. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130,
36 N. E. 807; Com. v. Alderman, 4 Mass. 477; Wariner v. State, 3 Tex.
App. 104.
154 Com. V. Loud, 3 Mete. (Mass.) 328.
165 Com. V. Loud, 3 Mete. (Mass.) 328; Ex parte Lange, 18 Wall. 163. In
the latter case it was held that the provisions of the eommon law and of the
federal constitution that no man shall be twice placed in jeopardy of life or
limb, are mainly designed to prevent a second punishment for the same
offense, and hence, when the court has imposed fine and imprisonment where
the statute only conferred power to impose fine or imprisonment, and the fine
has been paid, it cannot, even during the same term, modify the judgment by
Imposing imprisonment only. As to the effect of fraud, see post, p. 393.
166 2 Hale, P. O. 245; 2 East, P. C. 519; Rex v. Vandercomb, 2 Leach,
390 MOTION TO QUASH, AEKAIGNMENT, DEMUEREE, AND PLEAS. [Ch. 11
for instance, a person who has been indicted and tried in one county
is afterwards indicted in another, he cannot plead former jeopardy
in bar of the latter indictment, because one indictment must be bad,
since the offense will be proved to have been beyond the jurisdiction
of the grand jury in one case or the other.^"^ And if an indictment
for larceny lay the property in the goods in the wrong person, or
erroneously describes the property, and the defendant is acquitted,
he may be tried on another indictment correctly stating the owner-
ship or describing the property, for the former indictment was
fatally defective, and there was no jeopardy; ^"^ and the same is
true of prosecutions for arson or any other offense, where the first
indictment was bad for mistake in naming the owner of the prem-
ises.^^° And the rule applies to other cases in which there has
been an acquittal on the ground of variance.^""
Nor will a conviction on an insuflScient indictment bar a subse-
quent indictment, if the conviction has been set aside, or the judg-
ment arrested.^ °^ Not even will an unreversed judgment consti-
tute a bar in such a case where the sentence has not been execut-
ed.^*^ If the sentence has been executed, it is otherwise.^"
Ci-own Cas. 708; Rex v. Emden, 9 East, 441; Reg. v. Vaux, 4 Coke, 44a;
Weston V. State, 63 Ala. 155; People v. Barrett, 1 Johns. (N. Y.) 66; Munford
V. State, 39 Miss. 558; Kohllielmer v. State, Id. 548; Hite v. State, 9 Yerg.
(Tenn.) 357; People v. Clark, 67 Cal. 99, 7 Pac. 178; Pritchett v. State, 2
Sneed (Tenn.) 285; Com. v. Somerville, 1 Va. Cas. 164; Gerard v. People, 3
Scam. (111.) 363; State v. Ray, Rice (S. C.) 1; State v. Smith (Iowa) 55 N. W.
198; State v. Meakins, 41 La. Ann. 543, 6 South. 822.
1B7 2 Hale, P. 0. 245.
IBS Rex V. Forsgate, 1 Leach, Crown Cas. 464; Com. v. Clair, 7 Allen
(Mass.) 525; Parchman v. State, 2 Tex. App. 228; Thompson v. Com. (Ky.)
25 S. W. 1059; State v. Williams, 45 La. Ann. 036, 12 South. 932. But see
Knox V. State, 89 Ga. 259, 15 S. E. 308.
160 Com. V. Mortimer, 2 Va. Cas. 325; Com. v. Wade, 17 Pick. (Mass.) 400;
State v. Brown, 33 S. C. 151, 11 S. E. 641.
ISO See Com. v. Chesley, 107 Mass. 223; Guedel v. People, 43 111. 226.
161 People v. Casborus, 13 Johns. (N. Y.) 351; Com. v. Hatton, 3 Grat. (Va.)
623; Guedel v. People, 43 111. 226; State v. Elder, 65 Ind. 282; Robinson v.
State, 52 Ala. 587; Com. v. Chesley, 107 Mass. 223.
162 U. S. V. Jones, 31 Fed. 725; State v. Gill, 33 Ark. 129; Kohlheimer v.
State, 39 Miss. 548.
163 Com. v. Loud, 3 Mete. (Mass.) 328.
Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 391
If a verdict is erroneously set aside, or the judgment erroneously
arrested, on a good indictment, not on defendant's application, he
cannot be again tried.^°*
Mistrial Through DeJendanCs Fault or by Consent.
If there is a mistrial, through the defendant's fault, he cannot
set up the prosecution in bar of a subsequent trial. He is precluded
from claiming an acquittal, for instance, if he absents himself
when the verdict is rendered, so that there is a mistrial,*" or if he
fails, before the jury are discharged, to raise objections to a verdict
that is so defective that a judgment cannot be rendered on it. He
cannot acquiesce in the verdict until it is too late to remedy the
defect, and then claim the benefit of the defect. "° So if he with-
draws a plea of guilty by leave of the court, and consents to a nolle
prosequi he may be again tried. '^'^ And, as we have seen, if he
consents to a discharge of the jury, he cannot claim an acquittal.* °'
Verdict Set Aside — Judgment Arrested or Reversed — New Trial.
We have just seen that where the defendant does not object to a
verdict, which is so defective that no judgment can be entered on it,
until after the jury have been discharged, he cannot claim an acquit-
tal. Many of the courts seem to go further than this, and hold
without qualification that, where the jury return a verdict upon
which no lawful judgment can be entered, their discharge without
the defendant's consent does not operate as an acquittal.*"^ But it
is not believed that if objection is made to the form of the verdict
before the jury are discharged, and the defect may be remedied by
sending them back to correct it, the court may discharge the jury
without doing so. Such a discharge would, no doubt, operate as an
acquittal.
164 State V. Norvell, 2 Yerg. (Tenn.) 24; note 141, supra.
166 State V. Hughes, 2 Ala. 102; People v. Higgins, 59 Cal. 357.
16 6 Wright V. State, 5 Ind. 527; Wilson v. State. 20 Ohio, 26; State v. Sut-
ton, 4 Gill. (Md.) 494; Gibson v. Com., 2 Va. Gas. Ill; Com. v. Smith, Id.
327; Com. v. Gibson, Id. 70; State v. Valentine, 6 Yerg. (Tenn.) 533; State
V. Spurgin, 1 McCord (S. C.) 252; Com. v. Hatton, 3 Grat. (Va.) 623; State
V. Redman, 17 Iowa, 329; Murphy v. State, 7 Cold. (Tenn.) 516; Cobia v.
State, 16 Ala. 781.
167 Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631.
168 Note 145, supra.
169 Ex parte Brown (Ala.) 15 South. 602, and cases there collected.
392 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
Whenever, on the defendant's application, a verdict or judgment
of conviction is set aside, arrested, or reversed, as on motion for a
new trial, motion in arrest of judgment, writ of error or appeal, he
may be again tried.^''°
If a person is found guilty on one only of several counts, and ob-
tains a new trial on motion, or reversal of the judgment on appeal
or error, he cannot be again tried on the other counts.^ ^^ And, by
the weight of authority, if a person is convicted, not of the highest
offense charged, but of a minor offense included in the charge, as
of manslaughter on an indictment for murder, or simple assault
on an indictment for an aggravated assault, this is an acquittal of
every higher offense of which he could have been convicted, and, on
obtaining a new trial, he cannot be again tried for the higher
offense.^'*
I'o Reg. V. Drury, 3 Car. & K. 193; Com. v. Roby, 12 Pick. (Mass.) 502;
Sutcliffe V. State, 18 Ohio, 469; Com. v. Green, 17 Mass. 515; Clark v. State,
4 Humph. (Tenn.) 254; Gibson v. Com., 2 Va. Cas. Ill; People v. Casborus,
13 Johns. (N. Y.) 351; People v. McKay, 18 Johns. (N. Y.) 212; Com. v.
Gould, 12 Gray (Mass.) 173; Lane v. People, 5 Gilm. (111.) 305; State v. Lee
(N. C.) 19 S. E. 375; Johnson v. State, 82 Ala. 29, 2 South. 466; Joy v.
State, 14 Ind. 139; State v. Benjamin (La.) 14 South. 71; State v. Knouse,
33 Iowa, 365; State v. Redman, 17 Iowa, 329; Robinson v. State, 23 Ten.
App. 315, 4 S. W. 904; People v. Barric, 49 Cal. 342; Lovett v. State, 33 Fla.
389, 14 South. 837; Gannon v. People, 127 111. 507, 21 N. E. 525; People v.
Schmidt, 64 Cal. 260, 30 Pac. 814; People v. Hardisson, 61 Cal. 378; State
V. Rhodes, 112 N. C. 857, 17 S. B. 164; Veatch v. State, 60 Ind. 291. Contra,
Nolan V. State, 55 6a. 521. The rule does not apply where a verdict is erro-
neously set aside, or the judgment erroneously arrested, and not on the de-
fendant's application. State v. Elden, 41 Me. 165; State v. Parrish, 43 Wis.
395; State v. Norvell, 2 Yerg. (Tenn.) 24.
171 Campbell v. State, 9 Yerg. (Tenn.) 333; Brennan v. People, 15 111. 511;
Morris v. State, 8 Smedes & M. (Miss.) 762; Hunt v. State, 25 Miss. 378;
State V. Kattlemann, 35 Mo. 105.
172 Brennan v. People, 15 111. 511; Johnson v. State, 29 Ark. 31; People v.
Gordon, 99 Cal. 227, 33 Pac. 901; State v. Martin, 30 Wis. 216; State v.
Belden, 33 Wis. 121; Huff v. State (Tex. Cr. App.) 24 S. W. 903; Robinson v.
State, 21 Tex App. 160, 17 S. W. 632; Johnson v. State, 27 Fla. 245, 9 South.
208; Slaughter v. State, 6 Humph. (Tenn.) 410; post, p. 400. But see, contra.
State V. Behimer, 20 Ohio St. 572; Com. v. Arnold, 83 Ky. 1; State v. Me-
Cord, 8 Kan. 232.
Cll. 11] PI.EAS OF AUTREFOIS ACQUIT AND CONVICT. 393
Writ of Error or Appeal by the State — Ne>o Trial after Acquittal.
At common law, the state cannot appeal or sue out a writ of
error to review a judgment for the defendant in a criminal case,
even on demurrer, much less on a verdict of acquittal; and it
would seem suflflciently clear that it is not within the power of
the legislature, under our constitutions, to allow a writ of error by
the state and a new trial after the defendant has been acquitted by
the jury on the facts, notwithstanding errors of law may have been
committed at the trial.^'* By statute, in many of the states, a writ
of error or appeal is allowed the state from an adverse judgment
on motion to quash or demurrer, or motion in arrest of judgment,
or where a statute has been held unconstitutional; ^'* and it is also
allowed by statute in case of an acquittal by the jury on the facts
for the purpose of determining and settling questions of law, but
not for the purpose of obtaining a new trial.^''°
Very recently, however, the Connecticut court has held that it is
not putting a person twice in jeopardy for the same offense to grant
a new trial on appeal by the state, under statutory authority, from
an acquittal, because of error in the exclusion of evidence offered by
the state.^^° No direct authority is cited to sustain the decision,
and it remains to be seen whether other courts will follow it.
Effect of Fraud in Former Prosecution.
A prosecution instituted and carried on by or in the interest of
an offender, in order to escape punishment, can never be relied upon
to sustain a plea either of former acquittal or conviction. It may
IT 3 Com. V. Cummings, 3 Gush. (Mass.) 212; People v. Coming, 2 N. X. 9;
U. S. V. More, 3 Cranch, 159; State v. Reynolds, 2 Hayw. (Tenn.) 110; State
V. Kemp, 17 Wis. 669; U. S. v. Sanges, 144 U. S. 312, 12 Sup. Ct. 609; People
V. Dill, 1 Scam. (111.) 257; Martin v. People, 13 111. 341; Com. v. Stelmling,
156 Pa. St 400, 27 Atl. 297; Com. v. Han-ison, 2 Va. Cas. 202; State v. Lee,
49 Kan. 570, 31 Pac. 147; State v. Solomons, 6 Terg. (Tenn.) 360; State v.
Simmons, 49 Ohio St. 305, 31 N. E. 34; Com. v. Cain, 14 Bush (Ky.) 525;
Com. V. Sanford, 5 Litt (Ky.) 289; State v. PoweU, 86 N. C. 640; State v.
Phillii>s, 66 N. C. 647; State v. Copeland, 65 Mo. 497.
17 4 State V. Burgdoerfer, 107 Mo. 1, 17 S. "W. 646; Com. v. Wallace, 114 Pa.
St. 405, 6 Atl. 685; State v. Hufifman, 51 Kan. 541, 33 Pac. 377.
17B state V. Ward, 75 Iowa, 637, 36 N. W. 765.
17 6 state V. Lee (Conn.) 30 Atl. 1110. And see State v. Buchanan, 5 Har.
& J. (Md.) 317.
894 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
be treated as void by the state and ignored because of the fraud,
or on the ground that the state was not in any sense a party to it^''''
Thus, where an offender fraudulently institutes a prosecution
against himself in a justice's court, and pays or perforins the judg-
ment against him, for the purpose of preventing an indictment
against him, which purpose may well be implied from the circum-
stances, he cannot set up his conviction to defeat an indictment
subsequently presented.^^*
This, it has been held, does not apply where the state is in fact
a party to the prosecution. Where a prosecution in behalf of the
state is regularly commenced by the prosecuting attorney, and
carried on to final judgment, the state is a party to the prosecu-
tion, and it has been held that the judgment will bar a subsequent
prosecution for the same offense, notwithstanding the fact that the
prosecutor was corrupted during the pendency of the prosecu-
tion.i"
Several Soverdgnties.
Where the same act constitutes an offense against each of sev-
eral sovereigns, a prosecution by one does not necessarily bar a
prosecution by the other.^*" Thus, an act which constitutes an
offense both against a state and against the United States may be
punished by both, provided the offense has two aspects, so that the
177 Shideler v. State, 129 Ind. 523, 28 N. E. 537, and 29 N. E. 36; Com. v.
Alderman, 4 Mass. 477; State v. Lowry, 1 Swan (Tenn.) 34; State v. Colvin,
11 Humph. (Tenn.) 599; State v. Yarbrough, 1 Hawks (N. C.) 78; Com. v.
•Dascom, 111 Mass. 404; State v. Little, 1 N. H. 257; State v. Wakefield, 60
Vt. 618, 15 Atl. 181; State v. Battle, 7 Ala. 259; Com. v. Jackson, 2 Va. Cas.
501; State v. Epps, 4 Sneed (Tenn.) 552; State v. Green, 16 Iowa, 239; State
V. Brown, 16 Conn. 54; State v. Simpson, 28 Minn. 66, 9 N. W. 78; McFar-
land V. State, 68 Wis. 400, 32 N. W. 226; State v. Cole, 48 Mo. 70.
178 Com. V. Aldei-man, 4 Mass. 477; De Haven v. State, 2 Ind. App. 376, 28
N. E. 562. And see Wariner y. State, 8 Tex. App. 104.
179 Shideler v. State, 129 Ind. 523, 28 N. B. 537, and 29 N. E. 36.
ISO U. S. V. Barnhart, 10 Sawy. 491, 22 Fed. 285; Bloomer v. State, 48 Md.
521; Com. v. Green, 17 Mass. 515; U. S. v. Amy, 14 Md. 149, note. Of com-se,
one sovereign may, in Lis discretion, refrain from punishing a man who has
aU-eady been punished for the same act by another sovereign, or the fact of
such punishment may be considered by the court in mitigation of the pun-
ishment. See U. S. V. Pirates, 5 Wheat. 184.
Ch. 11] PLEAS OF AUTBEFOIS ACQUIT AND CONVICT. 395
United States may punish it in one aspect, and the state may punish
it in another, as where the uttering of a forged coin may be pun-
ished by the state as a cheat, and by the United States as a forgei-y
or counterfeiting.^"
A prosecution under a municipal ordinance for a violation thereof
is no bar to a prosecution by the state for the same act as an
offense against the state.^^^ Nor will a prosecution by the state
bar a prosecution under the ordinance. ^^^
So it has been held that a prosecution before a federal court
martial will not bar a prosecution by the state, or vice versa.^**
Necessity for Former Judgment.
It has been held that not only a plea of former acquittal, but a
plea of former conviction as well, may be sustained, though no judg-
ment was ever rendered in the former prosecution.*'" This is true,
of course, of the plea of former acquittal ; but there are many cases
which hold the contrary in case of a plea of former conviction, since
a verdict of guilty may be set aside in some cases, or the judgment
may be arrested on defendant's application, without prejudice to the
right to institute another prosecution. ^'^
It has been held that a plea of guilty, if outstanding, will support
181 Whart. Or. PI. & Prac. § 442; U. S. v. Bamhart, supra; Abbott v. State,
75 N. Y. 602; Hendrick v. Com., 5 Leigh (Va.) 707; Campbell v. People, 109
111. 565; Phillips v. People, 55 111. 430; Moore v. Illinois, 14 How. 13.
182 State V. Clifford, 45 La. Ann. 980, 13 South. 281; Greenwood v. State,
6 Baxt. (Tenn.) 567; McRea v. Mayor, 59 Ga. 168; Wragg v. Penn T]p., 94 111.
11; Robbins v. People, 95 111. 175; People v. Stevens, 13 Wend. (N. T.) 841;
State T. Oleson, 26 Minn. 507, 5 N. W. 959; State v. Lee, 29 Minn. 445, 13
N. W. 913; Levy v. State, 6 Ind. 281; Ambrose v. State, Id. 351; Town of
Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38. But see Preston v. People,
45 Mich. 486, 8 N. W. 96; State v. Thornton, 37 Mo. 360.
183 See the cases above cited.
184 State V. Rankin, 4 Cold. (Tenn.) 145; 3 Op. Attys. Gen. 750; Steiner's
Case, 6 Op. Attys. Gen. 413; Whart. Or. PI. & Prac. § 439.
18 5 state V. Parish, 43 Wis. 395; State v. Norvell, 2 Yerg. (Tenn.) 24;
Mount V. State, 14 Ohio, 295; State v. Benham, 7 Conn. 414; Hurt v. State.
25 Miss. 378; State v. Elden, 41 Me. 165.
186 Com. V. Lahy, 8 Gray (Mass.) 461; Com. v. Lockwood, 109 Mass. 329;
Com, V. Fraher, 126 Mass. 265; U. S. v. Olsen, 57 Fed. 579; Coleman v. Ten-
nessee, 97 U. S. 530; People v. Casborus, 13 Johns. (N. Y.) 351; Brennan v.
People, 15 111. 511.
396 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
a plea of former conviction, though no judgment has been entered
on it.^" This would seem doubtful, however, since, as we have
seen, a plea of guilty may be withdrawn by leave of the court, to
allow a plea of not guilty.
Identity of Offenses.
To sustain a plea of autrefois acquit or convict, the offenses
must be the same. Neither an acquittal nor a conviction of one
offense will bar a prosecution for another.^ '^ It is often very diffl-
cult to determine when the offenses are the same, and there is much
conflict in the cases. All we can do in the limited space which we
can devote to the subject is to state the general rules, and give such
illustrations of them as may be necessary to make them clear.
(1) It is the general rule that if the crimes are so distinct, either
in fact or in law, that evidence of the facts charged in the second
indictment would not have supported a conviction under the first,
the offenses are not the same, and the second indictment is not
barred.^ *°
An indictment for uttering a forged instrument is not barred by
an acquittal on an indictment for forging the same instrument,^"'*
unless by statute, as is the case in some jurisdictions, a person may
be convicted of forgery on proof of uttering. Nor, it has been held,
is an indictment for a burglarious entry with intent to steal barred
by acquittal on an indictment charging the same burglarious en-
try and an actual stealing, since, though the burglary is the same,
the defendant could not have been convicted on the first indictment
on proof of a mere intention to steal.* '^ And it has been laid down
187 People V. Goldstein, 32 Cal. 432.
188 2 Hawk. P. C. c. 25, §§ 1, 3; Id. c. 36, § 10; 2 Hale, P. C. 253; 1 Chit.
Cr. Law, 452, 462.
18 9 2 Hawk. P. O. c. 35, §§ 11, 12; 2 East, P. C. 522; 2 Hale, P. C. 244;
Rex V. Vandercomb, 2 Leach, Crown Cas. 717; Rex v. Emden, 9 East, 437;
Com. V. Roby, 12 Pick. (Mass.) 502; Rex v. Plant, 7 Car. & P. 575; Reg. v.
Salvi, 10 Cox, Cr. Cas. 481, note; Com. v. Clair, 7 Allen (Mass.) 525; People
V. Handley, 93 Mich. 46, 52 N. W. 1032; People v. Kerm, 8 Utah, 268, 30 Pac.
988; Winn v. State, 82 Wis. 571, 52 N. W. 775.
iBO Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066; Reddick v. State, 31
Tex. Cr. R. 587, 21 S. W. 684.
181 2 Hawk. P. C. c. 35, § 5; 1 Chit. Cr. Law, 456; Rex v. Vandercomb, 2
Leach, Crown Cas. 716; Com. v. Roby, 12 Pick. (Mass.) 503.
Ch. 11] PLEAS OP AUTREFOIS ACQUIT AND CONVICT. 397
as a general rule that an acquittal or conviction of burglary ia no
bar to an indictment for larceny, or vice versa.^*"
For the same reason, an acquittal or conviction on an indictment
under a statute for a nuisance in keeping a tenement for the unlaw-
ful sale of intoxicating liquors is no bar to an indictment for being
a common seller of intoxicating liquors at the same time and place,
and the reverse of the proposition is also true.*"' "The gist of one
offense is the keeping a tenement for an illegal purpose, which
makes it a nuisance; of the other, the doing certain acts which
constitute an offense, to the commission of which it is not necessary
that the defendant should have been the keeper of any building
or tenement whatever. On the trial of the first indictment the
jury would have been properly instructed to acquit the defendant
if he did not keep the tenement described, however great a number
of sales of intoxicating liquors he might have made within it. The
rule has been often stated 'that, unless the first indictment was 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.' " *°* In like manner, an
acquittal of keeping a shop open on Sunday will not bar an indict-
ment for a nuisance in keeping the same shop at the same time for
the illegal sale of intoxicating liquors.**'
If, at common law, a person is indicted as an accessory after the
fact, and acquitted, he may be indicted as a principal, for proof of
one charge will not support the other."' The same is true where
a person is acquitted on an indictment as accessory before the fact,
192 2 Hale, P. C. 245, 246; 2 Hawk. P. C. c. 35, § 5; State v. Warner, 14 Ind.
572; Wilson v. State, 24 Conn. 57; State v. Hackett, 47 Minn. 425, 50 N. W.
472; Bell v. State, 48 Ala. 684; People v. Garnitt, 29 Cal. 622; Smith v.
State, 22 Tex. App. 350, 3 S. W. 238; Eust v. State, 31 Tex. App. 75, 19 S.
W. 763.
183 Com. V. Bnbser, 14 Gray (Mass.) 83; Com. v. Cutler, 9 Allen (Mass.) 486;
Com. V. Hogan, 97 Mass. 122. And see Com. v. Brelsford (Mass.) 36 N. E. 677.
194 Com. V. Bubser, supra.
19 6 Com. V. Shea, 14 Gray (Mass.) 386. And see Com. v. Trickey, 13 Allen
(Mass.) 559.
196 1 Hale, P. 0. 625, 626; 2 Hale, P. C. 244; 1 Chit Or. Law, 457; 2
Hawk. P. O. c. 35, § 11.
898 MOTION TO QUASH, ARUAIGNMENT, DEMUEREB, AND PLEAS. [Ch. 11
and is afterwards indicted as principal, or vice versa; ^°' though
it would probably be held otherwise where, by statute, a person in-
dicted as principal may be convicted as accessary.
We have seen that, if an acquittal results from a variance be-
tween the indictment and the proof, the defendant has not been in
jeopardy for the offense proven, because the indictment is insuffi-
cient to support a conviction; ^"^ that, for instance, an acquittal on
an indictment for stealing the property or burning the building of
one person, because the ownership is proven to have been in another
person, is no bar to an indictment laying the ownership in the
proper person.^" Another reason why this is true is because the
offenses are not the same. Proof of the second indictment would
not have sustained the flrst.^*"*
As we shall presently see, an acquittal or conviction on one in-
dictment will bar a subsequent indictment for a minor offense so
included in the first charge that the defendant could have been
convicted of it.^"'^ This rule cannot apply, however, where the
first indictment was for a felony, and the second is for a misde-
meanor, and the defendant was acquitted because in the particular
jurisdiction there could be no conviction of misdemeanor on indict-
ment for felony.^"*
In some states, where a felony merges a misdemeanor arising out
of the same act, there can be no conviction on indictment for a
misdemeanor on proof of a felony. In these states, where an
aggravated assault, such as an assault with intent to rape, to mur-
187 2 Hale, P. C. 244; 1 Chit. Cr. Law, 457; 2 Hawk. P. C. c. 35, § 11; Rex
v. Blrchenough, 1 Moody, Crown Cas. 477; Rex v. Plant, 7 Car. & P. 575;
Reynolds v. People, 83 111. 479; State v. Larkin, 49 N. H. 36; Morrow v.
State, 14 Lea (Tenn.) 475.
198 Ante, p. 389.
199 Rex V. Forsgate, 1 Leach, Crown Cas. 464; Com. v. Mortimer, 2 Va.
Cas. 325; Parchman v. State, 2 Tex. App. 228; Com. v. Wade, 17 Pick.
(Mass.) 400.
200 Com. V. Wade, supra; Com. v. Clair, 7 Allen (Mass.) 525; State v. Wil-
liams, 45 La. Ann. 936, 12 South. 932.
201 Post, p. 400.
202 1 Chit. Cr. Law, 45G; 2 Hawk. P. C, c, 35, § 5; Rex v. Webster, 1
Leach, Crown Cas. 12; Crosby v. Leng, 12 East, 415; Com. v. Roby, 12 Pick.
(Mass.) 504.
Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 399
der, or to rob, is a felony, there can be no conviction on indictment
for a simple assault or assault and battery on proof of an aggra-
vated assault; and it is held that acquittal or conviction on indict-
ment for simple assault or assault and battery will not bar a prose-
cution for aggravated assault; and on the same reasoning, where
an aggravated assault is a misdemeanor, it is held that an acquittal
or conviction on an indictment for assault with intent to rape,
murder, or rob will not bar a prosecution for rape, murder, or rob-
bery.^" ^
(2) If the charges are in fact for the same offense, though the
indictments differ in immaterial circumstances, the defendant may
plead his former acquittal or conviction, with proper averments to
show the identity of the charges.
"It would be absurd to suppose that, by varying the day, parish,
or any other allegation the precise accuracy of which is not mate-
rial, the prosecutor could change the rights of the defendant, and
subject him to a second trial." """^ Thus, if a person is indicted for
homicide on a certain day or by certain means, and acquitted, and
is afterwards indicted for killing the same person on a different
day or by different means, the difference between the indictments
does not make the offenses different.^"" And the same is true of
other offenses, for, though it is possible for several acts of the same
kind to be committed at different times by the same person, it lies
in averment, and the party indicted may always show by parol
evidence that the same charge is intended.^"
203 See Com. v. Roby, 12 Pick. (Mass.) 502; State v. Hattaborough, 66 Ind.
223; Severin v. People, 37 111. 414; People v. Saunders, 4 Parker, Cr. R. (N.
Y.) 196; State v. Littlefleld, 70 Me. 452; Murphy v. Com., 23 Grat. (Va.) 960;
Reg. V. Morris, 10 Cox, Cr. Cas. 480. But see People v. Purcell (Gen. Sess.
N. y.) 16 N. Y. Supp. 199; State v. Smith, 43 Vt. 324; Com. v. Arner, 149 Pa.
St. 35, 24 Atl. 83; Franklin v. State, 85 Ga. 570, 11 S. E. 876; dissenting
opinion of Biddle, J., in State v. Hattaborough, supra. And see post, pp.
400, 403.
205 1 Chit Cr. Law, 452; Rex v. Coogan, 1 Leach, Crown Cas. 448; Rex
V. Emden, 9 East, 437; 2 Hawk. P. C. c. 35, § 3; Com. v. Roby, 12 Pick. (Mass.)
504; Com. v. Cunningham, 13 Mass. 245; People v. McGowan, 17 Wend. (N.
Y.) 386; State v. Brown, 16 Conn. 54.
20 6 2 Hale, P. C. 179, 244; 2 Hawk. P. C. c. 35, § 3; Rex v. Clark, 1 Brod.
& B. 473.
207 2 Hale, P. C. 179, 244; Duncan v. Com., 6 Dana (Ky.) 295; People r.
400 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
(3) If the defendant could have been convicted under the first
indictment of the offense charged in the second, an acquittal under
the former indictment is a bar to the second.
As we have shown in another connection,'"'* on an indictment
for murder the defendant may be convicted of manslaughter, or, in
most jurisdictions, of assault with intent to kill, and, in some
jurisdictions, of assault and battery or simple assault. So, on
indictment for rape or robbery, there may be, in most jurisdictions,
a conviction of assault with intent to rape or rob, or simple assault.
The same is true of other offenses. The defendant may be ac-
quitted of the highest offense charged, and convicted of a minor
offense included in the charge. Wherever, therefore, the defendant
is acquitted entirely on an indictment, this is not only an acquittal
of the highest offense charged, but is an acquittal of every minor
offense of which he could have been convicted under that indict-
ment, and the acquittal may be pleaded in bar of a subsequent
indictment for the minor offense.""*
So where the defendant, instead of being altogether acquitted
on the indictment, is convicted of a minor offense included in the
charge, this is an acquittal of the higher offenses charged, and bars
any subsequent indictment, or a further prosecution on the same
indictment, for a higher offense of which he might have been con-
victed.""
McGowan, supra. So where the two indictments describe the person killed
differently, but sufficiently, it may be shown that the same person is in-
tended. 2 Hale, P. G. 244. In such case the plea must show that the party
was known by both names, so as to show that the first proceedings were
valid. Id.; 2 Hawk. P. C. c. 35, § 3.
2 08 Ante, p. 351.
209 2 Hale, P. C. 246; Wrote v. Wiggee, 4 Coke, 4ob; Com. v. Roby, 12
Pick. (Mass.) 504; Reg. v. Gould, 9 Car. & P. 364; Dinkey v. Com., 17 Pa.
St. 126; People v. McGowan, 17 Wend. (N. Y.) 386; State v. Brannon, 55 Mo.
63; Hamilton v. State, 36 Ind. 280.
210 2 Hale, P. C. 246; Rex v. Dawson, 3 Stai-kie, 62; State v. Dearborn,
54 Me. 442; Com. y. Herty, 109 Mass. 348; People v. Knapp, 26 Mich. 112;
Rolls v. State, 52 Miss. 391; State v. Belden, 33 Wis. 121; State v. Lessing,
16 Minn. 75 (Gil. 64); State v. Eeed, 40 Vt. 603; Clem v. State, 42 Ind. 420;
Slaughter v. State, 6 Humph. (Tenn.) 410; Morris v. State, 8 Smedes & M.
^Miss.) 762; State v. Brannon, 55 Mo. 63; State v. Shepard, 7 Conn. 54; Gold-
ing V. State, 31 Fla. 262, 12 South. 525; People v. Jones, 53 Gal. 58; Brennan
V. People, 15 111. 511; ante, p. 391, and cases there cited.
Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 401
As we have seen, in those jurisdictions in which there can be
no conviction of a misdemeanor on indictment for a felony, an ac-
quittal on indictment for a felony will not bar a subsequent prose-
cution for a misdemeanor included in the charge.^^^
(4) If the defendant could have been convicted of the offense
charged in the first indictment on proof of the facts charged in
the second, though he could not have been convicted of the whole
offense charged in the second, then the second indictment is barred,
for the former acquittal has negatived the existence of the facts
charged in the second.
If a person can be convicted of an offense charged on proof of
a higher offense, his acquittal of the offense charged necessarily
negatives his guilt of the higher offense, and he cannot afterwards
be prosecuted therefor.
An acquittal on an indictment for voluntary manslaughter will
bar a future prosecution for the same act as murder, for the de-
fendant could have been convicted of manslaughter on proof of
murder.* The acquittal negatives the facts charged in the second
indictment. ''^''
For the same reason, an acquittal on an indictment for assault or
assault and battery will bar a prosecution for the same act as an
aggravated assault, such as an assault with intent to murder, to rape,
or to rob, provided (and this qualification is important) that, in the
particular jurisdiction, there could have been a conviction of the
simple assault or assault and battery on proof of the aggravated
assault; and, subject to the same qualification, an acquittal on an
indictment for an assault with intent to rape, to rob, or to murder
will bar a subsequent prosecution for the consummated crime of
rape, robbery, or murder.''^'
211 Ante, p. 398.
212 1 Chit. Cr. Law, 455; 2 Hale, P. C. 246; Wrote v. WIgges, 4 Coke,
45b, 46; Com. v. Roby, 12 Pick. (Mass.) 504.
213 People V. Purcell (Gen. Sess. N. Y.) 16 N. Y. Supp. 199; State v. Smith,
43 Vt 324; Com. v. Amer, 149 Pa. St. 35, 24 Atl. 83; Franklin v. State, 85
6a. 570, 11 S. E. 876; dissenting opinion of Biddle, J., in State v. Hatta-
borough, 66 Ind. 223. In People v. Purcell, supra, it was held that an acquittal
on a charge of assault and battery is a bar to an indictment for rape. In State
V. Smith, supra, it was held that an acquittal or conviction of assault with in-
tent to rape will bar a prosecution for rape. In Com. v. Amer, supra, it
CRIM.PBOC— 26
402 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
In some states, as we have seen, where the aggravated assault is
a felony, it is held that it merges the misdemeanor of assault or
assault and battery, so that there could be no conviction of the
latter on proof of the former, and, therefore, that acquittal of the
misdemeanor cannot be a bar to an indictment for the felony. And
in other states, where the aggravated assault is a misdemeanor, it is
held, on the same principle, that an acquittal thereof cannot bar
a prosecution for the consummated offense M-hich is a felony.''^*
(5) In reason, and by the weight of authority, if the prosecuting
ofQcer elects to prosecute for an act as constituting a certain of-
fense, and the defendant is convicted of that offense, he cannot after-
wards be prosecuted for the same act under aggravating circum-
stances which change its legal character. But, if the aggravating
circumstances do not intervene until after the first conviction, it is
otherwise. Some of the cases, as we shall see, are in conflict with
this rule.
A conviction of larceny, for instance, under an indictment for
burglary and larceny, was held a bar to an indictment chaining the
same felonious taking as a robbery. To hold otherwise, it was said,
would be to subject the defendant to a second prosecution for the
same felonious taking.^^^ So, where a person has been convicted
of assault with intent to commit rape, he cannot afterwards be
prosecuted for rape.^^* And, where a person has been convicted
of fornication and bastardy, he cannot afterwards be prosecuted for
the same act as rape.^^^ So, where a man is indicted and convicted
of an assault and battery, he cannot be afterwards indicted for the
same transaction as a riot. "The state," it was said in such a case,
"cannot divide an offense consisting of several trespasses into as
was held that a person who has been convicted of fornication and bastardy
cannot thereafter be tried for rape for the same act. In Franklin v. State,
supra, it was held that an acquittal on an indictment for simple assault will
bar a prosecution for aggravated assault.
214 Com. V. Roby, 12 Pick (Mass.) 502; State v. Hattaborough, 66 Ind. 223;
Severin v. People, 37 111. 414; People v. Saunders, 4 Parker, Cr. R. (N. Y.)
196; State v. Littlefleld, 70 Me. 4.52; Murphy v. Com., 23 Grat. (Va.) 960; Reg.
V. Morris, 10 Cox, Cr. Cas. 480.
215 State V. Lewis, 2 Hawks (N. C.) 98.
210 State V. Smith, 43 Vt. 324.
21T Com. V. Arner, 149 Pa. St. 35, 24 Atl. 83.
Ch, 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 403
many indictments as there are acts of trespass that would separately
support an indictment, and afterwards indict for the offense com-
pounded of them all; as, for instance, to indict for an assault, then
for a battery, then for imprisonment, then for a riot, then for a
mayhem, etc. But, upon an indictment for any of these offenses,
the court will inquire into the concomitant facts, and receive in-
formation thereof, by way of aggravating the fine and punishment,
and will proportion the same to the nature of the offense, as en-
hanced by all these circumstances, and no indictment will after-
wards lie for any of these separate factsi done at the same time." ^"
It has been held that, where a person assaults and wounds two
persons at the same time, a prosecution for the offense against one
will bar a prosecution for the offense against the other.^'*
The rule does not apply where the aggravating circumstances
did not intervene until after the former conviction. Thus, where
a man is convicted and punished for an assault and battery, or
assault with intent to kill, and the person subsequently dies, he
may be prosecuted for themurder or manslaughter.^^"
There are cases of high authority which conflict with this rule.
It is held, as we have seen, in those states where an assault with
intent to murder or to rape is a felony, and where a felony merges
a misdemeanor arising out of the same act, that an acquittal on an
indictment for simple assault and battery will not bar a prosecution
for the aggravated' assault, since there could be no conviction of the
former on proof of the latter; and the same is true of a prosecution
for a consummated felony after an acquittal on an indictment for
aggravated assault with intent to commit the felony, in those
states where the aggravated assault is a misdemeanor and merges
in the felony. To this extent these decisions may be sound enough
in reason, for the acquittal does not negative the higher offense.
But these courts go further, and hold that a conviction of the mis-
demeanor will not bar a prosecution for the felony, on the ground
that the offenses are essentially different.^"
218 state v. Ingles, 2 Hayw. (N. O.) 4.
210 State V. Damon, 2 Tyler (Vt.) 387. But see Keeton v. Com., 92 Ky. 522,
18 S. W. 359.
2 20 Reg. v. Morris, 10 Cox, Or. Cas. 480; People v. Purcell (Gen. Sess. N. Y.)
16 N. Y. Supp. 199.
221 See the cases dted in note 214, supra. But these decisions have been
404 MOTION TO QUASH, AEKAIGNMENT, DEMUKREE, AND PLEAS. [Ch. 11
(6) Where the same act, or different acts in the same transaction,
constitute separate and distinct offenses, neither an acquittal nor a
conviction of one of such offenses will bar a subsequent prosecu-
tion for another; but, since a felony merges a misdemeanor arising
out of the same act, a conviction of the felony will bar a subsequent
prosecution for the misdemeanor.
To sustain a plea of former conviction, the offenses must be the
same.^^^ If a man should rob and then murder another, his con-
viction of the robbery would not bar a prosecution and punish-
ment for the murder, for the offenses are distinct, and one felony
does not merge in another.^^'
The same is true of misdemeanors. Where the same act or acts
constitute separate and distinct misdemeanors, the defendant may be
separately prosecuted and punished for each. Under the Massa-
chusetts statutes, keeping a tenement for the illegal sale of intoxi-
cating liquors is one offense, while keeping liquors with intent to
sell them is another offense. A conviction for keeping a tenement
may therefore be had, though the only evidence is as to liquors
for the keeping of which with intent to sell the defendant has al-
ready been convicted and punished."^*
And generally, if several acts of trespass, though growing out of
the same transaction, are separate and distinct, each may be prose-
cuted as a separate offense." ^^ Thus, where a person assaults A. with
intent to kill him, and, when B. comes to A.'s assistance, assaults
B. with a like intent, the two offenses are distinct, and a prosecu-
tion for the assault on A. will not bar a prosecution for the assault
criticised. See 1 Bish. New Cr. Law, § 1057. And see the cases cited In note
213, supra.
222 1 Chit. Cr. Law, 452, 462; 2 Hawk. P. O. c. 25, §§ 1, 3; Id. c. 36, § 10;
2 Hale, P. C. 253.
2 23 Clark, Cr. Law, 35.
224 Com. V. McShane, 110 Mass. 502. See, also, as to punishment for sep-
arate offenses arising out of the same act, State v. Inness, 53 Me. 536; Smith
V. Com., 7 Grat. (Va.) 593; Keeton v. Com. (Ky.) 18 S. W. 359; post, p. 405.
226Ashton V. State, 31 Tex. Cr. R. 482, 21 S. W. 48; Samuel v. State, 25
Tex. App. 538, 8 S. W. 656; Womack v. State, 7 Cold. (Tenn.) 508; State v.
Parish, 8 Rich. (S. C.) 323; State v. Nash, 86 N. C. 650; Smith v. Com., 7
Grat. (Va.) 593; Vaughan v. Com., 2 Va. Cas. 273; Greenwood v. State, 64
Ind. 250.
Ch. 11] PLEAS OJJ' AUTEEFOIS ACQUIT AND CONVICT. 405
on B.''''* And it has been held that where a man presents a pistol
at two persons at the same time, and demands their property, com-
pelling a surrender thereof by both at the same time, he commits
two separate and distinct offenses, — an assault and robbery of
each, — and may be prosecuted for both.^^'
At common law, where the same act constitutes both a felony and
a misdemeanor, the latter is merged in the former. A conviction
of rape or murder or robbery, for instance, would bar a subsequent
prosecution for assault with intent to rape, murder, or rob.^''*
Pleading — Issue and Judgment on Plea.
The special plea of autrefois acquit or convict is necessary, for a
former acquittal or conviction is not admissible under the general
issue of not guilty, nor is it admissible on demurrer, motion in arrest
of judgment, or writ of error.^^' The plea consists partly of
matter of record and partly of matter of fact. The matter of record
is the foi-mer indictment and acquittal or conviction, and the mat-
ter of fact is the averment of the identity of the offense and of the
person. The plea must set forth the record of the former acquittal
or conviction,^^" and it must state that the charge and person are
the same as in the first prosecution.^" In case of felony, it was
formerly necessary in such a plea to plead over not guilty of the
offense charged,"*" but this does not now seem to be required."'*
2 26 Ashton V. State, supra.
Z2T Keeton v. Com. (Ky.) 18 S. W. 359. Some of the courts, however,
would hold this only a single ofCense. See ante. p. 403; State v. Damon, 2
Tyler (Vt.) 387.
228 Clark, Cr. Law, 35.
229 State V. Barnes, 32 Me. 534; Com. v. Merrill, 8 Allen (Mass.) 547; Com.
V. Chesley, 107 Mass. 223; Com. v. O'Nell (Mass.) 29 N. E. 1146; Zachary v.
State, 7 Baxt (Tenn.) 1; Justice v. Com., 81 Va. 209; Kickles v. State, 68
Ala. 538; U. S. v. Moller, 16 Blatchf. 65, Fed. Oas. No. 15,794. But see Han-
kins V. People, 106 111. 628; Clem v. State, 42 Ind. 420.
280 2 Hale, P. C. 241, 243, 255; 1 Chit. Or. Law, 459; 2 Hawk. P. C. c. 35,
§ 2; Vaux's Case, 4 Coke, 44a; Rex v.Wildey, 1 Maule & S. 188; Rex v. Bm-
den, 9 East, 438; Rex v. Vandercomb, 2 Leach, Crown Cas. 712; Grisham v.
State, 19 Tex. App. 504.
2311 Hale, P. C. 255, 392; 2 Hale, P. C. 241; 1 Chit. Cr. Law, 460; 2.
Hawk. P. C. c. 35, § 3; Smith y. State, 52 Ala. 407.
282 2 Hale, P. C. 255; 1 Chit Cr. Law, 460.
288 Com. T. Goddard, 13 Mass. 455; Barge v. Com., 3 Pen. & W. 262.
406 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
The prosecuting officer may either reply, taking issue upon the aver-
ments of identity, or nul tiel record (no such record) if he intends to
dispute the fact of an acquittal or conviction,^'* or he may demur if
he relies on its insufficiency as a matter of law.^'" The plea con-
cludes with a prayer for defendant's discharge, and must be veri-
fied.^'° As we have seen, a plea setting up two distinct defenses is
bad for duplicity.^'^ If, therefore, in a plea of autrefois acquit, the
defendant were to set up two distinct records of acquittal, the plea
would be bad.^*' In case of felony, if the plea is held bad, the judg-
ment is respondeat ouster, unless the defendant has pleaded over in
the plea, in which case the jury are merely charged again to inquire
of the second issue.^'° In England and in some of our states, in
cases of misdemeanor, the defendant cannot plead over, and the
judgment against him on the plea is final and as upon a convic-
tion."*" Generally, however, in this country, no such distinction
between felonies and misdemeanors is recognized, but the defendant
is allowed to plead over in all cases.^*^ In all cases when the plea
is sustained the defendant is discharged."*"
These pleas must always be pleaded after the acquittal or con-
234 2 Hale, P. C. 255; 1 Cmt. Cr. Law, 460; Rex v. Wildey, 1 Maule & S.
184; Rex v. Bowman, 6 Car. & P. 101, 337; Hite v. State, 9 Yerg. (Tenn.)
357.
23 6 Kex V. Vandercomb, 2 Leach, Crown Cas. 715, 716; State v. Locklin,
59 Vt. 654, 10 Atl. 464.
236 2 Hale, P. C. 392; Rex v. Vandercomb, 2 Leach, Crown Cas. 715.
2 37 Ante, p. 372.
238 Rex V. Sheen, 2 Car. & P. 634.
239 Rex V. Roche, 1 Leach, Crown Cas. 134; Rex v. Wildey, 1 Mamie & S.
184; Rex v. Coogan, 1 Leach, Crown Cas. 448; Rex v. Vandercomb, 2 Leach,
Crown Cas. 721; Com. v. Roby, 12 Pick. (Mass.) 510; Com. v. Wade, 17 Pick.
(Mass.) 402. Where there Is a plea over in the plea of autrefois acquit or con-
vict, the juiy cannot be charged at the same time with both issues, but they
must first determine the plea of former acquittal or conviction. Rex v.
Roche, 1 Leach, Crown Cas. 135; Com. v. Merrill, 8 Allen (Mass.) 545.
24 0 1 Chit Cr. Law, 461; Rex v. Taylor, 3 Bam. & C. 502; Reg. v. God-
dard, 2 Ld. Raym. 922; Rex v. Gibson, 8 East, 107; Reg. v. Bird, 5 Cox, Cr.
Cas. 11.
241 Com. V. Golding, 14 Gray (Mass.) 49; Com. v. Goddard, 13 Mass. 455;
Fiilkuer v. State, 3 Heisk. (Tenn.) 33; McFarland v. State, 68 Wis. 400, 32
N. W. 226.
24 2 2 Hale, P. G. 391.
Ch. 11] PLEA OF PARDON. 407
viction. They cannot be taken advantage of as a plea in abatement
that another indictment for the same offense is pending.^*'
As we have already seen, autrefois acquit and convict are favored
pleas, being pleas in bar, and admit of a lower degree of certainty
than an indictment, and a still lower degree of certainty than pleas
in abatement or other dilatory pleas.^**
SAME— PLEA or PAEDON.
139. If the defendant has been pardoned, he must spe-
cially plead that fact in bar, in order to take advantage
of it, unless the pardon is by a public statute, of \\rhich
the court must take judicial notice.
If an offender has been pardoned, he cannot be tried for the
offense. If the pardon is by a public statute, the court must take
judicial notice of it; but if it is a special pardon, of which the
court cannot thus take notice, it must be specially pleaded.^*^ A
pardon, if pleaded at all before verdict, must be pleaded before the
general issue, unless the date is subsequent to the pleadings, for
the defendant is estopped by his plea of not guilty and issue there-
^)jj 24 6 Failure to plead a pardon will prevent the defendant from
taking advantage of it in bar of the trial and conviction; but it
does not necessarily subject him to punishment. It may be taken
advantage of at any time, even after conviction and judgment.^*^
At common law, production of a pardon after judgment of convic-
tion would cause reversal of the judgment, but would not remove
the attainder consequent upon the judgment.***
243 1 Chit. Or. Law, 463; Reg. v. Goddard, 2 Ld. Raym. 920; Rex v. Strat-
ton, Doug. 240; Withipole's Case, Cro. Car. 147; State v. Benham, 7 Conn.
418; ante, pp. 151, 375, 377.
244 Ante, p. 151; Harp v. State (Ark.) 26 S. W. 714.
240 3 Inst. 234; 2 Hawk. P. C. c. 37, § 61; U. S. v. Wilson, 7 Pet 150; Id.,
1 Baldw. 91, Fed. Cas. No. 16,730.
248 Fost. Cr. Law, 43; 2 Hawk. P. C. c. 37, § 57; U. S. v. Wilson, 7 Pet.
150; Com. v. Lockwood, 109 Mass. 339.
24T4 Bl. Comm. 337; 1 Chit Cr. Law, 466; 2 Hawk. P. C. c. 37, § 59; 6
Coke, 14; Com. v. Lockwood, 109 Mass. 323.
2 48 4 Bl. Comm. 337.
408 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11
SAME— AGREEMENT TO TURN STATE'S EVIDENCE.
140. In Texas, and perhaps in other states, the defend^
ant may plead in bar an agreement "with the state's at-
torney to turn state's evidence against his accomplice.
This question was considered at some length by the Texas court
in a recent case, and it was held that the trial court erred in sus-
taining a demurrer to such a plea on the ground that it was unau-
thorized by law. It was held that the state's attorney had a right
to maire such an agreement, and that the defendant might set it
up, and claim a discharge at the hands of the court.^*' The plea
is addressed solely to the court, and the sufQciency of the evidence
to support it is not a question for the jury.^^"
SAME— PLEA or NOT GUILTY— GENERAL ISSUE.
141. If the defendant pleads not guilty, he thereby de-
nies every fact and circumstance necessary to make him
guilty of the crime charged. When the issue is joined,
this forms -what is called the "general issue."
The plea of not guilty puts in issue the whole of the charge, not
merely whether the defendant actually did the acts charged, but
also the criminal intention with which he is alleged to hare done
them, and the legal quality of the guilt to be deduced from the
whole. "'^ In civil cases, if the facts are admitted, and the defense
is that they were rendered legal by circumstances, a special justi-
fication must be pleaded; but in criminal cases all matters of justi-
fication or excuse may be shown under the general issue. ''^^ In an
2*9 Camron v. State, 32 Tex. Or. R. 180, 22 S. W. 682, and authorities there
cited.
2 00 Camron v. State, 32 Tex. Or. R. 180, 22 S. W. 682; Id. (Tex. Or. App.)
25 S. W. 288.
261 1 Chit. Or. Law, 470; 4 Bl. Comm. 338.
2B2 2 Hale, P. O. 258; 4 Bl. Comm. 338; Martin v. Com., 1 Mass. 347; Sav-
age V. State, 18 Fla. 909; Adams v. State, 28 Fla. 511, 10 South. 106; Hodge
V. State, 29 Fla. 500, 10 South. 556; State v. Farr, 12 Rich. (S. 0.) 24; Rich-
ards V. State, 82 Wis. 172, 5;! N. W. 652; Mills v. State, 76 Md. 274, 25 Atl.
229; Cooper v. State, 64 Md^, 20 Atl. 986.
Ch. 11] PLEA OF NOT GUILTY GENERAL ISSUE. 409
indictment for murder, for instance, the defendant cannot plead
that he killed the deceased while in a passion caused by proToca-
tion, so that the offense was manslaughter only; or that he killed
him to prevent his escape from arrest for felony, and was therefore
justified; or that he killed him in self-defense, and was therefore
excusable; or that he was of tender years, or insane; but he must
simply plead "not guilty," and he may show these circumstances
under that plea.^"'
In civil actions the statute of limitations must generally be spe-
cially pleaded, but in criminal cases this is not necessary, for it may
be shown under the plea of not guilty that the prosecution is
barred."*
A plea of not guilty, as we have seen, may always be withdrawn,
to admit of a confession or plea of guilty; "" but a plea of not guilty
cannot be withdrawn so as to allow the deft' od ant to demur or plead
in abatement or specially in bar, unless by leave of the court.'""'
Other questions in relation to the plea of not guilty have been
already considered.^ ^'
2 63 2 Hale, P. C. 258, 304; 4 Bl. Comm. 338.
254 u. S. V. Brown, 2 Lowell, 267, Fed. Gas. No. 14,665.
2 56 Ante, p. 373.
268 Ante, pp. 372, 377, 381,
267 Ante, p. 366.
410
TRIAL AND VERDICT.
[Ch. 12
CHAPTER Xn.
TRIAL AND VERDICT.
142-143. Time of Trial— Continuance.
144. Place of Trial— Change of Venue.
145. Right to Public Trial.
146-147. Custody and Restraint of Defendant.
148. Presence of Defendant.
149. Insanity of Defendant
150. Furnishing Copy of Indictment and List of Jurors and Witnesses.
151. Bill of Particulai-s.
152. Loss of Indictment or Information.
153. Presence of Judge.
154. Separate Trial of Joint Defendants.
155. Consolidation of Indictments. —
15&-157. Counsel.
158. The Petit Jury— Right to Jury Trial, and Waiver.
159. Number of Jurors.
160. Selecting and Summoning Jurors.
161-166. Qualification and Exemption of Jurors— Challenges,
167. Swearing the Jury.
168. Opening of the Case by Counsel.
169. View by Jury.
170. Misconduct of Prosecuting Attorney.
171. Misconduct of Judge.
172-173. Summing up and Argument of Counsel.
174-176. Instructions or Charge of the Court to the Jury.
177. Demurrer to Evidence.
178-180. Custody, Conduct, and Deliberations of Jui-y.
181-185. Tlie Verdict
TIME or TRIAL— CONTINUANCE.
142. The defendant is entitled to a speedy trial, and, if
it is denied him, he must be discharged. But this does
not prevent a reasonable continuance on application of
the prosecution, in order that it may properly prepare
for trial.
143. The defendant may be arraigned and tried imme-
diately upon presentation of the indictment, unless he
Ch. 12] TIME OF TRIAL CONTINUANCE. 411
can sho-wr ground for a continuance. If, without fault on
his part, he is unprepared for trial, or if it appears that
a fair and impartial trial cannot then be had, a continu-
ance should be granted him.
Defendant's Right to Speedy Trial.
Every person held on a criminal charge has the legal right to
demand a speedy trial, and, if it is denied him, he is entitled to be
discharged on habeas corpus. The right was guarantied to the
English people by the Magna Charta, and confirmed by subsequent
bills of right, which are a part of our common law. Independently
of this, the same right is guarantied to us by the constitutions of
the United States and the different states. "The speedy trial to
which a person charged with crime is entitled under the constitu-
tion is a trial at such a time, after the finding of the indictment,
regard being had to the terms of court, as shall afford the prosecu-
tion a reasonable opportunity, by the fair and honest exercise of
reasonable diligence, to prepare for a trial; and, if the trial is
delayed or postponed beyond such period, when there is a term of
court at which the trial might be had, by reason of the neglect or
laches of the prosecution in preparing for trial, such delay is a
denial to the defendant of his right to a speedy trial." ^ Eeason-
able and necessary delay is not a denial of the right. "It is very
clear that one arrested and accused of crime has not the right to
demand a trial immediately upon the accusation or arrest being
made. He must wait until a regular term of the court having
jurisdiction of the offense with which he is charged, until an indict-
ment is found and presented, and until the prosecution has had a
reasonable time to prepare for the trial. Nor does a speedy trial
mean a trial immediately upon the presentation of the indictment
or the arrest upon it. It simply means that the trial shall take
place as soon as possible after the indictment is found, without
depriving the prosecution of a reasonable time for preparation.
The law does not exact impossibilities, extraordinary efforts, dili-
gence or exertion from the courts or the representatives of the
state ; nor does it contemplate that the right to a speedy trial shall
operate to deprive the state of a reasonable opportunity of fairly
1 U. S. V. Fox, 3 Mont. 512, quoted in Black, Const. Law, 503.
412 TRIAL AND VERDICT. [Ch. 12
prosecuting criminals." " Whenever, therefore, without fault on
the part of the prosecution, delay is necessary in order that it may
procure the attendance of material witnesses, or otherwise prepare
properly for trial, or because the prosecuting oflflcer is sick, or
unable to attend, a reasonable continuance should be granted.'
But the court has no power to grant a continuance on application
of the state without good cause therefor being shown. Mere want
of preparation on the part of the state is not sufficient cause if,
by the exercise of reasonable diligence, it could have been pre-
pared.*
By statute, in most jurisdictions, it is expressly declared that the
defendant must be brought to trial within a certain time, or be
discharged, unless good excuse is shown for the delay.
Defendant's Eight to Delay — Continuance.
There is nothing at all, unless there may be statutory provisions
in particular jurisdictions, to prevent the state from arraigning the
defendant, and putting him upon his trial, at the same term at
which the indictment is presented, or even on the same day, pro-
vided the defendant cannot show sufficient ground for a continu-
ance.'
Same — Want of Preparation.
Every person charged with crime should be allowed a reasonable
time for preparing his defense. If he and his counsel have used
due diligence, and have been unable to properly prepare for trial, a
motion for a continuance should be granted.* For this reason the
defendant should not ordinarily be forced to a trial immediately
after the indictment is presented, but should be given until the
2 Ex parte Stanley, 4 Nev. 116. And see Stewart v. State, 13 Ark. 720; Nixon
V. State, 2 Smedes & M. (Miss.) 497; City of Creston v. Nye, 74 Iowa, 369, 37
N. W. 777.
8 Com. V. Garter, 11 Pick. (Mass.) 278; People v. Shufelt, 61 Mich. 237, 28 N.
W. 79; People v. Weeks, 99 Mich. 86, 57 N. W. 1091.
* U. S. V. Fox, 3 Mont 513; Klock v. People, 2 Parker, Cr. R. (N. Y.) 676;
Benton v. Com. (Va.) 18 S. B. 282.
5 1 Chit. Cr. Law, 483; 2 Hale, P. C. 28, 29; 2 Inst 568; 4 Inst 164; 4 Bl.
Comm. 351.
• North V. People, 139 lU. 81, 28 N. E. 966; State v. Deschamps, 41 La. Ann.
1051, 7 South. 133; Blackman v. State, 76 Ga. 288; State v. Brooks, 39 La.
Ann. 239, 1 South. 421.
Oh. 12] TIME OF TRIAL CONTINUANCE. 413
following term to engage counsel, procure attendance of witnesses,
and otherwise prepare for his defense. There may be cases in
which he should be prepared for an immediate trial, as where he
has been in custody, charged with the 'crime, for some time before
the presentation of the indictment, and has had the advice and
assistance of counsel, or an opportunity to procure such assistance;
and, if this is the case, he has no right to a continuance. A con-
tinuance should never be granted merely for delay, or for the mere
convenience of the defendant or his counsel.' If the defendant
has been negligent in not preparing for trial, want of preparation
is no ground for a continuance, and negligence of his counsel must
ordinarily be imputed to him.' If his counsel has acted treacher-
ously or in bad faith, a continuance should be granted.*
■Same — Absence or Sickness of Defendant or His Counsel.
As we shall presently see, there can be no trial for a felony, in
the absence of the defendant. In misdemeanor cases, where the
defendant is too ill to attend the trial, or is otherwise unable to
attend, without fault on his part, a cooitinuance should be granted.^"
If the counsel for defendant is too ill to attend, and the defendant
has had no time, or was unable, to procure other counsel, he is en-
titled to a continuance.^^ But the mere absence of counsel because
•engaged in other business, or even because of sickness, where the
defendant is represented by other counsel, or could have procured
•other counsel, is ordinarily no ground for a continuance.^^ If the
T Vance v. Com., 2 Va. Cas. 162; People v. Jackson, 111 N. Y. 362, 19 N. B.
54; State v. Duncan, 6 Ired. (N. C.) 98.
8 Rex v. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; Smith v. State, 132 Ind. 145,
31 N. E. 807; People v. McGcnegal, 62 Hun, 622, 17 N. Y. Supp. 147; People
V. Collins, 75 Cal. 411, 17 Pac. 430; Price v. People, 131 III. 223, 23 N. E. 639;
<3om. V. Buccieri, 153 Pa. St. 535, 26 Atl. 228; May v. State, 38 Neb. 211, 56
N. W. 804; Maloney v. Traverse, 87 Iowa, 306, 54 N. W. 155; Ballard v. State,
51 Fla. 266, 12 South. 865; Dobson v. State (Ark.) 17 S. W. 3. See North v.
People, 139 111. 81, 28 N. E. 966.
9 State V. Lewis, 74 Mo. 222.-
10 Hays V. Hamilton, 68 Ga. 833. But not where his inability to be present
!is due to his voluntary intoxication. State v. Ellvin, 51 Kan. 784, 33 Pac. 547.
11 Hayley v. Grant, Sayer, 63; People v. Logan, 4 Oal. 188; Daughtery v.
State (Tex. Cr. App.) 26 S. W. 60; Loyd v. State, 45 Ga. 57.
12 State V. Koontz, 31 W. Va. 127, 5 S. E. 328; State v. Stegner, 72 Iowa,
13, 33 N. W. 340; State v. Rainsberger, 74 Iowa, 196, 37 N. W. 153; Harvey
414 TRIAL AND VERDICT. [Ch. 12
defendant's counsel has suddenly withdrawn from the case without
leaving time or opportunity to employ other counsel, a continuance
should be granted.^*
Same — Absence of Witness.
A continuance should be granted because of the absence of a
material witness for the defendant, if due diligence has been used
to procure his attendance, and there is a reasonable prospect of his
being present at the time to which the continuance is asked."
The expected testimony must be material," and it is not material if
it is altogether irrelevant;^® nor if it is merely cumulative, or if the
facts could be proved by other witnesses present; " nor if it is
T. State, 67 Ga. 639; Burnett v. State, 87 Ga. 622, 13 S. E. 552; Robinson t.
State, 82 Ga. 535, 9 S. B. 528; Nixon v. State, 85 Ga. 455, 11 S. B. 874; Long r.
People, 135 111. 435, 25 N. E. 851; People v. Goldenson, 76 Cal. 328, 19 Pac. 161;
Stockholm v. State, 24 Tex. App. 598, 7 S. W. 338; Roberts v. People, 9 Colo.
458, 13 Pac. 630; State v. Bailey, 94 Mo. 311, 7 S. W. 425; Stephens v. Com.
(Ky.) 6 S. W. 456; Bates v. Com. (Ky.) 16 S. W. 528; Newberry v. State, 26
Fla. 334, 8 South. 445; State v. Sullivan, 43 Kan. 563, 23 Pac. 645; State v.
Murdy, 81 Iowa, 603, 47 N. W. 867.
13 Jackson v. State, 88 Ga. 784, 15 S. E. 677; Wray v. People, 78 111. 212.
14 Rex V. D'Bon, 1 W. Bl. 510, 3 Burrows, 1513; Hewitt's Case, 17 Grat.
(Va.) 629; Hunt v. Com. (Ky.) 24 S. W. 623; Phillips v. Com. (Va.) 18 S. B.
841; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21; Walton's Case, 32
Grat. (Va.) 863; People v. Vermilyea, 7 Cow. (N. Y.) 383; State v. Maddox, 117
Mo. 667, 23 S. W. 771; Pettit v. State, 135 Xnd. 393, 34 N. E. 1118; Bowlin v.
Com. (Ky.) 22 S. W. 543; Walker v. State, 32 Tex. Cr. R. 175, 22 S. W. 685;
North V. People, 139 111. 81, 28 N. E. 960; Sutton v. People, 119 111. 250, 10 N.
E. 376.
10 Rex V. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; People v. Anderson, 53
Mich. 60, 18 N. W. 561; Hurd v. Com., 5 Leigh (Va.) 715; State v. Spillman,
43 La. Ann. 1001, 10 South. 198; Dow v. State, 31 Tex. Cr. R. 273, 20 S. W.
583; Knowles v. State, 31 Tex. Cr. R. 383, 20 S. W. 829; Jackson v. State, 31
Tex. Cr. R. 342, 20 S. W. 921; Steele v. People, 45 111. 152; Barp v. Com., 9
Dana (Ky.) 302.
18 State V. Turlington, 102 Mo. 642, 15 S. W. 141; Abrigo v. State, 29 Tex.
App. 143, 15 S. W. 408.
17 Henderson v. Com. (Ky.) 15 S. W. 782; State v. Hillstock, 45 La. Ann.
298, 12 South. 352; Scott v. State (Tex. Cr, App.) 25 S. W. 783; Attaway v.
State, 31 Tex. Cr. R. 475, 20 S. W. 925; Higglnbotham v. State (Tex. Cr. App.)
20 S. W. 360; Nelson v. Com. (Ky.) 23 S. W. 350; Sneed v. State, 47 Ark. 180,
1 S. W. 68. But see People v. Ah Lee Doon, 97 Cal. 171, 31 Pac. 933.
Ch. 12] TIME Off TKIAL CONTINUANCE. 415
merely impeaching;'* nor if it is as to character;^' nor in some
states by statute, if it is probably false.^" The defendant must not
have been guilty of laches, but must have used due diligence to pro-
cure the attendance of the witness, or to procure his deposition.^^
It must also appear that there is a reasonable prospect that the at-
tendance of the witness will be procured at the time to which the
continuance is asked, and therefore a continuance will not or-
dinarily be granted where the witness is beyond the jurisdiction of
the court, so that he cannot be compelled to attend.^^
If the state admits that the absent witness will testify as stated
by the defendant, and the statement is admitted as evidence, a
continuance will generally be denied.^ ^
18 Earp V. Com., 9 Dana (Ky.) 302; State v. Howell, 117 Mo. 307, 23 S. W.
263.
19 Eex V. Jones, 8 Bast, 34; McNealy v. State, 17 Fla. 198; People v. Wilson,
3 Parker, Cr. E. (N. Y.) 199; Rhea v. State, 10 Yerg. (Tenn.) 258; State v.
Kllnger, 43 Mo. 127. Except, perhaps, under peculiar circumstances. State
V. Nash, 7 Iowa, 347.
20 Maull V. State (Tex. Cr. App.) 26 S. W. 199; Loakman v. State, 32 Tex.
Cr. R. 583, 25 S. W. 22; Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421.
21 Rex V. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; Jamison v. People, 145 III.
357, 34 N. E. 486; People v. Ah Lee Doon, 97 Oal. 171, 31 Pac. 933; Price v.
State, 57 Ark. 165, 20 S. W. 1091; Com. v. Buccieri, 153 Pa. St. 535, 26 Atl.
228; Dingman v. State, 48 Wis. 485, 4 N. W. 668; Stultz t. State (Tex. Cr. App.)
24 S. W. 649; Scott v. State (Tex. Or. App.) 25 S. W. 783; Gibson v. State, 59
Miss. 341; Lowis v. State, 89 Ga. 803, 15 S- E. 772; State v. Farrington (Iowa)
57 N. W. 006; State v. Banks, 118 Mo. 117, 23 S. W. 1079; Marler v. Com.
(Ky.) 24 S. W. 608; State v. McCoy, 111 Mo. 517, 20 S. W. 240; Glover v.
State, 89 Ga. 391, 15 S. E. 496; Wormeley v. Com., 10 Grat. (Va.) 658; Early
V. Com., 86 Va. 921, 11 S. E. 795; Holt v. Com., 2 Va. Cas. 156; Rousell v.
Com., 28 Grat (Va.) 930; Unsel v. Com., 87 Ky. 368, 8 S. W. 144.
2 2 Rex V. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; Com. v. Millard, 1 Mass.
6; Mull's Case, 8 Grat. (Va.) 695; Woolfolk v. State. 85 Ga. 69, 11 S. E. 814;
State V. Files, 1 Tread. Const. (S. O.) 234; Skates v. State, 64 Miss. 644, 1
South. 843; State v. Duffy, 39 La. Ann. 419, 2 South. 184; People v. Lewis,
64 Cal. 401, 1 Pao. 490. But a continuance may, in the discretion of the court,
be granted to take the deposition of a witness abroad, where depositions may
be used, or to procure his attendance where he will probably voluntarily attend.
Rex V. Morphew, 2 Maule & S. 602; White v. Com., 80 Ky. 480; McDermott
V. State, 89 Ind. 187; State v. Klinger, 43 Mo. 127.
23 Com. V. Knapp, 9 Pick. (Mass.) 515; People v. Wilson, 3 Parker, Cr. R.
(N. Y.) 199; Johnson v. Com. (Ky.) 23 S. W. 507; Baker v. State, 58 Ark. 513,
416 TRIAL AND VERDICT. [Ch. 12
Error in refusing to grant a continuance on this ground is cured
if the witness appears in court before the trial is ended, and the de-
flendajit examines him, or is given an opportunity to examine him.^*
Same — Local Prejudice and Excitement — Tampering with Jury.
In some cases local prejudice against the defendant may be
ground for a continuance. The defendant should not be forced
to a trial at a time when the public excitement is so great that it
may probably intimidate or otherwise influence the jury, and pre-
vent a fair and impartial trial.*" There must be something more
than mere public excitement; it must be such as will probably
thus unduly influence the jury, and this probability must be
shown.* ^ Where means have been used to unduly influence the
jury, a continuance should be granted.^'
Practice.
In all cases a motion for a continuance must be supported by an
affidavit or affidavits setting forth the grounds upon which it is
asked.*' Care should be exercised, in preparing the affidavit, to
state sufficient facts to entitle the applicant to a continuance, for
if the affidavit is insufficient, the application will be denied. It is
not sufficient in applying for a continuance because of the absence
of a material witness, to state in the affidavit that the witness is
25 S. W. 603; Hickam v. People, 137 111. 75, 27 N. E. 88; Van Meter v. People,
60 111. 168; State v. Stickney (Kan.) 36 Pac. 714; Wise v. State, 34 Ga. 348;
Hood y. State (Ga.) 18 S. E. 553; Browning v. State, 33 Miss. 48; Hall v.
Com., (Ky.) 22 S. W. 333; Roberts v. Com., Id. 845; Pace v. Com., 89 Ky.
204, 12 S. W. 271. But see State v. Hickman, 75 Mo. 416. Some but not all
courts require the state to admit the truth of the expected testimony. See the
cases cited supra, and see People v. Vermilyea, 7 Cow. (N. Y.) 369; Olds v.
Com., 3 A. K. Marsh. (Ky.) 467.
21 Mitchell V. State, 22 Ga. 211; State v. Banks, 118 Mo. 117, 23 S. W. 1079;
Vaughn v. Com. (Ky.) 23 S. W. 371.
2B Com. V. Dunham, Thatcher, Cr. Cas. (Mass.) 516; Reg. v. Bolam, 2
Moody & R. 192; Bishop v. State, 9 Ga. 121.
26 Ballard v. State, 31 Ela. 266, 12 South. 865; Baw v. State (Tex. Cr. App.)
24 S. W. 293; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103; Woolfolk v.
State, 85 Ga. 69, 11 S. B. 814. See King v. State, 91 Tenn. 617, 20 S. W. 169.
2 7 Rex V. JoUifee, 4 Term R. 285; Rex v. Gray, 1 Burrows, 510.
28 1 Chit Cr. Law, 492; State v. Underwood, 44 La. Ann. 1114, 11 South.
823; Mitchell v. State, 92 Tenn. 668, 23 S. W. 68.
Ch. 12] TIME OF TEIAL CONTINUANCE. 4l7
a material one, and is absent, except perhaps where there is no
cause to suspect that the application is made merely for delay."'
The affidavit must state definitely what the defendant expects the
absent witness to testify, so that the court may see that the testi-
mony is material, and, further than this, it must show that due
diligence has been used to procure the attendance of the witness,
and that his attendance will probably be procured.^" The affidavit
on application by the defendant may be made by himself, and
should be so made where he knows the facts, and is competent to
swear to them. It need not necessarily be made by him. It
should in all cases be made by the person or persons who are able
to swear to the facts stated. If the defendant knows the facts,
and can swear to them, he should malce the affidavit; otherwise it
may be made by his counsel or by third persons.^^ Some courts
allow counter affidavits to be filed in opposition to the motion,^ ^
but others hold that it is unauthorized.'^
Joint Defendants.
Where there are several defendants, who may be tried separately,
the case may be continued as to some and denied as to others.^*
29 Rex V. D'Bon, 1 W. Bl. 510, 3 Burrows, 1513; Kex v. Jones, 8 Bast, 37.
30 Eex V. D'Eon, 1 W. Bl. 514, 3 Burrows, 1513; Rex v. Jones, 8 East, 31,
37; Hurd v. Com., 5 Leigh (Va.) 715; State v. Underwood, supra; State v.
Harrison, 36 W. Va. 729, 15 S. E. 982; Green v. Com. (Ky.) 24 S. W.
623; Boyd v. State, 33 Fla. 316, 14 South. 836; Martin v. State, 32
Tex. Cr. r; 441, 24 S. W. 512; Rollins v. State, 32 Tex. Cr. R. 566, 25 S. W.
125; State v. Whitton, 68 Mo. 91; State v. Aired, 115 Mo. 471, 22 S. W. 363;
State v. Fox, 79 Mo. 109; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461;
Smith V. State, 132 Ind. 145, 31 N. E. 807; Faulkner v. Territory (N. M.) 30
Pac. 905; Moody v. People, 20 111. 315; Sutton v. People, 145 111. 279, 34 N.
E. 420; North v. People, 139 111. 81, 28 N. B. 966; Long v. People, 135 lU.
435, 25 N. E. 851; Davis v. State, 85 Tenn. 522, 3 S. W. 348; Carthaus v.
State, 78 Wis. 560, 47 N. W. 629; White v. State, 86 Ala. 69, 5 South. 674;
Warner v. State, 114 Ind. 137, 16 N. E. 189; Beavers v. State, 58 Ind. 530.
81 Moody V. People, 20 111. 315; Reg. v. Langhurst, 10 Cox, Cr. Cas. 353.
82 state V. Murdy, 81 Iowa, 603, 47 N. W. 867; State v. Bailey, 94 Mo. 311,
7 S. W. 425; State v. Simien, 30 La. Ann. 296.
88 Price V. People, 131 111. 223, 23 N. B. 639; Miller v. State, 29 Neb. 437,
45 N. W. 451. It has been held that error in allowing a counter affidavit is
harmless. Price v. People, supra.
3 4 White V. State, 31 Ind. 262.
ORIM.PKOC— 37
418 TRIAL AND VERDICT. [Ch. 12
Discretion of Court.
A motion for a continuance is addressed to tlie discretion of the
court, and its ruling thereon will not be reviewed except in a clear
case of abuse of discretion.'" The court, however, cannot act arbi-
trarily, but must be guided by rules of law. An abuse of dis-
cretion will in most states be ground for reversing a conviction.'"
In a few states the ruling of the court on a motion for a continuance
because of absence of a witness^ and perhaps on other grounds, will
not be reviewed at all.'^
PLACE OF TBI AL— CHANGE OE VENUE.
144. Ordinarily tlie trial must take place in the county
in -which the offense was committed and the indictment
was presented; but either at common law or by statute,
if the defendant cannot have a fair and impartial trial
in that county, the case may be taken to an adjoining
county. This is called a change of venue.
We have already shown that a criminal prosecution must gen-
erally be instituted, and the trial had, in the county in which the
offense was committed; and we have also shown the exceptional
cases in. which a prosecution may be instituted and carried on in
one county for an offense committed in another."
At common law, if a fair and impartial trial could not be had in
the county in which the offense was committed, the defendant could
apply for and obtain a change of the place of trial to an adjoining
county.' ° This is what is meant by change of venue. There is
doubt as to the extent to which the common law in this respect is
in force in this country. The question was fully considered by the
8B People V. Collins, 75 Gal. 411, 17 Pao. 430; State v. Bradley, 90 Mo. 160,
2 S. W. 284; State v. Primeaux, 39 La. Ann. 673, 2 South. 423; Brown v.
State, 85 Tenn. 439, 2 S. W. 895; Hicks v. State, 25 Fla. 535, 6 South. 441.
»6 gee the cases heretofore cited.
87 Walker v. State, 91 Ala. 76, 9 South. 87; State v. Wise, 33 S. 0. 582, 12
S. B. 656; State v. Pankey, 104 N. C. 840, 10 S. E. 315.
"•Ante, p. 9.
»» 1 Chit. Cr. Law, 494; Rex v. Cowle, 2 Burrows, 834; State v. Albee, 61
N. H. 423.
Ch. 12] PLACE OF TRIAL — CHANGE OF VENUE. 419
New Hampshire court in a late case, and it held that the common
law was there in force, so as to authorize a change of venue on the
defendant's application.*" In Vermont, on the other hand, where a
statute provided generally that the trial should be had in the
county in which the offense was committed, which, as we have seen,
is merely a declaration of the common law, it was said (not held)
that there could be no change of venue unless authorized by a stat-
ute.*^ It is now expressly provided by statute, perhaps in all the
states, that the defendant shall be entitled to a change of venue on
showing one of the grounds therefor specified in the statute, and
the common law is therefore unimportant.
A statute allowing a change of venue on the defendant's applica-
tion, or with his consent, is not in violation of the constitutional pro-
vision that the trial shall be had in the county where the offense
was committed or the indictment was presented, for the defend-
ant may waive his privilege to be there trled.*^ But in some states
the change cannot be made on application of the prosecuting attor-
ney, nor by the court ex mero motu, without the defendant's con-
sent.*^
All of the statutes are designed to give the defendant a change
of venue when he cannot have a fair and impartial trial in the
county in which the offense was committed. The grounds upon
which the change may be demanded are prejudice or disqualifica-
tion of the judge,** prejudice in the minds of the people of the
40 state V. Albee, 61 N. H. 423. See People v. Vermilyea, 7 Cow. (N. Y.)
108; People v. Mather, 3 Wend. (N. Y.) 434.
*i State V. Howard, 31 Vt. 414.
4 2 State V. Albee, 61 N. H. 423; Dula v. State, 8 Yerg. (Tenn.) 511; Perteet
V. People, 70 111. 171.
4 3 State V. Denton, 6 Cold. (Tenn.) 539; Wheeler v. State, 24 Wis. 52; Dou-
gan T. State, 30 Ark. 41; Cochrane v. State, 6 Md. 400; Bramlett v. State, 31
Ala. 376; State v. Gut, 13 Minn. 341 (Gil. 315); Id., 9 Wall. 35; State v.
Knapp, 40 Kan. 148, 19 Pac. 728; Ex parte Elvers, 40 Ala. 712. But see,
contra. People v. Webb, 1 Hill (N. Y.) 179; Adams v. State (Tex. Cr. App.)
23 S. W. G91; People v. Peterson, 93 Mich. 27, 52 N. W. 1039; Com. v. David-
son, 91 Ky. 162, 15 S. W. 53; McMillan v. State, 68 Md. 307, 12 Atl. 8; People
V. Fuhrman (Mich.) 61 N. W. 865.
44 Ex parte Curtis, 3 Minn. 274 (Gil. 188); Vanderkarr v. State, 51 Ind. 91;
State V. Henning (S. D.) 54 N. W. 536. Contra, Johnson v. State, 31 Tex. Cr.
R. 456, 20 S. W. 985.
420 TRIAL AND VERDICT. [Ch. 12
county in which the offense was committed/" in some states diffi-
culty in obtaining a jury on a second trial.*" Conyenienee of wit-
nesses is not sufficient cause.*'
Affidavits must be filed or testimony produced by the defendant in
support of the motion,** and the affidavits and witnesses must state
the facts showing that an impartial trial cannot be had. It is not
sufficient merely to state that a fair and impartial trial cannot be
had.** The state may in like manner file counter affidavits in op-
position to the motion.'"' But in some states an affidavit of preju-
dice of the judge cannot be resisted by counter affidavits."^
The motion, when made on the ground of local prejudice, is ad-
dressed to the discretion of the presiding judge, and, if he is satis-
fled that the prejudice is not sufficient to prevent a fair and im-
partial trial, he may deny the motion; and, unless there is a clear
abuse of discretion in denying the motion, his ruling will not be
reviewed.'* In case of abuse of discretion, denial of the motion
*5 People V. Lee, 5 Oal. 353; People v. Graham, 21 Cal. 261; State v. Crof-
ton (Iowa) 56 N. W. 257; Jamison v. People, 145 111. 357, 34 N. E. 486; State
V. Olds, 19 Or. 397, 24 Pac. 394; Garcia v. State (Pla.) 16 South. 223; Bow-
man V. Com. (Ky.) 27 S. W. 870.
48 Com. V. Cleary, 148 Pa. St. 26, 23 Atl. 1110.
47 People v. Harris, 4 Denio (N. Y.) 150.
48 The requirement of affidavits is satisfied if witnesses in support of the
motion are produced in open court, sworn by the judge, and their statements
taken down by the official stenographer. State v. Sullivan, 39 S. C. 400, 17
S. E. 865. In some states affidavits of others than the defendant are neces-
sary. See State v. Turlington, 102 Mo. 642, 15 S. W. 141.
49 People V. Bodine, 7 Hill (N. Y.) 147; Wormeley v. Com., 10 Grat (Va.)
658; Peters v. U. S. (Okl.) 33 Pac. 1031. Salm v. State, 89 Ala. 56, 8 South.
66. As to examination of affiants to test their credibility, see Jackson v.
State, 54 Ark. 243, 15 S. W. 607.
00 State V. Belvel (Iowa) 56 N. W. 545; Baw v. State (Tex. Cr. App.) 24 S.
W. 293; Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; Perrin v. State, 81
Wis. 135, 50 N. W. 516.
61 Cautwell v. People, 138 IlL 602, 28 N. E. 964.
02 Jamison v. People, 145 111. 357, 34 N. E. 486; Gitchell v. People, 146 111.
175, 33 N. E. 757; Hickam v. People, 137 111. 75, 27 N. E. 88; State v. Poster
(Iowa) 59 N. W. 8; Howard v. Com. (Ky.) 26 S. W. 1; State v. Belvel (Iowa)
56 N. W. 545; State v. Conable, 81 Iowa, 60, 46 N. W. 759; King v. State, 91
Tenn. 617, 20 S. W. 169; State v. Eussell, 13 Mont. 164, 32 Pac. 854; People
V. Vincent, 95 Cal. 425, 30 Pac. 581; Com. v. Buccieri, 153 Pa. St. 535, 26
Ch. 12] BIGHT TO PUBLIC TEIAL. 421
will be ground for setting a conviction aside."' In most states it
is held that the court has no discretion where the application is
based on the prejudice of the judge, and that the change must be
granted as a matter of course."*
In some states the defendant is limited to one application for
change of venue, and, after having obtained a change, he cannot
apply for another change on the ground that there is prejudice in
the county to which the case was sent, or of the judge of such
county."'
There may be a change of venue as to one only of several de-
fendants."*
As we have seen, if there was an arraignment in the first courts
the defendant need not be again arraigned. And if there has been
no arraignment he may be arraigned for the first time in the court
to which the case is taken."'
The jurisdiction of the court in which the prosecution is pending
is not affected by its erroneous denial of a motion for a change of
venue."*
RIGHT TO PUBLIC TRIAL.
145. Under the constitution of the United States, and of
most, if not all, the states, the accused has a right to a
public trial; but this does not prevent the court from ex-
Atl. 228; Com. v. Delamater, 145 Pa. St. 210, 22 Atl. 1098; Horn v. State, 98
Ala. 23, 13 South. 329; Adams v. State, 28 Fla. 511, 10 South. 106; Martin v.
State, 21 Tex. App. 1, 17 S. "W. 430; Power v. People, 17 Colo. 178, 28 Pac.
1121; Perrin v. State, 81 Wis. 135, 50 N. W. 516; Muscoe v. Com., 87 Va. 460,
12 S. E. 790; Edwards v. State, 2 Wash. St. 291, 26 Pac. 258; Qulnn v. State,
123 Ind. 59, 23 N. E. 977.
03 Garcia v. State (Fla.) 16 South. 223; State v. Crafton (Iowa) 56 N. W.
257; Higgins v. Com. (Ky.) 21 S. W. 231; Bowman v. Com. (Ky.) 27 S. W. 870.
5* Manly v. State, 52 Ind. 215; Oantwell v. People, 138 111. 602, 28 N. E.
964; State v. Henning (S. D.) 54 N. W. 536. But see City of Emporia v.
Volmer, 12 Kan. 622.
CO See Perrin v. State, 81 Wis. 135, 50 N. W. 516; Baker v. State (Wis.)
59 N. W. 570; State v. Wofford, 119 Mo. 375, 24 S. W. 764. But see Yates v..
State, 58 Ind. 299; State v. Minski, 7 Iowa, 336.
oe State v. Martin, 2 Ired. (N. C.) 101.
07 Ante, p. 368.
88 Turner v. Conkey, 132 Ind. 248, 31 N. E. 777.
422 TEIAL AND VERDICT. [Ch. 12
eluding in a proper case, for the protection of the public
morals, young persons or persons attending merely from
idle curiosity.
"It is required that the trial be public. By this is not meant
that every person who sees fit shall in all cases be permitted to
attend criminal trials; because there are many cases where, from
the character of the charge, and the nature of the evidence by
which it is to be supported, the motives to attend the trial on the
part of portions of the community would be of the worst character,
and where a regard to public morals and public decency would
require that at least the young be excluded from hearing and wit-
nessing the evidences of human depravity which the trial must
necessarily bring to light. The requirement of a public trial is
for the benefit of the accused; that the public may see he is fairly
dealt with, and not unjustly condemned, and that the presence of
interested spectators may keep his triers keenly alive to a sense of
their responsibility, and to the importance of their functions; and
the requirement is fairly observed if, without partiality or favorit-
ism, a reasonable proportion of the public is suffered to attend,
notwithstanding that those persons whose presence could be of no
service to the accused, and who would only be drawn thither by a
prurient curiosity, are excluded altogether." °®
■ The court, however, cannot make an order excluding all persons
from the court room. It has been held, for instance, that even on
a trial which involves an inquiry into a question of sexual im-
morality, an order excluding all persons from the court room, ex-
cept the defendant and the ofScers of the court, violates the defend-
ant's right to a public trial.'"
CUSTODY AND RESTRAINT OF DEFENDANT.
146. In prosecutions for felony, and in some jurisdic-
tions in prosecutions for misdemeanors involving cor-
60 Cooley, Const. Lim. (oth Ed.) 312; People v. Hartman, Infra; Grimmett v.
State, 22 Tex. App. 36, 2 S. W. 631; State v. Brooks, 92 Mo. 573, 5 S. W. 257,
330; People v. Kerrigan, 73 Cal. 222, 14 Pac. 849.
6 0 People v. Hartman (Cal.) 37 Pac. 153; People v. Murray, 89 Mich. 276,
50 N. W. 995.
Ch. 12] PRESENCE OF DEFENDANT. 423
poral punishment, the defendant should be taken into
custody during the trial so as to insure his presence. In
misdemeanors involving punishment by a mere fine, and,
in most jurisdictions, in all other cases of misdemeanor,
he may remain at large on bail.
147. The defendant must not be subjected to unneces-
sary restraint during the trial. Necessary restraint is
not illegal.
Unless the defendant has been admitted to bail, he is always in
custody during the trial. And in cases of felony, and in some
jurisdictions in cases of misdemeanor where corporal punishment
may be inflicted, he must be taken into custody, even though he
has been admitted to bail,°^ for, as we shall see, in most jurisdic-
tions he must be present at the trial, whether he wishes it or not;
and a trial in his absence, even with his consent, would be illegal.
In cases of misdemeanor, where the punishment is a mere fine,
and, by the weight of authority, even where the penalty may be
corporal punishment, he may remain at large.°^
The defendant should not be kept tied or in shackles during the
trial, unless he is unruly, or there is danger of an escape. If he is
unnecessarily bound, or otherwise subjected to unnecessary re-
straint, the trial will be illegal, for it is not considered that he is
as well able to make his defense when bound.*^ Necessary restraint
will not render a conviction bad. Thus it has been held that it
is perfectly proper to permit a dangerous and desperate man,
charged with murder, to be attended by an armed guard."*
PRESENCE OF THE DEFENDANT.
148. In all criminal prosecutions, the defendant has a
right to be personally present during the entire proceed-
61 Eeg. V. Simpson, 10 Mod. 248; People v. Beauchamp, 49 Cal. 41; post, p.
424.
62 Rex V. Carlile, 6 Car. & P. 636; Whart. Cr. PI. & Prac. § 540a; post, p.
427.
63 State T. Kring, 1 Mo. App. 438, 64 Mo 591; Palre v. State, 58 Ala. 74;
Lee V. State, 51 Miss. 560.
«4 State V. Duncan, 116 Mo. 288, 22 S. W. 699.
424 TRIAL AND VERDICT. [Ch. 12
ing from arraignment to sentence. He cannot, according
to the weight of authority, waive the privilege in cases of
felony, nor, according to some, but not all, of the author-
ities, in cases of misdemeanor involving corporal punish-
ment. By the weight of authority, how^ever, he may w^aive
the privilege in all cases of misdemeanor. The record
must show that he w^as present when his presence was
necessary.
It is well settled that eren at common law the personal presence
of the defendant is essential to a valid trial and conviction on a
charge of felony. He must be personally present, not only when
he is arraigned and pleads to the charge, but at every subsequent
stage of the f>rosecution, up to and including the time when sen-
tence is pronounced. If he is absent, or if the record does not show
his presence, when the jury is called and sworn, or when evidence is
introduced, or the jury is charged, or arguments of counsel are made,
or the verdict is rendered, or sentence is pronounced, a conviction
will be set aside."" The legislature cannot change this rule of the
8B Dunn V. Com., 6 Pa. St. 385; Hamilton v. Com., 10 Pa, St. 129; Hopt v.
Utah, 110 U. S. 574, 4 Sup. Ct. 202; Harris v. People, 130 111. 457, 22 N. E.
826; Brooks v. People, 88 111. 327; Sperry v. Com., 9 Leigh (Va.) 623; Nolan
V. State, 55 Ga. 521; Coleman v. Com. (Va.) 19 S. E. 161; State v. Cross, 27
Mo. 332; Palmquist v. State, 30 Fla. 73, 11 South. 521; French v. State, 85
Wis. 400, 55 N. W. 566; Shelton v. Com., 89 Va. 450, 16 S. E. 355; Scraggs v.
State, 8 Smedes & M. (Miss.) 722; Stubbs v. State, 49 Miss. 716; Rolls v.
State, 52 Miss. 391. See, for cases in which convictions have been set aside
because the defendant was not present, or the record did not show his pres-
ence, at the arraignment. State v. Jones, 61 Mo. 232; Hall v. State, 40 Ala. 698;
Jacobs v. Com., 5 Serg. & R. (Pa.) 315; at the calling and swearing of the jury,
Dougherty v. Com., 69 Pa. St 286; State v. Crocket (State v. Smith), 90 Ma
37, 1 S. W. 753; Rolls v. State, 52 Miss. 391; at discharge of jury, for sick-
ness of juror, State v. Smith, 44 Kan. 75, 24 Pac 84; at the reception of evi-
dence, Dougherty v. Com., supra; People v. Perkins, 1 Wend. (N. Y.) 91;
State V. Hughes, 2 Ala. 102; Jackson v. Com., 19 Grat (Va.) 656; State v.
Moran, 46 Kan. 318, 26 Pac. 754; Andrews v. State, 2 Sneed (Tenn.) 550;
State V. Cross, 27 Mo. 332; while codefendant was testifying, Richards v.
State, 91 Tenn. 723, 20 S. W. 533; Garman v. State, 66 Miss. 196, 5 South.
385; when the case was continued, Com. v. Coleman (Va.) 19 S. E. 161; Shel-
ton V. Com., 89 Va. 450, 16 S. B. 355; contra, State v. Duncan, 7 Wash. 336,
35 Pac. 117; at a view by the jury, People v. Jones (Cal.) 11 Pac. 501; State
Oh. 12] PRESENCE OP DEFENDANT. 425
common law, for to try him in his absence would be to try him
without due process of law, and would therefore be unconstitu-
tional; or if testimony were received in the defendant's absence, it
would violate his constitutional right to be confronted by the wit-
nesses against him.°° Some of the courts hold that the defendant
cannot waive this privilege even by consenting, to a trial, or part
of the trial, in his absence; "^ but other courts hold that the privi-
lege, being for his benefit, may be waived by him.°*
V. Sanders, 68 Mo. 202; Foster v. State (Miss.) 12 South. 822; Benton v. State.
30 Ark. 328; State v. GraJiam, 74 N. 0. 646; contra, State v. Reed (Idaho) 35
Pac. 706; State v. Lee Doon, 7 Wash. 308, 34 Pac. 1103; while the court was
charging or recharging the jury, or finally submitting the case to them, Allen
V. Com., 86 Ky. 642, 6 S. W. 645; Brewer v. Com. (Ky.) 8 S. W. 339; Richie
V. Com. (Ky.) 8 S. W. 913; Jackson v. Com., 19 Grat. (Va.) 656; Witt v. State,
5 Cold. (Tenn.) 11; Wilson v. State, 87 Ga. 583, 13 S. B. 566; State v. Myrick.
38 Kan. 238, 16 Pac. 330; Wade v. State, 12 Ga. 25; Maurer v. People, 43 N.
Y. 1; Linbeck v. State, 1 Wash. St. 336, 25 Pac. 452; contra. People v. Rob-
inson, 86 Mich. 415, 49 N. W. 260; Roberts v. State, 111 Ind. 340, 12 N. B. 500;
when the verdict was received from the jury, Prine v. Com., 18 Pa. St. 103;
Dougherty v. Com., 69 Pa. St. 286; Com. v. Tobin, 125 Mass. 203; State v.
Bpps, 76 N. C. 55; Andrews v. State, 2 Sneed (Tenn.) 550; Stubbs v. State,
49 Miss. 716; Finch v. State, 53 Miss. 363; Jackson v. Com., 19 Grat. (Va.)
656; at the time of sentence, Dougherty v. Com., 69 Pa. St. 286; State v.
Hurlbut, 1 Root (Conn.) 90; Peters v. State, 39 Ala. 681; Stubbs v. State, 49
Miss. 716; Rolls v. State, 52 Miss. 391. But it seems that absence at the
time of sentence merely entitles him to be remanded for a new sentence, and
does not entitle him to a new trial. See Cole v. State, 5 Eng. (Ark.) 318;
Kelly V. State, 3 Smedes & M. (Miss.) 518. That it is sufficient if the record
shows defendant's presence by necessary or reasonable implication, see Brown
V. State, 29 Fla. 543, 10 South. 736; State v. Nickleson, 45 La. Ann. 1172, 14
South. 134; Snodgrass v. Com., 89 Va. 679, 17 S. B. 238. That continuance
of presence may be presumed, see State v. Miller, 100 Mo. 606, 13 S. W. 832;
Bumey v. State, 32 Fla. 253, 13 South. 406. But see, contra, the cases above
cited, and Territory v. Day (Okl.) 37 Pac. 806; Shelton v. Com., 89 Va. 450, 16
S. B. 355.
8 6 Hopt V. Utah, 110 U. S. 574, 4 Sup. Ct. 202; Harris v. People, 130 111. 457,
22 N. E. 826.
6T Prine v. Com., 18 Pa. St. 103, and the cases above cited.
68 State V. Reed (I^aho) 35 Pac. 706; Hite v. Com., infra; State v. Kelly,
97 N. C. 404, 2 S. E. 185; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270 (fel-
onies not capital). ■ Even if the defendant may waive his right to be present,
a waiver because of well-founded fear of mob violence will not render a con-
viction in his absence valid. Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758.
426 TRIAL AND VERDICT. [Ch. 12
It has been held that if the defendant's conduct is snch that it is
necessary to remove him temporarily from the court room, or if he
runs away, or otherwise absents himself, his absence will not affect
the validity of the trial.'' This, however, is treading on doubtful
ground. It has also been held that temporary absences from the
court room because of sickness are no ground for setting aside a
conviction, if there was no request to suspend the trial, and no
prejudice is shown.'"
By the weight of authority, presence of the defendant is not
necessary when motions are made and heard, such as motions in
arrest of judgment, or for a new trial, etc., or when anything else
is done that forms no part of the trial.' ^ And his presence is not
necessary in an appellate court to which he has taken the case by
appeal or writ of error, for he is not there on trial.'^
It has been said that the right of the defendant thus to be
personally present during the trial extends also to misdemeanors
where the punishment may be corporal, and that, in these cases, as
80 U. S. V. Davis, 6 Blatchf. 464, Fed. Cas. No. 14,923; Lee v. State, 56 Ark.
4, 19 S. W. 16; Fight v. State, 7 Ohio, 180; State v. Kelly, 97 N. C. 404, 2 S
E. 185. And see State v. Grate, 68 Mo. 22.
7 0 Hite V. Com. (Ky.) 20 S. W. 217.
Ji Rex V. Boltz, 5 Bam. & C. 334; People v. Van Wyck, 2 Gaines (N. Y.) 333;
Jewell V. Com., 22 Pa. St. 94; State v. Elkins, 63 Mo. 159; Com. v. Costello,
121 Mass. 371; Com. v. Andrews, 97 Mass. 543; Anon., 31 Me. 592; Godfreid-
son V. People, 88 111. 284; HaE v. State, 40 Ala. 698; State t. West, 45 La.
Ann. 928, 13 South. 173; State v. Dominique, 39 La. Ann. 323, 1 South. 665.
But see Simpson v. State, 56 Miss. 297; Long v. State, 52 Miss. 23; Hooker v.
Com., 13 Grat (Va.) 763. Absence of the defendant when the court asks the
jury if they desii'e further instructions is not error, where no instructions are
given in his absence. State v. Coley, 114 N. G. 879, 19 S. E. 705. And see
State V. Jones, 29 S. C. 201, 7 S. E. 296. Nor is it eiTor for the clerk, in the
defendant's absence, to set the case for trial. Smith v. State, 98 Ala. 55, 13
South. 508; or for the court to appoint an attorney to assist in the prosecution,
Hall V. State, 132 Ind. 317, 31 N. E. 536; or to amend the information before
trial. State v. Beatty, 45 Kan. 492, 25 Pac. 899. Some of the courts hold that
a view by jury or a continuance is no part of the trial, but this is doubtful.
See note 65, supra, where the cases on these points are cited.
12 Schwab V. Berggren, 143 U. S. 442, 12 Sup. Ct. 525; Donnelly v. State,
26 N. J. Law, 464; People v. Clark, 1 Parker, Cr. R. (N. Y.) 360; Tooke v.
State, 23 Tex. App. 10, 3 S. W. 782; State v. Buhs, 18 Mo. 310.
Ch. 12] INSANITY OF DEFENDANT. 427
in cases of felony, he cannot waive the right; ^' but, in so far as
the waiver of the privilege is concerned, the weight of authority is
clearly to the contrary.'* In cases of misdemeanor, where the pun-
ishment is a mere fine, and, by the weight of authority, in all cases
of misdemeanor, the defendant may waive this privilege, and he
may do so impliedly by voluntarily absenting himself.'" If there
is no express or implied weiver of the right to be present in cases
of misdemeanor, absence will generally be fatal to a conviction,
though there is not the same strictness in these cases as in cases
of felony.'"
INSANITY OP DEFENDANT.
149. The defendant cannot be arraigned or tried or
sentenced -while he is insane, though he may have been
sane -when the offense -was committed.
Insanity of the defendant at the time for the trial must be dis-
tinguished from insanity at the time the offense was committed.
In the latter case he cannot be punished at all, however sane he may
be at the time for trial, for he is not guilty." His insanity in such
T3 Lawn V. People, 11 Colo. 343, 18 Pac. 281; Ex parte Tracy, 25 Vt. 93;
Nomaque v. People, Breese (111.) 145; People v. Ebner, 23 Cal. 158; Com. v.
Crump, 1 Va. Cas. 172; Warren v. State, 19 Ark. 214.
74 Shifflett T. Com. (Va.) 18 S. E. 838; State v. Epps, 76 N. C. 55; U. S. v.
Santos, 5 Blatchf. 104, Fed. Cas. No. 16,222; Douglass v. State, 3 Wis. 820;
State V. Keckards, 21 Minn. 47; Stephens v. People, 19 N. Y. 549; Cook v.
State, 26 Ga. 593; State v. WWte, 19 Kan. 445; State v. Lucker, 40 S. C. 549,
18 S. E. 797; People v. Corbett, 28 Cal. 330; Dixon v. State, 13 Fla. 631, 63G;
Hill V. State, 17 Wis. 6T5; State v. Guinness, 16 K. I. 401, 16 Atl. 910; State
v. Vaughan, 29 Iowa, 286; Holmes v. Com., 25 Pa. St. 221.
T6 State V. Guinness, 16 R. I. 401, 16 Ati. 910; Shefflett v. Com. (Va.) 18
S. E. 838; Ex parte Tracy, 25 Vt. 93; People v. Ebner, 23 Cal. 158; State v.
Hale (Iowa) 59 N. W. 281; City of Bloomington v. Heiland, 67 111. 278. Un-
avoidable absence, because of sickness, necessitating removal from the court
room, is not a waiver. Rex v. Streek, 2 Car. & P. 413.
7 6 Duke's Case, 1 Salk. 400; People v. Winchell, 7 Cow. (N. Y.) 525; Stubbs
V. State, 49 Miss. 716; Tabler v. State, 34 Ohio St. 127; State v. Cross, 27
Mo. 332; Clark v. State, 4 Humph. (Term.) 254; State v. Ford, 30 La. Ann.
311. But see Stephens v. People, 19 N. Y. 549; Holmes v. Com., 25 Pa. Sc.
221; Grimm v. People, 14 Mich. 300.
Ti Clark, Cr. Law, 51.
428 TRIAL AND VERDICT. [Ch. 12
case does not prevent his being tried if he has since become sane,
but is a matter of defense to be brought out at the trial under his
plea of not guilty. If he is insane when brought into court to be
arraigned, though there is no question as to his sanity when the
offense was committed, he cannot be arraigned; and if he becomes
insane at any time before judgment and sentence the prosecution
must end.''^ The reason is that an insane person cannot properly
make his defense. This rule does not exempt him from liability
to punishment, but merely suspends the right to try him during
his insanity. When at the time of the arraignment, therefore, or
at any stage of the trial, there appears to be doubt as to the defend-
ant's sanity, a jury must be sworn to ascertain the state of his mind,
and if they find him insane he must be committed as an insane
person. If the defendant does not seem able to distinguish between
a plea of guilty and a plea of not guilty, or if he has not sufficient
intellect to comprehend the nature or course of proceedings, so as
to make a proper defense, and challenge jurors, and the like, this
is enough to warrant a finding that he is of unsound mind.'^' This
question must not be confounded with the question of insanity at
the time the offense was committed.
FURNISHING COPY OF INDICTMENT AND LIST OF
JURORS AND WITNESSES.
150. In some states by statute a copy of the indictment
and a list of the jurors and witnesses must be furnished
the defendant a certain time before trial. But these are
privileges which he may w^aive, and he does so by not
objecting before trial.
Formerly the defendant had no right, in cases of felony, to have a
copy of the indictment furnished him, but such right is now given
him by statute in England and in many of our states.'" It is also
78 4 Bl. Comm. 24; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270; State v.
Pritchett, 106 N. 0. 667, 11 S. E. 357.
i» Rex V. Piitchard, 7 Car. & P. 308; Reg. v. Berry, 1 Q. B. Div. 447.
80 See Robertson v. State, 43 Ala. 325; Hubbard v. State, 72 Ala. 164; Lo-
gaji V. U. S., 144 U. S. 263, 12 Sup. Ct. 617; Fouts t. State, 8 Ohio St. 98;
State v. Fuller, 39 Vt. 74.
Oh. 12] BILL OF PARTICULARS. 429
provided by statute in some states that he shall be furnished a list
of the witnesses, or that the names of the witnesses shall be in-
dorsed on the indictment,'^ and in some states that he shall be
furnished in advance of the day set for the trial a copy of the venire,
or list of the jurors summoned.'^ The defendant waives his rights
under these statutes by going to trial without objection.'* The
prosecuting officer is not precluded from calling witnesses, par-
ticularly in case of surprise, whose names are not on the list fur-
nished or indorsed on the indictment.'*
BILL OF PARTICULARS.
151. Where the charge is general, the court may require
the prosecuting officer to furnish the defendant with a bill
of particulars sho-ndng the particular acts relied upon.
Generally an indictment must be sufficiently certain to give the
defendant notice of the particular charge against him, so that or-
dinarily a bill of particulars will be unnecessary. But there are
some cases, as we have seen, in which, from the nature of the crime,
the charge may be general. Thus a person may be charged gen-
erally with being a common barretor, or common scold, or common
seller of intoxicating liquors, or the keeper of a common bawdy or
gaming house, or a common night walker or prostitute, without set-
ting out the particular acts relied upon.'" In these cages' it is held
that the defendant may ask the court to require the prosecuting
officer to furnish him with a bill of particulars showing the acts
81 See Hill v. People, 26 Mich. 496; Scott v. People, 63 111. 508.
82 Kellum V. State (Tex. Or. App.) 24 S. W. 89T; State v. PoUet, 45 La. Ann.
1168, 14 South. 179.
83 Reg. V. Frost, 9 Car. & P. 162; State v. Norton, 45 Vt. 258; State v. How-
ard, 118 Mo. 127, 24 S. W. 41; Fonts v. State, 8 Ohio St. 98; State v. Beeder,
44 La. Ann. 1007, 11 South. 816; Lord v. State, 18 N. H. 173; People v. Har-
ris, 95 Mich. 87, 54 N. W. 648.
84 Hill V. People, 26 Mich. 496; Bulliner v. People, 95 IlL 394; State v.
Townsend, 7 Wash. 462, 35 Pac. 367; State v. Loehr, 93 Mo. 103, 5 S. W. 696;
Simons v. People, 150 111. 66, 36 N. B. 1019; Gifford v. People, 148 111. 173,
55 N. E. 754; People v. Machen (Mich.) 59 N. W. 664; State v. Boughner (S.
D.) 59 N. W. 736,
8 5 Ante, p. 161.
430 TRIAL AND VERDICT. [Ch. 12
relied upon, so that he may know what eridence he will be called
upon to meet, and may properly prepare his defense.** And the
court may compel the prosecuting officer to furnish a bill of par-
ticulars in other cases where the charge is too general to show
what particular acts are to be shown in support of it, as on indict-
ment for adultery or embezzlement.*^
LOSS OF INDICTMENT OR INrOBMATION.
152. If the indictment or information is lost or de-
stroyed before or during or after the trial, a copy may
be substituted if conclusively proved to be exact.
When an information has been lost from the files or destroyed,
its place may, on motion of the state's attorney, be supplied by a
copy.'* And by the better opinion the rule also applies in case of
a lost or destroyed indictment.*' In either case the substituted
copy must be exact, and must be conclusively proved.®" The fact
that an indictment or information is mutilated does not destroy it,
or prevent its use.*^
PRESENCE OF JUDGE.
153. The judge must be present during the -whole trial.
If he absents himself, and the trial proceeds in his ab-
sence, a conviction -will be set aside.
se 2 Hawk. P. 0. c. 25, § 59; Rex v. Mason, 2 Term R. 586; Com. v. Pray,
13 Pick. (Mass.) 359; Com. v. Davis, 11 Pick. (Mass.) 434; State v. Uliltty,
1 Bailey (S. C.) 379; State v. Russell, 14 R. I. 506; Goersen v. Com., 99 Pa.
St. 388; Williams v. Com., 91 Pa. St. 493.
87 People V. Davis, 52 Mich. 569, 18 N. W. 362. And see U. S. v. Brooks,
44 Fed. 749 (embezzlement). But see, contra. State v. Quinn, 40 Mo. App. 627.
88 Long V. People, 135 111. 435, 25 N. E, 851.
88 Long V. People, supra; 1 Bish. New Cr. Proc. § 1400; State v. Gardiner,
13 Lea (Tenn.) 134; State v. Rivers, 58 Iowa, 102, 12 N. W. 117; State v.
Harrison, 10 Yerg. (Tenn.) 542; Mount v. State, 14 Ohio, 295; Buckner v.
State, 56 Ind. 208; State v. Simpson, 67 Mo. 647. Contra, Ganaway v. State,
22 Ala. 772; Bradsliaw v. Com., 16 Grat (Va.) 507.
"o Authorities above cited.
01 Com. V. Roland, 97 Mass. 598.
Ch. 12] SEPARATE TRIAL OF JOINT DEFENDANTS. 431
The presence of the judge at every stage of the trial is essential
to the validity of the proceedings. If he absents himself, and any
part of the trial is conducted in his absence, even with the consent
of the defendant, a conviction cannot be sustained, and it makes
no difference whether his absence is during the reception of evi-
dence or merely during the argument of counsel. He must be
present at' every stage of the trial. Any substantial proceeding
carried on in his absence is coram non judice.*'
SEPARATE TBIAL OP JOINT DEFENDANTS.
154. It is within the discretion of the court -whether
persons jointly indicted shall be tried separately or to-
gether.
Where several persons are jointly indicted, as for murder, they
are not entitled, as a matter of right, to separate trials; but it is a
matter resting in the discretion of the court, to be determined
under all the circumstances of the case.°° It is held that the
state may claim a severance as a matter of right."*
If it appears that the defendants, or either of them, may be
prejudiced by a joint trial, as where the defenses are antagonistic,
or one of them has made a confession, a severance should be
granted; ®° but, if no prejudice can result to either by a joint trial,
92 Merdeth v. People, 84 111. 479; Thompson v. People, 144 111. 378, 32 N.
B. 968; O'Brien v. People, 17 Colo. 561, 81 Pac. 230; Palin v. State, 38 Neb.
862, 57 N. W. 743. Contra, Pritchett v. State (Ga.) 18 S. E. 536; O'Shields
V. State, 81 Ga. 301, 6 S. E. 426.
8 3 Doyle V. People, 147 111. 394, 35 N. E. 372; State v. Lee (La.) 15 South.
159; Com. v. Bingham, 158 Mass. 169, 33 N. E. 341; Com. v. Robinson, 1
Gray (Mass.) 555; Com. v. Jenks, 138 Mass. 484; U. S. v. White, 4 Mason,
158, Fed. Cas. No. 1C,G82; Mitchell v. State, 92 Tenn. 668, 23 S. W. 68; Com.
v. Gillespie, 7 Serg. & R. 469; Curran's Case, 7 Grat. (Va.) 619; Redman v.
State, 1 Blackf. (Ind.) 431; Com. v. Lewis, 25 Grat (Va.) 938; Com. v. Place,
153 Pa. St 314, 26 Atl. 620; Ballard v. State, 31 Fla, 266, 12 South. 865; State
T. Oxendine, 107 N. 0. 783, 12 S. E. 573.
»* State V. Bradley, 9 Rich. (S. C.) 168; State v. McGrew, 13 Rich. (S. C.)
316; Hawkins v. State, 9 Ala. 137.
9 6 Com. T. James, 99 Mass. 438; U. S. v. Kelly, 4 Wash. C. C. 528, Fed. Cas.
No. 15,516; State v. Soper, 16 Me.. 293; State v. Taylor, 45 La, Ann. 605, 12
South. 927; Maton v. People, 15 111. 530.
432 TRIAL AND VERDICT. [Ch. 12
they should be tried together."' The defendants must ask for a
seyerance before the trial is begun."''
When a severance is granted it is within the discretion of the
prosecuting officer which defendant he will try first."'
Though the practice may work inconvenience, and even difficulty,
the court may, in its discretion, grant separate trials in cases of
riot and conspiracy, as well as in other cases.""
CONSOLIDATION OP INDICTMENTS.
155. In most states, if separate indictments are pending
against the same defendant for offenses whicli could be
joined in separate counts in the same indictment, and
tried together, the defendant may be tried on both at the
same time.
It would seem clear that if the offenses in two or more separate
indictments pending against the same defendant are such that the
defendant could not object to being tried for all at the same time,
if they were joined in different counts of the same indictment, he
should not be allowed to object to the indictments being consoli-
dated and tried at the same time; and there are numerous cases
allowing such a practice.^"" If the offenses are such that they
could not be joined in different counts of the same indictment, and
tried together, the indictments must be tried separately.^ "^
COUNSEL.
156. The state is represented at the trial by the regular
prosecuting attorney, but he may call in other counsel to
»« Note 93, supra; State v. Conley, 39 Me. 78; State v. O'Brien, 7 R. I. 336.
8 7 McJunkins v. State, 10 Ind. 140.
98 Patterson v. People, 46 Barb. (N. Y.) 625; People v. Mclntyre, 1 Parker,
Or. R. (N. Y.) 371. Contra, by statute, Davis v. State (Tex. Or. App.) 26 S.
W. 410.
OB Casper v. State, 47 Wis. 535, 2 N. W. 1117.
100 Withers v. Com., 5 Serg. & R. (Pa.) 59; Cummins v. People, 4 Colo. App.
71, 34 Pac. 734; State v. Lee, 114 N. C. 844, 19 S. E. 375.
101 state V. Devlin, 25 Mo. 175; Cummins v. People, supra.
Ch. 12] COUNSEL. 433
assist him, or, if he permits, private counsel m.ay be em-
ployed by the prosecutor or other private persons to as-
sist.
157. The defendant may either employ counsel, or, if he
is unable to do so, the court will appoint counsel, to de-
fend him. In the latter case the defendant cannot insist
on the appointment of counsel selected by him, and, if he
refuses to accept the services of counsel, he may be tried
without.
In ordinary cases the regular prosecuting attorney or his as-
sistant will act alone in conducting the prosecution, but, if he
chooses to do so, he may accept assistance from other counsel, and
frequently does so in difficult cases, or cases which involve a great
amount of labor.^"^ Private persons may also employ and pay
counsel to assist in the prosecution, if the regular prosecuting attor-
ney chooses to accept such assistance.^"^ If the regular prosecuting
attorney is sick, or otherwise unable to appear, the court may ap-
point an attorney to conduct the prosecution.^"*
If the defendant is able to do so, he employs his own counsel.^ °°
If he cannot do so, the court must appoint counsel for him.^"' In
some states provision is made for compensating the counsel so
appointed, but in others they are expected to act without compen-
sation, and must do so unless the court will excuse them. The de-
fendant cannot compel the judge to appoint an attorney whom
he has selected, instead of one whom the judge has appointed.^"'
102 state V. Mack, 45 La. Ann. 1155, 14 South. 141; State v. Orrick, 106 Mo.
111. 17 S. W. 1T6.
103 State V. Bartlett, 55 Me. 200; Bennlngfleld v. Com. (Ky.) 17 S. W. 271;
State v. Grafton (Iowa) 56 N. W. 257; People v. Powell, 87 Cal. 348, 25 Pac.
481; Keyes v. State, 122 Ind. 527, 23 N. B. 1097.
104 Keithler v. State, 10 Smedes & M. (Miss.) 192; State v. Johnson, 12 Tex.
231; Dukes v. State, 11 Ind. 557; White v. Polk Co., 17 Iowa, 413.
lOB Cross V. State, 132 Ind. 65, 31 N. E. 473.
^106 Hendryx v. State, 130 Ind. 265, 29 N. E. 1131. Formerly, though the de-
fendant had at common law the right to the advice and assistance of coun-
sel, he could not be represented by counsel at his trial 1 Chit. Cr. Law,
407; Y. B. 30 & 31 Edw. I. 529; 2 Hawk. P. C. c. 39, §§ 1, 4.
107 Baker v. State, 86 Wis. 474, 56 N. W. 1088.
CRIM.PROC. — 28
434 TRIAL AND VERDICT. [Ch. 12
If the defendant refuses to accept the services of counsel, he may
be tried without counsel. Where the court has oflEered and insisted
on assigning counsel to the defendant, and he has refused to allow
it to be done, or to accept the counsel's services, the court cannot
force counsel upon him, but must proceed to try him without.^"*
THE PETIT JURY— BIGHT TO JURY TRIAL, AND WAIVER.
158. In all criminal prosecutions the defendant is enti-
tled to a trial by jury. In some states he cannot waive
this right in any case where the trial was by jury at
common law. In other states he may waive the right in
prosecutions for a misdemeanor, and in others he may
also waive it in cases of felony.
Right to Trial by Jury.
The right of every person charged with crime to a trial by jury
has from the earliest period existed at common law.^"' It was
recognized and secured to the English people by the Magna Charta,
and with us it is guarantied by our federal and state constitu-
tions.^^" The language of the different provisions varies to some
extent, but their object and effect is the same, namely, to secure
to every person charged with a crime the same right to a jury
trial, and only the same right, as had always existed at common
law. No new right is conferred, but the common-law right is
guarantied so that the legislature cannot take it away nor impair
it. The legislature may regulate the mode of trial by jury, pro-
vided it does not deprive the accused of his substantial common-
law rights, but it cannot take away a single one of these rights.^^^
10 s state V. Moore (Mo. Sup.) 26 S. W. 345.
10 0 1 Chit. Cr. Law, 500.
110 The constitution of the United States declares that In all criminal pros-
ecutions the accused shall enjoy the right to a speedy and public trial by an
impartial jury. The same provision appears in some of the state constitu-
tions. In others it is merely declared that the right of trial by jury shall
remain inviolate. And in others the guaranty is expressed in other words,
but the purpose and effect are substantially the same. >
111 1 Bish. Cr. Prcc. §§ 890-894; Black, Const Law, 493-497; Swart v.
Kimball, 43 Mich. 443, 5 N. W. 635; Ross v. Irving, 14 111. 171; Work v.
State, 2 Ohio St. 296; and cases hereafter referred to.
Ch. 12] THE PETIT JUBY. 435
At common law a person accused of petit offenses, such as va-
grancy, disorderly conduct, violation of a municipal ordinance, and
trivial breaches of the peace, of which justices of the peace and po-
lice magistrates had jurisdiction, had no right to demand a trial by
jury, and by the weight of authority he has no such right under the
constitutional guaranty, for, as we have seen, it was only intended
to guaranty the same right as had always existed at common law.^^''
The constitutional guaranty of a jury trial only applies to crim-
inal prosecutions. It does not apply, for instance, to a proceeding
to punish for contempt of court.^^'
By the weight of authority a statute authorizing a trial without
a jury is valid if the defendant is at the same time given an unquali-
fied and unfettered right of appeal and a trial by jury in the appel-
late court.^^*
Waiver of Jury Trial.
Whether or not the right to a jury trial is a right which the de-
fendant can waive is a question upon which the authorities are
conflicting. Some of the courts have held that a jury may be
waived in all cases, provided there is a statute authorizing the court
to try the case without a jury; ^^^ that the constitutional right to a
trial by jury is not infringed when the accused may have it or not
at his election.^'" Many of the cases so holding were cases of
112 People V. Justices, 74 N. Y. 406; Wong v. City of Astoria, 13 Or. 538, 11
Pac. 295; Byers v. Com., 42 Pa. St. 89, 94; State v. Glenn, 54 Md. 573; Com.
V. Horton, 1 Va. Cas. 335; Inwood v. State, 42 Ohio St. 186; State v. Conlin,
27 Vt. 318; McGear v. Woodruff, 33 N. J. Law, 213; Frost v. Com., 9 B. Mon.
(Ky.) 362; Williams v. City Council of Augusta, 4 Ga. 509; State v. M'Cory,
2 Blackf. (Ind.) 5; State v. Ledford, 3 Mo. 102. A jury trial is sometimes al-
lowed by statute in these inferior courts.
113 Black, Const. Law, 496; Ex parte Grace, 12 Iowa, 208; Ex parte Tenr,
128 U. S. 289, 9 Sup. Ct. 77. Nor to proceedings to commit a child to the in-
dustrial school. Ex parte Ah Peen, 51 Cal. 280. Nor to proceedings by a
court martial. Rawson v. Brown, 18 Me. 216.
114 Jones V. Bobbins, 8 Gray (Mass.) 329; Emerick v. Harris, 1 Bin. (Pa.)
416; Murphy v. People, 2 Cow. (N. Y.) 815; Beers v. Beers, 4 Conn. 535;
Black, Const Law, 497; Emporia v. Volmer, 12 Kan. 622; Wong v. Astoria,
13 Or. 538, 11 Pac. 295. Contra, Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct.
1301.
116 Dillingham t. State, 5 Ohio St. 283.
116 In re Staff, 63 Wis. 285, 23 N. W. 587; State v. Worden, 46 Conn. 349;
436 TRIAL AND VERDICT. [Ch. 12
felony, but most of them were cases of misdemeanor, and it is
probable that the court in some of the latter cases did not intend
to lay down any such rule for cases of felony.*^' Many of the
cases hold that trial by jury cannot be waived in prosecutions for
felony.^^* It is difficult to understand how there can be any
distinction in this respect between a prosecution for a felony, and
a prosecution for such a misdemeanor as at common law entitled
the defendant to a jury trial. It would seem in reason that if
a jury cannot be waived in one it cannot be waived in the other,
and that if it oan be waived in one it can be waived in the other.
The grade of the crime should be immaterial, provided it is such a
crime as entitled the defendant to a jury trial at common law, for,
as we have seen, the constitutions guaranty the same right as
existed at common law. If, therefore, a jury trial cannot be
waived in one case in which it was necessary at common law, it
cannot, in reason, be waived in another.^^^ Where the constitu-
tion or a statute expressly requires a jury trial, and does not
merely give the accused the right to such a trial, a jury can in no
case be waived, for it is intended to protect the state as well as
the defendant.^=»
Dalley v. State, 4 Ohio St 58; Dillingham v. State, 5 Ohio St. 283; People t.
Goodwin, 5 Wend. (N. Y.) 251; Ward v. People, 30 Mich. 116; Darst v. Peo-
ple, 51 111. 286; State v. Moody, 24 Mo. 560; Murphy v. State, 97 Ind. 579.
iiT See Dalley v. State, supra; Dillingham v. State, supra; and then com-
pare Williams v. State, 12 Ohio St. 622.
lis Williams v. State, 12 Ohio St. 622; Hill v. People, 16 Mich. 351; Ward
T. People, 30 Mich. 116; Allen v. State, 54 Ind. 461; State v. Maine, 27 Conn.
281; State v. Mansfield, 41 Mo. 470; State v. Davis, 66 Mo. 684; Neales v.
State, 10 Mo. 498; State v. Lockwood, 43 Wis. 403; Arnold v. State, 38 Neb.
752, 57 N. W. 378; Com. v. Shaw, 1 Plttsb. R. (Pa.) 492 (collecting the author-
ities).
lis "A plea of not guilty to an information or Indictment for crime, whether
felony or misdemeanor, puts the accused upon the countiy, and can be tried
by a jury only. The rule is universal as to felonies; not quite so as to mis-
demeanors. But the current of authority appears to apply it to both classes
•of crime; and this court holds that to be safer and better alike in principle
and practice. The right of trial by jury, upon indictment or information for
crime, is secured by the constitution upon a principle of public policj^ and
cannot be waived." State v. Lockwood, 43 Wis. 405. And see Com. v. Shaw,
1 Pittsb. R. (Pa.) 492. But see In re Staff, 63 Wis. 285, 23 N. W. 587.
120 Arnold v. State, 38 Neb. 752, 57 N. W. 378.
Ch, 12] THE PETIT JUEY. 437
Where the right to a jury trial is given by statute in cases which
could be tried without a jury at common law, as in prosecutions for
petit misdemeanors before inferior tribunals, the right may, of
course, be waived.^*^
In all cases the right to a jury may be waived by pleading guilty,
for in such a case no trial at all is necessary.* ''^
Where a jury trial may be waived, it is not necessary that there
shall be an express waiver; it is sufficient if a jury is not demanded,
or if the case is tried and submitted to the court* ^° It has also
been held that it is not necessary that the coi^rt shall inform the
accused of his right to demand a trial by jury.*''*
In all cases the waiver must be by the defendant personally, and
not by his attorney for him, unless in his presence, and with his
acquiescence.**'
SAME— NUMBER OP JURORS.
169. In most, but not all, states, the jury must consist
of not less nor more than twelve men, as at common la-w.
But, -where the defendant may waive his right to a jury,
he may consent to be tried by a jury of less or more than
tw^elve.
The constitutional guaranty of a trial by jury implies there shall
be, as at common law, a jury of not more nor less than twelve
men.**' A statute providing for a greater or less number would
be unconstitutional,**' unless, as in some states, the constitution
121 People V. Weeks, 99 Mich. 86, 57 N. W. 1091.
122 State V. Almy (N. H.) 28 Atl. 372.
123 Dailey v. State, 4 Ohio St 58; People v. Goodwin, 5 Wend. (N. Y.) 251.
124 People V. Goodwin, supra; State v. Larger, 45 Mo. 510. But see Brown
y. State, 16 Ind. 496.
12B Brown v. State, supra.
126 2 Hale, P. C. 161; 1 Chit. Or. Law, 505; Black, Const. Law, 494; Work
T. State, 2 Ohio St. 296; People v. Kennedy, 2 Parker, Or. R. (N. Y.) 312;
Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. (Ind.) 561; People
V. O'Neil, 48 Cal. 257; Bowles v. State, 5 Sneed (Tenn.) 360; Doebler v. Com.,
3 Serg. & R. (Pa.) 237; People v. Luby, 56 Mich. 551, 23 N. W. 218.
127 See the cases above cited. This does not apply to summary proceed-
ings before a justice of the peace or other inferior tribunal for petit ofCenses,
438 TRIAL AND VERDICT. [Ch. 12
authorizes the legislature to provide for trial by a jury of less
than twelve."' In some jurisdictions it has been held that, if
the defendant consents to being tried by a jury of less than twelve,
he cannot complain of the irregularity; ^'° but it would seem, at
least in those jurisdictions where it is held that a jury trial can-
not be waived, that the right to a full jury of twelve men is a right
which cannot be waived, and so it has been held.^'*
SAME— SELECTING AND SUMMONING JURORS.
160. The jurors must be selected and summoned as re-
quired by la-w.
The mode of selecting and summoning jurors is regulated by
statute in the different states. These statutes vary in many re-
spects, and it would be impracticable to undertake to refer to them
specifically. The student must be left to consult the statutes
and decisions of his state.
SAME— QUALiriCATION AND EXEMPTION OF JURORS-
CHALLENGES.
161. The jurors must not only be properly selected and
summoned, but they must be individually qualified to
serve. If they are disqualified they may be challeuged
by either side, and must be excluded. Challenges are
either,
(a) To the array, that is, to the jury as a whole;
or
(b) To the polls, that is, to individual jurors.
162. A challenge to the array is an objection to all the
jurors collectively because of some defect of the panel as
a -wrhole, and is either,
in which a jury trial cannot be demanded ai3 of right Ante, p. 435; Work v.
State, supra.
128 Baurose v. State, 1 Iowa, 378.
129 Com. v. Dailey, 12 CusIl (Mass.) 80; Murphy v. Com., 1 Mete. (Ky.)
365; Tyra v. Com., 2 Mete. (Ky.) 1.
130 Cancemi v. People, 18 N. Y. 128.
Ch. 12] THE PETIT JURY. 439
(a) Principal challenge, — where the defect ren-
ders the jury prima facie incompetent, as
■where the oflacer selecting or summoning
them "vtras related to the prosecutor or de-
fendant, or they -vrere not selected or sum-
moned in the manner required by lavr, etc,
Ob) Challenge for favor, — where the defect does
not amount to ground for principal chal-
lenge, but there is a probability of partial-
ity.
163. Challenges to the polls are challenges to individual
jurors, and are
(a) Principal challenges, —
(1) Propter defectum, — ^w^here the juror is
incompetent to serve on any jury, as
Where he is an alien, infant, nonresi-
dent of the county, etc., or has not
particular qualifications prescribed by
statute.
(S) Propter affectum, — w^here there is some
circumstance rendering him prima facie
partial or biased in the particular case,
as where he is related to one of the
parties, or has formed an opinion, etc.
(3) Propter delictum, — where the particular
juror, by some act, has ceased, in the
eye of the law, to be probus et legalis
homo, as w^here he has been convicted
of an infamous crime.
(b) Challenge to the favor, — where the circum-
stances show a probability of bias and iasa-
partiality, but are not sufB.cient to render
the juror prima facie disqualified, so as to
be ground for principal challenge propter
affectum.
164. Peremptory challenges are such as the court is
bound to allow w^ithout any cause being assigned or
440 TRIAL AND VERDICT. [Ch. 12
sho'wn. A certain number of these challenges are allo-w^ed
to the defendant, and, in most states, to the prosecution.
165. Ordinarily objections to jurors must be made before
the jury is s-worn, or the swearing is begun; but this rule
does not apply -where the disqualification is not discovered
until afterwards, and due diligence has been used to dis-
cover it.
166. The fact that a juror is exempt from jury service
does not disqualify him, if he consents to serve.
Challenges.
The right to a jury trial Implies that the jury shall be impartial,
and that it shall consist of men who are legally competent to act
as jurors, and that they shall be legally selected, summoned, and
impaneled. The constitutions guaranty the right to such a jury
as the accused was entitled to demand at common law. In deter-
mining the qualifications of jurors, we must therefore look to the
common law. The legislatures may and often do require quali-
fications which were not required by the common law, and pro-
vide other modes of selecting, summoning, and impaneling jurors,
and they sometimes do away with requirements of the common
law; but they cannot constitutionally declare any common-law
requirement unnecessary, if by doing so they deprive the accused
of any substantial right which he had at common law.^'^ To se-
cure the right to an impartial jury, the accused must have the
right to challenge or object to any juror who is disqualified for
any cause. The legislature may prescribe the time and manner
of objecting to jurors, and the manner of determining objections,
but it cannot take away the right to object.^'"
Challenges are either to the array or to the polls, and are either
principal challenges or challenges to the favor.
181 Ex parte Termilyea, 6 Cow. (N. Y.) 562. .
1S2 Black, Const Law, 494; Palmore v. State, 29 Ark. 248. Laws limiting
the number of peremptory challenges to be allowed to the defendant, or grant-
ing peremptory challengeB to the state, are not unconstitutional. Black, Const.
Law, 494; post, p. 449. Nor is a law unconstitutional which allows the court
to admit a juror as competent, although he has formed and expressed an opin-
ion as to the guilt of the accused, if the court is satisfied that he will render
an impartial verdict. Id.; post, p. 444.
Ch. 12] THE PETIT JURY. 441
Challenges to the Array.
A challenge to the array is an objection, not to individual jurors,
but to all the jurors, collectively, and is based, not upon any sup-
posed disqualification of individual jurors, but upon some defect
of the panel as a whole.*'' It is ground for principal challenge
to the array, that the oflEicer who summoned the jurors is re-
lated within the ninth degree, either by affinity or by consanguinity,
to the prosecutor or to the defendant; *'* that one or more of the
jurors was selected and summoned at the instance of one of the
parties; *'" that there are relations existing between the officer and
one of the parties prima facie implying favor or iU will on the
part of the officer; *'* that the jurors were not selected or sum-
moned in the manner required by law.*'''
The array may be challenged for favor whenever there are cir-
cumstances which, whUe not sufficient ground for principal chal-
lenge, are such as show a probability that the officer who selected
or summoned the jury was biased.*'' It has been said that a
challenge may be made to the array on account of any bias on the
part of the officer who summoned them which would be ground
for challenge to a juror.*'*
OhaUenges to the Polls.
Challenges to the polls are objections to individual jurors. Like
challenges to the array, they are either principal challenges, or chal-
lenges to the favor.
Principal Challenges to the Polls.
Principal challenges to the polls have been classified as chal-
lenges propter honoris respectum, propter defectum, propter af-
133 Co. Litt. 156, 158; 3 Bl. Comm. 359; Gardner v. Turner, 9 Johns. (N. Y.)
261.
134 Vanauken v. Beemer, 4 N. J. Law, 364.
13 6 Co. Litt. 156.
138 Baylls V. Lucas, Cowp. 112.
137 Gardner v. Turner, 9 Johns. (N. T.) 260; State v. Clark, 42 Vt. 629; Glad-
den v. State, 13 Fla. 623; Lamb v. State, 36 Wis. 424; Morgan v. State, 31
Ind. 193; State v. McAfee, 64 N. 0. 339; Reid v. State, 50 Ga. 556.
138 Co. Litt. 156.
138 People V. Coyodo, 40 Cal. 588.
442 TRIAL AND VEEDICT. [Ch. 12
fectum, and propter delictum.^** The first is not recognized in this
country, because it depends upon a title of nobility^ The other
three are recognized.
Same — Propter Defectum.
A challenge propter defectum is on the ground that the juror is
not qualified at all to serve on any jury. It will lie where the
juror is an alien; ^^^ or not a resident of the county;^*'' or, in
some states by statute, and possibly at common law, not a free-
holder; ^*^ or, by statute in many jurisdictions, because he has not
1*0 Co. Litt. 156; Archb. Cr. PI. & Prac. 165, note.
1*1 Borst V. Beecker, 6 Johns. (N. Y.) 332; Rex t. Sutton, 8 Barn. & C. 417;
Richards v. Moore, 60 Vt. 449, 15 Atl. 119; HoUingsworth v. Duane, 4 Dall.
353, Fed. Gas. No. 6,618; Seal v. State, 13 Smedes & M. (Miss.) 286; Schu-
maker v. State, 5 Wis. 324; State v. Quarrel, 2 Bay (S. 0.) 150; People v.
Chung Lit, 17 Cal. 320. By statute in many states, a person who has de-
clared his intention to become a citizen, for the purpose of naturalization, is
a competent jutor. There is an exception to this rule where the defendant is
an alien. By an early English statute (28 Edw. III. c. 13, § 2), it was pro-
vided, in substance, that where the defendant in a criminal case (or either
party in a civil case) was an alien, part of the jurors should be aliens. This
statute has been recognized as a part of the common law in some of our states,
but rejected in others, and in some states similar statutes have been enacted.
Such a panel of jurors is called a "panel de medietate linguae." See 1 Bish.
Cr. Proc. §§ 927-930; Respubliea v. Mesca, 1 Dall. (Pa.) 73; Richards v. Com.,
11 Leigh (Ta.) 690; Brown v. Com., Id. 711; People v. McLean, 2 Johns. (N.
Y.) 381; State v. Antonio, 4 Hawks (N. C.) 200.
i<2 Co. Litt 156b. The jurors must be summoned from the vicinage. This
has always been essential at common law, and is still so. Swart v. Kimball,
43 Mich. 443, 5 N. W. 635. Under our constitutional provisions, as we have
seen, or under most of them, this is a requirement which the legislature can-
not dispense with. Swart v. Kimball, supra. Jurors were at one time in
England required to be summoned from the very ville or other place in the
county where the offense was committed, but by statute they are now sum-
moned from the body of the county, and not from any particular place in it.
Such is also the rule with us. A juror may be a resident of the county with-
out being an elector or voter. State v. Fairlamb, 121 Mo. 137, 25 S. W. 895.
143 Co. Litt. 156; Byrd v. State, 1 How. (Miss.) 163; Bradford v. State, 15
Ind. 347; Shoemaker v. State, 12 Ohio, 43; Nelson v. State, 10 Humph. (Tenn.)
518; Dowdy v. Com., 9 Grat. (Va.) 727; Aaron v. State, 37 Ala. 106. There
is some doubt as to whether this qualification is necessary at common law
with us. The matter is generally set at rest by statutes, some of which de-
clare it necessary, while others declare it unnecessary.
Ch. 12] THE PETIT JURY. 443
paid his taxes; ^** or because he is an infant;^*" or is over the
age limited by statute;^*^ or is an idiot or lunatic or drunken;^*^
or a woman; ^*^ or does not understand the English language; ^■'°
or, by statute in some states, is unable to read or write; ^°'' or,
by statute, has within a certain time served on a prior jury; ^"^
or is deaf, or otherwise in such a bad condition physically as to be
unable to act as a juror.^"''
Same — Propter Affectum.
A principal challenge propter affectum is based on some cir-
cumstance that raises the presumption of bias or partiality in the
particular case. Any partiality or bias, whether it be in favor of
the defendant or against him, will disqualify a juror.
Such a challenge will always lie where a juror is related to the
prosecutor or to the defendant within the ninth degree,^"' either
by aflQnity, that is, by marriage,^ ^* or by consanguinity.^ °°
144 state V. Davis, 109 N. O. 780, 14 S. E. 55; State v. Reed (Kan.) 37 Pac.
174; Collins V. State, 31 Fla. 574, 12 South. 906.
145 Co. Lltt 157.
i4« Co. Lltt 157; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. If the stat-
ute merely exempts persons over a certain age, the exemption is a personal
privilege, which they may waive. It does not disqualify, them. Post, p. 449.
147 state V. Scott, 1 Hawks (N. C.) 24; Thomas v. State, 27 Ga. 287.
148 3 Bl. Comm. 362. See Harland v. Territoiy, 3 Wash. T. 131, 13 Pac. 453.
149 state V. Push, 23 La. Ann. 14; People v. Davis (Cal.) 36 Pac. 96; Long
V. state, 86 Ala. 36, 5 South. 443. But see In re Allison,. 13 Colo. 525, 22
Pac. 820. As to sufficiency of knowledge of language, see State v. Dent, 41
La. Ann. 1082, 7 South. 694; State v. Ford, 42 La. Ann. 255, 7 South. 696.
160 Mabry v. State, 71 Miss. 716, 14 South. 267; Johnson v. State, 21 Tex.
App. 368, 17 S. W. 252.
151 First Nat. Bank v. Post, 66 Vt. 237, 28 Atl. 989.
152 Jesse V. State, 20 Ga. 156; Hogshead v. State, 6 Humph. (Tenn.) 59;
Rhodes v. State, 128 Ind. 189, 27 N. B. 866.
153 In some jurisdictions the relationship must be within the fourth degree,
Kahn v. Reedy, 8 Ohio Cir. Ct. R. 345; in others, the third degree. Page v.
State (Tex App.) infra.
154 1 Chit. Cr. Law, 541; 3 Bl. Comm. 363; Co. Lltt. 157a; State v. Potts,
155 1 Chit. Cr. Law, 541; 3 Bl. Comm. 363; Co. Lltt 157a; People v. Clark,
62 Hun, 84, 16 N. Y. Supp. 473, 695; Mahaney v. St Louis & H. R. Co., 108
Mo. 191, 18 S. W. 895; State v. Merriman, 34 S. C. 16, 12 S. B. 619; State
V. Williams (Del.) 18 Atl. 949; Page 7. State, 22 Tex. App. 551, 3 S. W. 745.
Relationship to prosecuting attorney does not disqualify. People v. Waller, 70
Mich. 237, 38 N. W. 261.
444 TEIAL AND VERDICT. [Ch. 12'
Such a challenge will also lie where a juror is under the power
of either party, ^" or in his employment, ^"^ or if he is to receiTe part
of the flne,^"* or if since he was summoned he has eaten or drank
at the expense of either party,^" or if there are actions pending be-
tween a juror and either party which imply hostility,^'" or if one
of the parties has given a juror money to influence his verdict.*'^
A principal challenge propter affectum will also lie where a
juror has expressed his wishes as to the result of the trial; ^" or
if he has formed and expressed, or merely formed, a decided,
and not a conditional or hypothetical, opinion as to the guilt or
innocence of the defendant.^'* There are some cases to the effect
100 N. 0. 457, 6 S. E. 657; Powers v. State, 27 Tex. App. 700, 11 S. W. 646.
But see Moses v. State, 11 Humph. (Term.) 232. Affinity ceases on the dis-
solution, by death or divorce, of the marriage by which it was created. State
V. Shaw, 3 Ired. (N. C.) 532. Marriage will relate each party by affinity, to
the other's blood relations, but it will not relate the blood relations of one of
them to the blood relations of the other. A juror, therefore, is not incompe-
tent because his stepdaughter married the brother of one of the parties. Cen-
tral Railroad & Banking Co. of Georgia v. Roberts, 91 Ga. 513, 18 S. E. 315.
See, also. Burns v. State, 89 Ga. 527, 15 S. B. 748; McDuffie v. State, 90 Ga. 786,
17 S. E. 105; Kirby v. State, 89 Ala. 63, 8 South. 110.
108 1 Chit. Cr. Law, 541.
1B7 1 Chit. Cr. Law, 542; Louisville, N. O. & T. R. Co. v. Mask, 64 Miss.
738, 2 South. 360. See State v. Coella, 3 Wash. St. 99, 28 Pac. 28.
108 1 Chit. Cr. Law, 542. Tliat an inhabitant of a town to wtilch a fine will
go is disqualified, see State v. Williams, 30 Me. 484. Contra, Treasurer of
Middletown v. Ames, 7 Vt. 166.
109 1 Chit. Cr. Law, 542; Co. Litt. 157. That one of the parties has been
entertained at the juror's house is only a ground of challenge to the favor.
Anon., 3 Salk. 81; post, p. 448.
160 1 Chit. Cr. Law, 542; Co. Litt 157.
161 Co. Litt. 157.
162 1 Chit. Cr. Law, 542.
163 1 Chit. Cr. Law, 542; 2 Hawk. P. C. c. 43, § 28; People v. Rathbun, 21 Wend.
(N. Y.) 509; Freeman v. People, 4 Denio (N. Y.) 9; WUlis v. State, 12 Ga. 444;
Sprouce v.Com.,2 Va.Cas.375; Osiander v. Com., 3 Leigh (Va.) 780; Armlstead v.
Com., 11 Leigh (Va.) 657; Ned v. State, 7 Port. (Ala.) 187; Noble v. People,
Breese (111.) 54. There is much conflict and confusion in the cases on this point,
and some very fine distinctions have been drawn. We cannot go into the question
at any length, but must content ourselves with referring to some of the cases, and
leave the student to follow up the subject by reading them. It has been held
that if the opinion expressed is merely conditional or hypothetical, and not un-
qualified, it does not disqualify. People v. Mather, 4 Wend. (N. Y.) 243; Du-
Ch. 12] THE PETIT JURY. 445
that a juror who has served in one case, and returned a verdict
of guilty, is not disqualified to serve in another case against a
rell V. Mosher, 8 Johns. (N. Y.) 347; State v. Potter, 18 Conn. 166; Smith v.
Com., 7 Grat. (Va.) 593; State v. Foster (Iowa) 59 N. W. 8. The courts are
virtually agreed that an opinion formed on being an eyewitness of the trans-
action, or on hearing or reading the statements or testimony of eyewitnesses
either out of court or in a prior judicial proceeding, will disqualify. Ex parte
Vermilyea, 6 Cow. (N. Y.) 555; Mabry v. State, 71 Miss. 716, 14 South. 267.
By the weight of authority, the opinion need not have been formed from any
favor or ill will. Ex parte Vermilyea, 6 Cow. (N. Y.) 555; and cases hereafter
cited. But see Rex v. Edmonds, 4 Barn. & Aid. 471; State v. Spencer, 21 N.
J. Law, 196. It has been said, and is so provided by statute In some states,
that, if the opinion formed by a juror is not strong enough to influence him in
his trial of the case, it does not disqualify him. Com. v. Webster, 5 Cush.
(Mass.) 295; People v. Honeyman, 3 Denio (N. Y.) 121; People v. Puller, 2
Paxker, Or. R. (N. Y.) 16; State v. Ellington, 7 Ired. (N. C.) 61; Shannon v.
State (Tex.) 26 S. W. 410; Lewis v. State (Ind.) 36 N. E. 1110; State v. Le-
dufC (La.) 15 South. 397; King v. State, 5 How. (Miss.) 730; Hendrick v.
Com., 5 Leigh (Va.) 707; Pollard v. Com., 5 Rand. (Va.) 659. It has even been
held under such a statute that an opmion does not disqualify, though some evi-
dence may be necessary to remove it. State v. Field (Iowa) 56 N. W. 276;
Shannon v. State (Tex.) 26 S. W. 410. Many, probably most, of the courts,
have held that an opinion formed or expressed, on common report or rumor,
or on newspaper reports, will not disqualify, if the juror believes and states on
oath that such opinion will not influence him or prevent him from rendering
a true verdict on the evidence, and the court is satisfled that such is the case,
and in many states it is so provided by statute. Com. v. Berger, 3 Brewst.
(Pa.) 247; Moses v. State, 10 Humph. (Tenn.) 456; State v. Williams, 3 Stew.
(Ala.) 454; Quesenberry v. State, 3 Stew. & P. (Ala.) 308; M'Gregg v. State,
4 Blackf. (Ind.) 101; Baldwin v. State, 12 Mo. 223; Moran v. Com., 9 Leigh
(Va.) 651; Smith v. Com., 6 Grat. (Va.) 696; Payne v. State, 3 Humph. (Tenn.)
375; State v. Morea, 2 Ala. 275; State v. Ellington, 7 Ired. (N. C.) 61; State
V. Dove, 10 Ired. (N. C.) 469; Nelms v. State, 13 Smedes & M. (Miss.) 500;
Lee V. State, 45 Miss. 114; Baker v. State (Wis.) 59 N. W. 570; State v. Duffy
(Mo.) 27 S. W. 358; State v. De GrafC, 113 N. C. 688, 18 S. E. 507; State v.
Frier, 45 La. Ann. 1434, 14 South. 296; State v. Gile, 8 Wash. 12, 35 Pac. 417;
though it would require evidence to remove the impression. Com. v. Crossmire,
156 Pa. St. 304, 27 Atl. 40. Other courts, in the absence of such a statute,
have held that the ground upon which the opinion has been formed is imma-
terial; that there is no distinction between an opinion founded on being an
eyewitness, or on hearing the testimony of those who were present at the trans-
action, and an opinion based on rumors, reports, and newspaper publications;
that in either case the opinion disqualifles. People v. Mather, 4 Wend. (N. Y.)
229; Neely v. People, 13 111. 687; State v. Webster, 13 N. H. 491; Leach v.
446 TEIAI, AND VERDICT. [Ch. 12
joint defendant who has taken a separate trial, involying the same
state of facts, but the better opinion is to the contrary.^"* And gen-
erally a person who has served in a prior case against another, or
against the same defendant, involving the same questions of fact,
is disqualified.^ "^ So if a person has served on the grand jury
which indicted the defendant, he is incompetent to serve on the petit
jury.^"
People, 53 111. 311; Clem v. State, 33 Ind. 418; Lithgow v. Com., 2 Va. Gas.
297; Reynolds v. State, 1 Kelly (Ga.) 222; and see Boon v. State, Id. 631; and
that a juror who has formed an opinion on the merits does not become quali-
fied because he declares that, if the circumstances on which his opinion is
based are not supported by the proof, his opinion of the defendant's guilt will
be removed. "Too much stress ought not to be laid on the juror's declaration
that, if the circumstances on which his opinion was founded should not be sup-
ported by the evidence, his opinion of the defendant's guilt would be removed.
The disqualifying bias which the law regards is one wliich in a measure oper-
ates unconsciously on the juryman, and leads him to indulge his own feelings
when he tliinks he is influenced entirely by the weight of evidence." People
v. Mather, 4 Wend. (N. Y.) 244. And see Coleman v. Hagerman, cited 4 Wend.
(N. Y.) 243; Baxter v. People, 3 Oilman (111.) 368; Canceml v. People, 16 N.
Y. 501; Payne v. State, 3 Humph. (Tenn.) 375; People v. Keefer, 97 Mich. 15,
56 N. W. 105; U. S. v. Han way, 2 Wall. Jr. 150, Fed. Cas. No. 15,299; Trimble
V. State, 2 Greene (Iowa) 404; Sam v. State, 13 Smedes & M. (Miss.) 189. In
some states it is provided by statute that an opinion or impression as to the
guilt of the accused shall not be ground for challenge for cause if the juror
states on oath that he can render an impartial verdict notwithstanding such
opinion, and if the court is satisfied that the opinion will not influence his
verdict. Such a statute has been held constitutional, as it does not talce away
the right to trial by an impartial jury. Stokes v. People, 53 N. Y. 164; Palmer
V. State, 42 Ohio St. 596. There is authority for saying that an opinion must
not only be formed, but must be expressed, before it will disqualify. Noble
V. People, Breese (111.) 54; Boardman v. Wood, 3 Vt. 570. But In reason, and
by the weight of authority, formation of opinion is alone enough. McGowan
V. State, 9 Yerg. (Tenn.) 184; People v. Rathbun, 21 Wend. (N. Y.) 509; Peo-
ple V. Mather, 4 Wend. (N. Y.) 229. And see cases cited above.
18* 2 Hawk. P. C. c. 43, § 29; State v. Sheeley, 15 Iowa, 404; People v.
Troy, 96 Mich. 530, 56 N. W. 102; Stephens v. State, 53 N. J. Law, 245, 21
Atl. 1038.
105 People V. Troy, supra; Edmondson v. Wallace, 20 Ga. 660; State v.
James, 34 S. C. 49, 12 S. B. 657; Garth waite v. Tatum, 21 Ark. 336. For
limitations of the rule, see Com. v. Hill, 4 Allen (JIass.) 591. See State v.
Maloney, 118 Mo. 112, 23 S. W. 1084.
160 Rex V. Perclval, Sid. 243; State v. Cooler, 30 S. 0. 105, 8 S. E. 692; Rice
Ch. 12] THE PETIT JURY. 447
By the OTerwhelming weight of authority, conscientious scruples
against the infliction of capital punishment will disqualify a juror
in a case where the punishment may be death.^'^ This has been
said to be ground for challenge to favor only.^** Scruples against
convicting on circumstantial evidence is ground for challenge.""
But the fact that a juror is in favor of the law alleged to have
been violated, and voted for it, does not disqualify him,^'" Nor
is he disqualified because of his prejudice against the crime, if
not prejudiced against the defendant.^" If, however, a juror is so
prejudiced against the law which is alleged to have been violated,
V. state, 16 Ind. 298; Stewart v. State, 15 Ohio St. 155. He must have ac-
tually served on the grand jury. Rafe v. State, 20 Ga. 60; Rouse v. State, 4
Ga. 136. That one who served as coroner at an inquest is competent to
serve as a juror on an indictment for the murder, see O'Connor v. State, 9
Fla. 215.
167 Logan V. U. S., 144 U. S. 263, 12 Sup. Ct 617; People v. Damon, 13
Wend. (N. Y.) 351; People v. Carolin, 115 N. Y. 058, 21 N. E. 1059; Gates v.
People, 14 111. 433; State v. Mcintosh, 39 S. C. 97, 17 S. E. 446; Com. v.
Lesher, 17 Serg. & R. (Pa.) 155; State v. Stewart, 45 La. Ann. 1164, 14 South.
143; Davidson v. State, 135 Ind. 254, 34 N. E. 972; Martin v. State, 16 Ohio,
364; State v. Town, Wright (Ohio) 75; Jones v. State, 2 Blackf. (Ind.) 475;
Clore's Case, 8 Grat. (Va.) 606; Stalls v. St^te, 28 Ala. 25; Lewis v. State, 9
Smedes & M. (Miss.) 115; Burrell v. State, 18 Tex. 713; People v. Tanner, 2
Cal. 257; Williams v. State, 3 Kelly (Ga.) 453; Gonzales v. State, 31 Tex.
Cr. E. 508, 21 S. W. 253; Pierce v. State, 13 N. H. 536; State v. Jewell, 33
Me. 583; State v. Ward, 39 Vt. 225; Bell v. State, 91 Ga. 15, 16 S. B. 207.
It has been held in some states that mere opposition to capital punishment
does not disqualify a juror who states that he can nevertheless render a ver-
dict according to the evidence. Com. v. Webster, 5 Gush. (Mass.) 295; People
V. Stewart, 7 Cal. 140; Atkins v. State, 16 Ark. 568.
i»8 state V. Mercer, 67 N. C. 266.
189 Griffin v. State, 90 Ala. 596, 8 South. 670; Gates v. People, 14 111. 433;
Com. V. Heist, 14 Pa. Co. Ct. R. 239; State v. Barker (La.) 15 South. 98;
State V. Young, 119 Mo. 495, 24 S. W. 1038; State v. Frier, 45 La. Ann. 1434,
14 South. 296; People v. Fanshawe, 65 Hun, 77, 19 N. Y. Supp. 865, 137 N.
Y. 68, 32 N. E. 1102; Johnson v. State, 34 Neb. 257, 51 N. W. 835; State v.
Leabe, 89 Mo. 247, 1 S. W. 288. So where there is a prejudice against an
informer's testimony. People v. Mahoney, 73 Hun, 601, 26 N. Y. Supp. 257.
170 People V. Keefer, 97 Mich. 15, 56 N. W. 105.
171 Williams v. State, 3 Kelly (Ga.) 453; People v. McGonegal, 136 N. Y.
62, 32 N. E. 616; People v. Reynolds, 16 Cal. 128; Com. v. Poisson, 157 Mass.
510, 32 N. E. 906. But see People v. Wheeler, 96 Mich. 1, 55 N. W. 371.
448 TEIAL AND VERDICT. [Ch. 12
because he believes it unconstitutional, or because he thinks it
should not be enforced, that he would be biased against its enforce-
ment, he may be challenged by the state.^'^ A bad opinion of the
defendant's character does not disqualify.^"
Same — Propter Delictum.
A challenge propter delictum is based on the ground that the
juror objected to has for some act ceased to be, in the eye of the
law, probus et legalis homo, as because he has been convicted of an
infamous crime.^^*
Challenges to the Polls for Favor.
The challenge to the polls for favor is of the same nature with the
principal challenge propter affectum, but of an inferior degree. The
general rule of law is that the juror shall be indifferent; and, if
it appear probable that he is not so, this may be made the subject
of challenge, either principal or to the favor, according to the de-
gree of probability of his being biased. The cause of principal chal-
lenge to the polls, as we have seen, is such matter as carries with
it, prima facie, evident marks of suspicion, either of malice or of
favor. But when from any circumstance whatever it appears prob-
able that a juror may be biased in favor of or against either party,
and such circumstances do not amount to matter for a principal
challenge, it may be made the ground of challenge to the favor.^T°
The effect of the two species of challenge is the same.^^° A juror
may be challenged to the favor after a challenge for principal
cause has been overruled.^'^
172 Com. V. Austin, 7 Gray (Mass.) 51; Com. v. Buzzell, 16 Pick. (Mass.) 153.
ITS Helm V. State, 67 Miss. 562, 7 South. 487.
174 Co. Litt. 158; Arch. Cr. PI. & Prac. 1G5, note; 2 Hawk. P. C. c. 43, § 25.
176 A challenge to the favor has been sustained, for instance, because the
juror was attending court in the expectation of being called as a witness
for the opposite party, though he expected to testify as to the defendant's
character. State v. Barber, 113 N. C. 711, 18 S. E. 515. Such a challenge
was overruled where it was based on the ground that the juror had said the
defendant was a tough citizen, the examination on his voir dire showing that
there was no prejudice. State v. Anderson (Mont.) 37 Pac. 1.
176 Arch. Cr. PI. & Prac. 165, note.
177 Carnal v. People, 1 Parker, Cr. K. (N. Y.) 272.
Ch. 12] THE PETIT JOEY. 449
Exemption from Jury Service.
If the statute merely exempts a person from jury service, as be-
cause he is over the statutory age, or is an oflScer of the United
States, or a doctor, dentist, lawyer, fireman, policeman, etc., or
has already served on a jury within a certain time, etc., and does
not declare him incompetent to serve, it does not disqualify him.
He can claim his exemption, but if he consents to serve, and is other-
wise qualified, he cannot be challenged.^'*
Peremptory Challenges.
A peremptory challenge is a challenge which may be interposed
or not at the pleasure of the party challenging, and without assign-
ing or showing any cause. It is the right to have a juror ex-
cluded without cause, and the court is bound to allow it.^'° At
common law the defendant had the right to thirty-five peremp-
tory challenges in cases of felony,^*" while the king had in all cases
the right to challenge any number, without any limit whatever.^'^
The common law has been changed in England by statutes tak-
ing away the right of the king to such challenges, and reducing
the number to be allowed the defendant, and some of these stat-
utes became a part of our common law. It is not necessary to
do more than refer to these statutes, for the matter is now regulated
by statute in all of our states.^*^ The number of peremptory chal-
lenges allowed will be found to vary in the different states, and
in the same state it will vary, according as the offense is a capital
or a less felony, or merely a misdemeanor. In some states no
peremptory challenges are allowed in cases of misdemeanor. And
in some states the state is not allowed the right at all.
17 8 2 Hawk. P. C. c. 43, § 26; State y. Forshner, 43 N. H. 89; Davis v. People,
19 111. 74; State v. Quimby, 51 Me. 395; State v. Day, 79 Me. 120, 8 Atl. 544;
State V. Toland, 36 S. C. 515, 15 S. E. 599; Thomas v. State, 27 Ga. 287;
People V. Lange, 90 Mich. 454, 51 N. W. 534; People v. Rawn, 90 Mich. 377,
51 N. W. 522; State v. Jackson, 42 La. Ann. 1170, 8 South. 297. Therefore,
the fact that the court erroneously refused a juror's claim of exemption is
no ground of complaint by the defendant. State v. Jackson, supra.
178 1 Bish. Cr. Proc. § 935; 1 Chit. Cr. Law, 534.
ISO 1 Chit. Cr. Law, 534; 1 Bish. Or. Proc. §§ 941, 942.
181 2 Hawk. P. C. c. 43, § 2.
182 The history of the law on this subject will be found in 1 Bish. Cr. Proc.
{§ 935-945.
GRIM. PROC. —29
450 TRIAL AND VERDICT. [Ch. 12
Statutes reducing the number of peremptory challenges to be
allowed the defendant, or taking them away altogether, or al-
lowing peremptory challenges to the state, are not unconstitu-
ti&nal.^*'
Passing Jurors at Request of the State.
The common-law right of the king to challenge peremptorily
was taken away by an early English statute,^** in substance re-
quiring the king to show cause for his challenges. Under this
statute it was held that the king need not show any cause for
his challenge, until the whole panel was gone through, and it
appeared that there would not be a full jury without a person
challenged by him. And the defendant was required to show all
his causes of challenge as the jurors were called, and before the
king could be required to show any.^"* The English practice,
after this statute, is thus stated by Mr. Bishop: "The course of
things is for the court, on the application of the counsel for the
prosecution, when the list of jurors returned is being called over,
and the prisoner is being required to accept or challenge each juror
as he appears at the call of his name, to direct such jurors to stand
aside as are objected to on behalf of the prosecution. The panel
is thus gone through with; and, if a full jury is obtained, without
calling upon those who are required to stand aside, the proceed-
ing is tantamount to a peremptory challenge on the part of the
government. But, if a full jury is not thus obtained, and some
of the jurors who were called did not, as it sometimes happens,
answer to their names, then the panel is called over a second time,
omitting those whose cases have been finally disposed of, yet
including both those who did not answer, and those who were set
aside at the instance of the prosecution; and on this second call
the government can challenge only for cause. And, if the state
challenges for cause in the first instance, the panel may still be
gone through with before the question is tried ; so that, if the jury
188 Dowllng V. State, 5 Smedes & M. (Miss.) 664; Walter v. People, 32 N. Y.
147; Hartzell v. Com., 40 Pa. St. 462; Jones v. State, 1 Kelly (Ga.) 610;
Walston v. Com., 16 B. Mon. (Ky.) 15; Cregler v. Bunton, 2 Strob. (S. 0.) 487.
184 33 Edw. I. St. 4.
185 2 Hawk. P. C. c. 43, § 3.
Ch. 12] THE PETIT JURY. 451
becomes full before the panel is exhausted, all necessity of in-
quiry into the causes of challenge is avoided." ^*°
In some of our states, either under the English statute and de-
cisions, as a part of the common law, or by their own statutes, the
sanie practice obtains.^*' In other states it is not recognized, or
has been abolished.^**
Kme and Mode of Challenge — Practice.
With regard to the time for interposing a challenge, the mode
of challenging, the mode of trying and determining the objection,
etc., there is considerable difference in the practice of the differ-
ent states, and there is some conflict of opiuion on various ques-
tions. In some states the whole matter is regulated by statute.
As we have already stated, where the constitution of a state
guaranties the right to a trial by jury, it guaranties the right to
an impartial jury. The legislature may, within proper limits, reg-
ulate the mode of objecting to jurors, but it cannot take away or
impair the right. Any statute which undertakes to do so is
void.
The accused has a right to insist that no prejudiced or other-
wise incompetent person shall serve as a juror, but this is a right
which he may waive, and he may waive his objection impliedly
by failing to object at the proper time. A challenge to the array
must be made, if at all, not only before the jury is sworn,^'® but
before a challenge to the poUs.^'" If the defendant knows or
could know that a juror is ^disqualified for cause, and fails to ob-
ject to him while the jury is being impaneled, and before they are
186 1 Bish. Or. Proc. § 938.
187 See State v. Bone, 7 Jones (N. C.) 121; Warren v. Com., 37 Pa. St. 45;
Com. V. Addis, 1 Browne (Pa.) 285; Jewell v. Com., 22 Pa. St. 94; U. S. v.
Douglass, 2 BlatcM. 207, Fed. Cas. No. 14,989; State v. Craton, 6 Ired. (N.
0.) 164; State v. Arthur, 2 Dev. (N. 0.) 217; State v. Barrontine, 2 Nott &
McC. (S. C.) 553; State v. Stalmaker, 2 Brev. (S. C.) 1.
188 See Sealy v. State, 1 Kelly (Ga.) 213; Reynolds v. State, Id. 222; People
V. Henries, 1 Parker, Cr. R. (N. Y.) 579.
18 0 1 Chit. Cr. Law, 544.
180 1 Chit. Or. Law, 545; Co. Litt. 158a; People v. M'Kay, 18 Johns. (N.
X.) 212.
452 TRIAL AND VERDICT. [Ch. 12
sworn, or the swearing is begun,^'^ he waives his objection, and
cannot afterwards raise it.^°* Even where the incompetency of
a juror is not in fact known before he is sworn, the accused will
waive his right to object if he does not use due diligence to discover
it; and he does thus waive his objection if he fails to interrogate
him, when by doing so he might bring out his incompetency.^"^
If the juror is interrogated, and testifies falsely, due diligence is
shown, and the objection may be raised when the facts are dis-
covered, even after verdict.*'* There are some cases in conflict
with the rule stated, but the great weight of authority is in its
favor. It would seem that any other rule, whether laid down
by the court or by a statute, must be unconstitutional, as depriv-
ing the defendant, without any fault on his part, of an impartial
and competent jury.
In some cases it has been held that the court may, in the exer-
cise of a sound discretion, discharge a juror for incompetency,
after he has been sworn, and before any evidence has been in-
troduced, though the cause existed before the juror was sworn,
and could have been discovered; *°° but there is much authority
to the contrary.*"*
191 Reg. V. Frost, 9 Car. & P. 129, and cases cited In the following note.
The swearing is not begun where the juror takes the book without authority.
Reg. V. Frost, supra.
i»2 Co. Litt. 158a; 2 Hawk. P. C. c. 43, § 1; 1 Chit. Cr. Law, 545; Reg. v.
Frost, 9 Car. & P. 129; Com. v. Knapp, 10 Pick. (Mass.) 477, 480; State v.
Driscoll, 2 Bay (S. C.) 153; Croy v. State, 32 Ind. 384; King v. State, 5 How.
(Miss.) 730; Van Blaricum v. People, 16 111. '364; Schnell v. State (Ga.) 17
S. E. 966; Ward v. State, 1 Humph. (Tenn.) 253; McClure v. State, 1 Yerg.
(Tenn.) 206; Gillespie v. State, 8 Yerg. (Tenn.) 507; Lisle v. State, 6 Mo. 426;
Com. V. Jones, 1 Leigh (Va.) 598; Dilworth v. Com., 12 Grat. (Va.) 689; Beck
V. State, 20 Ohio St. 228; McFadden v. Com., 23 Pa. St. 12; State v. Morea,
2 Ala. 275.
193 Brown v. People (Colo. Sup.) 36 Pac. 1040; State v. Nash, 45 La. Ann.
1137, 13 South. 732; Beck v. State, 20 Ohio St. 228.
194 Brown v. People, supra; State v. Nash, supra. Contra, McClure v.
State, 1 Yerg. (Tenn.) 206.
19 5 In New York, in a capital case, a juror was so discharged because he
had scruples against capital punishment. People v. Damon, 13 Wend. (N.
Y.) 351. And see Tooel v. Com., 11 Leigh (Va.) 714; McGuire v. State, 37
Miss. 369.
198 Ward V. State, 1 Humph. (Tenn.) 253; ante, p. 385.
Ch. 12] THE PETIT JUKY. 453
In some states it is held that the right to challenge perempto-
rily must be exercised, if at all, before the jurors are interrogated
as to their bias, or challenged for cause.^*' In others it is held
that the right to challenge a juror peremptorily remains open un-
til he is sworn, and this seems to be the better doctrine, for a
challenge for cause may create a prejudice in the juror's mind."*
Challenges to the array must be in writing, but challenges to the
polls are made orally.^®' In all cases of challenge for cause, either
principal or to the favor, the cause must be specified, or the court
may disregard the challenge."""
The practice is to examine the juror himself on oath, such an
examination being called an examination on his Toir dire; but it
is also competent to introduce other witnesses to prove disquali-
fication. In examining a juror on his voir dire, he occupies the
position of a witness, and he cannot be compelled to answer ques-
tions tending to criminate him or disgrace him or render him in-
famous.''"^ The court as well as the parties may examine a juror
on his voir dire.""" In misdemeanor cases, it has been held that
there is no right to examine a juror upon his voir dire without
first challenging him.""'
The mode of trying a challenge varies in the different states.
Probably in all of them a principal challenge propter defectum or
affectum is submitted to the court. In many states this is also the
practice in case of challenges to the favor, all challenges being deter-
mined by the court. In other states the practice in the latter
lOTCom. v. Webster, 5 Gush. (Mass.) 297; Com. v. Rogers, 7 Mete. (Mass.)
500.
198 1 Chit. Cr. Law, 545; Beauciamp v. State, 6 Blackf. (Ind.) 307; Munly
V. State, 7 Blackf. (Ind.) 593; Morris v. State, Id. 607; Hooker v. State, 4
Ohio, 819; Hendrick v. Com., 5 Leigh (Va.) 707.
199 1 Chit. Cr. Law, 546.
200 Freeman v. People, 4 Denio (N. Y.) 9, Mann v. Glover, 14 N. J. Law, 195.
But see Carnal v. People, 1 Parker, Cr. R. (N. Y.) 272.
201 Hudson V. State, 1 Blackf. (Ind.) 317. . For this reason it has been held
that a jiu:or cannot be asked whether he has expressed an opinion adverse to
the accused; but by the overwhelming weight of authority, and generally by
statute, such questions are proper, at least in this country. 1 Bish. Cr. Froc.
§934.
202 Montague v. Com., 10 Grat. (Va.) 767.
203 SchneU v. State (Ga.) 17 S. E. 966.
454 TEIAL AND VEHDICT. [Ch. 12
cases, and in others, is to submit the challenge to triors appointed
by the court for the purpose. In most states the matter is now
generally regulated by statute.""*
Discharging and Excusing Jurors.
It is not always necessary that a juror shall be challenged in
order that the court may discharge him as incompetent. The
court may of its own motion interrogate jurors, and if it finds
them disqualified for any reason, whether for principal cause or
for favor, discharge them, though no challenge has been inter-
posed.""^
The court has the discretionary power, even where a juror is not
disqualified, to excuse him because of siclmess, or for any other
reasonable cause, at any time before the panel is completed. ""^
And it has been held, and seems to be well established, that the
court may, in the exercise of a sound discretion, excuse a juror
at his own request, as a favor to him, before he is accepted as one
of the panel.""^
Effect of Error in Overruling Challenge.
By the weight of authority, the defendant cannot complain of
the erroneous overruling of his challenge for cause, if he after-
wards challenged the juror peremptorily without exhausting his
peremptory challenges, so that the juror did not serve; ^°* or,
according to some of the cases, if he could have so peremptorily
204 If the accused consents that the challenge shall be determined by the
court, he cannot afterwards complain that it was not submitted to triors.
People V. Mather, supra. Nor can such consent be revoked and a demand be
made for submission of the question to triors. People v. Rathbun, 21 Wend.
(N. Y.) 509.
20 5 Marsh v. State, 30 Miss. 627; Lewis v. State, 9 Smedes & M. (Miss.) 115;
State V. Marshall, 8 Ala. 302.
206 Patterson v. State, 48 N. J. Law, 381, 4 Atl. 449; State v. Hopgood (La.)
15 South. 406; Aaronson v. State (N. J. Sup.) 27 Atl. 937. So by statute in
some states. Pierson v. State, 99 Ala. 148, 13 South. 550; Webb v. State (Ala.)
14 South. 865.
207 state v. Barber, 113 N. O. 711, 18 S. B. 515.
208 Freeman v. People, 4 Denio (N. Y.) 9; People v. Larubia, 140 N. Y. 87,
35 N. B. 412; State v. Moody, 7 Wash. 395, 35 Pac. 132. But see Dowdy v.
Com., 9 Grat. (Va.) 727; Carroll v. State, 3 Humph. (Tenn.) 315.
Ch. 12] THE PETIT JUKY. 455
challenged him.*"' But if , by such a challenge, he exhausted his
peremptory challenges before the jury was completed, he is preju-
diced, for his peremptory challenges have been thereby diminished,
and the error will be ground for a new trial.^^"
SAME— SWEARING THE JURY.
167. In all cases the jury must be sworn, and the fact
that they were sw^orn must appear on the record.
In no criminal prosecution can there be a valid trial unless
every one of the jurors is sworn, and the fact of swearing must
appear on the record."^ The form of oath is: "You shall well
and truly try, and true deliverance make, between the state of
and the prisoner at the bar, whom you shall have in charge,
and a true verdict give, according to the evidence, so help you
G-od." '^^^ Ordinarily the oath is taken on the Bible, and the book
is kissed, but this is not necessary where the juror has conscien-
tious scruples against kissing the book.''^' And it is generally
208 Preswood v. State, 3 Heisk. (Tenn.) 468; State v. Leduff (La.) 15 SoutJti.
397; Prewitt v. Lambert, 19 Colo. 7, 34 Pac. 684; Jenkins v. Mitchell (Neb.)
59 N. W. 90; Blenklron v. State, 40 Neb. 11, 58 N. W. 587. But see, contra,
People V. Larubia, supra; Freeman v. People, supra; People v. Bodine, 1 De-
nio (N. Y.) 281.
210 See cases above cited; and see People v. Casey, 96 N. Y. 115; People v.
Weil, 40 Cal. 268. But see Moore v. Com., 7 Bush. (Ky.) 191.
211 Rex V. MoiTis, 2 Strange, 901; Com. v. Knapp, 9 Pick. (Mass.) 496; Car-
nett V State (Ark.) 6 S. W. 513; Johnson v. State, 47 Ala. 62; Baldwin v.
Kansas, 129 U. S. 52, 9 Sup. Ct 193; Smith v. State, 25 Fla. 517, 6 South.
482; Judah v. M'Namee, 3 Blackf. (Ind.) 272; Pruitt v. State (Ark.) 11 S. W.
822; Stephens v. State (Tex. Cr. App.) 25 S. W. 286; Lancaster v. State, 91
Tenn. 267, 18 S. W. 777; Brown v. Com., 86 Va. 466, 10 S. E. 745. But the
form of oath need not, and should not, appear on the record. . Lawrence v.
Com., 30 Grat. (Va.) 845; Garner v. State, 28 Fla. 113, 9 South. 835; State v.
Ice, 34 W. Va. 244, 12 S. E. 695. In some states, by statute, the jury must
be sworn in a body, and a failure to so swear them will be fatal to a convic-
tion. Stephens v. State, supra.
212 It is sufficient if the jury are sworn "well and truly to try the issues
joined," the omisaon of the words "and true deliverance make" being imma-
terial. Lancaster v. State, 91 Tenn. 267, 18 S. W. 777.
213 See Walker's Case, 1 Leach, Crown Cas. 498.
456 TRIAL AND VERDICT. [Ch. 12
provided that jurors who are conscientiously opposed to taking
an oath may be afflrmed.
OPENING OF THE CASE BY COUNSEL.
168. After the jury have been sworn, the prosecuting
attorney opens the case for the state, by stating the cir-
cumstances of the offense, and then introduces his evi-
dence. The defendant's counsel then opens the defense in
like manner, and introduces his evidence.
It is not only the right but the duty of the prosecuting attorney
to open the case by a statement to the jury.^^* The object is
to show the jury the issue before them, and prepare them for the
evidence. The attorney should state shortly what facts are neces-
sary, and are relied upon as constituting the offense, and what
proof he expects to offer. He has a right, it seems, to go fully
both into the law and the facts. "The evidence and the law,"
says Mr. Bishop, "should be set side by side in such a way as to
enable the jury to appreciate each piece of testimony as it is pre-
sented to them. They should, in other words, be made acquainted
in advance with what it is necessary to prove, and how the neces-
sary matter is to be established in the particular case. Then,
when a witness gives in his evidence, every word, if the evidence
is well directed, tells; and it will not be in the power of opposing
counsel to remove the impression by argument. But if the jury
approach the case with minds clouded, — if they do not know what
needs to be proved, or what proof it is proposed to present before
them, — they cannot distinguish, when a witness is testifying, be-
tween the unimportant and the important, or know what weight
to give to anything. And the mass of half-remembered evidence
may, when they coine to consider their verdict, produce its proper
effect, or it may not."^^°
It seems that at one time the defendant himself made his open-
ing address or statement to the jury, but under the modem practice
the statement must be made by his counsel.''^'
»i4 Rex V. Gascoine, 7 Car. & P. 772.
siBl Bish. Or. Proc. § 971.
210 Reg. V. Rider, 8 Car. & P. 539.
Ch, 12] VIEW BY JUEY. 457
VIEW BY JURY.
169. When, it is necessary in order that the jury may
more clearly understand the evidence, the court may, in
its discretion, allo-wr the jury to view the scene of the crime.
This is common practice, not only in prosecutions for homicide,
but in any other case in which a view of the premises by the jury
may aid them in reaching a proper verdict.^^' The matter rests,
however, in the sound discretion of the court.*^* In cases of
felony the defendant must be present,^^' unless he may and does
waive his privilege in this respect.^'"' The jury must be under the
charge of a sworn officer of the court, and must not be allowed to
separate, or hold any communication with outsiders. "^^ An un-
authorized view by the jury or a part of the jurors, on their own
motion, and unaccompanied by an officer, will generally be ground
for setting a conviction aside. ''^'' The judge, in some states, must
accompany the jury.^^^ Where the premises have been fully de-
scribed in the testimony, and there is- no material controversy as
to the situation, it is no abuse of discretion for the court to re-
fuse to allow a view by the jury.^^*
2" Reg. V. Martin, 12 Cox, Or. Cas. 204; Keg. v. Whalley, 2 Cox, Cr. Cas.
231; Chute v. State, 19 Minu. 271 (GU. 230); Sasse v. State, 68 Wis. 530, 32
N. W. 849. The purpose of a view is to aid the jury in determining the weight
of conflicting testimony, and understanding the evidence; and an instruction
that what they saw legally became a part of the evidence in the case is error.
Sasse V. State, supra.
218 Com. V. Miller, 139 Pa. St 77, 21 Atl. 138; State v. Coella, 8 Wash 512,
36 Pac. 474.
219 Ante, p. 423, and cases there cited; State v. Graham, 74 N. C. 646; State
V. Sanders, 68 Mo. 202; Rutherford v. Com., 78 Ky. 639.
220 state V. Buzzell, 58 N. H. 257; Shular v. State, 105 Ind. 289, 4 N. E. 870.
221 Reg. V. McNamara, 14 Cox, Cr. Cas. 229; Fleming v, State, 11 Ind. 234;
People V. Queen, 53 Cal. 60.
22 2 Ruloff V. People, 18 N. Y. 179; Eastwood v. People, 3 Parker, Cr. R. (N.
Y.) 25. But see Brown v. Com. (Va.) 19 S. E. 447.
223 People V. Yut Ling, 74 Cal. 569, 16 Pac. 489.
2 24 state V. Coella, 8 Wash. 512, 36 Pac. 474.
458 TRIAL AND VERDICT. [Ch. 12
MISCOWDTJCT or PROSECUTING ATTORNEY.
170. Misconduct of the prosecuting attorney prejudicial
to the defendant will be ground for setting a conviction
aside.
A conviction of seduction has been set aside because the state's
attorney, merely to prejudice the defendant before the jury, caused
the prosecuting witness to take her baby with her on the stand.^^^
On a prosecution for murder, where the defense depended almost
entirely on the defendant's testimony, the prosecuting attorney,
while cross-examining the defendant as to his previous residence
and manner of life, asked him whether he had not committed a
crime, and been confined in the penitentiary; and held in his hand,
in view of the jury, what appeared to be a letter, which he referred
to while asking the questions. The defendant's attorney called
this an artful effort to make the jury believe that the questions
were based on facts, whereupon the prosecuting attorney stated
that he had not referred to the paper for mere "buncombe," but
that he had reliable information on which he asked the questions.
The conviction was set aside because of this misconduct, though
it was reprimanded by the court, and the jury were instructed
that only the evidence in the case and the law as given them by
the court were to be considered in arriving at a verdict.''^" So
misconduct in asking a witness improper questions for the evi-
dent purpose of prejudicing the defendant may be ground for a new
trial. "^^ In a murder case in Wisconsin it appeared that, soon
after the defendant had been placed in jail, the district attorney
sent a person to her to represent himself as sent by her attorney,
to obtain the facts of her defense, to convey to an attorney to be
employed for her in another city. The district attorney also,
22 5 State v. Carter, 8 Wash. 272, 36 Pac. 29.
2 26 Holder v. State, 58 Ark. 473, 25 S. W. 279. For another case In which
a conviction has been set aside because of misconduct and improper remarks
of the prosecuting attorney, see Flint v. Com. (Ky.) 23 S. W. 346. As to im-
proper argument, see post, p. 460.
227 People V. Wells, 100 Cal. 459, 34 Pac. 107S; People v. Mullings, S3 Oal.
138, 23 Pac. 229; Cargill v. Com. (Ky.) 13 S. W. 916.
■Ch. 12] MISCONDUCT OF JUDGE. 459
through the telephone, assured her he was her attorney, and coun-
seled her to maJie disclosures to the person sent by him, which she
did. It was very properly held that this misconduct disqualified
the district attorney for prosecuting the case, and the defendant
was given a new trial.''^* Such gross misconduct as this ought to
disqualify an attorney for practicing at all.
Ordinarily misconduct on the part of the prosecuting attorney
may be cured by the court's rebuking him in the presence of the
jury, and cautioning the jury not to let it influence them; '"" but
it must appear that the defendant could not well have been preju-
diced under all the circumstances.^'"
MISCONDUCT or JUDGE.
171. Improper conduct or remarks by the court during
the trial, if prejudicial to the defendant, -will be ground
for setting a conviction aside.
Thus a conviction has been set aside because the court, on a
prosecution for murder, in which the defense was that the de-
fendant's wife committed the crime, said to the jury that he some-
times thought that the disposition of our first male ancestor to
charge the fault upon the woman given to him did not die out with
Adam, but was inherited by his descendants.^'^ So where, when
a witness for the state, who was absent when wanted, was brought
in by an officer, the court, in the presence of the jury, held a
colloquy with the witness, which tended to discredit the defend-
ant and his counsel, and lead the jury to believe that, if they
were not guilty of procuring the absence of the witness, they
were, in the opinion of the court, capable of committing it, a
conviction was set aside." ^ Fortunately cases like these are not
apt to arise often.
2 28 State V. Russell, 83 Wis. 330, 53 N. W. 441.
2 29 State v. Howard, 118 Mo. 127, 24 S. W. 41; Wheeless v. State (Ga.) 18
S. E. 303; State v. Ean (Iowa) 58 N. W. 898; People v. Pyckett (Mich.) 58 N.
W. 621; State v. Reid, 39 Minn. 277, 39 N. W. 796.
230 Holder v. State, supra.
281 State v. Hawley, 63 Conn. 47, 27 Atl. 417. And see People v. Moyer,
77 Mich. 571, 43 N. W. 928.
23 2 People V. Abbott (Gal.) 34 Pac. 500.
460 TEIAL AND VERDICT. [Ch. 12
The judge should be careful not to do or say anything during
the trial to reflect on a witness, or to express or intimate in any
way any opinion on his credibility. A conviction has been reversed
because the judge, after asking a witness if she knew how long
three minutes were, took out his watch, asked her to tell three
minutes, and then announced that what she called three minutes
was only forty-five seconds.^^^
So if the judge, either during the examination of the witnesses
or at any time during the trial, mak3S improper comments on the
evidence, it may cause a reversal. ^^*
If the particular conduct or remark of tbe court is called for by
the remarks or conduct of the defendant or his counsel, or is war-
ranted by the circumstances, the fact that the defendant must
have been prejudiced thereby gives him no right to complain.
It is not error, for instance, for the court, in the exercise of its
discretion, to commit to jail, in the presence of the jury, one of
the defendant's witnesses, because of the character of his testi-
mony,^^'' or to rebuke defendant's counsel when the rebuke is
warranted,^^^ or to fine him for contempt where he is guilty of a
contempt. "''
SUMMING UP AND ARGUMENT OF COUNSEL.
172. In arguing the case to the jury, counsel must not
go beyond, the evidence, nor make improper remarks.
Generally improper remarks by the prosecuting attorney
prejudicial to the defendant will be ground for setting
233 Burke v. People, 148 111. 70, 35 N. B. 376. And see Jefferson v. State,
80 Ga. 16, 5 S. E. 298.
234 Kelly V. State (Tex. Cr. App.) 24 S. W. 295; People v. Kindelberger, 100
Gal. 367, 34 Pac. 852; State v. Clements, 15 Or. 237, 14 Pac. 410; Sharp v.
State, 51 Ark. 147, 10 S. W. 228. As where the judge, In admitting evidence,
states that he is Inclined to think that in doing so he is overruling the supreme
court State v. Hawley, 63 Conn. 47, 27 Atl. 417.
230 People V. Hayes, 70 Hun, 111, 24 N. T. Supp. 194; Id., 140 N. Y. 484, 35
N. E. 951.
?8e Pease v. State, 91 Ga. 18, 10 S. E. 113.
28 7 Goldstein v. State (Tex. Cr. App.) 23 S. W. 686; Miller v. State, 32 Tex.
Cr. R. 266, 22 S. W. 880.
Ch. 12] SUMMING UP AND ARGUMENT OF COUNSEL. 461
aside a conviction, if properly objected to by tlie defend-
ant, and not cured by the action of the court; but, as a
rule, if the defendant raises no objection, or if, on objec-
tion being made, the court rebukes the attorney, and in-
structs the jury not to regard the remark, a conviction
will not be set aside.
173. The time for argument is w^ithin the sound discre-
tion of the court. But for an abuse of discretion a con-
viction may be set aside.
After all the evidence has been introduced, and each side has
rested his case, the respective counsel address the jury, summing
up the evidence, and arguing the question of its effect and suf-
flciency. The summing up and argument is first made by the
prosecuting attorney, and then by the counsel for the defense,
and in many states the prosecuting attorney is entitled to reply.^^*
In the latter case the reply closes the argument; the counsel for
the defense has no right to reply. Where there are more than one
counsel for the state, one of them may make the first argument,
and the other the reply. Several counsel for the defendant may
be allowed to argue the case.
The time at which the argument of counsel must be made rests
within the discretion of the court. Ordinarily it is made as soon
as the case is closed, and each counsel makes his argument as
soon as the other has finished, but the court may allow an ad-
journment before the argument of either or of one of them.^^'
It is also within the discretion of the court to limit the time
to be allowed for argument,**" but a prejudicial abuse of discre-
tion will be ground for setting aside a conviction.**^
In their argument to the jury, counsel must keep within the facts
of the case, and must be careful not to misstate the evidence, or
238 Doss V. Com., 1 Grat. (Va.) 557; State v. MUlican, 15 La. Ann. 557. .But
see State v. Brisbane, 2 Bay (S. C.) 451; LoefCner v. State, 10 Ohio St. 598.
239 state V. Lewis, 118 Mo. 79, 23 S. W. 1082.
2 40 Mansfield v. State (Tex. Or. App.) 24 S. W. 901; Yeldell v. State (Ala.)
14 South. 570; Vaughan v. State, 58 Ark. 353, 24 S. W. 885.
241 People V. Green, 99 Cal. 564, 34 Pac. 231; McLean v. State, 32 Tex. Cr.
R. 521, 24 S. W. 898.
462 TRIAL AND VERDICT. [Ch. 12
make improper remarks. If they do so, the court may rebuke
them, and require them to proceed properly. Persistence in an il-
legitimate line of argument in violation ' of the court's caution
would be a contempt of court.
Improper remarks by the prosecuting attorney is often the ground
for setting a conviction aside and granting a new trial."*'' A con-
viction has been set aside, for instance, where, in a prosecution
for rape, the prosecuting attorney said to the jury that, as the
friends of the prosecutrix had not hanged or burnt the defendant,
his life should pay the penalty,"*^ and where he asked the jury
to act "as detectives" in regard to the facts of the case.^** It is al-
ways improper for the prosecuting attorney to throw the weight of
his personal influence into a case by announcing his individual opin-
ion as to the guilt of the defendant"^^ So, if the prosecuting at-
torney makes improper comments on the testimony of the defend-
ant,"*° or, in some states, by statute, if he comments at all on the
defendant's failure to testify in his own behalf,"*' or explains to
the jury that the state has no right to appeal from an erroneous
acquittal, while the defendant may appeal from an erroneous con-
viction,"** or comments on matters not in evidence, it may avoid a
conviction."*®
It would seem that in those jurisdictions where the jury are
the judges of the law as well as the facts counsel should have
the right to argue the law to them, and so it has been held;""
212 Davis V. State (Ind. Sup.) 37 N. E. 397; Hall v. U. S., 150 U. S. 76, 14
Sup. Ct. 22; Butler v. State (Tex. Or. App.) 27 S. W. 128.
243 Thompson v. State (Tex. Or. App.) 26 S. W. 987.
244 People V. O'Brien, 96 Mich. 630, 56 N. W. 72.
240 State V. Mack, 45 La. Ann. 1155, 14 South. 141; People v. McGuire, 89
Mich. 64, 50 N. W. 786. But see State v. Beasley, 84 Iowa, 83, 50 N. W. 570.
24C state V. Fairlamb (Mo. Sup.) 25 S. W. 895; Lewis v. State (Ind. Sup.) 36
N. E. 1110.
247 Brazell v. State (Tex. Or. App.) 26 S. W. 723; Dawson v. State (Tex. Or.
App.) 24 S. W. 414; Frazier v. State, 135 Ind. 38, 34 N. E. 817.
2 48 Brazell v. State, supra; Crow v. State (Tex. Cr. App.) 26 S. W. 209;
Boone v. People, 148 111. 440, 36 N. E. 99; Vaughan v. State, 58 Ark. 353, 24
S. W. 885.
24» Dollar V. State, 99 Ala. 236, 13 South. 575; Pollard v. State (Tex. Cr.
App.) 26 S. W. 70; State v. Woolard, 111 Mo. 248, 20 S. W. 27.
260 Lynch v. State, 9 Ind. 541; Com. v. Porter, 10 Mete. (Mass.) 263.
Ch. 12] SUMMING UP AND ARGUMENT OF COUNSEL. 463
but there is authority to the contrary."'^ It has even been held,
rather inconsistently, that counsel have this right where the jury
must talie the law from the court; but in reason and by the weight
of authority in the latter case there is no such right.*"" In those
jurisdictions where the jury are the judges both of the law and the
facts, it is proper, in arguing a criminal case, to read from reported
decisions both the statement of facts and the decis>ions thereon.''"'
But the court may and should refuse to allow this to be done in
those jurisdictions where the jury are bound, to receive and apply
the law as it is given to them by the court ''°*
A line of argument by the prosecuting attorney which would
otherwise be improper may be justified by the argument of the de-
fendant's counsel, and vice versa. Thus on a prosecution for selling
intoxicating liquors, where the defendant's counsel refers to the
amount of the prosecuting attorney's fees in such cases, error
cannot be predicated on the latter's statement to the jury that he
would give up all his fees if he could put down the accursed traf-
flc.""
Ordinarily, in order that the defendant may, after a conviction,
complain of improper remarks by the prosecuting attorney, he
must object to them at the time they are made, so as to give the
court an opportunity to rebuke the attorney, and caution the jury
against being influenced by them. He cannot allow the remarks to
be made without objection, and, after taking his chances on an ac-
quittal, object to them for the first time on motion for a new trial
or on writ of error or appeal.""*
Generally, if the court rebukes counsel for making improper re-
2 51 Franklin v. State, 12 Md. 236.
2 52 Com. V. Porter, 10 Mete. (Mass.) 263; Com. v. Austin, 7 Gray (Mass.) 51.
2 68 Wohlford V. State, 148 III. 296, 36 N. E. 107.
2 64 state V. Boughner (S. D.) 59 N. W. 736.
26 5 Dollar V. State, 99 Ala. 236, 13 South. 575. And see Groom v. State, 90
Ga. 430, 17 S. B. 1003; Tipton v. State, 30 Tex. Xpp. 530, 17 S. W. 1097; Pier-
son V. State, 21 Tex. App. 14, 17 S. W. 468.
266 Boone v. People. 148 111. 440, 36 N. E. 99: Garner v. State (Tex. Or. App.)
24 S. W. 420; State v. Mack, 45 La. Ann. 1155, 14 South. 141; People v. Lane,
101 Gal. 513, 36 Pac. 16; State v. Howard, 118 Mo. 127, 24 S. W. 41; Cart-
wright V. State, 71 Miss. 82, 14 South. 526; State v. Sortor,.52 Kan. 531, 34
Pac. 1036; Wheeless v. State (Ga.) 18 S. E. 303.
464 TKIAL AND VERDICT. [Oh. 12
marks, and instructs the jury to disregard them, a conviction will
not be set aside,^''^ but there may be cases in which the remarks
cannot be thus cured. If they were such that the defendant must
have been prejudiced by them notwithstanding the effort of the
court to counteract their effect, they will be ground for setting the
conviction aside.^^'
INSTKUCTIONS OR CHARGE OP THE COURT TO THE JURY.
174. Tlie court should fully and correctly instruct the
jury as to the la-wr by -wrhich they are to be governed in
arriving at a verdict, and an erroneous and prejudicial in-
struction will be ground for setting aside a conviction, if
it -was properly excepted to. But ordinarily an omission
to charge on any particular point is no ground for obj ec-
tion after verdict, unless an instruction was requested,
or the court's attention 'was called to the omission.
175. In a few states the jury are the judges of the
law as w^ell as the facts; but in most states the court
is the exclusive judge of the law, and the jury must
foUow^ his instructions, though there is no remedy if
they fail to do so.
176. In all states the jury are the exclusive judges of
the facts, and in most states the court cannot charge
thereon, or express any opinion on the credibility of the
witnesses, or the weight and effect of the evidence.
After the evidence is all in, and the counsel have finished their
argument it becomes the duty of the court to charge or instruct
the jury as to the law by which they are to be governed in deter-
mining the case. In some states instructions are given before ar-
2 67 State v. Butler, 85 Me. 225, 27 Atl. 142; Vaughan v. -State, 58 Ark. 353,
24 S. W. 885; State v. HUl, 114 N. 0. 780, 18 S. E. 971; Handly v. Com. (Ky.)
24 S. W. 609; State v. Hack, 118 Mo. 92, 23 S. W. 1089; State v. Brandenburg,
118 Mo. 181, 23 S. W. 1080.
2 58 Cartwrlght v. State, supra.
Ch. 12] INSTEOCTIONS OE CHARGE OF THE COURT TO THE JURY. 465
gument, but the court may give additional instructions, or modify
those already given, during or after the argument.'""
Province of Court and Jury — Jurors as Judges of the Law.
Some of the cases hold that it has always been the rule at com-
mon law that in criminal cases, though not in civil, the jury are
the judges both of the law and the facts.^^" This rule is recog-
nized as a part of the common law in some of our states, while in
others it is expressly declared in the constitution, or by statute.^ °^
It would be absurd to suppose from this that, even in these juris-
dictions, the jury are to ascertain and determine the law for them-
selves, and that the judge must not instruct them as to the law.''*''
Nothing like this is meant. All that is meant is that, contrary to
the rule in civil cases, the jury in a criminal case may, if it sees fit,
disregard the law as laid down by the court, and acquit the defend-
ant, though, if they regarded the instructions, they would, under the
facts, be bound to convict. It gives the jury the right to judge of
the law over the head of the court in all criminal cases, but it does
not prevent the court from telling them what the law is, and of the
importance of regarding it; nor does it make it proper for the jury
to disregard it; it merely allows them to do so. The rule is in-
tended, on the ground of policy, to enable the jury to acquit con-
trary to the judge's instructions only where such a course seems
necessary and proper. The responsibility is cast upon the jury.
2 69 Wood v. State, 64 Miss. 761, 2 South. 247. The court, in trying the case,
has a right to reserve its decision in regard to what instructions It will give
till the evidence is all In, and cannot be compelled to charge the jury at stages
In the evidence upon propositions which may or may not be applicable to the
case. People v. McOallam, 103 N. Y. 587, 9 N. E. 502.
280 Oo. Litt. 228; 4 Bl. Comm. 361; dissenting opinion in Sparf v. U. S.,
15 Sup. Ct. 296; Rex v. Woodfall, 5 Burrows, 2661; State v. Croteau, 23 Vt.
14 (since overruled. State v. Burpee, 65 Vt. 1, 25 Atl. 964).
261 State V. Croteau, supra; State v. McDonnell, 82 Vt. 491; State v. Meyer,
58 Vt. 457, 3 Atl. 195; Doss v. Com., 1 Grat, (Va.) 557; State v. Snow, 18
Me. 346; State v. Allen, 1 McCord (S. C.) 525; Armstrong v. State, 4 Blackf.
(Ind.) 247; U. S. v. Taylor, 11 Fed. 470; Franklin v. State, 12 Md. 236;
Swann v. State, 64 Md. 423, 1 Atl. 872 (under the constitution); Holden v.
State, 5 Ga. 441 (by statute); Spies v. People, 122 111. 1, 12 N. E. 865 (by stat-
ute); Patterson v. State, 2 Eng. (Ark.) 59 (by statute).
262 Murphy v. State, 6 Ind. 490; Grady v. State, 11 Ga. 253.
CHIM.PEOC. — 30
466 TRIAL AND VERDICT. . [Ch. 12
For this reason it is not error for the court to say to the jury that
this rule is not intended for ordinary criminal cases; that it is a
matter of favor to the defendant, and should not be acted upon
by the jury, except after the most thorough conviction of its neces-
sity and propriety; that any departure by the jury from the law
laid down by the court must be taken solely on their own responsi-
bility; and that the safer and better and fairer way, in ordinary
criminal cases, is to take the law from the court, and that they
are always justified in doing so.^"
On the other hand, in most jurisdictions, the doctrine that the
jury are the judges of the law as well as the facts is not recognized
at all; but it is held that the court is the sole judge of the law,
and that the jury must follow the instructions in this respect.^'*
Since a verdict of acquittal cannot be set aside, there is no remedy
if the jury sees fit to decide contrary to the law of the case as
laid down by the court; but in those states where it is held that the
court is the sole judge of the law, the court may charge the jury
that they are bound to be governed by the instructions. The court
could not set aside a verdict of acquittal because of a disregard of
its instruction, but either the trial court or an appellate court
263 state V. McDonnell, 32 Vt. 532; U. S. v. Taylor, 11 Fed. 470; Hunt v.
State, 81 Ga. 140, 7 S. E. 142; Spies v. People, 122 111. 1, 12 N. E. 865, and 17
N. E. 898; U. S. v. Keller, 19 Fed. 633; Franklin v. State, 12 Md. 236; Schnier
V. People, 23 111. 17; Fisher v. People, Id. 283; Lynch v. State, 9 Ind. 541;
Williams v. State, 10 Ind. 503.
2«* Sparf V. U. S., 15 Sup. Ct. 273 (Mr. Justice Gray and Mr. Justice Shlras
dissenting); U. S. v. Battiste, 2 Sumn. 240, Fed. Gas. No. 14,545; State v.
Burpee, 65 Vt. 1, 25 Atl. 964; dissenting opinion of Bennett, J., in State v.
Croteau, 23 Vt. 48; Duffy v. People, 26 N. Y. 588; Com. v. Porter, 10 Mete.
(Mass.) 263; Com. v. Anthes, 5 Gray (Mass.) 185; Williams v. State, 32 Miss.
389; Hamilton v. People, 29 Mich. 173; Hardy v. State, 7 Mo. 607; State v.
Schoenwald, 31 Mo. 147; Montgomery v. State, 11 Ohio, 427; Parrish v. State,
14 Neb. 60, 15 N. W. 357; Jackson v. State, 91 Ga. 271, 18 S. E. 298; Pierce
V. State, 13 N. H. 536; State v. Smith, 6 R. I. 33; State v. Rheams, 34 Minn.
18, 24 N. W. 302; State v. McLain, 104 N. C. 894, 10 S. E. 518; Pierson v.
State, 12 Ala. 153; Montee v. Com., 3 J. J. Marsh. (Ky.) 149; People v. An-
derson, 44 Cal. 65; McGowan v. State, 9 Yerg. (Tenn.) 184; Dale v. State, 10
Yerg. (Tenn.) 551; Com. v. McManus, 143 Pa. St 64, 21 Atl. 1018, and 22 Atl.
761; Brown v. Com., 87 Va. 215, 12 S. E. 472. In Sparf v. U. S., supra, the
question is considered at great length, and numerous cases are reviewed.
Ch. 12] INSTRUCTIONS OR CHARGE Of THE COURT TO THE JURY. 467
could and should set aside a conviction on this ground if the con-
viction is contrary to law.''*'
The Judge in all the states may and always should instruct the
jury fully as to the law; though, as we shall see, it cannot charge
on the facts. The admissibility or competency of evidence is a
question of law, and the court may charge as to what evidence the
jury may and what they may not consider."'" And it may charge
them on the law by which they should determine the credibility
of the witnesses,""^ or the sufficiency of the evidence,"®* but it
must be careful in most jurisdictions not to comment or express
an opinion on the credibility of a witness or the effect and weight
of the evidence."®' So, if the indictment does not charge an of-
fense,"'" or, in most states, if the evidence, assuming it to be true,
is insufficient, as a matter of law, to support the charge,"'^ the
court may so charge, and direct an acquittal, for this is a matter
of law. In like manner it is not error to instruct the jury that
the defendant cannot properly be convicted of a crime less than
that charged, or to refuse to instruct them in respect to the minor
offenses that might, under some circumstances, be included in the
offense .charged, where there is no evidence whatever upon which
any verdict could be properly returned except one of guilty, or
one of not guilty, of the particular offense charged."'"
285 Dailey v. State, 10 Ind. 536; State v. Sims, Dud. (Ga.) 213.
280 state V. McDonnell, 32 Vt. 491.
267 Adam v. State (Tex. Cr. App.) 20 S. W. 548; Faulkner v. Territory (N.
M.) 30 Pae. 905; People v. RoM, 138 N. Y. 616, 33 N. E. 933.
288 People V. Rohl, supra; Welsh v. State, 96 Ala. 92, 11 South. 450.
2 69 Horn V. State, 98 Ala. 23, 13 South. 329; Gibbs v. State (Tex. Cr. App.)
20 S. W. 919; Gilyard v. State, 98 Ala. 59, 13 South. 391; post, p. 468.
2 TO People V. Cook, 10 Mich. 164.
271 Post, p. 469; Com. v. Packard, 5 Gray (Mass.) 101.
272 Sparf V. U. S., 15 Sup. Ct. 273; Stiener v. State (Tex. Cr. App.) 26 S. W.
214; State v. Jordan, 87 Iowa, 86, 54 N. W. 63; People v. Barry, 90 Cal. 41,
27 Pae. 62; People v. McNutt, 93 Cal. 658, 29 Pac. 243; McCoy v. State, 27
Tex. App. 415, 11 S. W. 454; State v. McKlnney, 111 N. C. 683, 16 S. B.
235; Jones v. State, 52 Ark. 346, 12 S. W. 704; O'Brien v. Com., 89 Ky. 354,
12 S. W. 471; Robinson v. State, 84 Ga. 674, 11 S. E. 544.
468 TRIAL AND VERDICT. [Ch. 12
Same — Jury as Judges of the Fact.
On the other hand, the jury are the exclusive judges of all ques-
tions of fact. They are the sole judges of the weight and sufficiency
of the evidence, including the credibility of the witnesses, and in
most states, if the court in its charge expresses an opinion or com-
ments on the weight and effect of the evidence,^" or the credibility
of any witness,"'* the error, if against the defendant, will be ground
for setting aside a conviction. This rule does not prevent the
court from summing up the evidence that has been introduced,
and bringing out its relation to the issues involved,"'" but care
must be used not to comment on its weight.
It is therefore error for the court in its charge to assume the
existence of facts in issue,"" but not if the fact is conceded, or
the evidence of it is uncontradicted."''
278 Woodln V. People, 1 Parker, Cr. R. (N. Y.) 464; Lefler v. State, 122 Ind.
206, 23 N. E. 154; BiU v. People, 14 111. 432; Muely v. State, 31 Tex. Cr. App.
155, 18 S. W. 411, and 19 S. W. 915; Burtles v. State, 4 Md. 273; Newcomb
V. State, 37 Miss. 383; Jim v. State, 4 Humph. (Tenn.) 289; McGuffie v. State,
17 Ga. 497; Noland v. State, 19 Ohio, 131. In some of the states the court
may express an opinion on the weight and effect- of the evidence, if the jury
are told that they are not bound by the opinion. White v. Territory, 1 Wash.
St. 279, 24 Pac. 447; State v. Smith, 12 Rich. (S. C.) 430; McClain v. Com.,
110 Pa. St. 263, 1 Atl. 45; People v. Rathbun, 21 Wend. (N. T.) 509; Sim-
mons V. U. S., 142 U. S. 148, 12 Sup. Ct. 171; State v. Duffy, 57 Conn. 525, 18
Atl. 791; but in most states the rule is as stated in the text; and in some
states it is expressly so declared by statute.
274 state V. Presley, 13 Ired. (N. C.) 494; Territory v. O'Hare, 1 N. D. 30,
44 N. W. 1003; Com. v. Bosworth, 6 Gray (Mass.) 479; Hronek v. People, 134
111. 139, 24 N. E. 861; Lowe v. State, 88 Ala. 8, 7 South. 97; People v.
O'Brien, 96 Cal. 171, 31 Pac. 45. But an instruction that the jury may con-
sider the interest of a witness, etc., is proper where no opinion as to his
credibility is expressed. Johnson v. State, 34 Neb. 257, 51 N. W. 835; State
T. Turner, 110 Mo. 196, 19 S. W. 645; ante, p. 467.
27 B state V. Dawkins, 32 S. C. 17, 10 S. E. 772.
27 6 Com. V. McMahon, 145 Pa. St. 413, 22 Atl. 971; Newton v. State (Miss.)
12 South. 560; Fowler v. State (Ala.) 14 South. 860; Milligan v. State (Tex.
•Cr. App.) 22 S. W. 414; State v. Walters, 7 Wash. 246, 34 Pac. 938; Scott
V. People, 141 111. 195, 30 N. B. 329.
277 Hawkins v. State (Ind. Sup.) 36 N. B. 419; People v. Phillips, 70 OaL
61, 11 Pac. 493.
Ch. 12] INSTRUCTIONS OB CHARGE OF THE COURT TO THE JURY. 469
Same — Directing Verdict.
When the evidence is so defective or so weak that a verdict of
guilty could not be sustained, the jury, in most states, should be
instructed to return a verdict of not guilty, but where there is no
variance between the allegations and the proof, and the evidence,
though weak or defective, will support a verdict of guilty, such an
instruction is properly refused.'"* The court can never direct a
verdict of guilty when the facts are disputed, but some courts hold
that, if all the facts showing guilt are admitted, there is nothing
for the jury to pass upon, and the direction of a verdict of guilty
is proper.""
Character of the Charge — Whether Erroneous.
We have shown when an instruction is erroneous as invading
the province of the jury; but there are other questions as to the
character of the charge which must be shortly considered. Of
course, an instruction which incorrectly states the law is erroneous,
and, unless it is clear that no prejudice could have resulted, will
cause a conviction to be set aside. An instruction, though correct
in so far as its separate statements of law are concerned, may be
erroneous for other reasons. It is erroneous, for instance, if it is
confused and misleading;"'* or if it consists of abstract proposi-
tions of law, though the fact that an instruction is abstract will
not necessarily cause a reversal on conviction,"'^ or if it is not sup-
278 State V. Cady, 82 Me. 426, 19 Atl. 908; State v. Jones, 18 Or. 256, 22
Paa 840; Pellum v. State, 89 Ala. 28, 8 South. 83. Contra, where the jury
are the judges of the law as well as the facts. Goldman v. State, 75 Md. 621,
23 Atl. 1097. •
27 9 People V. Richmond, 59 Mich. 570, 26 N. W.'770; People v. Ackerman,
80 Mich. 588, 45 N. W. 367; People v. Neumann, 85 Mich. 98, 48 N. W. 290.
Contra, State v. Winchester, 113 N. C. 641, 18 S. E. 657.
280 Dryman v. State (Ala.) 15 South. 433; Fountain v. State, 98 Ala. 40,
IS South. 492; State v. Pettit, 119 Mo. 410, 24 S. W. 1014; State v. Hawley, 63
conn. 47, 27 Atl. 417; State v. Gile, 8 Wash. 12, 35 Pac. 417; Conrad v. State,
132 Ind. 254, 31 N. B. 805; People v. Harper, 83 Mich. 273, 47 N. W. 221.
281 state v. Hall, 39 Me. 107; State v. Clair, 84 Me. 248, 24 Atl. 843; Long
v. State, 12 Ga. 295; Bonner v. State, 97 Ala. 47, 12 South. 408; Brister v.
State, 26 Ala. 107; State v. Houser, 28 Mo. 233; State v. King, 111 Mo. 576,
20 S. W. 299; Browning v. State, 30 Miss. 656. It is error to read abstract
propositions of law from text-books or reports. State v. McDonnell, 32 Vt
491-
470 TRIAL AND VERDICT. [Ch. 12
ported by the pleadings and by the eTidence,*'^ or is argumenta-
tive,"'* or ignores some of the evidence, or singles out and gives
undue prominence to particular parts of the evidence,"'* or refers
to the details of other cases given in the books.""*
Instructions which would ordinarily be improper may be justi-
fied by improper argument of counsel. Thus where, on indictment
for murder, the defendant's counsel alluded in argument to a
higher law which he claimed the Bible sustained, it was held not
error for the court in his charge to justify the laws of the state
on the subject of murder and manslaughter."'"
Inadvertent mistakes which do not render an instruction mis-
leading, or otherwise prejudice the defendant, will be disre-
garded.""
It is well settled that the charge of the court is .to be considered
and construed as a whole in determining whether a particular part
of it, or a particular instruction, was erroneous."" An erroneous
instruction may be cured by giving a correct one, if it is clear that
the jury could not have been misled; "'° but generally, if the erro-
282 Coughlin V. People, 18 111. 266; Doyle v. People, 147 111. 394, 35 N. E.
372; People v. Hawes, 98 Cal. 648, 33 Pac. 791; Ratigan v. State (Tex. Or.
App.) 20 S. W. 407; State v. Robinson, 39 Me. 150; State v. Collins, 8 Ired.
(N. C.) 407; McCoy v. State, 15 Ga. 205; Jackson v. State, 91 Ga. 271, 18 S.
E. 298; Corbett v. State, 31 Ala. 329; Daniels v. State, 24 Tex. 389; State v.
Ross, 29 Mo. 32.
28 3 Horn V. State (Ala.) 15 South. 278; Miles v. State (Ga.) 19 S. E. 805;
State V. O'Grady, 65 Vt. 66, 25 Atl. 905; Boiling v. State, 54 Ark. 588, 16 S.
W. 658; Brassell v. State, 91 Ala. 45, 8 South. 679.
2 84 Cox V. State, 99 Ala. 162, 13 South. 556; Com. v. Hourigan, 89 Ky. 305,
12 S. W. 550; Scott v. People, 141 111. 195, 30 N. B. 329; State v. Cantlln,
118 Mo. 100, 23 S. W. 1091; People v. Hawes, 98 Cal. 648, 33 Pac. 791.
28 B Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct 410.
286 state V. Workman, 39 S. C. 151, 17 S. E. 694.
287 Daley v. State (Tex. Cr. App.) 24 S. W. 643; State v. Wilson (Wash.)
36 Pac. 967; People v. Derringer (N. Y. App.) 37 N. B. 565.
28 8 Com. V. Zappe, 153 Pa. St. 498, 26 Atl. 16; People v. Jassino (Mich.)
59 N. W. 230; State v. Reed, 117 Mo. 604, 23 S. W. 880; People v. Hawes, 98
CaL 648, 33 Pac. 791; Champ v. State, 32 Tex. Cr. R. 87, 22 S. W. 678; State
V. Miller, 111 Mo. 542, 20 S. W. 243.
289 state V. Reed, supra; Thompson v. Com. (Ky.) 26 S. W. 1100; People v.
Derringer (N. Y. App.) 37 N. E. 565; Padfleld v. People, 146 111. 660, 35 N. E.
469; Spies v. People, 122 111. 1, 12 N. E. 865, and 17 N. B. 898.
Ch. 12] INSTRUCTIONS OR CHARGE OF THE COURT TO THE JURY. 471
neous instruction is not withdrawn, and both remain for the con-
sideration of the jury, the error will not be cured.'""'
On What Points Necessary — Necessity of a Request.
It is the duty of the court to charge the jury fully on the law
of the case; but ordinarily, if he omits to instruct them on a par-
ticular point, counsel must call his attention to the omission, and
request an instruction covering the point. If he remains silent,
and fails to make the request, the defendant cannot afterwards
complain of the omission.'''^
Granting or Refusing Requests.
Any instruction requested by counsel should be given if it is
proper, but it should be refused if it is bad within any of the
rules above stated; as, for instance, where it is abstract, or argu-
mentative, or confused and misleading, or not supported by the evi-
dence.^" ^ It is improper to refuse any instruction which correctly
states the law, and is applicable to the issues, and supported by the
evidence. ^"^ If, for instance, an accomplice of the defendant has
testified, the court should, on request of defendant, charge as to the
effect of an accomplice's testimony, and the necessity for corrobo-
ration.^"* So, in a proper case, it is error to refuse an instruc-
tion as to the effect of circumstantial evidence; "^^ though, if there
290 piummer v. State (Ind. Sup.) 34 N. E. 968; State v. Brumley, 53 Mo. App.
126.
281 People V. Raher, 92 Mich. 165, 52 N. W. 625; Winn v. State, 82 Wis.
571, 52 N. W. 775; Dove v. State, 22 Ala. 23; Mead v. State, 53 N. J. Law,
601, 23 Atl. 264; State v. Marqueze, 45 La. Ann. 41, 12 South. 128; State v.
O'Neal, 7 Ired. (N. C.) 251; State v. Jackson, 112 N. C. 851, 17 S. B. 149;
People V. Fice, 97 Cal. 459, 32 Pac. 531; Burns v. Com., 3 Mete. (Ky.) 13;
McMeen v. Com., 114 Pa. St. 300, 9 Atl. 878; People v. Marks, 72 Cal. 46,
13 Pac. 149; State v. Anderson, 26 S. C. 599, 2 S. E. 699; State v. Brooks, 92
Mo. 542, 5 S. W. 257, 330.
292 Hill V. Com., 88 Va. 633, 14 S. E. 330; Bostic v. State, 94 Ala. 45, 10
South. 602; Com. v. Cosseboom, 155 Mass. 298, 29 N. E. 463; McCoy v. State,
15 Ga. 205; Floyd v. State, 82 Ala. 16, 2 South. 683.
293 Jones V. State, 30 Tex. App. 345, 17 S. W. 544; State v. Wilson, 2 Scam.
(111.) 225; Davis v. State, 10 Ga. 101; Sparks v. State, 23 Tex. App. 447, 5
S. W. 135.
294 Brown v. State (Tex. Cr. App.) 20 S. W. 924.
295 Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764.
472 TRIAL AND VERDICT. [Ch. 12
is any direct evidence, such as the testimony of an eyewitness,
or a confession of the accused, such an instruction is properly re-
fused.=»*
If the requested instruction is proper it ought to be given as
asked, without modification or change in the language,^"^ but the
defendant cannot demand as a matter of right that the language
of the request be followed, and ia no case will a change in the lan-
guage which does not prejudice him cause a reversal.^'' If the
instruction is misleading or otherwise erroneous the court may cor-
rect it, and then give it as modified.^"*
Most courts hold that, if the instruction requested is partly er-
roneous and partly good, the court need not correct it, or give that
part which is good, but may refuse the whole. Some courts, how-
ever, hold that the good part, or a similar instruction, should be
given. ^"^
If the instruction has already been substantially given, either
in the geijeral charge or in other special instructions, it may be
refused, for the court is not bound to repeat.^"*
Ordinarily requests for instructions come too late if not made be-
fore the jury have retired to consider their verdict, and they may
on this ground be refused; *"* though the court has the discretion
to recall the jury for further instructions.'"*
2»e WUson v. State (Tex. Or. App.) 21 S. W. 361; Jones v. State, 31 Tex. Gr.
R. 177, 20 S. W. 354; Vaughan v. State, 57 Ark. 1, 20 S. W. 588.
«»7 State V. Evans, 33 W. Va. 417, 10 S. E. 792; Cotton v. State, 31 Miss.
504; Stanton v. State, 13 Ark. 317.
298 Com, V. Mullen, 150 Mass. 394, 23 N. E. 51; Long v. State, 12 Ga. 293;
Gardner v. State, 55 N: J. Law, 17, 26 Atl. 30; People v. Lemperle, 94 CaL
45, 29'Pac. 709; Shultz v. State, 13 Tex. 401; Com. v. McManus, 143 Pa. St
64, 21 Atl. 1018, and 22 Atl. 761; Boles v. State, 9 Smedes & M. (Miss.) 284;
State V. Durr, 30 La. Ann. 751, 2 South. 546.
2»9 Keithler v. State, 10 Smedes & M. (Miss.) 192; Baxter v. People, 3 Gilm.
(111.) 368; Lambeth v. State, 23 Miss. 322; State v. Wilson, 2 Scam. (111.) 225;
State v. Wilson, 8 Iowa, 407.
SOI Stanton v. State, 13 Ark. 317; Swallow v. State, 22 Ala. 20.
802 Painter v. People, 147 111. 444, 35 N. E. 64; People v. Harris, 136 N. Y.
423, 33 N. E. 65; Hatcher v. State, 18 Ga. 460; Alexander v. Com. (Ky.) 20
S. W. 254; State v. Knight, 43 Me. 11; Trogdon v. State, 133 Ind. 1, 32 N.
E. 725; Taylor v. Com. (Va.) 17 S. E. 812.
808 state V. Catlin, 3 Vt. 530; State v. Engeman (N. J. Sup.) 23 Atl. 676.
804 Post, pp. 476, 484.
Ch. 12] DEMUKEEE TO EVIDENCE. 473
Objections and Exceptions.
When an erroneous instruction is given an objection sliould be
made, and an exception saved, in order to have the error reviewed,
for in some cases, in the absence of an exception, the error will
not be reviewed on appeal.'"^ And ordinarily the specific objec-
tion should be pointed out. In many cases a general exception will
be insufficient.'"*
DEMURRER TO EVIDENCE.
177. In some states the defendant may demur to the evi-
dence if, assuming it to be true, and admitting every legiti-
mate inference that can be drawn from it, it is insufficient
to authorize a conviction.
A demurrer to the evidence not only admits the truth of the
evidence, — that is, the existence of every fact of which there is any
evidence at all, — but it admits the existence df every fact which it
legitimately tends to prove, and leaves it to th.e court to say
whether, as a matter of law, a conviction is authorized. Such a
course may be taken in some states if the prosecuting officer
chooses to join in the demurrer,^"^ but it is seldom taken. In most
states the court may direct an acquittal if the evidence is clearly
insufficient, and the better and safer course is to move for such
a direction,^''* for on demurrer to the evidence the judgment of the
court against the defendant is flnal.^"" The court may, in the
exercise of its discretion, refuse to entertain a demurrer to the
evidence.'^*
30 5 Fitzgerald v. State (Tex. Cr. App.) 23 S. W. 1107; Wheeless v. State
(Ga.) 18 S. B. 303; State v. Richards, 85 Me. 252, 27 AtL 122; Noblln v. State
(Ala.) 14 South. 767; State v. Kennade (Mo. Sup.)* 26 S. W. 347; Wood v.
State, 31 Fla. 221, 12 South. 539.
808 Gardiner v. State (N. J. Sup.) 26 Atl. 30; Thompson v. State, 32 Tex.
Cr. R. 265, 22 S. W. 979; People v. Hart (Utah) 37 Pac. 330.
SOT Duncan v. State, 29 P'la. 430, 10 South. 815; Hutchison v. Com,, 82 Pa.
St. 472; Doss v. Com., 1 Grat. (Va.) 557; Com. v. Parr, 5 Watts & S. (Pa.)
345; Brister v. State, 26 Ala. 108; Bryan v. State, Id. 65; Young v. State
(Tex. Cr. App.) 24 S. W. 287.
308 Ante, p. 469.
309 Hutchinson v. Com., supra.
310 Duncan v. State, supra.
474 TRIAL AND VERDICT. [Ch. 12
CUSTODY, CONDUCT, AND DELIBERATIONS OP JURY.
178. In all criminal cases care must be taken to keep the
jTiry free from improper influences. In cases of felony;
particularly -where the punishment may be death, the fact
that there was an opportunity for improper influence will
generally render a conviction bad, unless the absence of
such influence aflirmatively and clearly appears; therefore
in these cases the jury must be kept together, and in
charge of a sworn ofl&cer, until they have rendered their
verdict, and must not be allow^ed to hold any communi-
cation -with outsiders, unless the nature of the communi-
cation is known to the court or the oflQ.cer.
179. Any misconduct on the part of the jury -wrhich may
have been prejudicial to the defendant w^ill be ground for
setting a conviction aside.
180. The jury should be left free in their deliberations.
Any coercion of the jury as a whole, or of an individual
juror, w^ill be ground for setting a conviction aside.
It is almost a universal rule that, in cases where the punish-
ment may be death, the jury must, during an adjournment, and at
other times when not in the actual presence of the court, and
until they have rendered, or at least found, a verdict, be kept in
the charge of a sworn officer of the court, and not be allowed to
separate, except in cases of necessity, and then only when the
separating juror is accompanied by an offlcer.^^^ In many states
the rule applies also to prosecutions for felonies not capital.'^''
In cases of misdemeanor the court may always allow the jury to
separate before they have retired to consider their verdict, but they
311 Jumpertz v. People, 21 111. 375; Com. v. McCaul, 1 Va. Cas. 271; Mc-
Lean V. State, 8 Mo. 153; Quinu v. State, 14 Ind. 589; State v. Godfrey,
Brayt. (Vt.) 170; post, p. 478.
312 McLean v. State, 8 Mo. 153; Wiley v. State, 1 Swan (Tenn.) 256; Berry
T. State, 10 Ga. 511; post, p. 478. Contra, McCreary v. Com., 29 Pa. St.
323; Davis v. State, 15 Ohio, 72; Sutton v. People, 145 111. 279, 34 N. E. 420.
Ch. 12] CUSTODY, CONDUCT, AND DELIBERATIONS OF JURY. 475
should be cautioned not to converse with any one about the case."'
When the jury retire to the jury room to consider their verdict,
they should in all cases be placed in charge of a sworn *"* olficer,
and should be kept together.'" If any of them separate from
their fellows from necessity, an officer should accompany them.
It has been held that, where the jury are required by law to be
kept together, they cannot be allowed to separate, even with the
defendant's consent, for the defendant ought not to be placed in the
position of having either to consent, or perhaps to prejudice the
jury by withholding his consent.'^' On this point, however, there
are many cases to the contrary.'^'
The jury, after they have retired, or even before then, in cases
of felony, should not be allowed to hold any communication with
outsiders;'^* nor should the officer hold any communication with
313 Rex V. Klnnear, 2 Barn. & Aid. 462; Davis v. State, 15 Ohio, 72.
314 The form of the oath differs in the various jurisdictions. It Is, in sub-
statnce, that the oflScer shall well and truly keep the jury in some convenient
and private place (formerly without meat, drink, or fire); that he shall not
permit any person to speak to them, nor speak to them himself, except to
jisk them if they have agreed ob their verdict. An oath by the officer has
been held essential. Brucker v. State, 16 Wis. 355; Philips v. Com., 19
Grat. (Va.) 485. But a departure from the statutory form of oath will not
render the verdict bad. Hittner v. State, 19 Ind. 48. In some states it is
held that, if the officer is a regularly sworn officer of the court, a special
oath is not essential. See Davis v. State, 15 Ohio, 72; People v. Hughes, 29
Cal. 257; State v. Frier, 118 Mo. 648, 24 S. W. 220; State v. Grafton (Iowa) 56
N. "W. 257; Alterberry v. State, 56 Ark. 515, 20 S. W. 411. But if he is not
such an officer, but an unsworn person, the oath must be administered. Mc-
Cann v. State, 9 Smedes & M. (Miss.) 465.
3 IB State V. Populus, 12 La. Ann. 710; State v. Leunig, 42 Ind. 541; post,
p. 478.
316 Berry v. State, 10 Ga. 511; Wesley v. State, 11 Humph. (Tenn.) 502;
Wiley V. State, 1 Swan (Tenn.) 256; PeifEer v. Com., 15 Pa. St. 468. It has
been held that the defendant may consent to the jury's separating after they
shall have agreed upon a verdict, and sealed it up. Reins v. People, 30 111.
256; Sanders v. State, 2 Iowa, 230; State v. Engle, 13 Ohio, 490; Friar v.
State, 3 How. (Miss.) 422.
317 Stephens v. People, 19 N. Y. 549 (two judges dissenting); Quinn v.
State, 14 Ind. 589; State v. Mix, 15 Mo. 153; Smith v. Com., 14 Serg. & R.
(Pa.) 70.
318 Hoberg v. State, 3 Minn. 262 (Gil. 181); People v. Symonds, 22 Cal. 348;
post, p. 479.
476 TRIAL AND VERDICT. [Ch. 12
them, further than to ask them whether they have agreed to a
verdict, or to attend to their necessities."^"
After the jury have retired, the judge cannot go to their room and
communicate to them, for, except in open court, he occupies the
same relation as any other outsider.'^" He may recall them and
communicate with them in open. court, "^^ and if they wish to com-
municate with him, to ask further instructions for instance, they
may send him word by the officer, and they may then be recalled.'^*
Such communications are a part of the proceedings, and the de-
fendant should be personally present, though, if no further in-
structions are given, his absence will not be prejudicial, or render
the proceeding invalid."''^
The jury are generally kept in their room until they agree on a
verdict, but in case of necessity they, or a part of them, may be
taken out by an officer, and it has even been held that tliere is no
impropriety in the officer's taking them out for recreation.*^* It
seems that formerly, whUe deliberating on their verdict, they were
kept without meat or drink,"^" but this is no longer required,
and they may be given proper refreshments, providing they are ob-
tained from a proper source.'^' It has been held that they may be
given intoxicating liquor, if not in excess, but, by the great weight
of authority, this is improper, not only while they are deliberating
on their verdict, but, at least in capital cases and other cases
of felony, at any time during the trial.'^' Whether it will vitiate
the vprdict depends, as we shall see, upon the circumstances.
318 Post, p. 479.
320 Hoberg v. State, 3 Minn. 262 (Gil. 181); People v. Linzey, 79 Hun, 23,.
29 N. Y. Supp. 560.
321 Hall V. State, 8 Ind. 489.
3 22 Com. V. Ricketson, 5 Mete. (Mass.) 412.
32 3 Ante, p. 426; Wade v. State, 12 Ga. 25.
324 State V. Perry, Busbee (N. C.) 330. And see King v. State, 91 Tenn.
617, 20 S. W. 169. The fact that the jury are taken by the officer beyond
Che confines of the state will not vitiate the verdict on the ground that they
were thus In legal effect dispersed, and no longer under the control of the
officer, where there was In fact no dispersal, and the authority of the officer
was not questioned. King v. State, supra.
326 See U. S. V. Haskell, 4 Wash. 402, Fed. Cas. No. 15,321.
326 People V. Douglass, 4 Cow. (N. Y.) 35.
327 Jones V. State, 13 Tex. 168; State v. Baldy, 17 Iowa, 39; People v,
Douglass, 4 Cow. (N. Y.) 26; State v. BuUard,' 16 N. H. 139; post, p. 479.
Ch. 12] CUSTODY, CONDUCT, AND DELIBERATIONS OP JURY. 477
The jury must be given perfect freedom in their deliberations.
Anything said to them by the court, or by the offlcer in charge,
tending to force them to an agreement, will generally render the
verdict invalid.^^*
The jury must reach an agreement properly. A gambling verdict,
— that is, a verdict arrived at by casting lots, — or a verdict found on
facts personally known by one of the jurors, and communicated to
the others, or a verdict to whibh one of the jurors has been coerced
by the others to agree, etc., is illegal.'**
Effect of Misconduct and Irregularities.
Misconduct on the part of jurors in separating and departing
from the ofiBcer's custody, or in drinking intoxicating liquors, or
holding communications with outsiders when cautioned not to do
so, or on the part of the officer in charge of the jury, or on the part
of outsiders with respect to the jury, is not only a contempt of
court which the court may summarily punish, but is also a mis-
demeanor, rendering the offender liable to a criminal prosecution.
Misconduct and irregularities, however, in respect to the matters
which we have been discussing, do not necessarily vitiate the
verdict, and entitle the defendant, as of right, to a new trial.
G-reater strictness is observed in capital cases than in cases not
capital, and in felonies than in misdemeanors, and where the mis-
conduct or irregularity occurred after the jury retired to deliberate
on their verdict, than where it occurred during the trial before re-
tirement. There is such an irreconcilable conflict in the cases that
nothing more can be done here than to refer to the cases. The stu-
dent and practitioner must then follow up the matter by consulting
the decisions of his own state. Because of the importance of the
328 state v. Hill, 91 Mo. 423, 4 S. W. 121; Com. v. Polsson, 157 Mass. 510,
32 N. E. 906. Thus, it is error for the judge to tell the jury that, if they
agree by a certain hour, they will be discharged; otherwise they will be held
until they do agree. State v. Hill, supra. But see Pope v. State, 36 Miss.
121. Merely to urge agreement is not coercion. Dow v. State, 31 Tex. Cr.
R. 278, 20 S. W. 583; State v. Palmer, 40 Kan. 474, 20 Pac. 270.
32 8 Dooley v. State, 28 Ind. 239; Crabtree v. State, 3 Sneed (Tenn.) 302;
Richards v. State, 36 Neb. 17, 53 N. W. 1027; McWilliams v. State, 32 Tex.
Cr. R. 269, 22 S. W. 970; Hunter v. State, 8 Tex. App. 75; Wood v. State, 13
Tex. App. 135; Williams v. State, 15 Lea (Tenn.) 129; Fletcher v. State, 6
Humph. (Tenn.) 249; Hali v. Com.. 6 Leigh (Va.) 615.
478 TEIAL AND VERDICT. [Ch. 12
subject and the conflict of authority, it has been deemed advisable
to collect a number of the cases from the various states.
Some of the courts have held that a verdict should be set aside
in a capital case, if, at any time after the trial commenced, though
before the jury retired, any of them separated from their fellows,
and were out of the officer's custody, so that tliey became accessible
to improper outside influence, and that it will not do to' say that the
defendant was not in fact prejudiced.'^" And some courts have
gone as far as this in cases of felony not capital.'^^ On the other
hand, many of the courts — indeed, most of them — ^hold that a ver-
dict will not be set aside on this ground, if the defendant has not
been prejudiced by the separation; '^^ that is, perhaps, if there is no
suspicion of abuse.' ^' Prejudice will be presumed unless the con-
trary clearly appears, or, in other words, the state has the burden
of showing that there was no prejudice.''*
330 Com. V. M'Caul, 1 Va. Cas. 271. "Although," it was said in this case,
"there might be and probably was no tampering with any juryman in this
case, yet in a free country, in deciding a particular cause, the decision is
to be according to general principles as applied to that case; and more good
will arise from preserving the sacred principle involved in this 'case than evil
from granting a new trial, although in this individual instance a verdict has
probably been given by twelve men in fact unbiased by the separation." Id.
306. And see State v. Foster, 45 La. Ann. 1176, 14 South. 180; McLain v.
State, 10 Yerg. (Tenn.) 241; Maher v. State, 3 Minn. 444 (Gil. 329); McLean
V. State, 8 Mo. 153.
331 Com. V. M'Caul, 1 Va. Cas. 271.
332 People V. Douglass, 4 Cow. (N. Y.) 26; State v. O'Brien, 7 U. I. 336;
State V. Harrison, 36 W. Va. 729, 15 S. E. 982; State v. Belknap (W. Va.) 19
S. E. 507; Cornwall v. State, 91 Ga. 277, 18 S. E. 154; State v. Dugan, 52
Kan. 23, 34 Pac. 409; State v. Miller, 1 Dev. & B. (N. 0.) 500; State v. Hester,
2 Jones (N. C.) 83; State v. Tilghman, 11 Ired. (N. C.) 513; Jumpertz v. People,
21 111. 375; State v. Prescott, 7 N. H. 287; Roper v. Territory (N. M.) 33 Pac.
1014; Keenan v. State, 8 Wis. 132; People v. Symonds, 22 Cal. 348; Roberts
V. State, 14 Ga. 8; Stout v. State, 76 Md. 317, 25 Atl. 299; Wyatt v. State, 1
Blackf. (Ind.) 257; Creek v. State, 24 Ind. 151; Cornelius v. State, 7 Eng.
(Ark.) 782; Coker v. State, 20 Ark. 03; State v. Barton, 19 Mo. 227; State v.
Harlow, 21 Mo. 446; State v. Igo, Id. 459; Com. v. Manfredi, 162 Pa. St. 144,
29 Atl. 404.
3 33 People V. Douglass, 4 Cow. (N. Y.) 26.
334 See the cases cited in the preceding note; and see Cartwright v. State,
71 Miss. 82, 14 South. 526; U. S. v. Swan (N. M.) 34 Pac. 533; State v. Place,
5 Wash. St. 773, 32 Pac. 736; Davis v. State, 35 Ind. 496.
Ch. 12] CUSTODY, CONDUCT, AND DELIBEliATIONS OF JUEY. 479
There is also much conflict as to whether a new trial should
be granted because the jurors held communications with out-
siders,**' or' with the officer in charge of them.'*" And we meet
with the same conflict of opinion as to when the drinking of in-
toxicating liquors is ground for a new trial.*"
ssBThat a new trial should be granted without regard to whether there
was prejudice to the defendant, where the communication was after the jury
had retired to consider their verdict, see Hoberg v. State, 3 Minn. 262 (Gil.
181). That a new trial will not be granted, even in such a case, where there
was no prejudice, see King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Fair-
lamb, 121 Mo. 137, 25 S. W. 895; Com. v. Roby, 12 Pick. (Mass.) 496; State
V. Howell, 117 Mo. 307, 23 S. W. 263; State v. Tilghman, 11 Ired. (N. C.) 513;
Cornwall v. State, 91 Ga. 277, 18 S. E. 154; People v. Symonds, 22 Cal. 348;
State V. Allen (Iowa) 56 N. W. 261; Rowe v. State, 11 Humph. (Tenn.) 491;
State V. Harrison, 30 W. Va. 729, 15 S. E. 982; Pickens v. State, 31 Tex. Or.
R. 554, 21 S. W. 302; State v. Way, 38 S. C. 333, 17 S. E. 39; State v. Crane,
110 N. C. 530, 15 S. E. 231; Boles v. State, 13 Smedes & M. (Miss.) 398. As
to remarks and applause by bystanders not being ground for a new trial, see
State V. Jackson, 112 N. 0. 851, 17 S. E. 149; State v. Dusenberry. 112 Mo.
277, 20 S. W. 461; Burns v. State, 89 Ga. 527, 15 S. E. 748. But it has been
held that the fact that, after the case was submitted to the jury, some of
the jurors were allowed to stand on the courthouse porch, where they could
hear citizens discussing the merits of the case, and insisting on the defend-
ant's guilt, is ground for a new trial. Vaughan v. State, 57 Ark. 1, 20 S.
W. 588.
836 That improper communications between the officer and the jury after
the jury have retired will npt vitiate the verdict if the defendant was not
prejudiced, see State v. Thompson (Iowa) 54 N. W. 1077; Reins v. People,
30 111. 256; State v. Tilghman, 11 Ired. (N. C.) 513; Pope v. State, 36 Miss.
121. It is otherwise if the defendant was prejudiced. State v. Langford, 45
La. Ann. 1177, 14 South. 181; Brown v. State, 09 Miss. 398, 10 South. 579.
3 37 That the use of intoxicating liquors after the jury have retired to con-
sider their verdict will vitiate the verdict, without regard to whether the
defendant was prejudiced, see Jones v. State, 13 Tex. 168; People v. Doug-
lass, 4 Cow. (N. y.) 35; State v. Baldy, 17 Iowa, 39; State v. Bruce, 48 Iowa,
530; State v. Bullard, 16 N. H. 139; Davis v. State, 35 Ind. 496. But that
the use of intoxicating liquors before the jury have retired will not vitiate
the verdict if there was no prejudice, see State v. Bruce, 48 Iowa, 530; State
V. Madigan (Minn.) 59 N. W. 490; State v. Reed (Idaho) 35 Pac. 706; Davis
V. People, 19 111. 74; State v. Upton, 20 Mo. 397; Stone v. State. 4 Humph.
(Tenn.) 27; Thompson v. Com., 8 Grat. (Va.) 637; Rowe v. State, 11 Humph.
(Tenn.) 491; Pope v. State, 36 Miss. 121; Brown v. State (Ind. Sup.) 36 N. B.
1108; People v. Bemmerly, 98 Cal. 299, 33 Pac. 263; Com. v. Cleary, 148 Pa
480 TRIAL AND VERDICT. [Ch. 12
Any misconduct on the part of the jury which was prejudicial to
the defendant will entitle him to a new trial.*** As to this there
can be no conflict of opinion.
THE VERDICT.
181. The verdict is the formal decision by the jury-
that the defendant is guilty or not guilty.
(a) It must be unanimous.
(b) It must be formally delivered by the jury
and accepted by the judge in open court.
(c) It may be received on Sunday.
(d) It need not be in -wrriting ujiless it is so re-
quired by statute. •
(e) It must be certain^ and find everjrthing that
is necessary to support the judgment to be
rendered. If it can be understood, infor-
mality or surplusage will not vitiate it.
183. Before the verdict is accepted by the court the
jury may retract or change it, and if it is irregular they
may be sent back to correct it. After it has been fljaally
accepted, it cannot be retracted or changed- in matter of
substance, but it may, -with the jury's consent, be
amended in matters of form.
St. 26, 23 Atl. 1110. But see, contra, People v. Douglass, 4 Cow. (N. Y.) 26.
And that the use of intoxicating liquors even after the jury have retired will
not vitiate the verdict, if there was no prejudice, see King v. State, 91 Tenn.
617, 20 S. W. 169; Rowe v. State, 11 Humph. (Tenn.) 491; State v. Sparrow,
3 Murph. (N. C.) 487; State v. Tilghman, 11 Ired. (N. C.) 513; People v.
Sansome, 98 Cal. 235, 33 Pac. 202. If there was prejudice, a new trial should
be granted in all cases. Brown v. State (Ind. Sup.) 36 N. E. 1108.
33 8 People V. Mitchell, 100 Cal. 328, 34 Pac. 698. As to reading of news-
papers, or possession of them, by the jury, see People v. Stokes (Cal.) 37
Pac. 207; State v. Dugan, 52 Kan. 23. 34 Pac. 409; Williams v. State (Tex.
Cr. App.) 25 S. W. 629; Cartwright v. State, 71 Miss. 82, 14 South. 526;
State V. Wilson, 121 Mo. 434, 26 S. W. 357. Statement by juror to his fellows
of facts within his personal knowledge. Richards v. State, 36 Neb. 17, 53
N. W. 1027; Mc Williams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970. And see
ante, pp. 474-479.
Ch. 12] THE VEEDICT. 481
183. The court cannot, without the jury's consent,
amend the verdict in matter of substance, nor can it do
so with their consent after the verdict has been finally
accepted. It may amend purely formal defects with,
and in some states without, their consent.
184. A verdict is either,
(a) General; that is, a finding of guilty or not
guilty on the whole charge, and both on the
law and' the facts.
(b) Special; that is, where the jury find the facts
only, and leave the law to be applied by
the court.
(c) Partial; that is, where the jury find the de-
fendant guilty of part of the charge only.
185. A verdict, after its final acceptance, cannot be im-
peached by the testimony or aflB.davits of a juror.
The manner of arriving at the verdict having been considered,
we come now to consider its rendition, and its sufficiency. The
verdict is the unanimous and formal decision by the jury that the
defendant is guilty or not guilty. It must be unanimous. When
the jury ha,ve come to a unanimous determination with respect to
their verdict, they return into court to deliver it, and the following
formalities are generally observed: The clerk calls over their
names, and asks them whether they have agreed on their verdict,
to which, if they have, they reply in the affirmative. He then de-
mands who shall say for them, to which they answer, their foreman.
The clerk then tells the defendant to stand up, and says to the
jury, "Look upon the prisoner, you that are sworn; how say ydu,
is he guilty of the felony (oi* other crime) whereof he stands in-
dicted, or not guilty?" The foreman answers "Guilty" or "Not
guilty." The clerk then records the verdict, and then says to the
jury, "Hearken to your verdict as the court hath recorded it; you
say that A. is guilty (or not guilty) of the felony (or other crime)
whereof he stands indicted, and so say you all"; and the jury as-
sent.**' This is substantially the form of proceeding in all courts,
839 1 Chit. Or. Law, 635; 1 Bish. Gr. Proc. § 1001; Com. v. Roby, 12 Pick.
(Mass.) 496.
CEIM.PROC. — 31
482 triaIj and veedict. [Ch. 12
though it will Tary in unimportant details in the practice of the
various states.'*" Failure to observe these formalities in unim-
portant details will not vitiate the verdict,**^ but departures in a
material matter may do so. By the weight of authority, it is es-
sential that the verdict shall be delivered in open court. If it is
delivered to the judge out of court, or in the court room when the
court is not in session, it is void.^*^ It must, of course, be deliv-
ered before expiration of the term of court.'*' As we have seen,
the defendant must be present, unless he can and does waive his
right to be present.'**
The delivery and acceptance of a verdict are regarded as minis-
terial, and not judicial, acts, and a verdict, therefore, is not in-
valid because it was rfeceived on Sunday.'*"
In some states, by statute, the verdict is required to be delivered
in writing,'*' but in the absence of a statute it is delivered orally,'*'
mo See Com. v. Tobin, 125 Mass. 203; Rogers v. Com. (Va.) 19 S. E. 162;
Norton v. State. 106 Ind. 163, 6 N. E. 126; Com. v. Gibson, 2 Va. Cas. 70;
Mitchell V. State, 22 Ga. 211; State v. Pankey, 104 N. C. 840, 10 S. E. 315.
341 See 1 Bish. Cr. Proc. § 1001, and note; Com. v. Gibson, 2 Va. Cas. 70;
Mitchell v. State, 22 Ga. 211; Hall v. State, 3 Kelly (Ga.) 18; State v. Burge,
7 Iowa, 255.
842 State V. Mills, 19 Ark. 476; Waller v. State, 40 Ala, 325; Jackson v.
State (Ala.) 15 South. 351; Nomaque v. People, Breese (111.) 109. That it may
be received during an adjournment in some states, see Barrett v. State, 1
Wis. 175; In re Green, 16.111. 234; Mclntyre v. People, 38 111. 514; Davis v.
State, 14 Ind. 358.
343 Morgan v. State, 12 Ind. 448.
844 Ante, p. 423.
846 Hoghtaling v. Osborn, 15 Johns. (N. Y.) 119; Reld v. State, 53 Ala. 402;
True V. Plumley, 36 Me. 466; State v. Ricketts, 74 N. C. 187; State v. Wil-
son (Mo. Sup.) 26 S. W. 357; McCorkle v. State, 14 Ind. 39; Meece v. Com.,
78 Ky. 586; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Bales v. Com.
(Ky.) 11 S. W. 470; State v. Canty, 41 La. Ann. 587, 6 South. 338. And see
Blaney v. State, 74 Md. 153, 21 Atl. 547. But judgment cannot be rendered
thereon on Sunday. Hoghtaling v. Osborn, supra; Shearman v. State, 1 Tex.
App. 215; Baxter v. People, 3 Gilman (111.) 384.
3 46 It has been held that if a verdict required by statute to be In writing
is, by mistake, and without objection, delivered orally, and duly recorded and
assented to by the jury, it is valid. Hardy v. State, 19 Ohio St 579.
847 Lord V. State, 16 N. H. 325,
Ch. 12] THE VERDICT. 483
and it has even been held that unless writing is required by statute
it is irregular.'*'
In some but not all states the jury are allowed, in cases not
capital, to seal up their verdict and separate, where they agree
upon a verdict after the court has adjourned, and bring the sealed
verdict into court when it is opened.'**
If the jury state that they cannot agree the court cannot do
anything to coerce them into an agreement, but it may send them
back to the jury room for further deliberations.' °° Or, if the
court is satisfied that they will not be able to agree, it may dis-
charge them, and in most states, as we have seen, their discharge
will not prevent the state from again trying the defendant before
another jury."^
Correction or Retraction by Jury.
The control of the jury over their verdict does not cease as soon
as it is delivered to the clerk, but only after it has been finally
assented to by them, and accepted and recorded by the court'"^
At any time before then, they may correct it, or they may change
their minds and withdraw their consent."" And they may, in the
discretion of the court, be allowed to hear further evidence on
points as to which they are in doubt.'"* After the verdict has
been not only recorded, but finally accepted by the court, how-
ever, the jury have no longer any control over it, in so far as its
8*8 Lord V. State, supra. But the written verdict may be disregarded, and
an oral verdict delivered. Id.
3*8 See Stewart v. People, 23 Micli. 63; Com. v. Durfee, 100 Mass. 146; Com.
V. Dorus, 108 Mass. 4S8; State v. Weber, 22 Mo. 321; State v. Fenlason, 78
Me. 495, 7 Atl. 385; Com. v. Slattery, 147 Mass. 423, 18 N. E. 399.
3 50 Ante, p. 472.
sBi Ante, p. 386.
352 Burk V. Com., 5 J. J. Marsh. (Ky.) 675.
853 1 Bish. Or. Proc. § 1003; Sledd v. Com., 19 Grat. (Va.) 813; Burk v.
Com., 5 J. J. Marsh. (Ky.) 675; State v.- Austin, 6 Wis. 205; Rothbauer v.
State, 22 Wis. 468; Ford v. State, 12 Md. 514; State v. Harden, 1 BaUey (S.
C.) 3. Thus, where they say "Not guilty," meaning to say "Guilty," they may
correct the verdict, though the prisoner has been discharged, and has started
to leave. Reg. v. Vodden, 6 Cox, Or. Cas. 226.
»5* Burk V. Com., supra.
484 TRIAL AND VERDICT. [Ch. 12
substance is concerned; *""' and they cannot retract it, or say that
they did not in fact consent."""
The court is not bound to receive a verdict which is erroneous
as a matter of law in its finding, or is defective in matter of form,
unless the jury insist upon it.""' When the verdict is delivered,
and is found to be defective in form, the court may require the
jury to correct or amend it; *°' and where it is erroneous as a
matter of law, as where it fixes a greater or less term of punish-
ment than the law allows, he may instruct the jury, and send
them back to reconsider it.'°° As we have seen, however, he
cannot coerce them into finding a verdict.'*"
Some courts hold that, though the verdict has been accepted and
recorded, and even though the jury have been discharged, yet, if
they have not left the court room and separated, they may be re-
called, for the purpose of correcting or amending the verdict in
matters of form only."*^ They cannot be so recalled, however,
after they have separated.'""
Polling the Jury.
In order to make sure, before it is too late, that all of the jurors
are in fact agreed on the verdict, either party is allowed, in most
states as of right, to have the jury polled before the verdict is
recorded; that is, to have each individual juror called by name,
3B0 state V. Weeks, 23 Or. 3, 34 Pac. 1005; People v. Lee Yune Chong, 94
Pac. 379, 29 Pac. 776.
8 56 2 Hale, P. 0. 299; Rex v. Wooller, 2 Starkle, 111; Mercer v. State, 17
Ga. 146. As to impeaclimeiit of verdict by jurors, see post, p. 490.
367 In which case, of course, he may set it aside.
8 58 Appeal of Nicely (Pa. Sup.) 18 Atl. 737; Robinson v. State, 23 Tex. App.
315, 4 S. W. 904; Cook v. State, 26 Ga. 593.
869 Mangum v. State, 87 Ga. 549, 13 S. E. 558; State v. Harris, 39 La. Ann.
1105, 3 South. 344; Nemo v. Com., 2 Grat. (Va.) 558; People v. Marquis, 15
Gal. 38; People v. Bonney, 19 Gal. 426; McGregg v. State, 4 Blackf. (Ind.) 101.
3 60 Ante, p. 477.
861 Reg. V. Vodden, 6 Cox, Or. Cas. 226; Brister v. State, 26 Ala. 107; Com.
V. Breyesse, 160 Pa. St 451, 28 Atl. 824. But see Ellis v. State, infra; People
V. Lee Yune Chong, supra.
862 People V. Lee Yune Chong, 94 Gal. 379, 29 Pac. 776; Sargent v. State,
11 Ohio, 472; Ellis v. State, 27 Tex. App. 190, 11 S. W. Ill; Mills v. Com., 7
Leigh (Va.) 751; Stuart v. Com., 28 Grat. (Va.) 950.
Cfa. 12] THE VERDICT. 485
and asked whether the verdict as delivered by the foreman is his
verdict''* If, on being asked the question, a juror dissents, then
there is no verdict'** In a few states this is not allowed as of
right'" A request to poll the jury comes too late after a verdict
has been announced, recorded, and affirmatively responded to by
the entire jury."*
Amendment by Court,
The court cannot at any time amend or change the verdict in any
matter of substance without the jury's consent and direction;"'
and, as we have seen, it cannot do so with their consent after the
verdict has been finally accepted and recorded.'** It has been
held, however, that it may at any time amend as to matters of
form only.'*' If a verdict is otherwise good, an improper amend-
ment by the court may be rejected as surplusage."*
Sufficiency of Verdict — In General.
The verdict must be sufficiently certain to clearly show what the
jiury intend, or it will be fatally defective, unless, as we have
seen, it may be corrected by the jury."^ It must also be respon-
ses 2 Hale, P. C. 299; Biscoe v. State, 68 Md. 294, 12 Atl. 25; Brister v.
State, 26 Ala. 107; Nomaque v. People, Breese (111.) 145; State v. John, 8 Ired.
(N. 0.) 330; State v. Austin, 6 Wis. 205; Com. v. Schmous (Pa. Sup.) 29 Atl.
644; MitcheU v. State, 22 Ga. 211; Tilton v. State, 52 Ga. 478.
884 State V. Austin, 6 Wis. 205; Burk v. Com., 5 J. J. Marsh. (Ky.) 675;
State V. Davis, 31 W. Va. 390, 7 S. E. 24; State v. Harden, 1 Bailey (S. C.) 3.
But the fact that one of them says he agreed reluctantly does not vitiate.
Parker v. State, 81 Ga. 332, 6 S. B. 600. That on one juror expressing disa-
greement, the jury may be sent back to reconsider, see State v. Davis, 31 W.
Va. 390, 7 S. E. 24.
385 state V. Wise, 7 Rich. (S. O.) 412; Com. v. Roby, 12 Pick. (Mass.) 496;
State V. Hoyt, 47 Conn. 518.
see Com. V. Schmous (Pa. Sup.) 29 Atl. 644.
887 Guenther v. People, 24 N. Y. 100; State v. McBride, 19 Mo. 239.
88 8 Ante, p. 483.
869 2 Hawk. P. C. c. 47, § 9; Bledsoe v. Com. (Ky.) 11 S. W. 84; Martin v.
State, 25 Ga. 494; Com. v. Lang, 10 Gray (Mass.) 11.
87 0 Guenther v. People, 24 N. Y. 100; post, p. 486.
S71 State V. Coon, 18 Minn. 518 (Gil. 464) ; People v. Piper, 50 Mich. 390, 15
N. W. 523; Guest v. State, 24 Tex. App. 530, 7 S. W. 242. A verdict, In a
case where two defendants are jointly prosecuted, that reads, "We, the jury,
486 TBIAL AND VERDICT. [Ch. 12
sive to the charge, and consistent, and find everything that is neces-
sary to enable the court to render judgment.''^ If the jury ac-
quit, nothing more is necessary than the words "Not guilty." If
they convict of the whole charge the words, "Guilty as charged in
the indictment," "Guilty as charged," or ev^en "Guilty," in some
cases, will be sufficient."'*
A verdict is not bad for informality or clerical errors in the lan-
guage of it, if it is such that it can be clearly seen what is intended.
"It is to have a reasonable intendment, and is to receive a reason-
able construction, and must not be avoided except from neces-
sity." "*
And a verdict which is otherwise good will not be vitiated by
the insertion of matter that may be rejected as surplusage.* '°
Thus a verdict will not be vitiated because it was improperly added
find the defendant guilty as charged," is void for uncertainty. State v. Weeks,
23 Or. 3, 34 Pac. 1095.
37 2 State v. Benjamin (La. Ann.) 14 South. 71; Reg. v. Gray, 17 Cox, Or.
Cas. 299; Westbrook v. State, 52 Miss. 777; Long v. State, 34 Tex. 566; State
v. Harmon, 106 Mo. 635, 18 S. W. 128; Munson v. State, 21 Tex. App. 329,
17 S. W. 251.
373 state v. Lee, 80 Iowa, 75, 45 N. W. 545; Brown v. State, 111 Ind. 441,
12 N. B. 514; Hughes v. State, 65 Ind. 39; State v. Beming, 91 Mo. 82, 3 S.
W. 588; Bond v. People, 39 111. 26; Hronek v. People, 134 111. 139, 24 N. B.
861; People v. Perdue, 49 Cal. 425; People v. Whltely, 64 Cal. 211, 27 Pac.
1104; People v. West, 73 Cal. 345, 14 Pac. 848; State v. Jones, 69 N. C. 364;
Jones V. Com., 31 Grat (Ya.) 830; Blount v. State, 49 Ala. 381; Curry v.
State, 7 Tex. App. 91.
s'4 Poison V. State (Ind. Sup.) 35 N. B. 907; Cockerell v. State, 32 Tex. Cr. R.
585, 25 S. W. 421; Lewallen v. State (Tex. Cr. App.) 24 S. W. 907; Preel t.
State, 21 Ark. 212; Nabors v. State, 6 Ala. 200; Guenther v. People, 24 N, Y.
100; Page v. Com., 9 Leigh (Va.) 683; Gipson v. State, 38 Miss. 295; Kellum
V. State, 64 Miss. 226, 1 South. 174; Partain v. State, 22 Tex. App. 100, 2
S. W. 854; State v. Wilson, 40 La. Ann. 751, 5 South. 52; Shelton v. State, 27
Tex. App. 443, 11 S. W. 457. On a trial of assault with intent to murder the
jiu-y returned a verdict finding the accused "guilty with assault by sutinge
with intent to murder," and it was held sufllcient to reasonably convey the
idea that they intended to find him guilty of assault by "shooting" with in-
tent to murder. State v. Wilson, supra.
8T5 Gipson V. State, 38 Miss. 295; .State v. Douglass, 1 Greene (Iowa) 550;
People V. Boggs, 20 Cal. 433; Harvey v. Com., 23 Grat (Va.) 941; State v.
Hutchinson, 7 Nev. 53; Stephens v. State, 51 Ga. 236; McBntee v. State, 24
Wis. 43; Cheek v. Com., 87 Ky. 42, 7 S. W. 403; post, pp. 487, 490.
Ch. 12] THE VERDICT. 487
to or amended by the court, since the amendment may be re-
jected.'^*
Same — Finding Degree of Orime.
In some states it is provided by statute that, wheneyer a crime
is distinguished into degrees, the jury, if they convict, must find
the degree of v?hich the defendant is guilty. Under such a statute
a verdict failing to specify the degree of the crime of v?hich the
jury convict is void.''^
Same — As to Punishment.
Where it is for the court to fix the punishment, the verdict should
not do so, but, if it does, this part of the verdict may be rejected
as surplusage."* Where the jury ate required to fix the punish-
ment, they must do so in their verdict, and must do so vyith cer-
tainty, or the verdict will be bad.°^* If they fix a greater punr
ishment than the law allows, the verdict, if not corrected, is void,
and the defect cannot be cured by remitting the excess.'"" Some
courts hold that a verdict fixing a less punishment than is author-
ized is void.'*^ A recommendation to mercy is allowed in some
states.*** In others it is improper, but it will not vitiate, for
it may be rejected as surplusage.***
sre Guenther v. People, 24 N. Y. 100; ante, p. 485.
STT Johnson v. State, 30 Tex. App. 419, 17 S. W. 1070; People v. Bannister
(Cal.) 34 Pac. 710; In re Black, 52 Kan. 64, 34 Pac. 414.
87 8 Harvey v. Com., 23 Grat (Va.) 941. And see State v. Hutchinson, 7
Nev. 53.
870 Com. v. Scott, 5 Grat (Va.) 697; Weatherford v. State, 43 Ala. 319;
Hammett v. State, 52 Ga. 122; Wynn v. State, 1 Blackf. (Ind.) 28; Mills v.
Com., 7 Leigh (Va.) 751; State v. Rohfrischt, 12 La. Ann. 382; People v. Lit-
tlefield, 5 Cal. 355; Podfield v. People, 146 111. 660, 35 N. E. 469; Roberts v.
State (Tex. Cr. App.) 24 S. W. 895; Eldridge v. Com., 87 Ky. 365, 8 S. W. 892.
880 Allen V. Com., 2 Leigh (Va.) 727; Jones v. Com., 20 Grat. (Va.) 848;
Nemo V. Com., 2 Grat. (Va.) 558. The verdict may be corrected in this as ,
in other respects. Nemo v. Com., supra; ante, p. 483. As to rejecting excess
as surplusage, see Veatch v. State, 60 Ind. 291; Cheek v. Com., 87 Ky. 42, 7
S. W. 403.
881 Jones V. Com., supra; contra, Hoskins v. State, 27 Ind. 470.
882 See Valentine v. State, 77 Ga. 470; Hannum v. State, 90 Tenn. 647, 18
S. W. 269.
3 83 Stephens v. State, 51 Ga. 236.
488 TRIAL AND VEEDICT. [Ch. 12
General Verdict.
A general verdict is simply a finding of not guilty or guilty on the
whole charge, and both upon the law and the facts, as distinguished
from a special verdict, which, as we shall see, is a finding on the
facts only, leaving the court to apply the law to the facts found.
The jury is always at liberty to find such a verdict.''*
A general verdict of guilty is a conviction of the highest of-
fense which is properly charged in the indictment."'"
Where the indictment contains several counts, a general verdict
of guilty or not guilty is a conviction or acquittal on every count
that is good. And if one or more counts is bad a general verdict
of guilty will be sustained as to those counts that are good.'"
This principle has also been applied where there was a general
verdict of guilty on an indictment containing several counts, one of
which was not sustained by any evidence."^
Special Verdict.
A special verdict is where the facts of the case alone are found
by the jury, and the legal inference to be derived from them is
referred to the court. Though with us special verdicts are rare,
the jury no doubt always have the right to find such a verdict un-
less prevented by statute, and the court must give the proper
judgment on it'" A special verdict must state positively the
884 4 Bl. Comm. 361; Co. Litt. 228; Reg. v. AUday, 8 Car. & P. 136; People
V. Antonio, 27 Cal. 404.
88 6 state V. Eno, 8 Minn. 220 (Gil. 190); Adams v. State, 52 Ga. 565; State
V. McClung, 35 W. Va. 280, 13 S. E. 654. If the highest ofEense charged is
not sustained by the proof, a general verdict of guilty must be set aside, thougli
there was sufiBcient proof of an ofCense included in the charge. State v. Eno,
8 Minn. 220 (Gil. 190).
886 Yarber v. State (Tex. Cr. App.) 24 S. W. 645; Baron v. People, 1 Parker,
Or. E. (N. Y.) 246; Guenther v. People, 24 N. Y. 100; People v. Curling, 1
Johns. (N. Y.) 320; State v. Lee, 114 N. C. 844, 19 S. H. 375; Brown v. State,
5 Eng. (Ark.) 607; Com. v. Howe, 13 Gray (Mass.) 26; State v. Jennings, 18
Mo. 435; State v. Montgomery, 28 Mo. 594; Parker v. Com., 8 B. Mon. (Ky.)
30; ante, p. 299.
8 87 state V. Bugbee, 22 Vt. 32. And see State v. Long, 7 Jones (N. C.) 24.
888 Dowman's Case, 9 Coke, 7b; Com. v. Chathams, 50 Pa. St 181; Com.
V. Eichelberger, 119 Pa. St. 254, 13 Atl. 422; McGuffle v. State, 17 Ga. 497;
State v. Nash, 97 N. C. 514, 2 S. E. 645; State v. Duncan, 2 McCord (S. C.)
Ch. 12] THE VEKDICT. 489
facts themselves, and not merely the evidence adduced to prove
them, and it must find all the facts necessary to enable the court
to give judgment. The court cannot supply by intendment or
implication any defects in this respect.'*® A special verdict cannot
find facts which are not in issue, but such findings are mere sur-
plusage.''" The exact technical language of the indictment need
not be followed.*"^
Partial Verdict.
A partial verdict is a finding as to a part of the charge, as where
the jury convict the defendant on one or more counts of the indict-
ment, and acquit him of the residue, or convict him on one part
of a divisible count, and acquit him of the residue. We have al-
ready, in discussing the question of variance, seen when such a
verdict as this may be found.' '^
If the verdict expressly states that the defendant is guilty on a
certain count, giving its number, or of the crime charged therein,
specifying it, and not guilty on the other count or counts, or of the
crime or crimes therein charged, there is no difficulty in understand-
ing the verdict, and rendering judgment on it;'®' but if it fails to
show with certainty upon which count or counts, or of which
of several offenses included in the charge, it is intended to con-
vict, no judgment can be given.'"* The verdict must in all cases
be sufficiently certain to enable the court to see of what offense
the jury intend to convict, or it will be void.""* If the verdict is
129; State v. Ewing, 108 N. 0. 755, 13 S. E. 10; State v. Spray, 113 N. C.
686, 18 S. B. 700; State v. Divine, 98 N. C. 778, 4 S. B. 477.
88 0 Rex V. Francis, 2 Strange, 1015; 2 Hawk. P. C. c. 47, § 9; Rex v. Royce,
4 Burrows, 2073; Rex v. Plummer, J. Kel. Ill; Com. v. Call, 21 Pick. (Mass.>
509; People v. Wells, 8 Mich. 104; State v. FInlayson, 113 N. C. 628, 18 S. B.
200; State v. Lowry, 74 N. C. 121. It must find the county in which the acts
were committed, as this is an essential fact. Com. v. Call, supra.
■ 8»o Stephens v., State, 51 Ga. 236; McEntee v. State, 24 Wis. 43.
s»i Rex V. Dawson, 1 Strange, 19; Dowdale's Case, 6 Coke, 47a.
392 Ante, p. 351.
393 See Gipson v. State, 38 Miss. 295; Carter v. State, 20 Wis. 647; Guen-
ther V. People, 24 N. Y. 100; Harris v. People, 64 N. Y. 148; Day v. People,
76 111. 380; Wright v. People, 33 Mich. 300; Page v. Com., 9 Leigh (Va.) 683.
384 Campbell v. Reg., 1 Cox, Cr. Cas. 269; State v. Izard, 14 Rich. (S. 0.)
209; Day v. People, 76 111. 380.
396 Com. V. Lowery, 149 Mass. 67, 20 N. B. 697; State v. West, 39 Minn. 321,
490 TRIAL AND VERDICT. [Ch. 12
sufficiently certain to meet this requirement it is sufficient to sup-
port a judgment, though it is inartiflcially drawn, or is couched in
language that does not strictly follow the words of the charge.''*
The verdict will not be rendered insufficient by the insertion of mat-
ter which is immaterial and may be rejected as surplusage.'"
Sometimes a verdict finds the defendant guilty on one or more
counts, and is silent as to the other counts, or finds him guilty of
an offense included in the charge, and says nothing about the
higher offense charged. In such cases the verdict is sufficiently
certain to support a conviction on the count or counts, or of the
offense, specified or referred to. It amounts to an acquittal on the
counts, or of the offense, as to which it is silent.'" And therefore,
as we have seen, the defendant cannot be again tried on the latter
charges.""
Impeachment of Verdict by Jurors,
A juror cannot be allowed by his testimony, affidavit, or other-
wise, to impeach the verdict after it has been recorded and finally
accepted by the court.*"" He cannot, for instance, say that he did
40 N. W. 249; Sullivan v. State, 44 Wis. 595; Foster v. State, 88 Ala. 182, 7
South. 185; Bowen v. State, 28 Tex. App. 498, 13 S. W. 787.
ses "We find the defendant not guilty in manner and form as charged In
the indictment, but we find her guilty of murder in the second degree," was
sustained as a conviction of murder in the second degree. Freel v. State, 21
Ark. 212. And, where the indictment contained several counts, a verdict of
guilty "on the first charge" was sustained as a conviction on the first count.
Nabors v. State, 6 Ala. 200. So, where an Indictment contained counts for
larceny and for embezzlement, a verdict of "guilty of embezzlement" was
sustained as a conviction on the count charging embezzlement. Guenther v.
People, 24 N. X. 100. And see Gipson v. State, 38 Miss. 295; Page v. Com.,
9 Leigh (Va.) 683.
«»7 Gipson V. State, 38 Miss. 295; ante, p. 486.
388 Guenther v. People, 24 N. Y. 100; Morris v. State, 8 Smedes & M. 762;
Edgerton v. Com., 5 Allen (Mass.) 514; Weinzorpflin v. State, 7 Blackf. (Ind.)
186; Kirk v. Com., 9 Leigh (Va.) 627; State v. McNaught, 36 Kan. 624, 14
Pac. 277; Stoltz v. People, 4 Scam. (111.) 168; State v. Kattlemann, 35 Mo.
105; State v. McCue, 39 Mo. 112; ante. pp. 286, 351.
»»» Ante, p. 382.
*oo Rex V. Wooller, 2 Starkie, 111; Smith v. State (Ark.) 26 S. W. 712;
Cornwall v. State, 91 Ga. 277, 18 S. E. 154; State v. Dusenberry, 112 Mo. 277,
20 S. W. 461; State v. Best, 111 N. C. 638, 15 S. E. 930; Taylor v. Com. (Va.)
Ch. 12] THE VERDICT. 491
not intend to agree.*'^ Jurors may testify as to any fact showing
the existence of an extraneous influence, but they cannot give evi-
dence as to the effect which such influence had on their minds, or
as to the motives and influences generally which aflfected their de-
liberations.*"* By statute in the various states it may be shown
in certain cases by the testimony of jurors that the verdict was
illegally arrived at, as by lot.
17 S. E. 812; State v. Rush (Mo.) 8 S. W. 221; Com. v. White (Mass.) 16 N.
B. 707. But see McBean v. State, 83 Wis. 206, 53 N. W. 497.
*oi Rex V. WooUer, supra; Mercer v. State, 17 Ga. 146; Stanton v. State, 13
Ark. 317; State v. Bennett, 40 S. C. 308, 18 S. E. 886.
*02 Mattox V. U. S., 146 U. S. 140, 13 Sup. Gt. 50.
492 PROCEEDINGS AFTER VERDICT. [Ch. 13-
CHAPTER Xm.
PROCEEDINGS AFTER VERDICT.
186. Motion In Arrest of Judgment
187. Judgment and Sentence.
188. Cruel and Unusual Punishment.
189. New Trial.
190. Writ of Error,
MOTION IN ARREST OF JUDGMENT.
186. Formerly almost any objection -wliicli -would have
been fatal on demurrer could be made the ground of a
motion in arrest of judgment, but this rule has been to
a great extent changed by statute. Such a motion will
lie, ho-wever, -whenever the indictment is insufficient to
sustain a judgment, or the verdict is insufficient; but it
-will not lie for any defect -which is cured by verdict at
common la-w, or -which may be and is cured by statute.
It only lies for matter appearing on the record.
It was at one time held that a motion in arrest of judgment would
lie for any defect which could have been attacked by a demurrer,*
but in many states, as we have seen, statutes have been enacted cur-
ing certain formal defects if objection is not made before verdict, or
at a previous stage of the trial. We have already discussed these
, statutes and their constitutionality.'' In some states the grounds
of motion in arrest are specified in the statutes, and the motion
will not lie on any other ground." Defects which are aided or
cured by verdict cannot be made the ground of a motion in arrest*
1 4 Bl. Comm. 324; State v. City of Bangor, 38 Me. 592; State v. Doyle, 11
R. I. 574,
2 Ante, pp. 140, 317, 321, 324. See U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct 1;
Coleman v. State, 111 Ind. 563, 13 N. E. 100; People v. Kelly, 94 N. Y. 526;
Jones V. State, 32 Tex. Cr. R. 110, 22 S. W. 149.
8 State V. Smith, 12 Mont. 378, 30 Pac. 679.
* Ante, p. 319; Lutz v. Com., 29 Pa. St. 441; State v. Hodgson, 66 \t 134, 28
Atl. 1089.
Ch. 13] MOTION IN ARREST OF JUDGMENT. 493
In all cases the defect must appear on the face of the indict-
ment, or some other part of the record, for the motion will not
reach objections depending upon facts dehors the record, such
as irregularities in the custody and conduct of the jury."
If the indictment is clearly insufficient to sustain a judgment,
as where it fails to charge an offense, or fails to charge the offense
with sufficient certainty to meet the requirement of the constitution,
the motion will lie." And it will lie because of the insufficiency
of the verdict to sustain a judgment,^ or for any other defect or
error in the proceedings, apparent on the record, rendering the
trial illegal or a judgment unauthorized.* As we have seen, mis-
nomer of the defendant is no ground for arresting judgment*
Nor can the insufficiency of the evidence to support the verdict be
made the ground of such a motion. We have already in various
places shown what defects are and what are not ground for mo-
tion in arrest of judgment^"
At common law a motion in arrest may be made at any time after
verdict and before sentence, but it cannot be made after judgment.^ ^
In some states, by statute or rules of court, it is required to be made
within a certain time after verdict, but this wUl not prevent the
court from entertaining it after the expiration of the time so limited
if it sees fit to do so.^*
B Bellasis v. Hester, 1 Ld. Raym. 281; Forbes v. Com. (Va.) 19 S. E. 164;
Horsey v. State, 3 Har. & J. (Md.) 2; Com. v. Donahue, 126 Mass. 51; State
v. Martin, 38 W. Va. 568, 18 S. E. 748; Hall v. Com., 80 Va. 562; State v.
.Conway, 23 Minn. 291; State v. Carver, 49 Me. 588; Munshower v. State, 56
Md. 514; Herron v. State (Ga.) 19 S. B. 243; State v. Casey, 44 La. Ann. 969,
11 South. 583.
« Ante, p. 153; Com. v. Morse, 2 Mass. 128; Com. v. Hinds, 101 Mass. 209;
State V. Gove, 34 N. H. 510; Denley v. State (Miss.) 12 South. 698.
T Ante, p. 485; State v. McCormick, 84 Me. 566, 24 Atl. 938; Com. v. Call,
21 Pick. (Mass.) 509.
« State V. Meyers, 68 Mo. 266; Com. v. Kimball, 21 Pick. (Mass.) 373. Re-
peal of statute creating offense, Rex v. McKenzie, Russ. & R. 429; Brennan v.
Pec^le, 110 111. 535. And see ante, pp. 423, 437.
» Ante, p. 149.
10 As to duplicity, see ante, p. 285. Misjoinder of counts, ante, p. 296. As
to other defects In pleading, see the specific subject under that head, pp. 150-
361.
Ill Chit. Cr. Law, 662; Rex v. Robinson, 2 Burrows, 801; State v. O'Neil
(Vt.) 29 Atl. 376.
12 See State v. Bryan, 89 N. C. 531.
494 PROCEEDINGS AFTER VERDICT. [Ch. 13
The court may arrest the judgment on its own motion. A mo-
tion in arrest by the defendant is not necessary to enable the
court to act, though it is necessary to entitle the defendant to com-
plain of its failure to act.^*
As we have seen in discussing former jeopardy, a verdict on which
judgment is arrested does not necessarily prevent another trial
for the same offense.^*
JUDGMENT AND SENTENCE.
187. It is the duty of the court to render judgment and
pronounce sentence on the verdict. In cases of felony the
defendant must first be asked -whether he has anything
to say -wrhy the court should not pass sentence upon him.
The judgment must be within the limit fixed by law.
After the verdict has been accepted and recorded, and a motion
in arrest or for a new trial that may have been made has been
overruled, it becomes the duty of the court to render judgment and
pronounce sentence. In capital cases, and, in some jurisdictions,
in other cases of felony, the defendant must first be asked whether
he has anything to say why sentence should not be passed upon
him, and, in most jurisdictions, if this formality is omitted, the judg-
ment will be set aside.^^
When any corporal punishment is to be inflicted, it is necessary
that the defendant shall be personally before the court when sen-
tence is pronounced, but this is not necessary where a mere fine,
is to be imposed.^*
18 Rex V. Waddington, 1 Bast, 146; U. S. v. Plummer, 3 Cliff. 62, Fed. Cas.
No. 16,056; Rex v. Burridge, 3 P. Wms. 499.
1* Ante, p. 391.
" Schwab V. Berggren, 143 U. S. 442, 12 Sup. Ct. 525; Ball v. U. S., 140 U.
S. 118, 11 Sup. Ct. 761; Bex v. Geary, 2 Salk. 630; Rex v. Speke, 3 Salk. 358;
Saflford t. People, 1 Parker, Cr. R. (N. Y.) 474; Messner v. People, 45 N. Y.
1; Hamilton v. Com., 16 Pa. St 129; James v. State, 45 Miss. 572; Perry v.
State, 43 Ala. 21; Crim v. State, Id. 53; State v. Jennings, 24 Kan. 642; Grady
V. State, 11 Ga. 253; Keech v. State, 15 Fla. 591. Contra, where the defend-
ant is represented by counsel. Warner v. State (N. J. Err. & App.) 29 Atl. 505.
18 1 Chit. Cr. Law, 695; 2 Hawk. P. C. c. 48, § 17; Rex v. Harris, 1 Ld.
Baym. 267; Shifflett v. Com. (Va.) 18 S. E. 838; Grim v. Reimbold, 13 Pa. Co.
Ct R. 545. Contra, in some cases by statute. Shifflett v. Com., supra.
Ch. 13] JUDGMENT AND SENTENCE, 495
Unless so required by statute, judgment need not be rendered
nor sentence pronounced immediately upon conviction. The court
may adjourn to another day, and then give judgment,^' and it has
been held that judgment may be given at a subsequent term.^*
Where more than one defendant is convicted on a joint indict-
ment the judgment must be several against each,^* but sentence
may be pronounced against them jointly.^"
Generally the minimum and maximum punishment for the par-
ticular offenses is fixed by statutes, varying in the different states,
and it is within the discretion of the court to impose any punish-
ment vrithin those limits. In some states, and in some cases,
the jury are required or authorized to fix the punishment in their
verdict. A judgment for a greater or less punishment than that
prescribed by law is void.^^ Jurisdiction to render the particular
sentence imposed is just as essential as jurisdiction of the person of
the defendant and of the subject-matter."*
When the defendant is in execution on a former judgment, sen-
tence of imprisonment, and other penalties, may be given against
him to commence from the expiration of the existing sentence.*'
And it is held in England and in some of our states that where a per-
son is charged with several offenses at the same time, of the same
kind, he may be sentenced to several terms of imprisonment, one
to commence after the conclusion of the other.** In some states,
17 1 Chit. Cr. Law, 699; 6 Harg. St Tr. S33.
18 State v. Guild, 10 N. J. Law, 163.
19 Caldwell v. Com., 7 Dana (Ky.) 229; MiUer v. People, 47 111. App. 472.
20 1 Chit. Cr. Law, 700; 6 Harg. St. Tr. 833.
21 Rex V. Bourne, 7 Adol. & E. 58; Ex parte Lange, 18 Wall. 163; Ex
parte Cox (Idaho) 32 Pac. 197; State v. Williams, 40 S. C. 373, 19 S. E. 5.
Thus, where the statute prescribes the punishment of imprisonment "or"
fine, a judgment of imprisonment and fine is bad. Hargrove v. State (Tex.
Cr. App.) 25 S. W. 967. So, where a statute prescribes imprisonment and
fine, a sentence of imprisonment without any fine is invalid. Woodruff v.
U. S., 58 Fed. 766.
22 Ex parte Cox (Idaho) 32 Pac. 197.
23 1 Chit. Cr. Law, 718; Rex v. Wilkes, 4 Burrows, 2577.
2* 1 Chit. Cr. Law, 718; Castro v. Reg., 6 App. Cas. 229; Rex v. Williams,
1 Leach, Crown Cas. 536; Brown v. Com., 4 Rawle (Pa.) 259; In re Walsh,
37 Neb. 454, 55 N. W. 1075; In re White, 50 Kan. 299, 32 Pac. 36; In re
Packer, 18 Colo. 525, 33 Pac. 578. Such a sentence should not fix the date
496 PEOCEEDINGS AFTER VERDICT. [Ch. 13
however, in case of corporal punishment, cumulative sentences are
not allowed.^"
At common law every court invested with power to award execu-
tion in criminal cases has the inherent power to suspend sen-
tence.*' The courts frequently exercise this power by suspending
sentence during good behavior. The power is not taken away
from the courts by a statute merely making it their duty to impose
the punishment prescribed.*'
Excessive Punishment.
The court, as stated above, cannot impose any greater punishment
than is prescribed by law. But it or the jury, according to the prac-
tice, can impose any amount of punishment within the limits fixed
by law for the particular offense, and in most states the sentence
will not be interfered with on the ground that the punishment
is excessive.** If the punishment is cruel and unusual, within the
constitutional prohibition to be presently explained, a different ques-
tion is presented.
SAME— CRUEL AND UNUSUAL PUNISHMENT.
188. In the federal constitution, and in most, if not all,
of the state constitutions, there is a prohibition against
cruel and unusual punishments.
on which each successive term of imprisonment shall begin, but should di-
rect each term to commence at the expiration of the former term, since tlie
former sentence may be shortened by good conduct or otherwise. In re
Walsh, supra.
2 5 People v. Liscomb, 60 N. Y. 559.
28 People V. Court of Sessions, 141 N. T. 288. 36 N. E. 386; 2 Hale, P. C.
412; 2 Hawk. P. C. c. 51, § 8; Com. v. Dowdigan, 115 Mass. 136; State v.
Addy, 43 N. J. Law, 114; Weaver v. People, 33 Mich. 297; People v. Reilly,
53 Mich. 260, 18 N. W. 849; Com. v. Maloney. 145 Mass. 205, 13 N. B. 482;
Sylvester v. State, 65 N. H. 193, 20 Atl. 954.
27 People V. Court of Sessions, supra.
2 8 People V. Kelly, 99 Mich. 82, 57 N. W. 1090; Ledgerwood v. State, 134
Ind. 81, 33 N. B. 631; People v. McGonegal, 136 N. Y. 62, 32 N.' B. 616. In
some states the court, on appeal, reviews the sentence In this respect, but It
will not interfere unless the punishment imposed is clearly excessive. See
Sutton V. People, 145 111. 279, 34 N. B. 420; West v. Com. (Ky.) 20 S. W. 219.
Ch. 13] NEW TRIAL. 497
This prohibition "is to be understood as forbidding any cruel
or degrading punishment not known to the common law, and
probably also any degrading punishments which, in the particular
state, had become obsolete when its constitution was adopted, and
also all punishments which are so disproportioned to the offense
as to shock the moral sense of the community." ^° Under this pro-
vision there can be no such punishment as torture, disemboweling,
burning, branding, mutilation, the pillory or the ducking stool, but
the ordinary modes of punishment, such as hanging, imprisonment,
and fines, are not prohibited.'" Nor is the provision violated by
requiring the death penalty to be inflicted by shooting, or by
electrocution, or by requiring the accused to be kept in solitary
confinement until execution.'^ Punishment by requiring the ac-
cused to work out his fine by laboring on the street in chains is not
cruel or unusual; '^ nor, it seems, is it a violation of the constitution
to punish by stripes.^*
NEW TRIAL.
189. A motion by the defendant for a new trial is a
proper remedy for any error or irregularity during the
trial -which prevented substantial justice, or because the
verdict is contrary to the evidence, or because evidence
■which -nrould require a diflferent finding has been discov-
ered since the verdict.
A new trial may be granted for misconduct of the jury as where
they determined upon their verdict by casting lots,'* or separated
when they should not have done so, or held communications with
29 Black, Const Law, 510; In re Bayard, 25 Hun (N. Y.) 546; Cooley, Const.
Lim. 329; Pearyear v. Com., 5 Wall. 475; Barker v. People, 3 Cow. (N. T.)
686.
80 Black, Const. Law, 510.
31 People V. Kemmler, 119 N. T. 580, 24 N. B. 9; In re Kemmler, 136 U. S.
436, 10 Sup. Ct 930; WUkerson y. Utah, 99 U. S. 130; McElvaine v. Brush,
142 U. S. 155, 12 Sup. Ct. 156.
82 Ex parte Bedell, 20 Mo. App. 125.
88 Com. V. Wyatt, 6 Rand. (Va.) 694; Foote v. State, 59 Md. 264; Garcia
v. Territory, 1 N. M. 415. But see Cooley, Const. Lim. 329.
84 Ante, p. 477.
CRIM.PKOC— 33
498 PEOCEEDINGS AFTER VERDICT. [Ch. 13
outsiders, or were otherwise guilty of misconduct prejudicial to
the defendant." But, as we have seen, the testimony of the
jurors themselves cannot be received to impeach their verdict' '
In most states a new trial may be granted on the merits, on the
ground that the evidence is insufficient to sustain the verdict; "
but the court will not set aside a verdict and grant a new trial on
this ground unless the evidence is clearly insufficient. Ordinarily,
if the evidence was conflicting, or if there is any evidence to sus-
tain the verdict, a new trial will be denied, for the jury are the
judges of the credibility of the witnesses and the weight of the
evidence.''
Mere want of preparation on the part of the defendant is no
ground for a new trial.'® Nor will a new trial be granted merely be-
cause one of the witnesses made a mistake in testifying,*" or has
since been discovered to be incompetent.*^ But where material wit-
nesses have been prevented by illness from attending,*" or have
gained credit on the trial by circumstances since falsified by affi-
davit, or are afterwards convicted of perjury, or otherwise shown
to have testified falsely,*' tne court may, and generally will, allow
a new trial.**
A new trial may also be granted for prejudicial errors in the
charge of the court,*' or because of the erroneous admission or
8 5 Ante, p. 474.
3 6 Ante, p. 490.
37 Style, 462; 1 Chit. Or. Law, 654; Rex v. Mawbey, 6 Term R. 622; Macrow
V. Hull, 1 Burrows, 12; Williams v. State, 85 Ga. 535, 11 S. B. 859; Ball v.
Com., 8 Leigh (Va.) 726; Com. v. Briggs, 5 Pick. (Mass.) 429; State v. Spidle,
44 Kan. 439, 24 Pac. 965.
3 8 People V. Chun Heong, 86 Cal. 329, 24 Pac. 1021; U. S. v. Ducournau, 54
Fed. 138; Hardison v. State (Ga.) 19 S. E. 895; Nealy v. State, 89 Ga. 806,
15 S. E. 744.
3 0 Ford V. Tilly, 2 Salk. 653; 1 Chit Cr Law, 656.
«o Huish V. Sheldon, Sayer, 27. Contra, Richardson v. Fisher, 1 Bing. 145.
*i Turner v. Pearte, 1 Term R. 717; Walfforth v. State, 31 Tex. Cr. R. 387,
20 S. W. 741.
*i Anon., 1 Salk. 645. But see Jackson v. State (Tex. Cr. App.) 25 S. W.
632.
<3 Lister v. Mundell, 1 Bos. & P. 427; State v. Moberly (Mo. Sup.) 26 S. W.
364. But see State v. Anderson (Mont.) 37 Pac. 1.
44 1 Chit Cr. Law, 656.
4» Anon., 2 Salk. 649; How v. Sti-ode, 2 Wils. 273.
Ch. 13] NEW TRIAL. 499
exclusion of evidence, though generally not in such a case where
there is ample competent evidence to sustain the verdict.*'
Another ground upon which a motion for a new trial is frequently
based is after-discovered evidence.*' To authorize a new trial on
this ground (1) the evidence miist have been discovered since the
trial;** (2) it must be such as reasonable diligence on the part of
the defendant could not have secured on the former trial; "" (3) it
must be material, and not merely collateral or cumulative or cor-
roborative or impeaching; "^ (4) it must be such as ought to pro-
duce a different result on the merits on another trial; ^^ (5) it must
go to the merits, and not rest on merely a technical defense.""
By the great weight of authority a new trial cannot be granted
at the instance of the state after a verdict of acquittal."*
We have already shown, in the preceding pages, what consti-
tute errors and irregularities during the trial, and it will be suffi-
cient here to refer to the specific heads.
Objections which can be raised by motion in arrest of judgment
are ordinarily no ground for motion for a new trial. A motion
for a new trial does not lie because of defects in pleading.""
*7 Hex V. Ball, Russ. & R. 132.
48 Jolinson V. State (Tex. Cr. App.) 22 S. W. 595; Cooper v. State, 91 Ga. 362,
18 S. E. 303; State v. Carlos (S. 0.) 16 S. E. 832; Bailey v. State, 36 Neb.
808, 55 N. W. 241.
49 White V. State, 17 Ark. 404; State v. Cantlin, 118 Mo. 100, 23 S. W. 1091.
BO Lilly V. People, infra; Bennett v. Com., 8 Leigh (Va.) 745; Thompson v.
Com., 8 Grat. (Va.) 637; People v. Mack, 2 Parker, Or. K. (N. Y.) 673; State
V. Dimmitt (Iowa) 55 N. W. 531; Runnels v. State, 28 Ark. 121; Avery v.
State, 26 Ga. 233.
Bi Lilly V. People, 148 111. 467, 36 N. E. 95; Childs v. State (Ga.) 19 S. E.
752; Mitchell v. State, Id. 893; State v. De Graff, 113 N. C. 688, 18 S. B. 507;
State V. Howell, 117 Mo. 307, 23 S. W. 263; State v. Potter, 108 Mo. 424, 22
S. W. 89. But see Bailey v. State, 36 Neb. 808, 55 N. W. 241.
B2 Field V. Com. (Va.) 16 S. E. 865; Yeldell v. State (Tex. Or. App.) 25 S.
W. 424; Burgess v. State (Tex. Cr. App.) 24 S. W. 286; Peterson v. State, Id.
518; Simpson v. State (Ga.) 18 S. E. 526; People v. Urquidas, 96 Cal. 239, 31
Pac. 52; King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Hendrlx, 45 La.
Ann. 500, 12 South. 621.
8» Whart. Or. PI. & Prac. § 854; Cooper v. State, 91 Oa. 362, 18 S. E. 303.
B* Ante, p. 393.
BB White V. State (Ga.) 19 S. E. 49.
500 PROCEEDINGS AFTEB VEKDICT. [Ch. IS
WRIT OP ERROR.
190. At common la-w the proceedings and judgment of a
subordinate court may be taken to an appellate court for
review by -writ of error, -wrhich is a -writ issuing from the
appellate court commanding the subordinate court to send
up the entire record. Such a writ lies only to a court of
record. It does not lie until after judgment, and lies only
for errors of record. The modes of reviewing the judg-
ment and proceedings in a criminal case are now almost
entirely regulated by statute.
At common law the mode of reviewing the proceedings and judg-
ment in a criminal case was by writ of error. This is a writ issu-
ing from an appelliate court commanding a subordinate court to
send up the entire record in the case. At common law this writ
would lie only for matters apparent on the record, and it could only
issue to a court of record. This, however, has been changed by
statute in many states.
In many of the states a writ of error is still used, the practice,
however, being regulated almost entirely by statute. In other
states the remedy by appeal is substituted, and in others the remedy
is by a bill of exceptions.
By the weight of authority, a writ of error or appeal does not lie
at the instance of the state."*
»« Ante, p. 393.
Ch. 14]
FACTS IN ISSUE.
501
CHAPTER XIV.
EVIDBNOH.
191. Facts In Issue.
192-194. Facts Relevant to Facts in Issue.
195. Facts Necessary to Explain or Introduce Relevant Facts.
196. Motive.
197. Preparation for Act
198. Subsequent Conduct or Condition of Defendant
199. Statements Accompanying Acts.
200. Statements in the Presence of Defendant
201. Conduct and Complaint by Person Injured.
202. Res Gestae.
203. Other Crimes.
204-206. Acts and Declarations of Conspirators.
207. Hearsay.
208. Declarations of Persons other than Defendant
209-210. Dying Declarations.
211. Admissions and Declarations by Defendant
212-214. Confessions.
215. Evidence Given in Former Proceeding.
216. Opinion Evidence.
217. Expert Testimony.
218. Character.
219. Evidence Wrongfully Obtained.
220-222. Presumption of Innocence— Burden of Proof.
223. Witnesses— Competency— Examination.
FACTS IN ISSUE.
191. Evidence of any fact in issue is admissible.*
As we have seen, the general issue in a criminal case is formed
by the accusation and the plea of not guilty." The plea of not
guilty puts in issue not only every fact alleged in the accusation
1 By the term "fact" we mean to include the fact that any particular mental
condition existed or exists, as the fact that the defendant, when he committed
the crime charged, was insane, or was actuated by malice, or that he acted with.
a certain intention, or that he acted with knowledge of certain facts.
2 Ante, p. 408.
502 EVIDENCE. [Ch. 14
which it is necessary to prove in order to secure a conviction, but
it puts in issue every fact which will constitute a defense and
prevent a conviction.' Every such fact may therefore be shown.
The facts in issue are determined in each case by the charge in
the indictment and by reference to the substantive criminal law.
On indictment for murder and a plea of not guilty, the following
facts, among others^ are or may be in issue: The fact that the
defendant killed the deceased; the fact that he did so with malice
aforethought; the fact that he was at the time so mentally insane,
was acting under such an insane delusion, or, in some states, under
such an insane irresistible impulse, or was of such tender years, as
to be legally irresponsible; the fact that he did the lulling by
excusable accident, or in excusable self-defense, or under circum-
stances justifying him; and the facts that he had received, and
that he acted under, such provocation from the deceased as re-
duced the homicide to manslaughter.
A plea of not guilty to an indictment for rape puts or may put
in issue the fact that the defendant had carnal knowledge of the
woman; the fact that she was his wife; the fact that she consent-
ed, etc.
A plea of not guilty to an indictment for larceny puts in issue the
fact that the defendant took the property described in the indictment,
that the property belonged generally or specially to the person
named as owner, that the defendant took it under such circum-
stances that he committed a trespass, that he carried it away, that
he intended to steal it, etc.
FACTS RELEVANT TO FACTS IN ISSUE.
192. Evidence of any fact wMch, thougli not itself in
issue, is relevant to any fact in issue, is admissible.
EXCEPTIONS— (a) Unless it is declared inadmis-
sible by some arbitrary rule of law.
(b) Unless the fact appears to be too remote to
be material under all the circumstances
of the case.
» Ante, p. 408.
Ch. 14] FACTS RELEVANT TO FACTS IN ISSUE. 603
193. Evidence of a fact -which is not relevant to any
fact in issue is inadmissible.
194. A fact is relevant to a fact in issue if, according to
the common course of events, either taken by itself or in
connection with other facts, it logically tends in any de-
gree to render probable the existence or nonexistence of
that fact.
From these rules it will be noticed that evidence, though relevant,
may be inadmissible or incompetent because it is immaterial, and
evidence, though both relevant and material, may be incompetent
because some rule of law to be hereafter stated declares it so.
"Relevancy," "materiality," and "competency" are not synonymous
terms, though often used as synonymous both in the text-books and
by the judges.
Any fact is relevant to a fact in issue if it logically tends in any
degree to show the existence or nonexistence of that fact. It is
necessary, however, that the fact shall tend materially, in view of
all the circumstances, to show the existence or nonexistence of the
fact in issue. In other words, evidence to be admissible, must be
both relevant and material. Unless the admissibility of evidence
is settled by some arbitrary rule, or by controlling precedent, it is
to be determined by reason in each particular case. The test is
this: Does the fact offered in evidence, under all the circum-
stances of the particular case, according to the common course of
events, logically and materially tend, when taken either by itself
or in connection with other facts, to show the existence or non-
existence of a fact in issue? * If it does, then it is relevant and
material.
* Com. v. Jeffries, 7 Allen (Mass.) 563; Com. v. Abbott, 130 Mass. 473; State
V. Alford, 31 Conn. 40. "The word 'relevant' means that any two facts to which
it is applied are so related to each other that, according to the common course
of events, one, either taken by itself or in connection with other facts, proves
or renders probable the past, present, or future, existence or nonexistence of
the other." Steph. Dig. Ev. (Chase's Ed.) 4. "It is only by appealing to hy-
pothesis that questions of relevancy can be determined. 'My hypothesis,' so
argues the prosecution, 'is that the act charged is part of a system of guilty
acts.' To support such an hypothesis, proof of such a system is relevant. Or
the defense argues, 'No man of good character would commit a crime such
604 EViDENCK. [Ch. 14
Having ascertained the relevancy and materiality of the evidence,
we must next see whether there is any rule of law rendering it in-
competent. The defendant's bad character may tend to render
probable the fact that he committed the crime under investigation,
and so may the fact that he committed a similar crime a year be-
fore, and so may the fact that, a week after the crime was commit-
ted, a third person was heard to say that he saw the defendant
commit it; but rules of law declare this evidence inadmissible.
It is relevant, but incompetent These rules will be presently
stated and explained.
In a prosecution for homicide, a witness may testify that he saw
the defendant kill the deceased. This is admissible, because it is
direct evidence of a fact ia issue. Evidence that the defendant
was near the scene of the crime shortly before or shortly after it
was committed would be admissible, not as evidence of a fact in
issue, because the defendant's presence there before or after the
crime is not in issue, but as evidence of a fact relevant to the fact
that the defendant killed the deceased, which is a fact in issue.
It tends to render that fact probable. For the same reason, it
might be shown that before the homicide the defendant had threat-
ened to kill the deceased; that after the homicide he had blood
on his clothes, or had in his possession property which the deceased
had on his person just before he was killed; that there were
tracks near the place corresponding to the shape of defendant's
shoes; that a piece of gun wadding was found near the place (the
deceased having been killed with a gun), and was like the wadding
as here charged,' and, to sustain this hypothesis, evidence of good character
is relevant." Whart. Or. Bv. § 21. "Relevancy is that which conduces to the
proof of a pertinent hypothesis; a pertinent hypothesis being that -which log-
ically affects the issue. * * * Relevancy is to be determined by free logic,
unless otherwise settled by statute or controlling precedent. All facts that go
either to sustain or impeach a hypothesas logically pertinent are admissible.
But no fact Is relevant which does not make more or less probable such a hy-
pothesis. Relevancy, therefore, involves two distinct Inquiries to be deter-
mined by free logic, unless otherwise arbitrarily prescribed by jurisprudence:
(1) Ought the hypothesis proposed,- if true, to affect the issue? (2) Does the
fact offered in evidence go to sustain this hypothesis?" Whart. Or. Bv. §S
23, 24. This statement makes no distinction between relevancy and material-
ity. It defines evidence which is both relevant and material, and therefor©
competent unless excluded by some arbitrary rule of law.
Ch. 14] FACTS RELEVANT TO FACTS IN ISSUE. 505
afterwards found in one barrel of the defendant's gun, the other
barrel having been discharged; " or that the defendant and his
alleged accomplice practiced shooting at a mark before the homi-
cide.*
The defendant being charged with murder, the fact that he killed
the deceased with malice aforethought is in issue, and any fact
materially tending to show malice aforethought is admissible.
Thus, it may be shown that atj the time of the killing he was resist-
ing a lawful attempt of the deceased to arrest him; that he was
trying to rob the deceased, or to commit some other felony, — ^for
under such circumstances the law implies malice aforethought,
though there was no intention to kill. And in like manner it may
be shown that he had previously threatened to kill the deceased;
that he had quar' pled with him; or that he was criminally intimate
with the deceased's wife.
On the part of the defendant, it may be shown that he was at
another place at the time of the killing, that he was on friendly
terms with the deceased, that he is a man of good character, etc.;
or, the killing being admitted, he may show that the deceased was
assaulting him, or was in the act of adultery with his (defendant's)
wife, for under such circumstances the killing would be man-
slaughter only.
On the prosecution of a woman for assault on a woman living in
an adjoining tenement, where the defendant claimed that the
injury was inflicted by accident, the state was allowed, for the pur-
pose of showing that it was intentional, to prove that the defendant
did not, after the injury, in any way interest herself in the injured
woman.'
So, on a prosecution for homicide, where the defendant sets up
self-defense, it may be shown that the defendant had previously
threatened the deceased, or that the deceased had threatened the de-
fendant, as tending to show which of them began the encounter. =
And on the question whether the defendant had reasonable grounds
5 Hodge T. State, 97 Ala. 37, 12 South. 164.
« People v. McGuire, 135 N. Y. 639, 32 N. E. 146.
7 State v. Alford, 31 Conn. 40.
8 Campbell v. People, 16 111. 18; Keener v. State, 18 Ga. 194; Stokes v. Peo-
ple, 53 N. Y. 174.
606 EVIDENCE. [Ch. 14
to belieye that his life was in danger at the hands of the deceased,
it may be shown that the deceased, to the defendant's knowledge,
was in the habit of carrying weapons, and was a violent and dan-
gerous man.°
On the other hand, where, on indictment for murder, the defend-
ant contends that he was an ofiQcer, and killed the deceased in over-
coming his resistance to the execution of a lawful warrant of ar-
rest, the state cannot show that the deceased was not guilty of the
offense for which it was sought to arrest him, for the fact of his in-
nocence is irrelevant.^" So, on indictment for a murder said to
have resulted from the hostile relations of certain clans, it was held
not competent to show other murders committed by such clans, nor
the fact that armed men were employed to protect the county seat
against invasion from them.^^ And, on an indictment for murder,
a witness was not allowed to testify that he heard a gun fired about
a mile from where the deceased was killed.^''
FACTS NECESSARY TO EXPLAIIf OK INTRODUCE RELE-
VANT FACTS.
195. Facts are admissible:
(a) If necessary to be known to explain or intro-
duce a fact in issue, or relevant to the issue.
(b) If they support or rebut an inference sug-
gested by any such fact.
(c) If they tend to establish or disprove the iden-
tity of any thing or person whose identity
is in issue, or is relevant to the issue.
(d) If they fix the time or place at which any
such fact happened.
(e) If they show the relation of the parties by
w^hom any such fact was transacted.
» Horbach v. State, 43 Tex. 242; post, p. 537.
10 Roten y. State, 31 Fla. 514, 12 South. 910.
11 Spurlock V. Com. (Ky.) 20 S. W. 1095.
1* Spurlock y. Com., supra.
Ch. 14] MOTIVE. 507
(f) If they afforded an opportunity for its occur-
rence or transaction.
(g) If they are necessary to be kno-wn in order
to sho-wr the relevancy of other facts.
Thus, on the question whether a writing published by one per-
son of another is libelous or not, the position and relation of the
parties at .the time when the libel was published may be shown, as
introductory to the facts in issue.
On the question whether A. wrote B. an anonymous letter, threat-
ening him, and requiring Mm to meet the writer at a certain time
and place to satisfy his demand, the fact that A. met B. at that time
and place may be shown. The fact that A. had a reason, uncon-
nected with the letter, for b^ing at that time at that place, may be
shown to rebut the inference suggested by his presence.^'
On a prosecution for riot, where the defendant is shown to have
marched at the head of a mob, the cries of the mob are admissible
as explanatory of the nature of the transaction.^*
On the question whether A. poisoned B., the habits of B., known
to A., which would afford A. an opportunity to administer the
poison, are relevant.^ ^
On the question whether an employ^ has been embezzling from
his employer, it may be shown that the defendant lived beyond his
means.^° The defendant could show the sources from which he pro-
cured money, to rebut the inference arising from this fact
MOTIVE.
196. Any fact that sho-ws a motive to commit the crime
charged is admissible.
Any fact that supplies a motive for commission of the act charged
by the defendant tends to render probable the fact that he did
commit it, and is therefore relevant.^'
13 Barnard's Case, 19 How. State Tr. 815; Com. v. Brady, 7 Gray (Mass.) 320.
" Gordon's Case, 21 How. State Tr. 520.
IB Rex V. Donellan, Steph. Dig. Bv. (Chase's Ed.) 21.
i»Hackett v. King, 8 Allen (Mass.) 144.
"Eex V. Clewes, 4 Car. & P. 221; Com. v. Ferrigan, 44 Pa. St. 386; Com.
V. Holmes, 157 Mass. 233, 32 N. E. 6; People v. Hai-ris, 136 N. Y. 423, 33 N.
508 EVIDENCE. [Ch. 14
Thus, on an indictment for murder, the fact that the deceased,
25 years before the murder, murdered a man at the instigation of
the defendant, and that the defendant at or before that time used
expressions showing malice against the man so murdered, are ad-
missible as showing a motive on the defendant's part to commit the
crime charged.^* For the same reason it may be shown that the de-
fendant had been living in adultery with the wife of the deceased,^' or
that the deceased had instituted a criminal prosecution against the
defendant, in consequence of which the defendant had made threats
against the deceased, or otherwise shown ill will towards him."*
And on indictment for wife murder, it may be shown that the de-
fendant had previously assaulted, or ill treated, or quarreled with,
or separated from, the deceased.''^ So, on indictment for wife mur-
der by poisoning, it may be shown that the defendant stated that he
had been secretly married to another woman, since it tends to show
that the marriage was bigamous, and bears on the question of mo-
tive; "" and, for the same reason, unlawful relations between the
defendant and another woman may be shown."* And, on indict-
ment for fratricide, it may be shown that the defendant was disin-
herited by his father's will, while the deceased was amply provided
for; and that on a contest of the wiU, shortly before the homicide,
the taking of the deceased's deposition was objected to by the de-
fendant, and the hearing continued."*
So, on an indictment of a bookkeeper of a bank for larceny of
El 65; Sayres v. Com., 88 Pa. St. 291; Com. v. Webster, 5 Cush. (Mass.) 295;
Perrln v. State, 81 Wis. 135, 50 N. W. 516; State v. Dickson, 78 Mo. 438;
State r. Cohn, 9 Nev. 179.
18 Eex V. Clews, 4 Car. & P. 221. And see Moore v. U. S., 150 U. S. 57, 14
Sup. Ct. 26.
i» Com. V. Ferrlgan, 44 Pa. St. 386; Pate v. State, 94 Ala. 14, 10 South.
665; Pierson v. People, 79 N. Y. 424; Reinhart v. People, 82 N. Y. 607.
20 Hodge V. State, 97 Ala. 37, 12 South. 164; Butler v. State, 91 Ga. 161, 16
S. E. 984; Martin v. Com. (Ky.) 19 S. W. 580; Franklin v. Com. (Ky.) 18 S.
W. 532.
21 Com. v. Holmes, 157 Mass. 233, 32 N. E. 6; Hall v. State, 31 Tex. Cr. R.
565, 21 S. W. 368; Painter v. People, 147 111. 444, 35 N. B. 64.
22 People T. Harris, 136 N. Y. 423, 33 N. E. 65.
2s Johnston v. State, 94 Ala. 35, 10 South. 667; Wilkerson v. State, 31 Tex.
Cr. R. 86, 19 S. W. 903.
2* State V. Ingram, 23 Or. 434, 31 Pac. 1049.
Gh. 14]i PEEPAEATION FOE ACT. 609
money, testimony that the money stolen was not the bank's, but be-
longed to a third person, who had placed it there for safe-keeping,
and that the defendant was, and had been for some months prior
to the larceny, a defaulter to the bank, and had falsified the books
to conceal the fact, is admissible for the purpose of showing a possi-
ble motive for the larceny in the desire to pay back to the bank the
amount of the defalcations.^"
And on indictment for arson it may be shown that the defendant
had taken out heavy insurance on the building burned.^'
PBEPARATION FOR ACT.
197. Any fact which, shows preparation by the defend-
ant for the act charged is admissible.
Evidence tending to show that the defendant made preparations
to commit the act charged is relevant, for it tends to render proba-
ble the fact that he did commit it Thus, the fact that the defend-
ant before the commission of the crime procured or possessed the
instruments, or instruments like those, with which the crime was
committed, may be shown.^'
On indictment for murder by shooting, it may be shown that be-
fore the killing the defendant and his alleged accomplice practiced
shooting at a mark; "* or that, about 30 minutes before the shoot-
ing, the defendant, with his hat pulled down over his face, ap-
proached and touched his alleged accomplice, and that thereupon
both walked off towards the place where the murder was commit-
ted."
So, on a prosecution for homicide, previous threats of the de-
fendant to kill the deceased may be shown.'"
2 8 Perrin v. State, 81 Wis. 135, 50 N. W. 516.
28 State v. Cohn, 9 Npv. 179.
27 R. V. Palmer, Steph. Dig. Ev. (Chase's Ed.) 15; Com. v. Blair, 126
Mass. 40; Colt v. People, 1 Parker, Or. R. (N. Y.) 611; Com. v. Roacli, 108
Mass. 289.
28 People V. McGuire, 135 N. Y. 639, 32 N. E. 146.
29 Rodriquez v. State, 32 Tex. Cr. E. 259, 22 S. W. 978.
80 Com. V. Goodwin, 14 Gray (Mass.) 55; State v. Hoyt, 46 Conn. 330; Redd
v. State, 68 Ala. 492.
610 EVIDENCE. [Ch. 14
SUBSEQUENT CONDUCT OR CONDITION OP DEFENDANT.
198. Any conduct or condition of the defendant subse-
quent to the act charged, apparently influenced or caused
by the doing of the act, and any act done in consequence
of it, by or by the authority of the defendant, may be
shown. But self-serving acts cannot be shown, by the
defendant.
The fact that the defendant, after the alleged crime, caused cir-
cumstances to exist tending to give to the facts of the case an appear-
ance favorable to himself; ^^ that he destroyed or concealed things
or papers which might criminate him, or prevented the presence, or
procured the absence, of persons who might have been witnesses,^'
or suborned persons to give false testimony; ^^ or that he fled or
concealed himself or otherwise attempted to escape, or resisted ar-
rest,'* or made false statements as to his movements at or about
the time of the crime, or as to other material facts,''' or after the
crime had possession of the fruits of the crime, as of the property
»i R. V. Patch, Steph. Dig. Ev. (Chase's Ed.) 15; Gardiner v. People, 6
Parker, Or. R. (N. Y.) 157; State v. Williams, 27 Vt. 226; Com. v. Webster,
5 Cush. (Mass.) 295.
32 Adams v. People, 9 Hmi (N. Y.) 89
33 State V. Williams, supra; Donohue v. People, 56 N. Y. 208.
34 Jamison v. People, 145 111. 357, 34 N. E. 486; Cummis v. People, 42 Mich.
142; Com. v. ToUiver, 119 Mass. 312; Fox v. People, 95 III. 71; Ryan v. Peo-
ple, 79 N. Y. 593; Horn v. State (Ala.) 15 South. 278; State v. Mallon, 75 Mo.
355; State v. Taylor (Mo. Sup.) 22 S. W. 806. Or to escape from jail after
arrest. Ryan v. State, 83 Wis. 486, 53 N. W. 836; Elmore v. State, 98 Ala.
12, 13 South. 427; State v. Howell, 117 Mo. 307, 23 S. W. 263; State v. Hob-
good (La.) 15 South. 406. Aiding escape of accomplice. People v. Rathbun,
21 Wend. (N. Y.) 509. Living under assumed name in another state. State
V. Whitson, 111 N. 0. 693, 16 S. E. 332. Possession of instruments to effect
escape from jalL State v. Duncan, 116 Mo. 288, 22 S. W. 699. As to ex-
planation of his conduct by the defendant, see Taylor y. Com. (Va.) 17 S. E.
812; Lewellen v. State (Tex. Cr. App.) 26 S. W. 832.
3s state V. Bradley, 64 Vt. 466, 24 Atl. 1053; Com. v. Johnson, 162 Pa. St
63, 29 Atl. 280; Com. v. Goodwin, 14 Gray (Mass.) 55.
Ql. 14] STATEMENTS IN THE PRESENCE OF DEFENDANT. 511
stolen after a burglary, larceny, or robbery,'" or his attempt to dis-
pose or disposition of it,''^ — may be shown against him.
The defendant cannot show self-serving acts before or subse-
quent to the crime, for this would permit him to make evidence for
himself. Thus, on indictment for murder, the defendant cannot
show that he went to the house of deceased and offered to wait
on him," or that he offered to surrender himself.'"
Silence of the defendant when charged with a crime is elsewhere
considered.*"
STATEMENTS ACCOMPANYING ACTS.
199. Whenever any act may be proved, statements ac-
companying and explaining that act, made by or to the
person doing it, may be proved, if they are necessary to
understand it.
Thus, where the question was whether a person was insane, and
the fact that he acted upon a letter received by him was part of
the facts in issue, the contents of the letter were held admissible
as statements accompanying and explaining his conduct.**
STATEMENTS IN THE PBESENCE OF DEFENDANT.
200. "When the defendant's conduct is in issue, or is
relevant to the issue, statements made in his presence
and hearing, by which his conduct is likely to be af-
fected, are admissible.
•
38 Stover V. People, 56 N. Y. 315; State v. Brewster, 7 Vt 122; State v.
Hodge, 50 N. H. 510; Com. v. Parmenter, 101 Mass. 211. Provided the fact
of such possession is not so long after the crime, or accompanied by such cir-
cumstances, as to render it immaterial. Sloan v. People, 47 111. 76; Jones v.
State, 26 Miss. 247.
87 Foster v. People, 63 N. Y. 619.
38 state V. Whitson, 111 N. 0. 695, 16 S. B. 332.
s» State V. Smith, 114 Mo. 406, 21 S. W. 827. See State v. Wilkins, 66 Vt
1, 28 Atl. 323.
*o Post, p. 512.
41 Steph. Dig. Ev. (Chase's Ed.) 19.
512 EVIDENCE. [Ch. 14
If a statement made in the hearing of a person is such that, if
false, he would naturally deny it, his silence and acquiescence tend
to show that the facts stated are true.*'' So, if a person is accused
of a crime, and does not deny it, or if he allows a statement im-
puting a crime to him to go unanswered, the statement and his
conduct, including his silence if he does not answer, or his reply
if he does, may be shown on his prosecution for the crime.* ^ The
statement must have been made in his hearing, and must have been
understood by himj ** and it must have been such a statement, and
made under such circumstances, that he could and should have
replied, *° — or his silence cannot be regarded as raising any inference
against him. Some courts hold that a person when under arrest
is not called upon to deny charges, and that his silence when
accused under such circumstances cannot be used against him.*"
Of course, it is always open for him to explain his silence and rebut
the inference arising from it.*^
CONDUCT AND COMPLAINT BY PERSON INJURED.
201. In prosecutions for rape, the conduct of the 'woman,
and particularly the fact that she made complaint after
{according to some of the cases soon after) the crime was
committed, may be sho^wn; but the particulars of the
complaint are not admissible.
*2 State V. Wilkins, 66 Vt. 1, 28 Atl. 323.
43 Rex V. Edmunds, 6 Car. & P. 164; Com. v. Bralley, 134 Mass. 527; Kelley
V. People, 55 N. Y. 565; Com. v. Brown, 121 Mass. 69; State v. Bradley, 64
Vt 466, 24 Atl. 1053; Com. v. Trefethen, 157 Mass. ISO, 31 N. E. 961; Brown
V. State, 32 Tex. Cr. R. 119, 22 S. W. 596; State v. Belknap (W. Va.) 19 S. E.
507.
44 Lanergan v. People, 39 N. Y. 39; Com. v. Sliney, 126 Mass. 49.
4 5 BeU V. State (Ga.) 19 S. E. 244; Broyles v. State, 47 Ind. 251; People v.
Willett, 92 N. Y. 29; Com. v. Walker, 13 Allen (Mass.) 570; KeUey v. People,
55 N. Y. 571; Slatteiy v. People, 76 111. 217; Bob v. State, 32 Ala. 560. As
where he was under arrest, or the statement was made in court, or he had
promised to keep silent, etc.
4 6 Com. V. McDermott, 123 Mass. 440; Com. v. Kenney, 12 Meta (Mass.)
285. Contra, Kelley v. People, 55 N. Y. 565; Murphy v. State, 36 Ohio St
628.
■47 Slattery v. People, supra.
Cb- 14] KES GESTAE. 613
This rule probably does not apply in any other cases than those
of rape, unless the acts or complaint are done or made so soon
after the crime that they may be considered a part of the res
gestae; " but it is well settled that the rule applies in cases of
rape.^^ The evidence is admitted only in corroboration of the tes-
timony of the woman, and it seems that unless she testifies it is
not admissible/" The evidence is in most, but not all, states, con-
fined to the fact of complaint, and the state cannot prove the
terms or particulars, — that is, what she said, — unless it can do so
as part of the res gestae. °^
Some of the cases require that the complaint shall have been
made soon after the crime, and this would seem to be a good rule.°^
Other courts do not place this restriction on the competency of the
evidence, but leave the delay to be considered by the jury in weigh-
ing the evidence."*
RES GESTAE.
202. Every fact which is part of the same transaction
as the facts in issue is to be deemed relevant to the facts
in issue, although it may not be actually in issue, and
although, if it -w^ere not part of the same transaction, it
*8 Haynes v. Com., 28 Grat. (Va.) 942.
*8 State V. Bedard, 65 Vt. 2T8, 26 Atl. 719; State v. Langford, 45 La. Ann.
1177, 14 South. 181; Baccio v. People, 41 N. Y. 265; State v. Knapp, 45 N. H.
148; State v. Warner, 74 Mo. 83; Johnson v. State, 17 Ohio, 593; Poison v.
State (Ind. Sup.) 35 N. E. 907; State v. Xocum, 117 Mo. 622, 23 S. W. 765;
Proper v. State, 85 Wis. 615, 55 N. W. 1035; Johnson v. State, 21 Tex. App.
368, 17 S. W. 252; Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481; Kirby v.
Territory (Ariz.) 28 Pae. 1134.
BO See Hombeck v. State, 35 Ohio St. 277.
81 See the cases above cited, and see Higgins v. People, 58. N. Y. 377; Stat«
V. Langford, supra; State v. Ivins, 36 N. J. Law, 233; State v. Fitzsimmen
(R. I.) 27 Atl. 446; Thompson .v. State, 38 Ind. 39; OastUIo v. State, 31 Tex.
App. 145, 19 S. W. 892; People v. Stewart, 97 Cal. 238, 32 Pac. 8. Contra,
State V. Kinney, 44 Conn. 153; Burt v. State, 23 Ohio St 394.
52 Richards v. State, 36 Neb. 17, 53 N. W. 1027; People v. Loftus (Sup.) 11
N. Y. Supp. 905.
03 state v. Mulkern, 85 Me. 106, 26 Atl. 1017; State v. NUes, 47 Vt. 82; State
V. Byrne, 47 Conn. 465.
CMM.PKOC. — 33
514 EVIDENCE. [Ch. 14
might be excluded as evidence of another crime, or as
hearsay. Facts ■which are thus a part of the same trans-
action are said to be admissible as part of the res gestae.
Facts which are not themselves in issue, but which are part of
the same transaction as the facts in issue, or, as it is generally ex-
pressed, part of the res gestae, are admitted because they explain
or qualify the facts in issue, though, if they were not part of the
same transaction, they might be excluded as hearsay, or might,
though relevant, be excluded by some other arbitrary rule of law.''*
Thus, on trial for murder of a police officer while repelling an
•attack from associates of a man in his custody, whom he had
arrested half an hour before, as one of a number of men engaged
in firing guns in a public place, evidence that the accused had been
among the men so engaged is admissible as part of the res gestae."'
So, where, on a trial for murder, the evidence shows that the
defendant fired the fatal shot while making an assault, with two
'Companions, on a dwelling occupied by the deceased, the state
may prove that during the affray one of the defendant's companions,
using the defendant's pistol, shot at and wounded another per-
son.""
Other Crimes.
When a man is being tried for one crime, the state cannot prove
the commission by him of another crime, in no way connected with
the crime charged."^ But if the other crime was committed as part
of the same transaction, and tends to explain or qualify the fact
in issue, it may be shown."' Thus, on indictment for murder, evi-
dence that the defendant, immediately after shooting the deceased,
proceeded to shoot at and threaten the mother of the deceased,
04 Com. V. Costley, 118 Mass. 1; Lander v. People, 104 111. 248; Com. v.
Densmore, 12 Allen (Mass.) 535; People v. Davis, 56 N. Y. 102; Eighmy v.
People, 79 N. Y. 540; Little v. Com., 25 Grat. (Va.) 921.
BO State V. Donelon, 45 La. Ann. 744, 12 South. 922.
Bs People V. Parker, 137 N. Y. 535, 32 N. E. 1013.
B7 Post, p. 510.
5 8 Hargrove v. State (Tex. Cr. App.) 20 S. W. 993; Davis v. State, 32 Tex.
Cr. R. 377, 23 S. W. 794.
Ch. 14] EES GESTAE. 515
who was present and witnessed the killing, is admissible as part
of the res gestae to show the animus of the defendant.""
So, on a prosecution for obtaining money by false pretenses,
where it appears that about the time of the offense the defendant
induced the prosecuting witness to invest another sum of money
in bonds which she was afterwards informed by letters were worth-
less, and that she showed the letters to the defendant, who re-
fused an explanation, such letters are admissible, as part of the
res gestae, to show the defendant's intent to defraud.""
The other crime, however, must be a part of the same transac-
tion.*^
Hearsay.
Ordinarily, declarations are inadmissible as hearsay,'* but dec-
larations which form part of the res gestae are admissible.*'
Thus, on indictment for burglary, the complaining witness may
testify that she gave the alarm, and told a police oflflcer the direc-
tion she thought the burglar had taken in leaving the house.'* And,
on indictment for robbery, descriptions of the offender given by
eyewitnesses immediately after the robbery have been admitted
as part of the res gestae.*" And, on prosecution for murder while
resisting arrest, a remark of a bystander to an officer that "there
is the man that did it" (that is, committed the offense for which the
arrest was being made) is admissible.** On a prosecution for
murder, it may be shown that a person in the room with the de-
ceased when he was shot saw a man with a gun pass a window,
and thereupon exclaimed, "There's Butcher!" (a name by which the
09 Killins V. State, 28 Fla. 313, 9 South. 711. And see State v. Gainor, 84
Iowa, 209, 50 N. W. 947; Wilkerson v. State, 31 Tex. Or. App. 86, 19 S. W.
903; Johnson v. State, 88 Ga. 203, 14 S. B. 208; Com. v. Scott, 123 Mass. 222;
People V. Mead, 50 Mich. 228, 15 N. W. 95; Hargrove v. State (Tex. Cr. App.)
26 S. W. 993.
80 People V. Lewis (Sup.) 16 N. Y. Supp. 881.
61 People V. Lane, 100 Gal. 379, 34 Pac. 856; post, p. 517.
«2 Post, p. 523.
«3 Post, p. 524; People v. Stanley (Mich.) 59 N. W. 498.
oi State V. Moore, 117 Mo. 395, 22 S. W. 1086.
«5 Jordan v. Com., 25 Grat. (Va.) 943.
88 State V. Duncan, 116 Mo. 288, 22 S. W. 699.
616 EVIDENCE. [Ch, 14
defendant was known).* ^ On indictment for manslaugliter by care-
lessly driving over the deceased, a statement made by the deceased,
as to the cause of his accident, as soon as he was picked up, was
allowed to be proved, though it was not a dying declaration.'*
And, on a prosecution for murder, a statement made by the defend-
ant a few minutes after the homicide, and near the place, and in
the presence and hearing of eyewitnesses of the homicide, who were
not introduced as witnesses by the state, should be" admitted, at the
instance of the defendant, as part of the res gestae."®
The declaration must be part of the same transaction. Thus on
the prosecution of a physician for killing a woman in attempting
to procure an abortion, a statement, made by the woman after re-
turning home from the defendant's oflBce, as to what the defendant
had said and done there, was excluded.'"
OTHER CRIMES.
203. Evidence of another crime than that charged is
only admissible in the following cases:
(a) Where it falls within one of the rules heretofore
stated, it is admissible.
(b) Where it shows the existence at the time of the
crime charged of any intention, knowledge,
good or bad faith, malice, or other state of
97 R. V. BowKes, Steph. Dig. Bv. (Chase's Ed.) 9; Bedingfleld's Case, 14 Am.
Law Rev. 817, 15 Am. Law Rev. 1, Yl.
68 Rex V. Foster, 6 Car. & P. 325. On an indictment against A. for murder
by stabbing, a declaration by tbe deceased, made immediately after the mortal
wound was inflicted, that "A. has stabbed me," is admissible as part of the
res gestae. Com. v. Hackett, 2 Allen (Mass.) 136. And see Com. v. M'Pilie,
3 Gush. (Mass.) 184; Pilcher v. State, 32 Tex. Cr. R. 557, 25 S. W. 24; People
V. Simpson, 48 Mich. 474, 12 N. W. 662. But see Reg. v. Bedingfield, 14 Cox,
Cr. Cas. 341, in which it was held, on indictment of A. for cutting B.'s throat,
where the question was whether A. or B. himself did the cutting, a statement
by B. when running out of the room immediately after the act was done was
not allowed to be proved.
60 Little V. Com., 25 Grat. (Va.) 921.
7 0 People V. Davis, 56 N. T. 95. And see People v. Newton, 96 Mich. 586,
56 N. W. 69; Shoecraft v. State (Ind. Sup.) 36 N. E. 1113,
Ch. 14] • OTHER CRIMES. 517
mind, the existence of whicli is in issue or is
relevant to the issue. But other crimes cannot
be proved merely in order to show that the de-
fendant was likely to commit the crime charged,
(c) When there is a question whether the act charged
w^as accidental or intentional, the fact that such
act formed part of a series of similar occur-
rences, in each of which the defendant w^as con-
cerned, is admissible. This is called the proof
of facts showing system.
It is well settled that on a prosecution for one crime it cannot be
shown that the defendant on another occasion committed another
crime, even though it may be a crime of the same sort,'^ unless the
case falls within one of the exceptions hereafter stated.
Rules Heretofore Stated,
If evidence of another crime is admissible under any of the rules
heretofore stated, it is not rendered inadmissible merely because it
shows the commission of another. Where evidence offered tends to
prove commission of the crime charged, it is not inadmissible be-
cause it also tends to prove the commission by the defendant of an-
other crime.'' ^
Evidence of another and distinct crime is admissible if it was
committed as part of the same transaction, and forms part of the
res gestae. On indictment for murder, for instance, it may be
shown that the defendant, immediately before or at the time of the
murder, robbed the deceased, or that he killed or attempted to kill
a bystander.'*
Ti R. v. Cole, Steph. Dig. Ev. (Chase's Ed.) 24; Holder v. State, 58 Ark. 473,
25 S. W. 279; Chaffin v. State (Tex. Cr. App.) 24 S. W. 411; People v. Gibbs,
93 N. y. 470; State v. Young, 119 Mo. 495, 24 S. W. 1038; Com. v. Campbell,
7 Allen (Mass.) 541; ShafCner v. Com., 72 Pa. St. 60; People v. Lane, 100 Cal.
379, 34 Pac. 856? State v. Bates (La.) 15 South. 204; State v. Kelley, 65 Vt.
531, 27 Atl. 203.
7 2 State v. Madlgan (Minn.) 59 N. W. 490; Moore v. U. S., 150 U. S. 57, 14
Sup. Ot. 26; Horn v. State (Ala.) 15 South. 278; State v. Phelps (S. D.) 59
N. W. 471; Frazier v. State, 135 Ind. 38, 34 N. E. 817.
T» Hargrove v. State (Tex. Cr. App.) 26 S. W. 993; Com. v. Scott, 123 Mass.
518 EVIDENCE. [Ch. 14
Again, if the commission of tlie other crime supplies a motive for
the crime charged it may be proved.''*
And it may be proved if it shows preparation for the crime char-
ged/^ or if it constitutes conduct subsequent to the crime charged,
and was apparently influenced thereby.''*
Acts Showing Intention, Knowledge, Good Faith, etc.
Whenever the existence of any particular intention, knowledge,
good or bad faith, malice or other state of mind is in issue, and
the commission of another crime tends to prove its existence, the
other crime may be shown.''' The evidence is admitted for this pur-
pose only, and not to show that the defendant was likely to commit
the crime in question. For the latter purpose it is never admissible.
On indictment for receiving stolen goods from a certain person, it
has been held that it cannot be shown that the defendant at other
times received stolen goods from other persons,'* but it may be
shown that at other times he received other stolen goods from the
same person, for the purpose of showing his knowledge that the
goods in question had been stolen.'" So where the defendant is
charged with uttering a forged instrument or counterfeit coin,
knowing it to be counterfeit, it may be proved, for the purpose of
showing the guilty Imowledge, that before and after the act charged
he uttered counterfeit coin or forged instruments.*" And on an ac-
222; People v. Mead, 50 Mich. 228, 15 N. W. 95; ante, p. 514, and cases there
cited.
7* Ante, p. 507; Painter v. People, 147 111. 444, 35 N. B. 64; People v. Dailey
(N. Y. App.) 37 N. E. 823; Pierson v. People, 79 N. Y. 424; Com. v. Choate,
105 Mass. 458; Com. v. Ferrigan, 44 Pa. St. 386.
T5 Ante, p. 509; State v. Fitzsimmons (K. I.) 27 Atl. 446; Com. v. Choate, 105
Mass. 458; Hope v. People, 88 N. Y. 418; People v. Wood, 3 Parker, Cr. E.
(N. Y.) 681.
76 Ante, p. 510.
7 7 Dunn's Case, 1 Moody, Crown Cas. 146; People v. Shulman, 80 N. Y. 373,
note; Copperman v. People, 56 N. Y. 591; Com. v. Bradford, 126 Mass. 4-2;
Com. v. Jackson, 132 Mass. 16; Kramer v. Com., 87 Pa. St 299.
78 Coleman v. People, 55 N. Y. 81.
7 9 Dunn's Case, supra; Copperman v. People, 56 N. Y. 591.
80 Reg. V. Francis, L. R. 2 Crown Cas. 128: Reg. v. Cooper, 1 Q. B. Div. 19;
Com. V. Coe, 115 Mass. 481; Langford v. State, 33 Fla. 233, 14 South. 815;
Mayer v. People, 80 N. Y. 364; Anson y. People, 148 111. 494, 35 N. E. 145.
Ch. 14] OTHER CRIMES. 519
tion or indictment for libel, other defamatory statements published
by the defendant concerning the same person are admissible to show
malice.'^ On indictment for murder it is always competent to show
previous assaults or attempts by the defendant to kill the deceased
for the purpose of rebutting the defense of accident, or self-defense,
and to show the necessary malice aforethought.^^ And generally,
for the purpose of showing a criminal intent or malice, previoiis
attempts by the defendant to commit the same crime may be shown.
Thus on indictment under a statute for maliciously burning a build-
ing, or at common law for arson, it may be shown that the defend-
ant had set fire to the same building three days before.^'
Facts Showing System.
When there is a question whether the act charged was accidental
or intentional, the fact that the act formed part of a series of simi-
lar acts, in each of which the defendant was concerned, is relevant,
and the similar acts may be shown though they constitute separate
crimes. The fact of system thus shown tends to prove that the act
in question was not accidental but intentional.** Thus on indict-
ment for setting fire to a house in order to obtain the insurance, it
may be shown that the defendant had previously lived in two other
houses successively, each of which he insured, in each of which a fire
occurred, and that after each of these fires the defendant received
payment from a different insurance office, since this tends to show
that the fires were not accidental.*"
On indictment for forgery and embezzlement it appeared that the
defendant had been employed by the prosecutor to pay the wages of
the latter's laborers, and that it was his duty to make entries in a
book showing the amounts paid by him, and he made an entry show-
ing that on a particular occasion he paid more than he really did pay.
On the question whether the false entry was accidental or inten-
81 Barrett v. Long, 3 H. L. Cas. 414; State v. Riggs, 39 Conn. 498.
82 Painter v. People, 147 111. 444, 35 N. E. 64.
83 Com. v. Bradford, 126 Mass. 42; Com. v. McCarthy, 119 Mass. 354; Kra-
mer v. Com., 87 Pa. St. 299.
8* Reg. v. Gray, 4 Fost. & F. 1102; People v. Wood, 3 Parker, Cr. R. (N. X.>
681; People v. Tomlinson (Cal.) 36 Pac. 506; State v. Lapage, 57 N. H. 245„
294; State v. Walton, 114 N. C. 783, 18 S. E. 945.
8 6 Reg. V. Gray, supra.
520 EVIDENCE. [Ch. 14
tional it was held competent to show that for a period of two years
the defendant made other similar false entries in the same book,
the false entry in each case being in his favor.*^
On indictment of a woman for poisoning her husband in Sep-
tember, 1848, where the question was whether the poison was ac-
cidentally or intentionally administered, it was held competent
to show that the deceased's three sons had the same poison admin-
istered to them in December, 1848, March, 1849, and April, 1849,
and that the meals of all four were prepared by the defendant,
though the defendant was separately indicted for murdering the
sons.*^
ACTS AND DECLARATIONS OF CONSPIBATOES.
204. When two or more persons conspire to commit
any offense, everything said, done, or -written by one of
thenx in tlie execution or furtherance of their common
purpose is admissible as against each of them.
205. But statements by one conspirator as to meas-
ures taken, or acts done, in the execution or further-
ance of such common purpose, are not admissible as
such as against any of the others unless made in their
presence. So a confession made by one conspirator after
the conspiracy \tras ended is not admissible against an-
other, -when not made in his presence.
206. Evidence of acts or statements admissible under
these rules cannot be given unless, apart from them, the
existence of the conspiracy is prima facie proved.
When two or more persons conspire together to commit any
offense, each makes the other his agent for the execution of their
common purpose, and every act, or oral or written declaration, done
or made by one of them in the execution or furtherance of this
purpose is deemed to be done or made by all of them, and is there-
86 Reg. V. Richardson, 2 Fost. & F 343.
67 Reg. V. Geering, 18 Law J. M. Gas. 215.
Ch. 14] ACTS AND DECLARATIONS OF CONSPIRATORS. 521
fore admissible against each.** But declarations by one of tlie
conspirators, not in execution or furtherance of the common pur-
pose, but merely as a narrative of past acts or measures done or
taken in the execution or furtherance of such purpose cannot be
deemed the acts or declarations of all, and are not admissible except
against those who did or made them, or in whose presence they
were done or made.*'
Thus where the question was whether two persons conspired
together to cause certain imported goods to be passed through the
customhouse on payment of too small an amount of duty, the
fact that one of them had made in a book a false entry, necessary
to be made in order to carry out the fraud, was held admissible
against the other; but the fact that he had made an entry on his
check book showing that he had shared the proceeds of the fraud
with the other was held not to be admissible against the latter.*"
So where the question was whether the defendant committed
high treason, the overt act charged being that he presided over
an organized political agitation calculated to produce a rebellion,
and directed by a central committee through local committees,
the facts that meetings were held, speeches delivered, and papers
circulated in different parts of the country, in a manner likely to
produce rebellion by, and by the direction of, persons shown to
have acted in concert with the defendant, were held admissible
against the defendant, though he was not present at those trans-
actions, and took no part in them personally; but an account given
by one of the. conspirators in a letter to a friend, of his own proceed-
88 Reg. V. Blake, 6 Q. B. 137; Rex v. Hardy, 24 How. State Tr. 451; Amer-
ican Fnr Co. v. U. S., 2 Pet. 358; WiUiams v. State, 47 Ind. 568; Com. v.
Scott, 123 Mass. 222; Com. v. Brown, 130 Mass. 279; Com. v. O'Brien, 140
Pa. St. 555, 21 Atl. 385; People v. Collins (Cal.) 30 Pac. 847; Seville v. State,
49 Ohio St. 117, 30 N. E. 621; State v. DufCy (Mo. Sup.) 27 S. W. 358. And
as against conspirator joining after the acts were done or declarations made.
Baker v. State, 80 Wis. 416, 50 N. W. 518; State v. Crab (Mo. Sup.) 26 S. W.
548. Threats by one conspirator on prosecution for murder. State v. Phillips,
117 Mo. 389, 22 S. W. 1079. Acts and declarations of employes of conspirator.
State V. Grant, 86 Iowa, 216, 53 N. W. 120.
80 Reg. V. Blake, supra; Bex v. Hardy, supra; Logan v. tJ. S., 144 U. S.
2C3, 12 Sup. Ct 617; People v. Davis, 56 N. Y. 95; Heine v. Com., 91 Pa. St.
145.
BO Reg. V. Blake, supra.
622 EVIDENCE. [Ch. 14
ings in the matter, not intended to further the common object, and
not brought to the defendant's notice, was held inadmissible."^
Confessions or declarations made by one of the conspirators after
the object of the conspiracy is abandoned or accomplished, not
being declarations in the execution or furtherance of such object,
are not admissible against the others when not made in their
presence."" And, of course, declarations made or acts done by one
conspirator before any conspiracy at all, and not ratified by the
other, are not admissible against the latter."'
To render acts or declarations of one person admissible against
another under this rule, the court must be first satisfied that, apart
from them, there are prima facie grounds for believing in the exist-
ence of the conspiracy."* The conspiracy need not be shown by
direct evidence as to the unlawful agreement. It is suflQcient to
make out a prima facie showing by circumstantial evidence." ° The
court will generally require such a showing before admitting evi-
dence of the acts or declarations, but they may, in the discretion
of the court, be admitted on the promise of the prosecuting attor-
ney to afterwards show the conspiracy, and afterwards excluded
on his failure to do so."®
91 Rex V. Hardy, supra.
02 Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37; State v. Grant, 86 Iowa, 216.
53 N. W. 120; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Com. v. Ingraham,
7 Gray (Mass.) 46; State v. Ross, 29 Mo. 32; State v. Donelon, 45 La. Ann.
744, 12 South. 922; Cable v. Com. (Ky.) 20 S. W. 220; State v. Minton, 116
Mo. 605, 22 S. W. 808; State v. Green, 40 S. C. 328, 18 S. E. 933; People v.
Stevens, 47 Mich. 411, 11 N. W. 220; Gore v. State, 58 Ala. 391. Flight of
one conspirator is not admissible as evidence against the others. People v.
Stanley, 47 Cal. 113.
93 state V. Grant, supra; McGraw v. Com. (Ky.) 20 S. W. 279; Logan v. U.
S., 144 U. S. 263, 12 Sup. Ct. 617; State v. Melrose, 98 Mo. 594, 12 S. W. 250;
State V. Hilderbrand, 105 Mo. 318, 16 S. W. 948.
94 Crosby v. People, 137 111. 325, 27 N. E. 49; Ormsby v. People, 53 N. T.
472; McGraw v. Com. (Ky.) 20 S. W. 279; Amos v. State, 96 Ala. 120, 11
South. 424; Baker v. State, 80 Wis. 416, 50 N. W. 518; Belcher v. State, 125
Ind. 419, 25 N. E. 545; PofC v. Com. (Ky.) 25 S. W. 883; Jones v. State, 58
Ark. 390, 24 S. W. 1073.
9 5 Smith V. State (Tex. Cr. App.) 20 S. W. 576; People v. Arnold, 46 Mich.
268, 9 N. W. 406; Kelley v. People, 55 N. Y. 565.
9 0 Hall V. State, 31 Fla. 170, 12 South. 449; Hamilton v. People, 29 Mich.
195; State v. Grant, 86 Iowa, 216, 53 N. W. 120; State v. Flanders, 118 Mo.
227, 23 S. W. 1086.
Ch. 14] DECLARATIONS OF PERSONS OTHER THAN DEFENDANT. 623
HEABSAT.
207. Hearsay evidence is the testimony given by a -vrit-
ness -who relates, not w^hat he knows personally but -wrhat
others have told him, or -what he has heard said by oth-
ers, and is admissible only in exceptional cases.
DECLARATIONS OF PERSONS OTHER THAN DEEENDANT.
208. Declarations by persons other than the defendant
cannot be proved,
(a) Unless they are part of the res gestae, or
(b) Unless they are admissible as dying declarations,^
or
(c) Unless they are adraissible as declarations by au-
thority of the defendant,'* or
(d) Unless they are admissible as evidence given in a
former proceeding.^
It Is only in very exceptional cases that the declarations of a
third person can be shown. To prove the facts, the person himself
must be called as a vritness to testify as to the facts.^°° Thus it
is error in a criminal case to admit the cry of a third person, "There
he goes!" referring to the defendant, when the ofl&cer went out to
arrest him, since, if the person making the declaration saw the
defendant, he should be placed on the stand to testify to that fact.^"^
So on an indictment for larceny it is not competent to prove state-
ments of the owner of the property to the ofScer who made the
9T Post, p. 525.
0 8 Post, p. 52T.
89 Post, p. 532.
10 0 u. S. y. Wilson, 60 Fed. 890; Sanders v. State, 31 Tex. Cr. R. 525, 21
S. W. 258; Davis v. State, 32 Tex. Cr. R. 377, 23 S. W. 796; Bedford v. State,
36 Neb. 702, 55 N. W. 2C3; People v. Newton, 96 Mich. 586, 56 N. W. 69; Shoe-
craft V. State (Ind. Sup.) 36 N. E. 1113; State v. Dukes, 40 S. C. 481, 19 S. E.
134.
101 Evers v. State, 31 Tex. Cr. R. 818, 20 S. W. 744.
524 EVIDENCE. [Ch. 14
arrest.^"* And on indictment for murder, or assault and battery,
statements made by the person killed or assaulted, not so soon after
the offense that they can be regarded as part of the res gestae,
and not being dying declarations, cannot be proved.^"^
SdJ-Accusing Declarations of Third Persons.
Under this rule the defendant cannot prove self-accusing declara-
tions or confessions of third persons to show that they, and not he,
committed the crime charged.^"* And it makes no difference that
the person making the declaration has since escaped or died.^"'
Ees Gestae.
There is an exception to this rule where the declaration forms a
part of the res gestae. Thus, on a prosecution for murder commit-
ted while resisting arrest, a remark of a bystander to an offtcer that
"there is the man that did it',' (i. e. committed the offense for which
the arrest was being made), was held admissible on this ground.^"'
And on a prosecution for murder, declarations made by the deceased
during the affray in which he was killed, though not dying declara-
tions, are admissible as part of the res gestae.^"* And on indict-
ment for assault with intent to kill, the wife of the person assaulted
was allowed to testify as to what her husband told her about the
assault immediately after his return home from the scene of it, a dis-
tance of a mUe and a quarter, and while suffering from the wounds
there inflicted.^"® This question has already been considered, and
some of the cases collected, in another place.* ^''
102 Boiling V. State, 98 Ala. 80, 12 South. 782.
10 3 People V. Wong Ark, 96 Oal. 125, 30 Pac. 1115; State v. Daugherty, 17
Nev. 376, 30 Pac. 1074; State v. Raven, 115 Mo. 419, 22 S. W. 376.
104 State V. West, 45 La. Ann. 928, 13 Soutli. 173; State v. Duncan, 116 Mo.
288, 22 S. W. 699; Welsh v. State, 96 Ala. 92, 11 South. 450; State v. Fletcher,
24 Or. 295, 33 Pac. 575; Horton v. State (Tex. Cr. App.) 24 S. W. 28; State v.
Hack, 118 Mo. 92, 23 S. W. 1089.
lOB State V. West, 45 La. Ann. 14, 12 South. 7; Davis v. Com. (Ky.) 23 S.
W. 585.
107 state V. Duncan, 116 Mo. 288, 22 S. W. 699.
10 8 state V. Henderson, 24 Or. 100, 32 Pac. 1030r
100 Moore v. State, 31 Tex. Or. R. 234, 20 S. W. 563. This case probably
goes too far. See People v. Wong Ark, 90 Oal. 125, 30 Pac. ni5.
110 Ante, p. 515.
Ch. 14] DYING DECLARATIONS. 625
DYING DECLAEATIONS.
209. In prosecutions for homicide, a statement made
by the deceased as to the cause of his death, or as to
any of the circumstances of the transaction w^hich re-
sulted in his death, is admissible, if it appears to the
satisfaction of the judge that ■when the statement -was
made the deceased -was in actual danger of death, and
had given up all hope of recovery.
210. The deceased must have been competent as a ^t-
ness, and the facts stated must be such that he could
have testified to them.
Dying declarations are admissible under the circumstances above
stated,^^^ but not otherwise. In the first place, they are only ad-
missible in a prosecution for causing the death of the declarant.
They would not be admissible in a prosecution for any other of-
fense.*^" The dying declaration of A. that he murdered B. would
not be admissible on a prosecution of 0. for murdering B.^^*
If the deceased would have been incompetent to testify as a wit-
ness, his statement is not admissible.^^* ■ Nor is the statement ad-
missible if the facts stated are such as could not have been testi-
fied to by him, as where they are hearsay, or matter of opinion, or
altogether irrelevant.^^" But the fact that the deceased was solic-
ited and urged to make the statement, and did so reluctantly, or
111 Rex V. Mosley, 1 Moody, Crown Cas. 98; State v. Talbert (S. C.) 19 S. E.
852; Jones v. State, 71 Ind. 66; State v. Cronin, 64 Conn. 293, 29 Atl. 536;
State V. Dickinson, 41 Wis. 299; Simons v. People, 150 III. 66, 36 N. E. 1019;
Montgomery v. State, 80 Ind. 338. A dying declaration is not inadmissible
because made under oath. State v. Talbert, supra.
112 Reg. v. Hind, Bell, Crown Cas. 253; Scott v. People, 63 111. 508; People
V. Davis, 56 N. Y. 95; Johnson v. State, 50 Ala. 456; State v. Dickinson, 41
Wis. 299.
113 Gray's Case, Ir. Cir. R. 76; Davis v. Com. (Ky.) 23 S. W. 585.
114 1 Greenl. Ev. § 157; Donnelly v. State, 26 N. J. Law, 463, 601; People
V. Chin Mook Sow, 51 Cal. 597.
115 State V. Eddon, 8 Wash. 292, 36 Pac. 139; Jones v. State, 71 Ind. 60; State
V. Wood, 53 Vt 560; Sullivan v. State (Ala.) 15 South. 264; People v. Shaw,
63 N. Y. 36.
526 EVIDENCE. [Ch. 14
that it was brought out by leading questions, does not render it
inadmissible.^^'
If the statement has been reduced to writing, and read over to
and signed by the deceased, the written statement should be intro-
duced; ^^^ but if for any reason the written statement is not com-
petent, the declarations may be shown by parol evidence.^^*
A witness, to be competent to testify to dying declarations, must
be able to accurately state the substance of them as they were
made, though he need not state them verbatim.^^'
To admit dying declarations is not a violation of the constitu-
tional right of the defendant to confront the witnesses against
him.^="»
It is absolutely essential in all cases to show that the declaration
was made under a sense of impending death, and without any hope
whatever of a recovery. Thus, where a statement of the deceased
was taken down thus: "I make the above statement with the
fear of death before me, and with no hope of recovery," and on its
being read over to him he changed it to read, "with no hope at
present of my recovery," the statement was held inadmissible.^"'
The slightest hope of recovery will render the statement inadmissi-
ble.i"
If the deceased had no hope of recovery at the time the declara-
tions were made, the fact that he afterwards lived for some time,^"'
118 Jones V. State, supra; Maine v. State, 9 Hun (N. Y.) 113.
117 1 Greenl. Ev. § 161; Jones v. State, 71 Ind. 66. But see Com. v. Haney,
127 Mass. 455.
118 Allison V. Com., 99 Pa. St 17; State v. Patterson, 45 Vt. 308.
iii> State V. Patterson, supra; State v. Johnson, 118 Mo. 491, 24 S. W. 229;
People T. Chase (Sup.) 29 N. Y. Supp. 376; Starkey v. People, 17 lU. 17.
12 0 Com. V. Carey, 12 Cush. (Mass.) 246, 249; State v. Dickinson, 41 Wis. 299.
121 Reg. v. Jenkins, L. R. 1 Crown Cas. 187.
122 Reg. V. Jenkins, supra; State v. Johnson, 118 Mo. 491, 24 S. W. 229;
Com. v. Roberts, 108 Mass. 296; Com. v. Haney, 127 Mass. 455; Justice v.
State, 99 Ala. 180, 13 South. 658; Meyers v. State (Tex. Cr. App.) 26 S. W.
196; People v. Gray, 61 Cal. 164; Jackson v. Com., 19 Grat. (Va.) 656; Brother-
ton v. People, 75 N. Y. 159.
123 Com. V. Cooper, 5 Allen (Mass.) 495; Rex v. Mosley, 1 Moody, Crown
Cas. 98; People v. Chase (Sup.) 29 N. Y. Supp. 376; Jones v. State, 71 Ind.
66; Boulden v. State (Ala.) 15 South. 341; State v. Wilson (Mo. Sup.) 26 S.
W. 357; State v. Reed (Kan.) 37 Pac. 174.
Ch. 14] ADMISSIONS AND DECLARATIONS BY DEFENDANT. 527
or that the doctor was not without hope,^^* or that the deceased
before or after making the declaration expressed some hope/^"
will not render them inadmissible. Such facts would, however,
be taken into consideration by the court in determining whether
the deceased was under a sense of impending death when he made
the statement. It is generally only by considering all the circum-
stances, including the prerious, contemporaneous, and subsequent
declarations of the deceased, that the question can be determined.^ ^°
ADMISSIONS AND DECLARATIONS BY DEFENDANT.
211. Declarations made by the defendant, or by a third
person by his authority,'^ if relevant, are admissible
against him, but they are not admissible in his favor.
If the defendant has made statements not amounting to a con-
fession, but constituting an admission of facts in issue or relevant
to the issue, they are admissible against him.^^* Thus a letter
written by a person under arrest, containing statements tending
to show his guilt, is admissible. ^''^ But statements made by the
defendant not tending to connect him with the crime charged, such
as admissions that he committed other crimes, etc., are not com-
petent.""
Self-serving declarations by the defendant are not admissible
in his favor.^^^
12* Rex V. Mosley, supra.
125 state V. Reed (Kan.) 37 Pac. 174; Small v. Com., 91 Pa. St. 304; Swisher
V. Com., 26 Grat. (Va.) 963.
128 State V. Cronin, 64 Conn. 293, 29 Atl. 536; People v. Simpson, 48 Mich.
474, 12 N. W. 662; McHargue v. Com. (Ky.) 23 S. W. 349.
12 7 See People v. Brady (Cal.) 36 Pac. 949; ante, p. 520.
128 Com. V. Sanborn, 116 Mass. 61; People v. Bosworti, 64 Hun, 72, 19
N. Y. Supp. 114; People v. Oassidy, 60 Hun, 579, 14 N. Y. Supp. 349; Id., 133
N. Y. 612, 30 N. E. 1003; State v. Behrman, 114 N. O. 797, 19 S. E. 220;
Thompson v. State (Ala.) 14 South. 621.
129 People V. Cassidy, supra.
130 Youree v. Territory (Ariz.) 29 Pac. 894; Com. v. Campbell, 155 Mass.
537, 30 N. E. 72.
131 Baker v. State, 80 Wis. 416, 50 N. W. 518; Threadgill v. State, 32 Tex.
Cr. R. 451, 24 S. W. 511; State v. Talbert (S. C.) 19 S. E. 852.
528 EVIDENCE. [Ch. 14
CONFESSIONS.
SIS. A confession is an admission made at any time by
a person charged with crime, stating or suggesting the
inference that he committed the crime, and is admissible
against him, if voluntary.
513. No confession is deemed voluntary -within this
rule if it -was caused by any inducement, threat, or
promise proceeding from a person in authority, and hav-
ing reference to the charge against the accused, ■whether
addressed to him directly or brought to his kno^wledge
indirectly, and if such inducement, threat, or promise
gave the accused reasonable grounds for supposing that
by making a confession he -would gain some advantage
or avoid some evil in reference to the proceedings
against him.
514. A confession is not involuntary merely because it
appears to have been caused by the exhortations of a
person in authority to make it as a matter of religious
duty, or by an inducement collateral to the proceeding,
or by inducement held out by a person not in authority.
If the defendant has confessed that he committed the crime
charged under the circumstances stated above, his confession is
competent evidence against him.^'^
To render a confession admissible it must have been voluntary.
It is not voluntary if it was caused by any inducement, threat, or
promise proceeding from any person in authority, and having ref-
erence to the charge against the accused ; as where it is made to a
policeman or jailer, or prosecuting attorney, after a promise by
him to do what he can to lighten the punishment, or after a
statement that it will be better to confess, or holding out any other
inducement with reference to the particular charge, or on his threat-
ening to make it harder on the accused.^'' Where a handbill was
182 See ConL v. Johnson, 162 Pa. St. 63, 29 Atl. 280; Walker v. State (Ind.
Sup.) 36 N. E. 356.
138 Reg. v. Boswell, Car. & M. 584; Beckham v. State (Ala.) 14 South. 859;
Ch. 14] CONFESSIONS. 529
issued by the secretary of state, promising a reward and pardon
to any accomplice in a crime who would confess, and an accomplice,
under the influence of a hope of pardon, made a confession, it was
held that the confession could not be used against him.^'* It is
immaterial whether the threat, inducement, or promise is addressed
directly to the accused, or whether it is conveyed to him indirectly,
as by some third person, or by intimation, or by manner. It is
enough that it is conveyed in some way, and influences him in mak-
ing the confession. The accused must have had reasonable
grounds from such threat, inducement, or promise to suppose that
by making the confession he would gain some advantage or avoid
some evil in reference to the proceedings against him.^'"
A confession is not involuntary merely because it appears to have
been caused by the exhortations of a person in authority to make
it as a matter of religious duty,^^' or by an inducement collateral
to the proceeding,^^' or by inducements held out by some person
not in authority.^^' The prosecutor, the prosecuting attorney,
the magistrate or judge, the jailer, or other officer having the ac-
cused in custody, are persons in authority within the rules above
stated.^^* The mere fact that a confession was made to a person
Com. V. Myers, 160 Mass. 530, 36 N. E. 481; Gallaglier v. State (Tex. Or.
App.) 24 S. W. 288; Collins v. Com. (Ky.) 25 S. W. 743. The confession need
not have been made immediately after the inducement, so long as it was
made under the influence of it. State v. Drake, 113 N. C. 624, 18 S. E. 166.
18* Keg. v. Boswell, supra.
13 6 People V. Phillips, 42 N. Y. 200; Flagg v. People, 40 Mich. 706.
136 Rex V. Gilham, 1 Moody, Crown Cas. 186.
137 Rex V. Lloyd, 6 Oar. & P. 393; Cox v. People, 80 N. T. 501; State v.
De Graff, 113 N. C. 688, 18 S. E. 507; State v. Tatro, 50 Vt. 483. Thus, where
an officer promises to let the accused see his wife if he confesses, the con-
fession is voluntary. Rex v. Lloyd, supra.
188 Smith v. Com., 10 Grat. (Va.) 734 (collecting authorities); Shifflet v.
Com., 14 Grat. (Va.) 652; Reg. v. Moore, 2 Denison, Crown Cas. 522; U. S.
V. Stone, 8 Fed. 232. That a master is not a person in authority over his
servant, see Smith v. Com., supra; Reg. v. Moore, supra. But see, to the
effect that it is sufficient to exclude a confession if the person stood in such a
relation to the accused that his communications must influence the accused,
Com. V. Tuckerman, 10 Gray (Mass.) 173. And see People v. Wolcott, 51
Mich. 612, 17 N. W. 78.
138 State V. Staley, 14 Minn. 105 (Gil. 75); Wolf v. Com., 30 Grat. (Va.) 833;
CEIM.PROC. — 84
530 EVIDENCE. [Ch. 14
in authority, even when in custody, does not render it involuntary.
There must have been some inducement, threat, or promise from
him.""
If a confession is extorted from the accused by such duress as
he could not be expected to resist, as by the threatened or actual
violence of a mob, it is not voluntary, and will be excluded.^*^
A confession is voluntary and admissible, notwithstanding
threats, inducements, or promises by persons in authority, if it
was not made until after the complete removal of the impression
made thereby.^*^
Facts discovered in consequence of confessions improperly ob-
tained, and so much of the confession as is corroborated by these
facts, are admissible. Thus where a person accused of burglary
made a confession to a policeman under circuamstances rendering
it involuntary, part of it being that the accused had thrown a
lantern into a pond, and the lantern was found, this part of the
confession, and the fact that the lantern was found, were held ad-
missible.^*'
Whether the circumstances are such as to render a confession
admissible is a question to be determined by the court before the
•confession is allowed to go before the jury.^** There is a conflict of
Beckham v. State (Ala.) 14 South. 859; Rector v. Com., 80 Ky. 468; People v.
Phillips, 42 N. Y. 200; Flagg v. People, 40 Mich. 706.
140 Cos V. People, SO N. Y. 501; People v. Wentz, 37 N. Y. 303; Goodwin v.
State (Ala.) 15 South. 571; Com. v. Sego, 125 Mass. 213; Com. v. Cuffee, 108
Mass. 285; Com. v. Johnson, 162 Pa. St. 63, 29 Atl. 280; WUlls v. State (Ga.)
19 S. E. 43; Cornwall v. State, 91 Ga. 277, 18 S. E. 154.
141 Jordau v. State, 32 Miss. 382; Young v. State, 68 Ala. 569; Miller v.
People, 39 111. 4.j7.
142 Thompson v. Com., 20 Grat. (Va.) 724; Rex v. Clewes, 4 Car. & P. 221;
Com. V. Howe, 132 Mass. 250; Reeves v. State (Tex. Cr. App.) 24 S. W. 518;
People V. Mackinder (Sup.) 29 N. Y. Supp. 842; Ward v. People, 3 Hill (N.,
Y.) 395; Com. v. Myers, 160 Mass. 530, 36 N. E. 481.
143 Reg. V. Gould, 9 Car. & P. 36i. And see Davis v. State (Tex. Cr. App.)
23 S. W. 687; Rains v. State (Tex. Cr. A^p.) 20 S. W. 398.
144 Com. v. Culver, 12G Mass. 464; Goodwin v. State (Ala.) 15 South. 571;
State V. Patterson, 73 Mo. 695. Whether the inquiry shall be conducted in
the presence of the jury has been held to be a matter within the discretion
of the court Lefevre v. State, 50 Ohio St 584, 35 N. E. 52.
Ch. 14] CONFESSIONS. 531
authority on the question of the burden of proving the voluntary
character of the confession.^ *^
Silence when Accused of Crime.
As we have seen in another place, the silence of defendant when
accused of a crime may be shown as an implied admission of guilt.^*°
Confession Made under Promise of Secrecy or Fraudulently Obtained.
If a confession is admissible under the rules heretofore stated,
it does not become inadmissible merely because it was made under
a promise of secrecy, or in consequence of a deception practiced
upon the accused for the purpose of obtaining it, or when he was
drunk, or because it was made in answer to questions which he
need not have answered, whatever may have been the form of
those questions, or because he was not warned that he was not
bound to confess, and that evidence of it might be given against
him."^
Confessions Made upon Oath.
Evidence amounting to a confession may be used as such against
the person who made it, although it was given upon oath, and al-
though the proceeding upon which it was given had reference to
the same subject-matter as the proceeding in which it is to be
proved, and although the witness might have refused to answer
the questions put to him; ^** but if, after refusing to answer the
i*B In some jurisdictions a coiifession is presumed to be involuntary, and the
burden is on tlie state to show the contrary. Reg. v. Thompson, 5 Reports,
392; [1893] 2 Q. B. 12; Thompson v. Com., 20 Grat (Va.) 729; Young v.
State, 68 Ala. 569; Nicholson v. State, 38 Md. 140. In other states It is pre-
sumed to be voluntary, and the burden is on the defendant to show that it
was involuntary. Com. v. Sego, 125 Mass. 213; Rufer v. State, 25 Ohio St
464.
14 6 Ante, p. 511.
147 Price V. State, 18 Ohio St 418; White v. State, 32 Tex. Cr. R. 625, 25
S. W. 784; State v. Staley, 14 Minn. 105 (Gil. 75); State v. Grear, 28 Minn.
426, 10 N. W. 472; Bskridge v. State, 25 Ala. 30; King v. State, 40 Ala. 314;
Jefferds v. People, 5 Parker, Cr. R. (N. Y.) 522; People v. Wentz, 37 N. Y. 303.
As to warning, see People v. Simpson, 48 Mich. 474, 12 N. W. 662; Com. v.
CufEee, 108 Mass. 285. In some states caution is required by statute. Rix
v. State (Tex. Cr. App.) 26 S. W. 505.
148 Reg. v. Scott, 1 Deaxs & B. Cir. Cas. 47; Reg. v. Robinson, L. R. 1
Cr. Cas. 80; Reg. v. Chidley, 8 Cox, Cr. Cas. 365; Com. v. King, 8 Gray
632 EVIDENCE. [Ch. 14
question, he was improperly compelled to answer it, his answer
is not a voluntary confession.^**
Against Whom Admissible.
A confession is only admissible against the person who made
it A confession by one defendant is not competent evidence
against his codefendant.^°° But it may be admitted as against
the defendant who made it, if the court on request instructs the
jury that it is to be considered only as against him. In such
cases separate trials should be had.^°^
Corroboration of Confessions.
An extrajudicial confession, in order to warrant a conviction,
must be corroborated by other evidence tending to prove the corpus
delicti.^"
EVIDENCE GIVEN IN FORMER PROCEEDING.
215. Evidence given in a former proceeding is admissi-
ble for the purpose of proving the matter stated in a sub-
sequent proceeding or in a later stage of the same pro-
ceeding, under the following circumstances:
(a) "When the -witness is dead.
(b) When he is insane.
(c) When he is so ill that he will probably never be
able to travel.
(Mass.) 501; Dickerson v. State, 48 Wis. 288, 4 N. W. 321; Teachout v. Peo-
ple, 41 N. Y. 7; People v. Weiger, 100 Cal. 352, 34 Pae. 826; Smith v. Com.
(Ky.) 26 S. W. 1100. Thus, answers given by a bankrupt on his examination
may be used against him in a prosecution for ofEenses against the bankruptcy
law. See cases first cited above. See, also, ante, p. 78.
1*9 Reg. V. Garbett, 1 Denison, Or. Cas. 23ij.
160 Com. V. Ingraham, 7 Gray (Mass.) 46; Brown v. U. S., 150 U. S. 93, 14
Sup. Ct. 37; People v. Stevens, 47 Mich. 411, 11 N. W. 220; People v. Arnold,
46 Mich. 268, 9 N. W. 406; Gore v. State, 58 Ala. 391; ante, p. 522, and cases
there cited.
161 Ante, p. 431.
102 People v. Hennessey, 15 Wend. (N. Y.) 147; U. S. v. May field, 59 Fed.
118; Ryan v. State (Ala.) 14 South. 868; Collins v. Com. (Ky.) 26 S. W. 1;
South V. People, 98 111. 261; People v. Lane, 49 Mich. 340, 13 N. W. 622;
State v. Patterson, 73 Mo. 695.
Ch. 14] EVIDENCE GIVEN IN FORMER PROCEEDING. 533
(d) When he is kept out of the way by the adverse
party.
(e) Provided the person against ■whom, the evidence is
to be given had the right and the opportunity
to cross-examine the "witness in the former pro-
ceeding.
(f) Provided the questions in issue w^ere substantially
the same in the first as in the second proceeding.
(g) Provided the same person is accused upon the
same facts.
Some courts, but not all, hold that the fact that a witness who
testified in a former proceeding is out of the jurisdiction of the
court or cannot be found does not render his testimony admissible
in a subsequent proceeding.^ °^ But it is otherwise if he has since
died, or become insane,^"* or if he is so ill that he cannot attend,
and will probably not be able to attendj^^" or if he is kept away
by the adverse party,^^' provided the other conditions mentioned
above also exist. The person against whom the evidence is sought
to be proved must have had the right and the opportunity to cross-
examine the witness in the former proceeding.^°^ If he had the
opportunity, the fact that he did not avail himself of it is imma-
terial.^°* It is also necessary that in the second proceeding the
same person shall be accused on the same facts.^^'
103 Brogy v. Com., 10 Grat. (Va.) 722; U. S. v. Angell, 11 Fed. 34; State v.
Lee, 13 Mont. 248, 33 Pac. 690; People v. Newman, 5 Hill ^N. Y.) 295; People
V. Gordon, 99 Cal. 227, 33 Pac. 901. But see People v. Davis (Gal.) 36 Pac.
96; Lowery v. State, 98 Ala. 45, 13 Soutli. 498; State v. Tyler (La.) 15 South.
624; Vaughan v. State, 58 Ark. 353, 24 S. W. 885.
104 Mayor of Doneaster v. Day, 3 Taunt. 262; Rex v. Inhabitants of Eris-
well, 3 Term R. 720; Bass v. State (Ind. Sup.) 36 N. B. 124; Brown y. Com.,
73 Pa. St. 321; Stewart v. State (Tex. Or. App.) 26 S. W. 203; State v. Able,
65 Mo. 357.
IBB Rex V. Hogg, 6 Gar. & P. 176; Chase v. Springvale Mills Co., 75 Me. 156.
1B6 Reynolds v. U. S., 98 V. S. 145; Reg. v. Scaife, 17 Q. B. 238, 243; State
V. Houser, 26 Mo. 431. But see Bergen v. People, 17 lU. 426.
iBT Wright V. Tatham, 1 Adol. & E. 3.
IBS Bradley v. Mirick, 91 N. Y. 293.
169 Reg. T. Beeston, Dears. Grown Gas. 405.
634 EVIDENCE. [Oh. 14
OPINION EVIDENCE.
216. The fact that a person is of opinion, that a fact in
issue, or relevant to the issue, does or does not exist, is
admissible only in exceptional cases.
A witness will not generally be allowed to state tbat he thinks
or is of opinion that such and such a fact is or is not true. He
must testify to the fact, and not state his opinion.^"" Thus, on
a prosecution for murder, a witness cannot be asked whether there
was anything in the looks of things in the room where the body
was found that would indicate that a scuffle had taken place there.
He can only state how the room looked, and let the jury draw
the inference.^ °^
On the question of insanity nonexpert witnesses are allowed in
some, but not all, states, to give their opinion, provided they state
the facts known to them upon which their opinion is founded.^'^
There are some cases in which a witness may state whether from
his personal observation a certain fact or condition existed, though
in a sense he may be stating his opinion that it existed. Thus
it is competent for a witness to state from his own observation that
a person was or was not drunk,^'' or looked cross, or was nervous,
excited, sick, etc.;"* and a witness may give his. opinion, based
on personal observation, as to the identity of a person.^"" So, on
160 state V. CoeUa, 8 Wash. 512, 36 Pac. 4Y4; Martin, v. State, 90 Ala. 602,
8 South. 858; Holmes v. State (Ala.) 14 South. 864; Jones v. State, 58 Ark.
390, 24 S. W. 1073; Territory v. McKem, 2 Idaho, 759, 26 Pac. 123; Brinkley
v. State, 89 Ala. 34, 8 South. 34.
101 State V. Ooella, supra.
102 Cotrell V. Com. (Ky.) 17 S. W. 149; Rice v. Rice, 50 Mich. 448, 15 N. W.
545; Upstone v. People, 109 lU. 169; State v. Williamson, 106 Mo. 162, 17 S. W.
172; State v. Hay den, 51 Vt. 296; State v. Bryant, 93 Mo. 273, G S. W. 102;
Hite v. Com. (Ky.) 20 S. W. 217; People v. Wreden, 59 Cal. 392. Contra,
Com. V. Brayman, 130 Mass. 438; Holcomb v. Holcomb, 95 N. Y. 316; Boiling
V. State, 54 Ark. 588, 16 S. W. 658.
163 People V. Eastwood, 14 N. Y. 562; Com. v. Dowdican, 114 Mass. 257.
164 Elliott V. A^an Buren, 33 Mich. 49; State v. Grafton (Iowa) 56 N. W.
257; Dimick v. Downs, 82 111. 570.
165 People V. Stanley (Mich.) 59 N. W. 498; People v. Young (Cal.) 36 Pac.
Ch. 14] EXPERT TESTIMONY. 535
a prosecution for cursing in the hearing of females, a witness may
state whether, from his own observation, the females were near
enough to have heard it.^""
SAME— EXPERT TESTIMONY,
217. Where there is a question as to any point of sci-
ence or art, the opinions upon that point of persons spe-
cially skilled in any such matter may be given.
The words "science or art" in the above rule include all subjects
on which a course of special study or experience is necessary to the
formation of an opinion.'*'^ Thus, on the question whether a per-
son's death was caused by poison, the opinions of experts as to the
symptoms produced by the poison by which the deceased is sup-
posed to have died ore admissible.^ °^ And on the question whether
the defendant at the time of doing the act charged was, by reason
of unsoundness of mind, incapable of knowing the nature of the
act, or that he was doing what was wrong, the opinions of experts
on the question whether the symptoms exhibited by the defendant
commonly show unsoundness of mind, and whether such unsound-
ness of mind usually renders persons incapable of knowing the na-
ture of their acts, or of knowing that what they do is wrong, are
competent.^'" An expert may also testify as to whether certain
blood stains have been caused by human blood or the blood of
animals.^^"
The opinions of experts as to a matter of common knowledge
770; State v. Dickson, 78 Mo. 438; Kent v. State (Ga.) 19 S. E. 885; Beavers
V. State (Ala.) 15 South. 616.
166 McVay v. State (Ala.) 14 South. 862.
167 state V. Merriman, 34 S. C. 16, 12 S. E. 619; Johnson v. Castle, 63 Vt.
452, 21 Atl. 534; Coyle v. Com., 104 Pa. St. 117; State T. Ginger, 80 Iowa,
574, 46 N. W. 657.
16 8 R. V. Palmer, Steph. Dig. Ev. (Chase's Ed.) 100. And see Stephens v.
People, 4 Parker, Cr. E. (N. Y.) 396; Zoldoske v. State, 82 Wis. 580, 52 N. W.
778.
169 R. V. Dove, Steph. Dig. Ev. (Chase's Ed.) 106; State v. Hayden, 51 Vt.
296; Real v. People, 42 N. Y. 270; Livingston v. Com., 14 Grat. (Va.) 592.
170 Greenfield v. People, 85 N. Y. 75.
536 EVIDENCE. [Ch. 14
are not admissible, for the jury are as well able to judge of such
facts without the aid of their opinions.^^^
Before an alleged expert is allowed to give his opinion, the judge
must be satisfied that his skill in the matter on which evidence
of his opinion is offered is sufficient to entitle him to be considered
as an expert.^'^'
Hypothetical Questions.
The fact that the expert witness does not personally know the
facts of the case does not render his opinion inadmissible. In such
a case the facts are stated hypothetically, and he is asked to state
his opinion assuming those facts to be true.^'* Or if the witness
has heard the testimony as to the facts in the case, and it is clear,
and not difficult to remember, he may be asked to state his opinion
upon what he has so heard.^'*
Facts Bearing on Opinions of Experts.
Facts not otherwise relevant are admissible if they support or
are inconsistent with the opinions given by experts. Thus on the
question in a homicide case whether the deceased was poisoned
by a certain poison, the fact that other persons who were poisoned
by that poison exhibited certain symptoms, which experts affirm
or deny to be the symptoms of that poison, is admissible.^'"
CHARACTER.
S18. Evidence of the character of a perscn is admissib'e
in the following cases:
(a) The fact that the defendant has a good character
may be shown; but the state cannot show that
he has a bad character, unless his character is
171 Cook V. State, 24 N. J. Law, 843; Manke v. People, 17 Hun, 410; People
V. Clark, 33 Mich. 112; Knoll v. State, 55 Wis. 249, 12 N. W. 369; Noonan
V. State, 55 Wis. 258, 12 N. W. 879; People v. Royal, 53 Cal. 62; State v.
Klinger, 46 Mo. 224.
172 Whart. Cr. Ev. § 406; Lynch v. Grayson (N. M.) 25 Pae. 992; People v.
McQuaid, 85 Mich. 123, 48 N. W. 161.
173 Whart. Cr. Bv. § 418.
174 state v. Hayden, 51 Vt. 296.
17 6 R. V. Palmer, Steph. Dig. Ev. (Chase's Ed.) 107.
Ch. 14] CHARACTER. 537
itself a fact in issue, or unless evidence has been
given that he has a good character, in which
case evidence that he has a bad character is ad-
missible,
(b) The character of the deceased as a violent and dan-
gerous man may be sho^wn in prosecutions for
homicide, on the question whether the defendant
acted in self-defense.
Character of Defendant.
In a criminal case it is always permissible for titie defendant
to sliow that he bears a good character, as tending to show that
it was not probable that he would commit the crime charged; and
the fact that the evidence of his guilt is direct, instead of circum-
stantial, does not prevent the evidence of good character from be-
ing considered.^'"
If the character of the defendant is not in issue, as it would be
on indictment for being a common barretor, a common drunkard,
etc., and if the defendant does not introduce evidence of his good
character, the state cannot show that he has a bad character,
though the fact that he had a bad character might tend to show
that he was lUtely to commit the crime charged.^''
Character of Third Persons.
As a general rule, the character of third persons is inadmissi-
ble.^''* There is an important exception to the rule, however, in
prosecution for homicide, where the defendant claims that he acted
in self-defense. In such a case, the defendant may show that the
deceased was a violent and dangerous man, both for the purpose
of showing a probability that the deceased, and not the defendant,
commenced the difficulty, and, where his character was known to the
defendant, for the purpose of showing that the defendant had
reasonable cause to believe and did believe that his life was in
danger.^"
176 stover V. People, 56 N. Y. 319; Remsen v. People, 43 N. Y. 6; People v.
Mead, 50 Mich. 228, 15 N. W. 95; Hall v. State, 132 Ind. 317, 31 N. B. 536.
17T People V. White, 14 Wend. (N. Y.) 111.
17 8 state V. Staton, 114 N. C. 813, 19 S. E. 96; Omer v. Com. (Ky.) 25 S. W.
594; State v. Rose, 47 Minn. 47, 49 N. W. 404.
i7 8Horbach v. State, 43 Tex. 242; Gamer v. State, 28 Fla. 113, 9 South.
538 EVIDENCE. [Ch. 14
Eow Proved.
The term "character," as used in the rules above stated, means
"reputation," as distinguished from "disposition." Evidence can^
be given only of general reputation, and not of particular acts by
which reputation or disposition is shown.^*"
EVIDENCE WEONGFULLT OBTAINED.
319. The fact that articles or admissions -srere -wrong-
fully obtained from the defendant does not render them
inadmissible in evidence.
As we have already seen, confessions obtained from the defend-
ant, if otherwise competent, are not rendered inadmissible because
they were obtained from him by deception, or while he was drunk,
or under a promise of secrecy.^*^ Nor are articles, if otherwise
admissible in evidence, rendered inadmissible because they were
wrongfully taken from him, as by an unlawful search or seizure.^ "'^
PEESUMPTION OP INNOCENCE— BUBDEN OP PROOF.
220. The defendant is presumed to be innocent, and
the burden is on the state to prove his guUt beyond a
reasonable doubt.
835; Cannon v. People, 141 111. 270, 30 N. E. 1027; Abbott v. People, 86 N.
Y. 460; Davis v. People, 114 111. 86, 29 N. E. 192; State v. Kennade (Mo. Sup.>
26 S. W. 347; Alexander v. Com., 105 Pa. St. 1; State v. Nash, 45 La. Ann.
1137, 13 Soutb. 732, 734; State v. Rollins, 113 N. 0. 722, 18 S. E. 394; Trabune
V. Com. (Ky.) 17 S. W. 186; Roberts v. State, 68 Ala. 156.
ISO Com. V. O'Brien, 119 Mass. 342; Berneker v. State (Neb.) 59 N. W. 372;
State V. Coley, 114 N. C. 879, 19 S. E. 705; Olive v. State (Neb.) 59 N. W.
917. The state on cross-examination may ask as to specific acts. Goodwin v.
State (Ala.) 15 South. 571; Thompson v. State (Ala.) 11 South. 878. But the
state cannot rebut evidence of good character by proving specific acts. Olive
v. State, supra.
181 Ante, p. 529.
182 State V. Nordstrom, 7 Wash. 506, 35 Pac. 382; Com. v. Brelaford, 161-
Mass. 61, 36 N. E. 677; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; Id., 19
S. E. 691; State v. Flynn, 36 N. H. 64.
Ch. 14] .PEESUMPTION OF INNOCENCE BURDEN OF PROOF. 539
821. If the state proves facts showing guilt, the bur-
den is on the defendant to introduce some evidence of an
aflarmative defense. When he has done this, by the bet-
ter opinion, the burden is on the state to rebut this
evidence beyond a reasonable doubt.
222. The burden of proving any fact necessary to be
proved in order to enable any person to give evidence
of any other fact is on the person -who -wishes to give
such evidence.
In civil cases the plaintiff is only required to prove Ms case by a
preponderance of the evidence, but in criminal cases the state must
prove the defendant's guilt, and therefore every fact necessary ta
make him guilty, beyond a reasonable doubt. Every man is pre-
sumed to be innocent until the contrary is proved, and this pre-
sumption can only be rebutted by proving guilt by evidence so
strong as to remove from the mind of the jury every reasonable
doubt.^*^
A reasonable doubt, vrithin the meaning of this rule, is not a
mere imaginary, captious, or possible doubt, but a fair doubt, based
on reason and common sense, and growing out of the testimony
in the case. It is such a doubt as will leave one's mind, after a
careful examination of all the evidence, in such a condition that
he cannot say that he has an abiding conviction to a moral certainty
of the defendant's guilt.^**
183 Carlton v. People (111. Sup.) 37 N. E. 244; Parker v. State (Ind. Sup.) 35
N. E. 1105; Vandeventer v. State, 38 Neb. 592, 57 N. W. 397; Rliea v. State
(Ala.) 14 South. 853.
184 People V. Flnley, 38 Mich. 482; Garrett v. State, 97 Ala. 18, 14 South.
327; Culver v. State, 99 Ala. 193, 13 South. 527. It is not necessary that the
evidence exclude every hypothesis other than that of guilt, but it is sufficient
if the evidence shows guilt beyond a reasonable doubt,— not a speculative, im-
aginary, or possible doubt. Garrett v. State, supra. A reasonable doubt has
been defined as such a doubt as would make a man of ordinary prudence waver
or hesitate in considering a matter of like importance to himself as the case on
trial is to the defendant. State v. Roesener, 8 Wash. 42, 35 Pac. 357. It is
proper for the court to refuse to charge that the degree of evidence required
to convict a man must be such as to remove aU doubt from the mind of a
reasonable man, since a reasonable man may have an unreasonable doubt.
Padfield v. People, 146 111. 660, 35 N. E. 469.
540 EVIDENCE. [Ch. 14
Shift of Burden of Proof.
The burden of proof in a criminal case, as in a civil case, may
shift during the trial. The burden of proof in any proceeding lies
at first on that party against whom the judgment of the court would
be given if no evidence at all were produced on either side. As
the proceeding goes on, the burden of proof may be shifted from
that party upon whom it first rested by his proving facts which
raise a presumption in his favor. Thus, on a prosecution of a
married woman for receiving stolen goods, the burden of proof in
the first instance is on the state. But where she is shown to
have had possession of stolen goods soon after the theft, knowing
them to have been stolen, the state has made out a case, and the
burden of proof is shifted to her to show matter of defense. She
meets the burden by showing that she stole them in the presence
of her husband. The burden is then shifted back to the state to
show that she was not coerced by him.^*° So, on a prosecution
for bigamy, if the state proves that the defendant was already
married when he married the second time, the burden of showing
some defense is on the defendant. If the defendant shows that
he was a minor at the time of the first marriage, the state has the
burden of proving that he married with his parents' consent.^'*
So, where the defendant sets up insanity as a defense, the burden
is on him to introduce some evidence of insanity.^^^
Thus far the cases are virtually agreed, but when we go beyond
this we meet with a conflict of opinion. It would seem clear that
where the defendant has introduced some evidence of an affirm-
ative defense, like insanity, the burden should be on the state to
rebut that evidence beyond a reasonable doubt, and many of the
185 1 Russ. Crimes, 33; 2 Russ. Crimes, 337. Some courts hold that proof
of the possession of goods soon after the theft raises the presumption of guilt,
and shifts the burden of proof. Waters v. People, 104 111. 544. Contra,
Stover V. People, 56 N. Y. 315; Ingalls v. State, 48 Wis. 647, 4 N. W. 785;
Com. V. McGorty, 114 Mass. 299. So on indictment for homicide, where the
defendant has made out a case of self-defense, the burden of proving that he
was at fault In bringing on the difBculty is on the state. Holmes v. State
(Ala.) 14 South. 864.
188 Rex V. Butler, Russ. & R. 61.
18T See the cases hereafter cited.
Ch. 14] PRESUMPTION OF INNOCENCE BURDEN OP PROOF. 541
courts so hold.^^' But many of the courts hold that in such a case
the burden is on the defendant to establish his insanity by a pre-
ponderance of the evidence, and that it is not enough to raise a
reasonable doubt as to his sanity.^*" This is riding roughshod
over the rule that in a criminal case the defendant's guilt must
be proved beyond a reasonable doubt, for a man who commits an
act while insane does not commit a crime. He is not merely ex-
cused from punishment. He is not guilty at all of any crime.
Some courts have even gone so far as to hold that the defendant
must establish his insanity beyond a reasonable doubt; that is
to say, that if the jury have any reasonable doubt on the question,
they must convict,^*" but this is probably not the law now in any
of our states.
There is a like conflict of opinion as regards the defense of alibi.^'*
188 u. S. y. Faulkner, 35 Fed. 730; State v. ReideU (Del. O. & T.) 14 Atl.
550; Baccigalupo v. Com., 33 Grat. (Va.) 807; Langdon v. People, 133 111. 382,
24 N. E. 874; Grubb v. State, 117 Ind. 217, 20 N. E. 725; Plake v. State, 121
Ind. 433, 23 N. E. 273; Revolr v. State, 82 Wis. 295, 52 N. W. 84; Com. v.
Gerade, 145 Pa. St. 289, 22 Atl. 464; King v. State, 91 Tenn. 617, 20 S. W.
169; Hodge v. State, 26 Fla. 11, 7 South. 593; Faulkner v. Territory (N. M.)
30 Pac. 905. In the absence of any evidence to raise a reasonable doubt, the
prosecution is not obliged to prove sanity. Montag v. People, 141 111. 75, 30
N. E. 337; Armstrong v. State, 30 Fla. 170, 11 South. 618.
18 9 Com. V. Rogers, 7 Mete. (Mass.) 500; LoefCner v. State, 10 Ohio St. 598;
Fisher v. People, 23 111. 283 (but see, contra, Langdon v. People, 133 111. 382,
24 N. E. 874); People v. McCann, 18 N. Y. 58; Walker v. People, 88 N. Y. 81;
State V. Starling, 6 Jones (N. C.) 366; State v. Davis, 109 N. C. 780, 14 S. B.
55; State v. McCoy, 34 Mo. 531; State v. Schaefer (Mo. Sup.) 22 S. W. 447;
State V. Trout, 74 Iowa, 545, 38 N. W. 405; People v. Garbutt, 17 Mich. 9;
Leache v. State, 22 Tex. App. 279, 3 S. W. 539; Rather v. State, 25 Tex. App.
623, 9 S. W. 69; Parsons v. State, 81 Ala. 577, 2 South. 854; Gunter v. State,
83 Ala. 96, 3 South. 600; Maxwell v. State, 89 Ala. 150, 7 South. 824; People
V. Bemmerly, 98 Oal. 299, 33 Pac. 263; People v. Bowden, 90 Cal. 195, 27 Pac.
204; Pogarty v. State, 80 Ga. 450, 5 S. E. 782; Ooates v. State, 50 Ark. 330,
7 S. W. 304; Boiling v. State, 54 Ark. 588, 16 S. W. 658; Moore v. Com. (Ky.)
18 S. W. 833; State v. Alexander, 30 S. C. 74, 8 S. E. 440; State v. Lewis,
20 Nev. 333, 22 Pac. 241; People v. Dillon, 8 Utah, 92, 30 Pac. 150.
180 Reg. V. Stokes, 3 Car. & K. 188; State v. Brinyea, 5 Ala. 244; State v.
Huting, 21 Mo. 476; People v. Myers, 20 Cal. 518; State v. Spencer, 21 N. J.
Law, 202.
191 See Com. v. Choate, 105 Mass. 451; Howard v. State, 50 Ind. 190; Walters
V. State, 39 Ohio St. 215.
542 EVIDENCE. [Oh. 14
Fact to he Proved to Render Eoidmce Admissible.
The burden of proring any fact necessary to be proved in order
to enable a person to give evidence of any other fact is on the per-
son who seeks to give such evidence. Where the state wishes to
introduce a dying declaration, the burden is on it to show that it
was made under such a sense of impending death as to render it
competent; and, if the defendant seeks to introduce such evidence,
the same burden is on him.^°^
223. WITNESSES— THEIR COMPETENCY AND THE MODE OP
EXAMINING THEM.
Though there is very little difference between civil and criminal
cases as regards the competency of witnesses, the mode of exam-
ining them, etc., so that the matter might well be omitted, it cannot
be out of place to state shortly the general rules.^°*
Who May Testify.
All persons are competent to testify in all cases except as fol-
lows:
A witness is incompetent if, in the opinion of the judge, he is
prevented by extreme youth,^°* disease affecting the mind,^'" or
any other cause of the same kind,^°* from recollecting the matter
on which he is to testify, from understanding the questions put
to him, from giving rational answers to those questions, or from
knowing that he ought to speak the truth.^°'
A witness unable to speak or hear is not incompetent, but may
give his evidence by writing or by signs, or in any other manner
in which he can make it intelligible j but such writing must be
182 Ante, p. 525, and cases there cited.
193 The rules are taken almost verbatim from Stephen's Digest of Evidence.
101 See Com. v. Mulling, 2 Allen (Mass.) 295; Comer v. State (Tex. Cr. App.)
20 S. W. 547; McGuire v. People, 44 Mich. 286, 6 N. W. 669; State v. Michael,
37 W. Va. 565, 16 S. E. 803; State v. Doyle, 107 Mo. 36, 17 S. W. 751.
195 Walker v. State, 97 Ala. 85, 12 South. 83; Coleman v. Com., 25 Grat
(Va.) 865; Worthington v. Mencer, 96 Ala, 310; 11 South. 72; Lopez v. State,
SO Tex. App. 487, 17 S. W. 1058.
196 state V. Weldon, 39 S. C. 318, 17 S. E. 688.
197 The question is for the court, and generally its ruling will not be re-
viewed. Com. V. MuUins, supra, and other cases above cited.
€h. 14] WITNESSES COMPETENCY EXAMINATION. 543
written and such signs made in open court.^"' Evidence so given
is deemed to be oral evidence.
At common law an atheist cannot testify as a witness,^*® but in
most states it is otherwise by statute.^""
At common law a person who has been convicted of an infamous
«rime is not a competent witness; ^"^ but this rule also has been
changed by statute in some jurisdictions."'"'
In criminal cases the accused person and his or her wife or hus-
band, and every person and the wife or husband of every person
jointly indicted and tried with him, are incompetent to testify,""'
except that in any criminal proceeding against a husband or wife
for any bodily injury or violence inflicted upon his or her wife or
husband, such wife or husband is competent and compellable to
testify.""*
In most states by statute the accused is now allowed to testify in
his own behalf, but he cannot be compelled to testify.
In some states the defendant is allowed to mate a statement to the
jury not under oath.
198 state V. WeWon, 39 S. C. 318, 17 S. E. 688.
ISO Butts V. Swartwood, 2 Cow. (N. Y.) 431; Omichund v. Barker, Willes,
549; People v. Matteson, 2 Cow. (N. Y.) 433, note. The test of competency is
whether he believes in the existence of a God who will punish him if he swears
falsely. Butts v. Swartwood, supra.
200 Hronek v. People, 134 111. 139, 24 N. E. 861.
201 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617; U. S. v. Hall, 53 Fed. 352;
State V. Randolph, 24 Conn. 363. But not if convicted in another state. Lo-
gan V. U. S., supra. Incompetency is removed by pardon. Logan v. U. S.,
supra; Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. 292; Martin v. State, 21 Tex.
App. 1, 17 S. W. 430.
202 Williams v. Dickinson, 28 Fla. 90, 9 South. 847; People v. McGloin, 91
N. Y. 241; State v. Peterson, 35 S. C. 279, 14 S. E. 617.
203 Reg. V. Payne, L. R. 1 Crown Cas. 349; State v. XJlrich, 110 Mo. 350, 19
S. W. 656; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165; People v. West-
brook, 94 Mich. 629, 54 N. W. 486; People v. Langtree, 64 Cal. 256. Other-
wise where the defendants are tried separately. Adams v. State, 28 Fla. 511,
10 South. 106; People v. Bosworth, 64 Hun, 72, 19 N. Y. Supp. 114; Linsday
V. People, 63 N. Y. 143. The rule does not apply to man and mistress. Sims
V. State, 30 Tex. App. 605, 18 S. W. 410.
204 Reeve v. Wood, 5 Best & S. 364; Johnson v. State, 94 Ala. 53, 10 South.
427; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165; State v. Chambers, 87
Iowa, 1, 53 N. W. 1090; People v. Westbrook, 94 Mich. 629, 54 N. W. 486.
544 EVIDENCE. [Ch. 14
Privileged Commv/nications.
No husband is compellable to disclose any communication made
to him by his wife during the marriage, and no wife is compellable
to disclose any communication made to her by her husband dur-
ing the marriage.^""
It is doubtful whether a judge is compellable to testify as to
anything which came to his knowledge in court, as such judge.^°*
It seems that a barrister cannot be compelled to testify as to what
he said in court in his character of a barrister.""'
No one can be compelled to give evidence relating to any affairs
of state, as to official communications between public oflBcers upon
public affairs, except with the permission of the officer at the head
of the department concerned,'"'* or to give evidence of what took
place in either house of congress, or of a state legislature, without
the leave of the house, though he may state that a particular person
acted as speaker."""
In cases in which the government is immediately concerned no
witness can be compelled to answer any question, the answer to
which would tend- to discover the names of persons by or to whom
information was given as to the commission of offenses. In ordi-
nary criminal prosecutions it is for the judge to decide whether the
permission of any such question would or would not, under the
circumstances of the particular case, be injurious to the administra-
tion of justice."^"
As we have seen in another place, neither a petit juror nor a
grand juror can give evidence as to what passed between the jury-
men in the discharge of their duties. Nor, as a rule, can a grand
juror give evidence as to what any witness said when examined
soo Campbell v. Chace, 12 R. I. 333; Com. v. Griffin, 110 Mass. 181; State
v. Mathers, 64 Vt 101, 23 All. 590; State v. Ulrich, 110 Mo. 350, 19 S. W. 656.
20 6 Reg. V. Gazard, 8 Car. & P. 595.
207 Curry v. Walter, 1 Esp. -15(1.
208 Beatson v. Skene, 5 Hurl. & N. 838; Appeal of Hartranft, 85 Pa. St. 433;
Totten V. U. S., 92 U. S. 105.
209 Chubb v. Salomons, 3 Car. & K. 77; Plunkett v. Cobbett, 5 Esp. 136.
210 Hardy's Case, 24 How. State Tr. 811; Reg. v. Richardson, 3 Fost. & F.
693; State v. Soper, 16 Me. 293; U. S. v. Moses, 4 Wash. C. C. 726, Fed. Cas.,
No. 15,825.
Ch. 14] WITNESSES COMrETENCY EXAMINATION. 645
before the grand jury, though as to this there are some excep-
tions.''"
No legal adviser is permitted, whether during or after the
termination of his employment as such, unless with his client's
express consent, to disclose any communication, oral or documen-
tary, made to him as such legal adviser, by or on behalf of his
client, during, in the course, and for the purpose of his employ-
ment, whether in reference to any matter as to which a dispute
has arisen or otherwise, or to disclose any advice given by him to
his client during, in the course, and for the purpose of such em-
ployment.^^* This rule does not extend to (1) any such communi-
cation as aforesaid made in furtherance of any criminal purpose; ^^'
(2) any fact observed by any legal adviser, in the course of his em-
ployment as such, showing that any crime or fraud has been com-
mitted since the commencement of his employment, whether his
attention was directed to such fact by or on behalf of his client
or not; *^* (3) any fact with which such legal adviser became ac-
quainted otherwise than in his character as such.^^" The expres-
sion "legal adviser" includes barristers and solicitors, their clerks,
and interpreters between them and their clients.^^' It does not
include officers of a corporation through whom the corporation has
elected to make statements. ''^^
The privilege is personal, and cannot be set up by the other
party.^^*
No one can be compelled to disclose to the court any communica-
tion between himself and his legal adviser, which his legal adviser
211 Ante, pp. 121, 490.
"2 State V. Dawson, 90 Mo. 149, 1 S. W. 827.
218 FoUett V. Jefferyes, 1 Sim. (N. S.) 17; Charlton v. Coombes, 32 L. J. Ch.
284; People v. Blakeley, 4 Parker, Or. R. (N. Y.) 176; Orman v. State, 22 Tex.
App. 604, 3 S. W. 468; Id., 24 Tex. App. 495, 6 S. W. 544; Everett v. State,
30 Tex. App. 682, 18 S. W. 674.
214 Brown v. Foster, 1 Hurl. & N. 736; Rahm v. State, 30 Tex. App. 310,
17 S. W. 416.
210 State v. Mewherter, 46 Iowa, 88; Com. v. Goddard, 14 Gray (Mass.) 402.
2i« Wilson V. Rastall, 4 Term R. 753; Taylor v. Foster, 2 Car. & P. 195;
Foote V. Hayne, 1 Car. & P. 545.
217 Mayor v. Quirk, L. R. 5 C. P. 106.
218 Smith T. Wilson, 1 Tex. Civ. App. 115, 20 S. W. 1119.
CRIM.PEOC. — 35
546 EVIDENCE. [Ch. 14
could not disclose witlioiit his permission, although it may have
been made before any dispute arose as to the matter referred to."^*
Medical men and (probably) clergymen may, at common law, be
compelled to disclose communications made to them in professional
confidence, but the rule has in some states been changed by stat-
■ute.""
Witness not to be Compelled to Criminate Himself.
Both under most of our constitutions, and at common law, it is
the rule that no one is bound to answer any question if the an-
swer thereto would, in the opinion of the judge, have a tendency
to expose the witness (or the wife or husband of the witness) to
any criminal charge, or to any penalty or forfeiture which the
judge regards as reasonably likely to be preferred or sued for;^^^
but no one is excused from answering any question only because
the answer may establish or tend to establish that he owes a debt,
or is otherwise liable to any civil suit, either at the instance of the
state or of any other person. ^''^ If a defendant offers himself as
a witness, he cannot refuse to answer questions asked him on
cross-examination.^^^ The witness may waive this privilege by
answering questions without objection,^^* and, if he answers so
as to disclose part of the transaction, he waives his right to re-
fuse to answer further.^^"
219 MInet V. Morgan, L. li. 8 Ch. App. 361; Duttenhofer v. State, 34 Ohio
St 91.
220 Duchess of Kingston's Case, 20 How. State Tr. 572; Gillooley v. State,
58 Ind. 182; People v. Gates, 13 Wend. (N. Y.) 311; Plerson v. People, 79
N. y. 424; Steagald v. State, 22 Tex. App. 4&4, 3 S. W. 771.
2 21 Black, Const. Law, 497, and cases there cited; Reg. v. Boyes, 1 Best &
S. 330; Rex v. Inhabitants of Cliviger, 2 Term R. 263; Rex v. Inhabitants
of Bothwick, 2 Barn. & Adol. 639; Com. v. Nichols, 114 Mass. 285; 2 Story,
Const. § 1788; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct 524; State v. Lonsdale,
48 Wis. 348, 4 N. W. 390; State v. Briggs, 9 R. I. 361. If, by statute, the
testimony could not be used against him, or if he could not be prosecuted for
the crime disclosed, the rule does not apply. See Kendrick v. Com., 78 Va.
490; People v. Kelly, 24 N. Y. 74.
222 steph. Dig. Ev. (Chase's Ed.) 209.
223 People V. Casey, 72 N. Y. 393; Com. v. Nichols, 114 Mass. 285.
22 4 Com. V. Shaw, 4 Cush. (Mass.) 594. No one but the witness can object.
22 5 Com. V. Pratt, 120 Mass. 462. But see Reg. v. Garbett, 1 Denison, Or.
Cas. 236.
Ch. 14] WITNESSES COMPETENCY EXAMINATION. 647
Corroboration, when Required.
In most, but not all, states, when the only proof against a per-
son charged with a criminal oifense is the evidence of an accom-
plice, uncorroborated in any material particular, it is the duty of the
judge to warn the jury that it is unsafe to convict any person upon
such evidence, though they have a legal right to do so."°
In some states, by statute, in prosecutions for seduction, rape,
and similar crimes, there can be no conviction on the uncorrob-
orated testimony of the woman,^^' but the rule is otherwise at
common law.^^'
As we have already seen, there can be no conviction on an extra-
judicial confession unless corroborated by other evidence of the
corpus delicti.^^'
Nwmber of Witnesses Necessary.
In trials for treason no one can be convicted unless he pleads
guilty, except upon the oath of two lawful witnesses to the same
overt act.^"*
If upon a trial for perjury the only evidence against the defendant
is the oath of one witness contradicting the oath on which perjury
is assigned, and if no circumstances are proved which corroborate
such witness, the defendant is entitled to be acquitted.^*^
228 Roguemore v. State, 28 Tex. App. 55, 11 S. W. 834; Com. v. Holmes, 127
Mass. 424; Fort v. State, 52 Ark. 180, 11 S. W. 959; Stape v. People, 85 N.
Y. 390; Smith v. Com. (Ky.) 17 S. W. 182; Boyd v. State, 24 Tex. App. 570,
6 S. W. 853; Com. v. Hayes, 140 Mass. 366, 5 N. B. 264; People v. Ogle, 104
N. Y. 511, 11 N. E. 53. But see, contra, IngaUs v. State, 48 Wis. 647, 4 N.
W. 785; State v. Harkins, 100 Mo. 666, 13 S. W. 830. The witness must be
an accomplice to need corroboration. Com. v. Follansbee, 155 Mass. 274, 29
N. E. 471; Com. v. Graves, 97 Mass. 114; Campbell v. Com., 84 Pa. St. 187.
227 People V. Kearney, 110 N. Y. 188, 17 N. B. 736; State v. McGlothlen, 56
Iowa, 544, 9 N. W. 893; Armstrong v. People, 70 N. Y. 38.
2 28 See State v. Nichols, 29 Minn. 357, 13 N. W. 153; State v. McGlothlen,
supra.
229 Ante, p. 532.
230 Const. U. S. art. 3, § 3.
231 Steph. Dig. Ev. (Chase's Ed.) 213; Rex v. Mayhew, 6 Car. & P. 315;
Com. V- Parker, 2 Cush. (Mass.) 219; U. S. v. Wood, 14 Pet. 440; State v.
Hay ward, 1 Nott & McC. (S. C.) 547; State v. Heed, 57 Mo. 252; State v.
Blize, 111 Mo. 464, 20 S. W. 210; People v. Hayes (Sup.) 24 N. Y. Supp. 194.
648 EVIDENCE. [Ch. 14
Excluding Witnesses from Court Room.
While one witness is testifying the court may, in its discretion,
exclude the other witnesses from the court room.^^^
It cannot exclude the defendant, however, nor can it exclude
one defendant while his codefendant is testifying.^''
If a witness who has been excluded disobeys the court's order,
he is guilty of contempt of court, and may be punished, but this
does not render him incompetent, or prevent his being examined,
if the party offering him as a witness was not privy to the con-
tempts^*
Failure to Call Witnesses.
The failure of the state or of the defendant to call a witness, par-
ticularly an eyewitness of the act charged, may, by the weight of
authority, be taken into consideration by the jury,^^' but it does
not raise any legal presumption of innocence or of guilf^*
Compelling State to Call Witnesses.
Where the prosecution fails to call all the eyewitnesses to the
crime, the court may, in the exercise of its discretion, compel him
to do so; and it should compel him to do so where the witnesses
are few in number."'' Ordinarily, however, the court will not
interfere.''^'
Examination in Chief, Cross-Examination, and Re-examination.
Witnesses examined in open court must be first examined in
chief, then cross-examined, and then re-examined.
Whenever any witness has been examined in chief, or has been
232 Zoldoske v. State, 82 Wis. 580, 52 N. W. 778; Vance v. State, 56 Ark.
402, 19 S. W. 1066; Dickson v. State, 39 Ohio St 73; Com. v. Follansbee, 155
Mass. 274, 29 N. B. 471.
233 Ante, p. 424.
23 4 Grant v. State, 89 Ga. 393, 15 S. E. 488; Dickson v. State, supra; Taylor
V. State, 130 Ind. 66, 29 N. E. 415; Cook v. State, 30 Tex. App. 607, IS S. W.
412.
23 6 People V. Hovey, 92 N. Y. 554; Rice v. Com., 102 Pa. St. 408.
236 Bleecker v. Johnston, 69 N. Y. 309; Hill v. Com., 88 Va. 633, 14 S. E. 330.
237 People v. Kenyon, 93 Mich. 19, 52 N. W. 1033; Thompson v. State, 30
Tex. App. 325, 17 S. W. 448.
238 state V. Russell, 13 Mont. 164, 32 Pac. 854; Hill v. Com., 88 Va. 633, 14
S. E. 330; People v. Wright, 90 Mich. 362, 51 N. W. 517.
Ch. 14] WITNESSES COMPETENCY EXAMINATION. 549
intentionally sworn, or has made a promise and declaration, as
hereinbefore mentioned, for the purpose of giving evidence, the
opposite party has a right to cross-examine him; but the opposite
party is not entitled to cross-examine merely because a witness
has been called to produce a document on a subpoena duces tecum,
or in order to be identified. After the cross-examination is con-
cluded, the party who called the witness has a right to re-examine
him.
The court may in all cases permit a witness to be recalled, either
for further examination^ in chief or for further cross-examination;
and if it does so the parties have the right of further cross-exam-
ination and further re-examination, respectively.''^"
It is held in England that if a witness dies, or becomes incapable
of being further examined, at any stage of his examination, the
evidence given before he became incapable is good; ^*" but in
this country the rule seems to be otherwise, where there was no
opportunity to cross-examine.^**
If, in the course of a trial, a witness who was supposed to be
competent appears to be incompetent, his evidence may be with-
drawn from the jury, and the case may be left to their decision
independently of it; ^*^ but if a witness is known to be incompe-
tent when he is sworn, and no objection is made, the rule does
not apply.^*^
To What Matters Cross-Examination and Re-examination must be Directed.
The examination and cross-examination must relate to facts in
issue or relevant thereto; and in most states the cross-examination
must be confined to the facts to which the witness testified on
his examination in chief.^**
The re-examination must be directed to the explanation of mat-
ters referred to in cross-examination; ^*^ and if new matter is, by
23 » Com. V. McGorty, 114 Mass. 299.
2<o Rex V. Doolin, Jebb, Crown Cas. 123.
2*1 Steph. Dig. Ev. (Chase's .Ed.) 224; People v. Cole, 43 N. Y. 508.
24 2 Reg. V. Whitehead, L. K. 1 Crown Cas. 33; State v. Damery, 48 Me. 327.
243 Steph. Dig. Ev. (Chase's Ed.) 222.
244 Steph. Dig. Ev. (Chase's Ed.) 223; People v. Beach, 87 N. Y. 508, Don-
nelly v. State, 26 N. J. Law, 463, 601; State v. Smith, 49 Conn. 376; Austin
V. State, 14 Ark. 555.
24B Schaser v. State, 36 Wis. 429; People v. Beach, supra.
650 EVIDENCE. [Ch. 14
permission of the court, introduced in re-examination, the adverse
party may further cross-examine upon that matter.
As a rule, the state and the defendant must on examination in
chief make out its or his whole case,^*' but the court may, in its
discretion, allow evidence to be given out of the proper order.
The rule is general that the order of introducing evidence is in the
discretion of the court.
Leading Questions.
Questions suggesting the answer which the person putting the
question wishes or expects to receive, or suggesting disputed facts
as to which the witness is to testify, must not, if objected to by
the adverse party, be asked in an examination in chief, or a re-ex-
amination,^*^ unless the witness appears to be hostile to the party
introducing him,'** or "when the examination relates to items,
dates, or numerous details, where the memory ordinarily needs
suggestion, or when it is necessary to direct the witness' attention
plainly to the subject-matter of his testimony." ^^^ With the per-
mission of the court, such questions may be asked in cross-exam-
ination. ^°''
Questions Lawful in Cross- Examination.
When a witness is cross-examined, he may, in addition to the
questions hereinbefore referred to, be asked any questions which
tend (1) to test his accuracy, veracity, or credibility; or (2) to
shake his credit, by injuring his character. Witnesses have been
compelled to answer such questions, though the matter suggested
was irrelevant to the matter in issue, and though the answer was
disgraceful to the witness, as where he was asked as to the com-
mission of a crime, or as to immoral conduct; but it is submitted
that the court has the right to exercise a discretion in such cases,
and to refuse to compel such questions to be answered when the
truth of the matter suggested would not, in the opinion of the
248 State V. Alford, 31 Conn. 40.
247 People V. Mather, 4 Wend. (N. Y.) 229.
248 Id.
240 Steph. Dig. Ev. (Chase's Ed.) 224; People v. Mather, supra,
250 People V. Mather, supra.
Ch. 14] WITNESSES COMPETENCY EXAMINATION. 551
court, affect the credibility of the witness as to the matter to which
he is required to testify.""^
Exclusion of Evidence to Contradict Answers to Questions Testing Veracity.
When a witness under cross-examination has been asked and
has answered any question which is relevant to the inquiry only
so far as it tends to shake his credit by injuring his character, no
evidence can be given to contradict him, except in the following
cases: ^°° (1) If a witness is asked whether he has been previously
convicted of any felony or misdemeanor, and denies or does not
admit it, or refuses to answer, evidence may be given of his pre-
vious conviction thereof.^ ^* (2) If a witness is asked any question
tending to show that he is not impartial, and answers it by denying
the facts suggested, he may be contradicted.''^*
Statements Inconsistent with Present Testimony may be Proved.
Every witness under cross-examination in any proceeding, civil
or criminal, may be asked whether he has made any former state-
ment relative to the subject-matter of the action and inconsistent
with his present testimony, the circumstances of the supposed
statement being referred to sufficiently to designate the particular
occasion, and, if he does not distinctly admit that he has made such
a statement, proof may be given that he did in fact make it.^"
The same course may be taken with a witness upon his examina-
tion in chief, if the judge is of opinion that he is "adverse" (i. e.
hostile) to the party by whom he was called, and permits the ques-
tion.^°° In other cases, as we shall see, a party cannot impeach his
2 51 Steph. Dig. Ev. (Chase's Ed.) 225, and cases there cited; State v. Ward,
49 Conn. 429; Lohman v. People, 1 N. Y. 379; People v. Noelke, 94 N. Y. 137;
Com. v. Mason, 105 Mass. 163; People v. Irving, 95 N. Y. 541. The rule ap-
plies to cross-examination of the defendant Hanoft v. State, 37 Ohio St
178; People v. Crapo, 76 N. Y. 288.
2 52 stokes V. People, 53 N. Y. 164.
25 3 steph. Dig. Ev. (Chase's Ed.) 227.
2 64 Steph. Dig. Ev. (Chase's Ed.) 228.
266 steph. Dig. Ev. (Chase's Ed.) 229, and cases there cited; State v. Grants
79 Mo. 113; People v. Devine, 44 Cal. 452; State v. Glynn, 51 Vt. 577. In
some states this foundation for the impeaching evidence is not necessary.
Com. v. Hawkins, 3 Gray (Mass.) 468; State v. Glynn, supra.
256 People V. Mather, 4 Wend. (N. Y.) 229.
552 EVIDENCE. [Ch. 14
own witness, though he is not precluded from introducing wit-
nesses who will testify to the contrary.""'
Impeaching Credit of Witness.
The credit of a witness may be impeached by the adverse party,
by the evidence of persons from his own community who will swear
that they know the general reputation of the witness for truth
and veracity, that his reputation is bad, and that they would not
believe him on oath."''' In some states the inquiry may be as to
the witness' general moral character."^" In most states the im-
peaching witness must or may be asked whether he would be-
lieve the other witness on oath;"'" but in a few states this ques-
tion cannot be asked."*^ In all states the inquiry is confined to
general reputation, and specific acts by the witness sought to be
impeached cannot be shown."""
The impeaching witness may be cross-examined, and may also be
be impeached in the manner stated above.""*
Impeaching witnesses cannot, on their examination in chief, give
the reasons for their belief; but they may be asked their reasons
on cross-examination, and their answers cannot be impeached.""*
The party introducing a witness cannot thus impeach him "°°
unless, as is the case in some jurisdictions, it is permitted by stat-
ute. But a party is not precluded by the testimony of a witness
introduced by him from introducing other witnesses who will tes-
tify to the contrary."""
A party whose witness is sought to be impeached may introduce
evidence of good reputation in order to sustain his credit.""'
257 Note 266, infra.
2B8 Warner v. Lockerby, 31 Minn. 421, 18 N. W. 145, 821; State v. Randolph,
24 COTin. 363; Laclede Bank v. Keeler, 109 111. 385; Lenox v. Fuller, 39 Mich.
268.
269 state V. Grant, 79 Mo. 113; Walton v. State, 88 Ind. 9.
2 so People V. Mather, 4 Wend. (N. Y.) 229; Hamilton v. People, 29 Mich.
173; Laclede Bank v. Keeler, 109 111. 385.
261 Walton V. State, 88 Ind. 9; State v. Rush, 77 Mo. 519.
2 62 Com. V. Lawler, 12 AUen (Mass.) 580.
263 People V. Mather, supra; State v. Lawlor, 28 Minn. 216, 9 N. W. 698.
264 2 Pnil. Ev. 503.
26 B People V. Jacobs, 49 Cal. 3S4.
266 state V. Knight, 43 Me. 11, 134.
267 Hamilton v. People, 29 Mich. 173; Com. v. Ingraham, 7 Gray (Mass.) 46.
Ch. 14] WITNESSES COMPETENCY EXAMINATION. 553
Where a witness has been impeached by proving statements
made by Mm in conflict with his testimony, some courts allow his
credit to be sustained by proof of good reputation,''"* but other
courts do not allow if""
Offenses against Women.
When a man is prosecuted for rape, or an attempt to rUTish, it
may be shown, in most jurisdictions, that the woman against whom
the offense was committed was of a general immoral character,
although she is not cross-examined on the subject"* In some
states the woman may in such case be asked whether she has had
connection with other men, but her answer cannot be contra-
dicted.^'^ She may also be asked whether she has had connec-
tion on other occasions with the prisoner, and if she denies it she
{probably) may be contradicted.^'^
So, in a prosecution for seduction, the unchastity of the woman
may be shown.^'*
268 George v. Pilcher, 28 Grat (Va.) 299; Haley v. State, 63 Ala. 83; Sweet
V. Sherman, 21 Vt 23.
269 Webb V. State, 29 Olilo St. 351.
270 Rex V. Clarke, 2 Starkie, 241; Woods v. People, 55 N. Y. 515. But not
where the woman was under the age of consent. State v. Eberline, 47 Kan.
155, 27 Pac 839.
271 Reg. V. Holmes, L. R. 1 Crown Cas. 334; State v. Reed, 39 Vt. 417.
Contra, Com. t. Harris, 131 Mass. 336; Richie y. State, 58 Ind. 355.
272 Rex V. Martin, 6 Car. & P. 562; Woods v. People, supra,
27 8 Com. V. Gray, 129 Mass. 474.
654 HABEAS COEPUS. [Ch. 16
CHAPTER XV.
HABEAS CORPUS.
224r-228. In General.
IN GENERAL.
224. The -writ of habeas corpus is a remedy by which a
person illegally deprived of his liberty may secure his re-
lease.
225. The writ may be issued:
(a) By a court in term time.
(b) By a judge in vacation.
226. The application may be made:
(a) By the person imprisoned.
(b) By another for him.
227. The writ is used principally to obtain a review of:
(a) The legality of an arrest or commitment.
(b) The regularity of extradition process.
(c) The right to or amount of bail.
(d) The jurisdiction of the court imposing a sen-
tence.
228. The writ commands the person detaining the re-
lator to bring him before the court and show the reason
of the imprisonment.
Nature and History of Writ,
The writ of habeas corpus is the remedy provided by law by which
any person illegally deprived of his liberty may secure a speedy
release.* "The right of the subject to the benefit of the writ of
1 Ex parte Watkins, 3 Pet. 193; Ex parte Coupland, 26 Tex. 386; Com. v.
Chandler, 11 Mass. 83; Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. 1050;
Williamson's Case, 26 Pa. St 9.
Ch. 15] IN GENERAL. 555
habeas corpus ♦ • ♦ was one of the great points in contro-
versy during the long struggle in England between arbitrary gov-
ernment and free institutions. • * * From the earliest history
of the common law, if a person were imprisoned, no matter by
what authority, he had a right to the writ of habeas corpus to bring
his case before the king's bench. If no specific offense were
charged against him in the warrant of commitment, he was entitled
to be forthwith discharged; and if an offense were charged which
was bailable in its character, the court was bound to set him at
liberty on bail. The most exciting contests between the crown
and the people of England from the time of Magna Charta were
in relation to the privilege of this writ, and they continued until
the passage of the statute of 31 Car. n., commonly known as the
'Great Habeas Corpus Act.' This statute put an end to the strug-
gle, and finally and firmly secured the liberty of the subject against
usurpation and oppression of the executive branch of the govern-
ment. It nevertheless conferred no new right upon the subject,
but only secured a right already existing; for, although the right
could not justly be denied, there was often no effectual remedy
against its violation. » * » The great and inestimable value
of the habeas corpus act of 31 Car. II. is that it contains provisions
which compel courts and judges, and all parties concerned, to per-
form their duties promptly in the manner specified in the statute." "
The writ of habeas corpus is expressly recognized in the United
States constitution, and in the constitutions of many of the states,
in provisions which forbid the suspension of the privilege of the
writ except when, in cases of rebellion or invasion, the public safety
requires it.'
2 Taney, O. J., in Ex parte Merryman, Taney, 2-16, Fed. Cas. No. 9,487. And
see Bushell's Case, 1 "Vaughan, 135; Crowley's Case, 2 Swainst. 5; Watson's
Case, 9 Adol. & E. 731.
3 Const. U. S. art. 1, § 9; 1 Stimson, Am. St. Law, §§ 126, 127. As to the
power to suspend, see Kemp's Case, 16 Wis. 382; Warren v. Paul, 22 lad. 276;
Ex parte Field, 5 Blatchf. 63, Fed. Cas. No. 4,761; In re Oliver, 17 Wis. 703;
In re Fagan, 2 Spr. 91, Fed. Cas. No. 4,604; Ex parte Milligan, 4 Wall. 2. But
see People v. Gaul, 44 Barb. (N. Y.) 98. Suspension of the writ is no defense
in an action for an illegal arrest, the person wrongfully arrested being merely
deprived of this method of securing his release. Griffin v. Wilcox, 21 Ind.
372. Contra, McCall v. McDowell, 1 Abb. (U. S.) 212, Fed. Cas. No. 8,673.
656 HABEAS CORPUS. [Ch. 15
Jurisdiction — By Whom Issued.
All courts of general jurisdiction hare power to issue writs of
habeas corpus. Or, when the courts are not in session, the judges
thereof may issue it. Justices of the United States supreme court
can issue the writ anywhere in the United States; judges of the
circuit and district courts, anywhere within their respective juris-
dictions.* In the states the same principle obtains. Application
for the writ should be made in each case to the court or judge
nearest to the applicant,^ unless a good excuse exists why the appli-
cation cannot be so made."
•Questions Reviewable — When Discharge Granted.
Where a court which has issued a writ of habeas corpus finds
that the applicant is privileged from arrest, it will order his dis-
charge.'' And so, if the court does not have the powers of a com-
mitting magistrate, it will discharge one who has been illegally
arrested, as on a void warrant, although there is evidence that he
is guilty of the offense charged.* On the other hand, if the court
inquiring on habeas corpus has the power to commit, it will not
grant a discharge if there is sufficient evidence of guilt to warrant
the binding over of the prisoner, even though his arrest was entirely
illegal.*
4 Ex parte Clarke, 100 U. S. 399; Rev. St. U. S. 1878, §§ 752-754.
6 Thompson v. Oglesby, 42 Iowa, 598; Ex parte Airrsworth, 27 Tex. 731; Ex
parte Lynn, 19 Tex. App. 120; In re White, 33 Neb. 812, 51 N. W. 287; In
re DoU, 47 Minn. 518, 50 N. W. 607; Ex parte Bills, 11 Cal. 222.
e Absence of such judge might show a sufficient excuse, but allegations that
he was prejudiced would not Ex parte Lynn, 19 Tex. App. 120; Bethuram
V. Black, 11 Bush. (Ky.) 628. And see People v. Burtnett, 13 Abb. Pr. (N.
Y.) 8.
r Ex parte Dakins, 16 G. B. 77.
s State V. Potter, 1 Dud. (S. C.) 295; Ex parte Bennett, 2 Cranch, 612;
Lough V. Millard, 2 R. I. 436.
8 Rex V. Goodall, Sayer, 129; Rex v. Marks, 3 East, 157; O'Malia v. Went-
worth, 65 Me. 129; State v. Buzine, 4 Har. (Del.) 572; Ex parte Granice, 51
■Cal. 375; State v. Killet, 2 Bailey (S. C.) 289; Jones v. Timberlake, 6 Rand.
(Va.) 678; Ex parte Smith, 5 Cow. (N. Y.) 273. Some cases hold that only
the jurisdiction of the committing magistrate and the sufficiency of the com-
mitment will be reviewed. Ex parte Jackson, 45 Ark. 158; State v. Bloom,
17 Wis. 538; Com. v. Taylor, 11 Phila. (Pa.) 386; Davis' Case, 122 Mass. 324.
As to whether the constitutionality of the law under which the arrest was
Ch. 15] IN GENERAL. 557
The writ of habeas corpus may be used to test the regularity of
extradition process.^" It may be employed when bail is refused/^
or an excessive amount demanded.^* After indictment, a release
cannot be secured by habeas corpus unless it appears on the face
of the indictment that no crime is charged.'^'
Judgments of courts having criminal jurisdiction will not be
reviewed on habeas corpus as to irregularities in their proceed-
ings ^* or the sufficiency of the evidence to sustain a conviction.^*
The only questions that can be examined are whether the court
had jurisdiction ^^ of the case, and whether the sentence rendered
was within its power.^^ These rules apply to judgments of infe-
made will be Inquired into on habeas corpus, the authorities are conflicting.
That it will not, see Piatt v. Harrison, 6 Iowa, 79; Com. v. Lecky, 1 Watts
(Pa.) 66; Ex parte Fisher, 6 Neb. 309. See, contra. Ex parte Burnett, 30 Ala.
461; Ex parte Rollins, 80 Va. 314; Ex parte Mato, 19 Tex. App. 112.
10 Ex parte Smith, 3 McLean, 121, Fed. Cas. No. 12,968; People v. Brady,
56 N. Y. 182; In re Bristcoe, 51 How. Pr. (N. Y.) 422; In re Watson, 2 Oal.
59; Eix parte White, 49 Oal. 434; Hibler v. State, 43 Tex. 19T; Hall v. Pat-
terson, 45 Fed. 352; U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234. But
see Kerr v. Illinois, 119 U. S. 436, 7 Sup. Ct. 225; Ex parte Brown, 28 Fed.
653.
11 In re Troia, 64 Oal. 152, 28 Pac. 231; Com. v. Keeper of Prison, 2 Ashm.
(Pa.) 227; In re Barronet, 1 El. & Bl. 1; U. S. v. Hamilton, 3 Dall. 17; Jones
v. Kelly, 17 Mass. IIG; Whiting v. Putnam, Id. 175; Ex parte Champion, 52
Ala. 311; Fmch v. State, 15 Fla. 633;' Snowden v. State, 8 Ma. 483.
12 Lynch v. People, 38 lU. 494; Ex parte Bryant, 34 Ala. 270; Street v.
State, 43 Miss. 1; Drury v. State, 25 Tex. 45. But see People v. Dixon, 4
Parker, Cr. R. 651; People v. Tender, 19 Cal. 539.
13 In re Corryell, 22 Cal. 178; Ex parte Kearney, 55 Cal. 212; Ex parte Bo-
land, 11 Tex. App. 159; State v. .Brewster, 35 La. Ann. 605. Mere defects in
the indictment will not be considered. Ex parte Whitaker, 43 Ala. 323; In
re Kowalsky, 73 Cal. 120, 14 Pac. 399; Emanuel v. State, 36 Miss. 627; Ex
parte Twohig, 13 Nev. 302. But see In re Buell, 3 Dill. 116, Fed. Cas. No.
2,102. Nor the guilt of the accused. People v. McLeod, 1 Hill (N. Y.) 377,
25 Wend. (N. Y.) 483.
1* Ex parte Hubbard, 65 Ala. 473; Ex parte Brown, 63 Ala. 187; Ex parte
Sam, 51 Ala. 34; Ex parte Gibson, 31 Cal. 619.
IB Ex parte Bird, 19 Cal. 130; Stoner v. State, 4 Mo. 614; Darrah v. Wester-
lage, 44 Tex. 388.
18 Ex parte Sam, 51 Ala. 34; Ex parte Nye, 8 Kan. 99; Divine's Case, 11
Abb. Pr. (N. Y.) 90.
IT An excessive sentence will not necessarily be void, so as to entitle to a
558 HABEAS COEPUS. [Ch. 15
rior courts;^' to summary convictions;^" to the proceedings of
military tribunals; ^^ and to commitments for contempt. In cases
of the last sort, a release will not be granted on habeas corpus
if the court ordering the commitment had jurisdiction,^^ unless
the acts charged do not constitute a contempt,^^ or the sentence
or commitment is void because made indefinite ^^ or for a longer
time than the court had power to order.^* The writ of habeas
corpus can be used to secure the release of one who is kept in
prison after a pardon has been granted,^'' or after he has become
entitled to a discharge by reason of the statute of limitations.^'
In a very few jurisdictions habeas corpus proceedings take the
place of a writ of error.^'
Jurisdiction as between State and Federal Courts.
In all cases where a person is imprisoned by state authority in
violation of the constitution, laws, and treaties of the United States,
he will be discharged by the federal courts on habeas corpus;"*
discharge. Ex parte Watklns, 7 Pet. (TJ. S.) 568; Ex parte Mooney, 26 W.
Va. 36. But see Ex parte Kelly, 65 Oal. 154, 3 Pac. 673.
18 See cases in the two preceding notes.
19 In re Glenn, 54 Md. 572; Ex parte Reed, 100 U. S. 23; Com. v. Leekey,
1 Watts (Pa.) 66; Bell v. State, 4 Gill (Md.) 305.
20 McOonologue's Case, 107 Mass. 154; Wall's Case, 8 Fed. 85.
21 People V. Cassells, 5 HiU (N. Y.) 164; In re Perry, 30 Wis. 268; Ex parte
Cohn, 55 Gal. 193; Ex parte Cottrell, 59 Cal. 420.
2 2 People V. Hackey, 24 N. Y. 75; Ex parte Perkins, 29 Fed. 900; In re
Ayers, 123 U. S. 443, 8 Sup. Ct 164.
23 People V. Pirfenbrink, 96 111. 68; In re Hammel, 9 R. I. 248; In re Brown,
4 Colo. 438.
24 Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724; In re Ayers, 123 U. S. 443,
8 Sup. Ct. 164; Holman v. Mayor, 34 Tex. 668; State v. Sauvinet, 24 La. Ann.
119.
26 Greathouse's Case, 2 Abb. (U. S.) 382, Fed. Cas. No. 5,741; People v.
Cavanagh, 2 Parker, Cr. R. 650; In re Edymoin, 8 How.Pr. (N. Y.) 478.
2 6 State V. Maurignos, T. U. P. Charlt (Ga.) 24.
27 People V. Cunningham, 3 Parker, Cr. R. 531; Kirby v. State, 62 Ala. 51;
State V. Glenn, 54 Md. 572; TomUn v. Fisher, 27 Mich. 524. As to this use
in the federal courts, see Ex parte Siebold, 100 U. S. 371; Ex parte Lange,
18 Wall. 163; Ex parte Virginia, 100 U. S. 339; In re Martin, 5 Blatchf. 303,
Fed. Cas. No. 9,151.
28 Ex parte RoyaJl, 117 TJ. S. 241, 6 Sup. Ct. 734; Ex parte Yarbrough, llo
U. S. 651, 654, 4 Sup. Ct 152; U. S. v. Jailer, 2 Abb. (U. S.) 265, Fed. Cas. No.
Ch. 15] IN GENERAL. 559
but this power will not be used so as to obstruct the ordinary ad-
ministration of the criminal laws of the state through its own
tribunal. In cases where a person seeks relief by habeas corpus
from a sentence imposed by a state court for error infringing
rights guarantied by the United States constitution, occurring in
the course of the trial, the federal courts, in the exercise of their
discretion, require that the person shall have made Ms objections
in the trial court, and, if they were there overruled, that he shall
have taken the question for review to the highest court to which
a writ of error could be sued out from the supreme court of the
United States; and, if he has failed to do so, the decision of the
state court will not be reviewed by a federal court on habeas
corpus."'
A state court has no authority to issue a writ of habeas corpus
for the discharge of a person held under the authority, or claim
and color of the authority, of the United States, by an ofQcer of
that government.'" If it does not appear on the application for the
writ by what authority the person is illegally restrained of his
liberty, it is the duty of the federal officer having the custody of the
person to show, by proper return, information in this respect. But
after the judge is fully apprised by the return that the person is
held by the officer by the authority of the United States, he can
proceed no further. Formerly a distinction was attempted to be
drawn by many of the state courts between cases in which the
person was held by undisputed lawful authority in contradistinc-
15,463; In re Brosnahan, 4 McCrary, 1, 18 Fed. 62; In re Farrand, 1 Abb.
<U. S.) 140, Fed. Cas. No. 4,678; Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Gas.
No. 6,546; Ex parte Hanson, 28 Fed. 127; In re Ah Lee, 6 Sawy. 410, 5 Fed.
899; Parrott's Case, 6 Sawy. 376, 1 Fed. 481; In re Wong Yung Quy, 6
Sawy. 237; In re Buell, 3 Dill. 116, Fed. Cas. No. 2,102; Ex parte Kenyon,
6 Dill. 385, Fed. Cas. No. 7,720; Church, Hab. Corp. 378.
28 In re Wood, 140 U. S. 278, 11 Sup. Ct. 738; In re Jugiro, 140 U. S. 291,
11 Sup. Ct 770; Ex parte Royall, 117 U. S. 254, 6 Sup. Ct. 742; In re Duncan,
139 U. S. 449, 11 Sup. Ct. 753; In re King, 51 Fed. 434; In re Friedrich, Id. 747.
so Ableman v. Broth, 21 How. 506; Tarble's Case, 13 Wall. 397; Norris v.
Newton, 5 McLean, 92, Fed. Cas. No. 10,307; Ex parte Kobinson, 6 McLean,
355, Fed. Cas. No. 11,935.
660 HABEAS CORPUS. [Ch. 15
tion to cases where he was held by claim or color of authority,'*
but it is now settled that such a distinction cannot be made.'*
Application for Writ — By Whom.
A person unlawfully restrained of his liberty may apply for the
writ to secure his own release; or, if he is unable to do so, or is
not permitted to make the application, a relative or friend may
make the application for him." In such a case, however, there
must be a showing, to the satisfaction of the court, that the person
himself is unable to make the application.^* A writ may be is-
sued at any period of an imprisonment which is wrongful.
Same — Form of Application.
"A petition for habeas corpus must be verified," and must al-
lege facts showing an illegal imprisonment. When the ground
of the petition is that the prisoner has been committed without
reasonable or probable cause, it must set out what the evidence
on the examination was, in such form that perjury may be as-
signed upon the allegations if they are false." " In all cases, at
81 Phelan's Case, 9 Abb. Pr. 286; Ohio & M. R. Co. v. Fitch, 20 Ind. 498;
Skeen v. Monkeimer, 21 Ind. 1; Ex parte Kelly, 3T Ala. 474; In re Gregg, 15
Wis. 479; In re Spangler, 11 Mich. 298; Shirk's Case, 5 Phila. (Pa.) 333; Ex
parte McRobets, 16 Iowa, 600; Ex parte Holman, 28 Iowa, 89; Ex parte Hill,
5 Nev. 154; McConologue's Case, 107 Mass. 154; Com. v. Fox, 7 Pa. St 336;
In re Tarble, 25 Wis. 890.
82 Tarble's Case, 13 Wall. 397.
8 3 For example, a parent, People v. Mercein, 3 Hill (N. Y.) 399; Com. v.
Briggs, 16 Pick. (Mass.) 203; In re Mitchell, R. M. Charlt. (Ga.) 489; Ex part©
McOlellan, 1 Dowl. P. C. 81; U. S. v. Green, 3 Mason, 482, Fed. Cas. No.
15,256; Com. v. Hamilton, 6 Mass. 273; a guardian, Villareal v. MeUish, 2
Swanst. (Tenn.) 538; Ferguson v. Ferguson, 36 Mo. 197; a daughter. Com. v.
Curby, 3 Brewst. (Pa.) 610; a husband, Ex parte Newton, 2 Smith (Eng.) 617;
Ex parte Sandilands, 12 Eng. Law & Eq. 463; Rex v. Mead, 1 Burrows, 542;
a wife, Cobbett v. Hudson, 15 Adol. & E. 988; In re Ferrens, 3 Ben. 442, Fed.
Cas. No. 4,746; a sister of an orphan, In re Daley, 2 Fost & F. 258; but not a
mere stranger, In re Poole, 2 Mc Arthur (D. C.) 583; Ex parte Child, 15 C. B.
238; Linda v. Hudson, 1 Cush. (Mass.) 385.
34 In re Parker, 5 Mees. & W. 31; In re Thompson, 30 Law J. (N. S.) 19.
3 6 Ex parte Walpole, 84 CaL 584, 24 Pac. 308. Or accompanied by an affi-
davit. De Lacy v. Antoine, 7 Leigh (Va.) 438.
36 Ex parte Walpole, supra.
Ch. 15] IN GENERAL. 561
least probable cause for granting a release from custody must be
shown in the application." In some states it is the practice to
grant a rule nisi for the prosecuting officer to show cause why the
writ should not issue.*'
Form of Writ — To Whom Directed — Service.
The writ of habeas corpus runs in the name of the president of
the United States, or of the state,'" and must be signed by the
judge or officer authorizing it.*" It is directed to the person who
is claimed to wrongfully detain the prisoner,*^ and commands
him to have the body of such person before the court or judge at
a time and place mentioned therein, and to show the cause of the
detention. The writ may be served by an officer or by a private
person.*^ Notice must be given to the prosecuting officer of the
issuing of the writ.**
Eeturn.
A return in writing must be made by the person to whom the
writ is directed.** In most states it is required by statute to be
verified,*" though at common law this was not necessary.** It
must either deny the detention of the person alleged to be de-
tained,*^ or show the reason for his imprisonment.** The body
of the person detained must be produced in court, or cause must be
8T Sim's Case, 7 Gush. (Mass.) 285; Ex parte Watkins, 3 Pet 193; U. S.
v. Lawrence, 4 Cranch, C. C. 518, Fed. Gas. No. 15,577.
88 Ex parte Farley, 40 Fed. 66; In re Jordan, 49 Fed. 238; In re RafCerty.
1 Wash. St. 382, 25 Pac. 465; Ex parte Champion, 52 Ala. 311.
89 Church, Hab. Corp. § 110.
io St. 31 Car. II.
*i See Yudkin v. Gates, 60 Conn. 426, 22 Atl. 776; Nichols v. Cornelius, 7
Ind. 611; Com. v. Ridgway> 2 Ashm. 247; People v. Mercein, 3 Hill (N. Y.)
399.
42 See St 31 Car. II.
48 Ex parte Smith, 3 McLean, 121, Fed. Gas. No. 12,968; People v. Pelham,
14 Wend. (N. Y.) 48; Lumm y. State, 3 Ind. 293.
44 Seavey v. Seymour, 3 Cliff. 439, Fed. Cas. No. 12,596.
4B A return to a federal court must be verified. Rev. St. U. S. 1878, § 757.
46 Watson's Case, § Adol. & E. 731; In re Hakewill, 12 C. B. 223. And see
Crowley v. Christensen, 137 U. S. 86, 11 Sup. Gt. 13.
41 il. S. V. Green, 3 Mason, 482, Fed. Cas. No. 15,256.
48 Neider v. Reuff, 29 W. Va. 751; Eden's Case, 2 Maule & S. 226.
CKIM.PKOC. — 36
562 HABEAS CORPUS. [Ch. 15
shown why it is not, such as a denial of the detention.*' The
return may be controverted by the relator if he deems tlie facts
not truly returned.'"' The court may allow the return to be
amended."^ After the return and the hearing of the evidence, if no
cause for imprisonment of the relator appears, he will be dis-
charged."^
Second Application — Appeal.
A refusal to discharge under one writ does not prevent another
application to a different court, unless there is a statute to that
effect; and even then a second writ can be granted on new facts
or evidence."' In the absence of such a statute, the decision on
the first application would be given great weight, and, as a rule,
wduld not be disturbed unless on new facts shown."*
For the reason that a second application might be made, at com-
mon law no appeal or writ of error was allowed from a decision on
an application for a writ."" But now, by statute, such appeals
are allowed in the federal courts and in many of the states.
If a person once discharged on habeas corpus is rearrested, he
should be again discharged on a new writ"' But he could be sub-
sequently indicted for the offense, unless a plea of former jeopardy
IS advisable.
48 Rex V. Bethuen, And. 281; Rex v. Wright, 2 Strange, 901.
00 In re Milburn, 59 Wis. 24, 17 N. W. 965; State v. Scott, 30 N. H. 274;
In re Powers, 25 Vt. 261.
Bi In re Hopson, 40 Barb. (N. Y.) 34; People v. Cavanagh, 2 Parker, Or. R.
•650.
02 In re Doo Woon, 18 Fed. 898.
03 Ex parte Pattison, 56 Miss. 161; People v. Fancher, 1 Hun (N. T.) 27;
Ex parte Robinson, 6 McLean, 360, Fed. Oas. No. 11,935.
0* Ex parte Lawrence, 5 Ben. (Pa.) 304; Ex parte Campbell, 20 Ala. 89.
65 Yates V. People, 6 Johns. (N. Y.) 337; Hammond v. People, 32 111. 446.
06 In re Da Costa, 1 Parker, Or. R. 129; Com. v. McBride, 2 Brewst (Pa.)
545.
TABLE OF CASES CITED.
[THE FIGURES REFER TO PAGES.]
'A
Aaron v. State, 442.
Aaronson v. State, 454.
Abbott V. Booth, 31.
V. People, 538.
V. State, 395.
Ableman v. Broth, 559.
Abrigo V. State, 414.
Adam v. State, 467.
Adams v. People, 10, 510.
V. State, 298, 408, 419, 421,
543.
Ah Bau, Ex parte, 73.
Ahitbol V. Beniditto, 341.
Ah Lee, In re, 559.
Ah Peen, Ex parte, 435.
Aiken v. State, 281, 286.
Ainsworth, Ex parte, 556.
Alderman v. People, 161.
Alexander v. Commonwealth, 282,
472, 538.
Alford V. State, 29, 45, 388.
Alkenbrack v. People, 182, 183,
329, 337.
Allen V. Colby, 68.
V. Commonwealth, 237, 425,
v. Gray, 36.
V. Martin, 53, 55.
V. Staples, 67.
V. State, 112, 436.
V. Taylor, 146, 235.
V. Wright, 45.
Allgood V. State, 333.
Allison, In re, 443.
V. Commonwealth, 526.
V. Rheam, 35, 36.
Allyn V. State, 367.
Alterberry v. State, 475.
Amann v. People, 342.
CKIM.PROC.
Ambrose v. State, 395.
American Fur Co. v. U. S., 521.
Amos V. State, 522.
Anderson, Ex parte, 73.
V. State, 193, 199, 310, 311.
Andrews v. Hmidred of Lewknor, 313.
V. State, 242, 424, 425.
Androscoggin v. Kichard, 70.
Angel V. Commonwealth, 169.
Anon., 77, 79, 97, 144, 175, 225, 234,
263, 281, 316, 426, 498.
Anson v. People, 518.
Anthony v. Commonwealth, 281.
Antonez v. State, 84.
Archer v. State, 10, 17.
Archer's Case, 87.
Armlsteadj v. Commonwealth, 444.
Armstrong v. People, 289, 547.
V. State, 465, 541.
Arnold v. State, 436.
385, V. Steeves, 50, 57, 74.
Arrington v. Commonwealth, 324.
Ashley v. Peterson, 69.
218, Ashley's Case, 44.
Ashton V. State, 404, 405.
Atkins V. State, 447.
487. Attaway v. State, 414.
Austin y. State, 549.
Avery v. State, 499.
Avirett T. State, 117.
Ayers, In re, 558.
Aylesbury's Case, 87.
B
Bacclgalupo v. Commonwealth, 541.
Baccio V. People, 513.
Baggett V. State, 221.
Bailey v. Ragatz, 54.
(563)
664
CASES CITED.
[The figures refer to pages.]
Bailey v. State, 291, 499.
Bailey's Case, 388.
Bain, Ex parte, 108, 315.
Bainbridge v. State, 291.
Baker v. People, 303, 308.
V. State, 291, 318, 833, 378, 415,
421, 433, 445, 521, 522, 527.
Baldwin v. Kansas, 455.
V. People, 222, 336.
V. State, 220, 445.
Baldwin's Case, 118.
Bales V. Commonwealth, 482.
Ball V. Cobus, 262.
V. Commonwealth, 498.
V. State, 165, 365.
V. tJ. S., 252, 494.
Ballard v. State, 413, 416, 431.
Barber v. State, 271, 272, 358.
Barge v. Commonwealth, 378, 380, 405.
Barker v. People, 497.
Barkman v. State, 340.
Barnard v. Bartlett, 53, 54.
V. Commonwealth, 354.
Barnard's Case, 507.
Barnes v. Barber, 36.
V. People, 342.
V. State, 244, 247, 249, 280, 293,
348.
Barney v. State, 119, 120.
Barnwell v. State, 290.
Baron v. People, 488.
Baronnet, Ex parte, 86.
Barrett v. Long, 519.
V. State, 386, 482.
Barron v. People, 117.
Barronet, In re, 89, 557.
Barronet's Case, 87.
Baruch, In re, 60.
Bass V. State, 533.
Batchelder v. Currier, 6, 75.
Bateman v. State, 367.
Bates V. Commonwealth, 414.
V. State, 268, 317.
Baude's Case, 253.
Baurose v. State, 488.
Baw V. State, 416, 420.
Baxter v. People, 446, 472, 482.
Bayard, In re, 497.
Baylis v. Lucas, 441.
BeaU V. State, 11.
Beam v. Link, 121.
Bean v. Parker, 97.
Bean v. State, 353, 355.
Beasley v. People, 271, 272, 289.
Beatson v. Skene, 544.
Beauchamp v. State, 453.
Beavers v. State, 417, 535.
Beaverto v. State, 51.
Beck V. State, 452.
Becker v. Commonwealth, 280.
V. State, 334.
Beckham v. State, 528, 530.
Beckwith v. People, 351.
V. Philby, 41, 45.
Bedell, Ex parte, 497.
Bedford v. State, 523.
Bedingfield's Case, 516.
Beekman v. Traver, 28.
Beers v. Beers, 435.
Beggs V. State, 13.
Belcher v. State, 522.
Bell, Ex parte, 6, 79.
V. Clapp, 53, 68.
V. Commonwealth, 254, 365.
V. People, 126.
V. State, 272, 363, 386, 397, 447,
512, 558.
Bellasis v. Hester, 493.
Bellows V. Shannon, 50.
Ben V. State, 282, 283.
Bengough v. Rossiter, 85.
Benjamin v. State, 73.
Bennet v. Talbot, 276.
V. Watson, 90.
Bennett, Ex parte, 556.
V. Commonwealth, 499.
V. State, 380.
Benningfield v. Commonwealth, 433.
Benson v. Commonwealth, 294, 296.
V. State, 202.
Benton v. Commonwealth, 412.
V. State, 425.
Bergen v. People, 533.
Berneker v. State, 538.
Berrien v. State, 328.
Berry v. State, 335, 347, 474, 475.
Besinier v. People, 94.
Bethuram v. Black, 556.
Bigham v. State, 189, 215.
Bill V. People, 468.
Bingham v. Dickie, 342.
Bird, Ex parte, 557.
V. State, 112.
Birney v. State, 193.
CASES CITED.
565
[The figures refer to pages.]
Biscoe V. State, 485.
Bishop V. State, 416.
Black, In re, 487.
V. State, 197, 358.
Blackman v. Commonwealth, 240, 241.
V. State, 275, 412.
Blackmore v. State, 111.
Blaney v. State, 109, 482.
Blatch V. Archer, 47.
Blatcher v. Kemp, 33.
Bledsoe v. Commonwealth, 485.
Bleecker v. Johnston, 548.
Blenklron v. State, 455.
Bletch V. Johnson, 146, 235.
Blodget V. State, 341.
Bloomer v. State, 113, 394.
Blount V. State, 486.
Blumenberg v. State, 141, 317.
Blyew V. Commonwealth, 388.
Boardman v. Wood, 446.
Board of County Com'rs v. Graham,
106.
Boaz V. Tate, 57.
Bob V. State, 512.
Boggett V. Frier, 230.
Boggs V. State, 298.
Boland, Ex parte, 557.
Boles V. State, 228, 472, 479.
Boiling V. State, 352, 470, 524, 534, 541.
Bond V. People, 486.
Bonds V. State, 125.
Bonnell v. State, 221.
Bonner, In re, 6.
V. State, 469.
Bookhout V. State, 31.
Boon V. State, 446.
Boone v. People, 112, 113, 462, 463.
Booth, In re, 29.
Borst V. Beeeker, 442.
Borum v. State, 351.
Bostic V. State, 471.
Bostick V. Rutherford, 79.
Boulden v. State, 353, 526.
Bowditch V. Balchin, 42.
Bowen v. Shopcott, 378.
V. State, 367, 490.
Bowers v. People, 207.
Bowler v. State, 197.
Bowles V. State, 4S7.
Bowlin V. Commonwealth, 414.
Bowman v. Commonwealth, 420, 421.
Boyce v. Whitaker, 349.
Boyd V. State, 35, 50, 417, 547.
V. U. S., 543, 546.
Boyington v. State, 119.
Boynton v. State, 81.
V. Tidwell, 41.
Bradford v. State, 442.
Bradlaugh v. Reg., 141, 154, 156, 206-
208, 214, 320-322.
Bradley v. Banks, 198.
V. Mirlck, 533.
y. State, 189.
Bradshaw v. Commonwealth, 430.
Brady v. Davis, 29.
Brainard v. Stilphin, 146, 235.
Bramlett v. State, 419.
Branham v. Commonwealth, 92.
Brassell v. State, 470.
Brassfield v. State, 239.
Bratton v. Seymour, 146, 235.
Bravo v. State, 222.
Brazell v. State, 462.
Brazleton v. State, 29.
Breese v. State, 280, 284, 352.
Brennan v. People, 377, 392, 395, 400,
493.
Brewer v. Commonwealth, 425.
V. State, 13.
Bridewell, Ex parte, 87.
Bridge V. Ford, 92, 95.
Bridge's Case, 254.
Bright v. Patton, 42.
Brinkley v. State, 534.
Bristcoe, In re, 557.
Brister v. State, 159, 469, 473, 484, 485.
Bristow V. Wright, 183.
Brock V. State, 133.
V. Stimson, 37, 57.
Broekway v. Crawford, 44, 45.
Brogy V. Commonwealth, 533.
Brooks V. Commonwealth, 44, 45, 48,
50, 54.
V. People, 424.
Broome v. Hurst, 97.
Brosnahan, In re, 559.
Brother v. Cannon, 35.
Brotherton v. People, 526.
Broughton v. Moore, 313.
Browder v. State, 94.
Brown, Ex parte, 65, 391, 557.
In re, 558.
V. Commonwealth, 109, 117, 170,
259, 299, 323, 442, 455, 457,
4U0, 495, 533.
566
OASES CITED.
[The figures refer tc pages.]
Brown v. Foster, 545.
V. People, 452.
V. State, 13, 116, 306, 353, 360,
418, 425, 437, 471, 479, 480,
486, 488, 512.
V. U. S., 522, 532.
Browne's Case, 309.
Browning v. State, 416, 469, 470.
Brown's Case, 64.
Broyles v. State, 512.
Brucker v. State, 475.
Brushaber v. Stegemann, 55.
Bryan v. Bates, 43.
V. State, 473.
Bryans v. State, 385, 386.
Bryant, Ex parte, 557.
V. State, 147.
Buck V. State, 295.
Buckland v. Commonwealth, 209, 210,
334.
Buckler's Case, 254.
Buckner v. State, 430.
Buckrice v. People, 16.
BueU, In re, 557, 559.
BuUiner v. People, 429.
Burdett v. Colman, 55.
V. State, 388.
Burgess v. Commonwealth, 124, 126.
V. State, 499.
Burk V. Commonwealth, 483, 485.
Burke v. Bell, 57.
V. People, 460.
Burley v. Griffith, 28.
Burnett, Ex parte, 557.
V. State, 414.
Bumey v. State, 425.
Burns v. Commonwealth, 471.
V. Erben, 42, 45.
V. State, 21, 51, 444, 479.
Burrell v. State, 447.
Bm-r's Trial, 79.
Burst V. State, 347.
Burt V. State, 513.
Burtles v. State, 468.
Bushell's Case, 555.
Butler V. Commonwealth, 73.
V. Foster, 84.
V. State, 462, 508.
V. Turley, 45.
V. Washburn, 57.
Butman's Case, 318.
Butolph V. Blust, 42, 57.
Butts V. Swartwood, 543.
Buzzard v. State, 310.
Byers v. Commonwealth, 435u
Byrd v. State, 367, 442.
Byrne v. State, 117, 118.
G
Cabell V. Arnold, 34, 58.
Cable V. Commonwealth, 522.
Cahlll V. People, 40, 42, 55.
Caldwell v. Commonwealth, 495,
V. State, 252.
Callan v. Wilson, 435.
Cameron v. State, 359.
Camp V. Moseley, 36.
Campbell, Ex parte, 562.
V. Chace, 544.
V. Commonwealth, 547.
V. People, 208, 388, 395, 505.
V. Keg., 489.
V. State, 12, 93, 392.
Camron v. State, 408.
Cancemi v. People, 437, 438, 446.
Cannon, In re, 61, 66.
V. People, 538.
Cantwell v. People, 420, 421.
Cargill V. Commonwealth, 458.
Carle v. Delesdernier, 37.
Carleton v. State, 289.
Carlisle v. State, 15, 249, 347.
Carlton v. Commonwealth, 296, 297.
V. People, 539.
Carnal v. People, 448, 453.
Carnett v. State, 455.
Carpenter v. People, 351.
Carr v. State, 40, 44, 45, 6a
Carroll v. State, 454.
Carson v. State, 271, 272.
Carter v. State, 230, 489.
Carthaus v. State, 417.
Cartwright v. State, 463, 464, 478, 48a
V. Wright, 209.
Cary v. State, 44.
Cash V. State, 294.
easily v. State, 301.
Casper v. State, 432.
Castillo V. State, 513.
Castro V. Reg., 288, 293, 294, 296, 495.
Cathcart v. Commonwealth, 141.
Caudle v. Seymour, 23, 24, 29.
CASES CITED.
667
[The figures refer to pages.]
Cawley v. State, 295.
Central Railroad & Banking Co. of
Georgia v. Roberts, 444.
Chacun v. Territory, 354.
Chaffin V. State, 517.
Chambers v. People, 262.
Chamlington's Case, 252.
Champ V. State, 470.
Champion, Ex parte, 557, 561.
Chaney, Ex parte, 87.
Chapman v. Commonwealth, 263.
Charlton v. Coombes, 545.
Chase v. Pish, 37.
V. Springvale Mills Co., 533.
Cheek v. Commonwealth, 486, 487.
V. State, 340.
Child, Ex parte, 560.
Childs V. State, 499.
Chiles V. Commonwealth, 312.
Choen v. State, 146, 235.
Cholmley's Case, 251.
Christian v. Commonwealth, 198.
Chubb V. Salomons, 544.
Churchill v. Churchill, 36.
Chute V. State, 457.
City Council v. King, 146, 147, 234.
V. Payne, 40.
City of Bloomington v. Heiland, 427.
City of Creston v. Nye, 412.
City of Emporia v. Volmer, 421.
City of Lowell v. Morse, 148.
Claassen v. U. S., 299.
Clair V. State, 111.
Clark, In re, 64.
V. Bragdon, 29.
V. State, 238, 367, 392, 427.
Clarke, Ex parte, 385, 556.
V. Commonwealth, 351.
V. State, 344, 385.
Clark's Case, 234.
Clay V. People, 207, 332.
Clem V. State, 117, 400, 405, 446.
Clements v. State, 51.
demons v. State, 228.
Olere v. Commonwealth, 300.
Clore's Case, 447.
Cluck V. State, 347.
Clyncard's Case, 110, 114, 125.
Clyne, In re, 133.
Coal-Heavers' Case, 159, 302.
Coates V. State, 541.
Coats V. People, 290.
Cobb V. Lewis, 146.
V. Lucas, 235.
Cobbett V. Hudson, 560.
Cobia V. State, 891.
Cochrane v. State, 419.
Cockerell v. State, 415, 486.
Codd V. Cabe, 34, 50.
Cody V. Quinn, 35.
CofiEee v. State, 188.
Cohen v. People, 203.
V. State, 12.
Cohn, Ex parte, 558.
Coker v. State, 478.
Cole V. State, 425.
Coleman v. Commonwealth, 424, 542.
V. Hagerman, 446.
V. People, 518.
V. State, 492.
V. Tennessee, 395.
Cole's Case, 86.
Collier v. State, 125.
Collins V. Brackett, 102.
V. Commonwealth, 529, 532.
V. Goldsmith, 201.
V. People, 199, 226, 338.
V. State, 116, 317, 324, 443.
Colt V. People, 509.
Combs V. Commonwealth, 290.
Comer v. State, 282, 542.
Comfort V. Fulton, 26.
Commercial Exch. Bank v. McLeod,
71.
Commonwealth v. — , 258.
V. Abbott, 503.
V. Adams, 105, 199, 209, 241, 242,
244, 295, 305, 315, 329, 333.
V. Addis, 451.
V. Alderman, 389, 394.
V. Andrews, 11, 282, 426.
V. Anthes, 466.
V. Arner, 399, 401, 402.
V. Arnold, 392.
V. Arrance, 231.
V. Ashley, 269.
V. Ashton, 168, 220.
V. Atwood, 182.
V. Austin, 448, 463.
V. Ayer, 311.
V. Bagley, 158.
V. Bailey, 210, 333.
V. Bakeman, 190, 191, 193.
V. Baker, 181, 185, 329.
668
CA.SE8 CITED.
[The figures refer to pages.]
Commonwealth v. Barker, 252, 253.
V. Barnard, 247.
T. Barrett, 107, 265.
V. Battis, 373.
V. Beaman, 115, 224, 336.
V. Bean, 265, 268, 320.
V. Bennett, 181.
V. Berger, 445.
V. Bingham, 431.
V. Blrdsall, 290.
V. Blair, 509.
V. Blake, 371, 372.
V. Blanchette, 228.
V. Blanding, 13, 15.
V. Blood, 151.
v. Bosworth, 389, 468.
V. Bowden, 387.
V. Boyer, 220.
V. Boynton, 191, 193, 194.
V. Bradford, 518, 519.
V. Bradley, 13.
V. Bradney, 363, 364.
V. Brady, 507.
V. Brailey, 512.
V. Brayman, 534.
V. Brelsford, 397, 538.
V. Brettun, 220.
V. Breyesse, 484.
V. Brickett, 97.
V. Briggs, 135, 345, 498, 560.
V. Bronson, 97.
V. Brooks, 270.
V. Brown, 120, 179, 187, 199, 215,
216, 281, 284, 296, 302, 306,
340, 512, 521.
V. Bryden, 181.
V. Bubser, 397.
V. Buecierl, 413, 415, 420.
V. Bugbee, 252, 253.
V. Burke, 258, 298, 350, 360.
V. Burlington, 262.
V. Burton, 118.
V. Butler, 150, 172.
. V. Butterick, 213, 220, 255.
V. Buxton, 314.
V. Buzzard, 141, 315.
V. Buzzell, 448.
V. Byrnes, 196, 274.
V. Cahill, 220, 220.
V. Cain, 393.
V. Caldwell, 309, 312.
y. Call, 174, 489, 493.
Commonwealth v. Campbell, 218, 517,
527.
V. Canada, 93.
V. Carey, 42, 45, 298, 526.
V. Carney, 309, 310.
V. Carr, 378.
V. Carter, 412.
V. Castles, 212.
V. Chandler, 554.
V. Chapman, 155, 159, 198, 302,
364, 381.
V. Chase, 161, 266, 297.
V. Chathams, 488.
V. Cheney, 41.
V. Cherry, 150.
V. Ohesley, 390, 405.
V. Child, 152, 160, 320, 321.
V. Choate, 518, 541.
V. Christian, 106.
V. Church, 363.
V. Churchill, 377.
r. Clair, 218, 335, 336, 390, 396, 398.
V. Clancy, 213.
V. Clapp, 149.
V. Clark, 119, 149, 244, 266.
V. Cleary, 420, 479.
V. Clifford, 265, 269.
V. Clue, 387.
V. Coe, 208, 518.
V. Cohen, 193.
V. Coleman, 99, 424.
V. Collins, 267, 320.
V. Colton, 127, 257.
V. Cook, 306, 386, 387.
V. Cooley, 50, 311.
V. Cooper, 358, 359, 526.
V. Cosseboom, 471.
V. Costello, 294, 426.
V. Costley, 347, 514.
V. Cousins, 11.
V. Cox, 259.
V. Coy, 328.
V. Creadon, 360.
V. Crossmire, 445.
V. Crotty, 29, 30.
V. Crump, 427.
V. Ouffee, 530, 531.
V. Culver, 530.
V. Cummings, 247, 393.
V. Cunningham, 388, 399.
V. Curby, 560.
V. Curran, 283.
CASES CITED.
669
[The figures refer to pages.}
Oommoawealtli v. Curtis, 283.
V. Cutler, 397.
T. Daggett, 94.
V. Dalley, 438.
V. Dana, 67, 70, 98.
V. Daseom, 388, 394.
V. Davidson, 419;
V. Davis, 161, 162, 200, 344, 346,
430.
V. Deacon, 40, 43-46, 57, 62.
V. Dean, 152, 160, 190-193.
V. Dedham, 148, 150, 156, 376.
V. De Jardln, 327.
V. Delamater, 421.
T. Demuth, 148.
V. Dennis, 311.
V. Densmore, 514.
V. Devine, 305.
V. De Witt. 11.
V. DlUane, 344.
V. Dobbins, 288.
V. Doherty, 156, 189.
V. Donahue, 363, 493.
V. Donovan, 343.
T. Doran, 244.
V. Dorus, 214, 483.
V. Dowdican, 534.
V. Dowdigan, 496.
V. Downey, 94.
V. Doyle, 242, 324.
V. Drew, 377, 385.
V. Drum, 360.
V. Dudley, 154, 163.
V. Dunham, 416.
V. Dunleay, 212.
Y. Durfee, 483.
r. Eastman, 337, 364.
V. Baton, 280, 282.
V. Edwards, 127, 143.
V. Eichelberger, 488.
V. Elwell, 194, 802, 345.
V. Emery, 92, 93, 95.
V. Falvey, 338. .
V. Farls, 314.
V. Fells, 386.
v. Ferrigan, 507, 508, 518.
V. Field, 47, 50.
V. Filburn, 20.
V. Finn, 229.
V. Fisher, 92, 124, 126, 127, 143,
144.
V. Follansbee, 547, 54&
Commonwealth v. Foster, 33.
V. Fox, 560.
v. Fraher, 395.
V. Fredericks, 363, 376.
V. Gable, 197, 299, 358.
V. Gale, 147, 150, 376.
V. Gallagher, 221, 222, 340.
V. Gavin, 180, 217, 329, 337.
V. Gay, 311.
V. Gee, 119.
V. Gerade, 541.
V. Gibson, 198, 391, 482.
V. Gill, 843.
V. Gillespie, 16, 157, 158, 206, 207,
289, 332, 340, 342, 376, 431.
V. Glover, 341.
V. Goddard, 380, 388, 889, 405,
406, 545,
V. Golding, 406.
V. Goldstein, 231, 254, 255.
V. Goodhue, 354.
V. Goodwin, 509, 510.
V. Gould, 234, 341, 385, 392.
V. Graves, 547.
V. Gray, 170, 553.
V. Green, 65, 109, 112, 121, 122,
363, 373, 392, 394.
V. Grey, 170, 171.
V. Griffin, 238, 257, 258, 306, 544.
V. Grimes, 219, 226, 338.
V. Hackett, 516.
V. Hagarman, 149.
V. Hall, 62, 145, 146, 216, 234, 282.
V. Hamilton, 231, 259, 385, 560.
V. Hampton, 262.
V. Haney, 526.
V. Harley, 191, 330.
V. Harmon, 209.
V. Harney, 231.
V. Harrington, 141, 204, 317, 318,
344.
V. Harris, 7, 82, 83, 156, 268, 269,
283, 553.
V. Harrison, 345, 393.
V. Hart, 166, 167, 174, 181, 271,
272, 274-276, 386.
V. Hartnett, 230.
V. Hatton, 390, 391.
V. Hawkins, 300, 364, 551.
V. Hayden, 355.
V. Hayes, 547.
V. Haynes, 191, 314.
570
CASES CITED.
[The figures refer to pages.]
Commonwealth v. Heffron, 250, 348.
V. Heist, 447.
V. Hersey, 139, 156, 168, 186, 188.
V. Herty, 400.
V. Hill, 121, 122, 271, 340, 369, 446.
V. Hills, 289, 296, 297.
V. Hinds, 70, 212, 374, 493.
V. Hines, 127.
V. Hogan, 397. .
v. HoUey, 317, 318.
V. Holmes, 208, 281, 285, 286, 507,
508, 547.
V. Hooper, 313.
V. Hope, 182, 187, 280, 283, 351.
V. Horton, 374, 435.
V. Houghton, 206, 208.
V. Hourigan, 470.
V. Howe, 488, 530.
V. Hoxey, 182, 276.
V. Hoxie, 314.
V. Hoye, 257.
V. Hughes, 80.
V. Humphries, 199.
V. Hunt, 182, 342.
V. Hutton, 238.
V. Igo, 284.
V. IngersoU, 374.
V. Ingraham, 522. 532. 552.
V. Inhabitants of North Brookfleld,
250, 348.
T. Inhabitants of Sheffield, 238.
V. Inhabitants of Springfield, 248,
249, 347.
V. Intoxicating Liquors, 69, 70.
V. Irwin, 53, 54.
V. Jackson, 197, 388, 394, 518.
V. Jacobs, 294.
V. James, 124, 126, 218, 431.
V. Jeffries, 181, 329, 503.
V. Jenks, 431.
V. Jennings, 271, 272, 275, 276, 341,
343.
V. Johns, 329.
T. Johnson, 5, 98, 510, 528, 530.
V. Johnston, 65.
V. Jones, 452.
V. Kearns, 332, 334.
T. Keefe, 106, 185, 244, 259.
V. Keenan, 177.
V. Keeper, 33, 88.
V. Keeper of Prison, 557.
T. Kellogg, 191, 330.
Commonwealth v. Kelly, 172, 217, 344,
V. Kennedy, 40, 314.
V. Kenney, 512.
V. Kimball, 158, 493.
V. King, 531.
V. Kirby, 36, 194, 195.
V. Knapp, 112, 306, 415, 452, 455.
V. Kneeland, 207.
V. Knowlton, 5.
V. Ladd, 221.
v. LafCerty, 73,
V. Lahy, 395.
V. Lampton, 234.
V. Lane, 324.
V. Lang, 485.
V. Lannan, 154, 163, 192, 369, 372.
V. Lapham, 366.
V. Lavery, 249, 338, 348.
V. Lawler, 552.
V. Lawless, 171, 213, 221.
V. Lecky, 557.
V. Lee, 84.
V. Leekey, 558.
V. Lesher, 447.
V. Lewis, 150, 431.
V. Litton, 364.
V. Lockwood, 395, 407.
V. Logan, 250, 348.
V. Long, 376.
V. Lottery Tickets, 26, 69,
V. Loud, 389, 390.
v. Loveridge, 92.
V. Loweiy, 352, 489.
V. Luscomb, 329, 335, 337.
V. Lyons, 14.
V. McBride, 562.
V. McCarthy, 519.
V. McCaul, 474, 478.
V. MeChord, 293, 303, 305.
V. McComb, 112.
V. McCormick, 386.
V. McDermott, 512.
V. McDonald, 190.
V. McGabey, 39, 44, 55.
V. JiCGorty, 540, 549.
V. McGovern, 159.
V. McGuire, 158, 303.
V. McKenna, 369.
V. McKenney, 329.
V. McKenny, 338.
V. McLaughlin, 42, 281, 295, 296.
V. Macloon, 10.
CASES CITED.
671
[The figures refer to pages.]
Commonwealth v. McLoon, 244.
V. McMahon, 468.
V. McManus, 466, 472.
V. M'Pike, 360, 516.
V. McShane, 404.
V. Malier, 105, 230, 315.
V. Maloney, 496.
V. Manfredi, 478.
V. Manley, 231.
V. Manson, 802.
V. Martin, 31, 168.
V. Mason, 93, 551.
V. Maxwell, 152, 157, 160, 161, 167,
225, 271, 275.
V. Mead, 122.
V. Merriam, 193.
V. Merrill, 189, 405, 406.
V. Mllby, 160, 266.
V. Millard, 415.
V. Miller, 242, 298, 304, 385, 388,
457.
V. Moran, 31.
V. Morgan, 330.
V. Moriarty, 182.
V. Morrill, 329, 334.
V. Morse, 228, 231, 493.
V. Mortimer, 390, 398.
V. Moseley, 180.
V. Moulton, 214.
V. Mullen, 127, 472.
V. MuUins, 542.
V. Murphy, 200, 214, 301, 354, 356,
357.
T. Murray, 31.
V. Myers, 388, 529, 530.
V. Newburyport Bridge, 154, 163.
V. Newell, 358, 359.
V. Nichols, 283, 546.
V. Northampton, 311.
V. O'Brien, 281, 521, 538.
V. O'Connell, 7, 226, 337, 338.
V. Odlin, 161.
V. O'Donnell, 154, 163.
V. Olds, 387.
V. O'Neil, 405.
V. Otis, 92.
V. Packard, 297, 467.
V. Park, 158.
V. Parker, 10, 119, 314, 354, 547.
v. Parmenter, 12, 146, 147, 235,
333, 511.
V. Parr, 473.
Commonwealth v. Perkins, 145, 146>
234, 235.
V. Perrigo, 169, 170.
V. Perris, 230.
V. Peters, 388.
V. Phillips, 25, 26, 68, 151, 152, 160,
163.
V. Phillipsburg, 315, 316.
V. Place, 369, 431.
V. Poisson, 447, 477.
V. Pope, 235, 242, 340.
V. Porter, 462, 463, 466.-
V. Powell, 285.
V. Pratt, 546.
V. Pray, 160-162, 171, 179, 181, 251,.
265, 430.
V. Presby, 41.
V. Price, 340.
V. Purchase, 386, 387.
V. Quin, 24, 142.
V. Quirk, 369.
V. Radford, 93.
V. Band, 11.
V. Randall, 182, 329.
V. Ray, 99, 301, 334.
V. Raymond, 194.
V. Reily, 247.
V. Reynolds, 53-55, 176, 182, 314.
V. Richards, 220.
V. Richardson, 327.
V. Ricketson, 476.
V. Ridgway, 561.
V. Roach, 509.
V. Roark, 32.
V. Roberts, 84, 354, 520.
V. Robinson, 431.
V. Roby, 358, 359, 384, 386, 387,.
892, 396, 398^02, 406, 479, 481,
485.
V. Rodes, 316.
V. Rogers, 458, 541.
V. Roland, 430.
V. Rutherford, 88, 89.
V. St Clair, 119.
V. Sampson, 302.
V. Sanborn, 527.
V. Sanford, 393.
V. Sawtelle, 208, 219, 222.
V. Sayers, 110, 876, 377.
V. Scannel, 197.
V. Schmous, 485.
V. Scott, 487, 515, 517, 521.
572
CASES CITED.
[The figures refer to pages.]
Commonwealth v. Searle, 210, 312, 334.
V. Sego, 530, 531.
V. Semmes, 87, 89.
V. Shannihan, 271, 275.
V. Sharpless, 207, 208.
V. Shaw, 163, 218, 436, 546.
V. Shea, 397.
V. Shearman, 146, 232, 234, 340.
V. Sheriff, 32, 133, 134.
V. Sherman, 341.
V. Sherry, 119.
V. Sholes, 144, 197, 387.
V. Slgo, 344.
V. Simpson, 179, 284.
V. Skelley, 216.
V. Slacli, 190, 267.
V. Slate, 302, 306, 307.
V. Slattery, 483.
V. Sliney, 512.
V. Sloan, 302.
V. Smith, 118, 119, 135, 226, 314,
391.
V. Smyth, 114.
V. Snelling, 177.
V. Somerville, 390.
V. Spilman, 212, 213.
V. Springfield, 311.
V. Squire, 197, 259, 332.
V. Steimling, 393.
V. Stevens, 210, 833.
V. Stevenson, 366.
V. Stockbridge, 312.
V. Stone, 125, 127, 243, 343.
V. Stout, 194, 266, 268.
V. Stow, 206, 332.
V. Strangford, 217.
V. Strother, 120.
V. Sullivan, 24, 83, 149, 291.
V. Sweney, 206, 207, 210.
v. Swinney, 221.
V. Sylvester, 290.
V. Symonds, 279, 285.
V. Tarbox, 206-208, 210, 211.
V. Taylor, 149, 210, 334, 556.
V. Thompson, 196, 258, 259, 283.
V. Thurlow, 271.
V. Tobin, 37, 40, 50, 54, 57, 425,
482.
V. Tolliver, 249, 347, 510.
V. Tompson, 233, 340.
V. Town of Northampton, 311.
V. Tracy, 62,
Commonwealth v. Trainor, 341.
V. Trask, 86.
V. Traverse, 345.
V. Trefethen, 512.
V. Trickey, 397.
V. Trimmer, 231, 379.
V. Tryon, 301.
V. Tuck, 135, 136, 280, 281, 284,
285, 323, 352, 385.
V. Tuckerman, 529.
V. Turner, 262.
V. Turnpike Co., 148.
V. Tuttle, 275, 293.
V. Twitchell, 196, 262, 263, 283.
V. Van Tuyl, 11.
V. Varney, 236.
V. Wade, 339, 340, 390, 398, 406.
V. Walker, 512.
V. Wallace, 24, 393.
V. Walters, 114, 262.
V. Walton, 324.
V. Ward, 29, 102, 209, 333.
V. Washburn, 350.
V. Weatherhead, 301.
V. Webster, 168, 445, 447, 453, 508,
510.
V. Weiderhold, 197.
V. Wellington, ISO, 184, 250, 343,
348, 349.
V. Wentz, 156.
V. Whaley, 232.
V. Wheeler, 135, 136.
V. White, 491.
V. Whitney, 154, 163.
V. Wilcox, 31, 75.
V. Williams, 118, 240, 281, 329, 337.
V. Wilson, 210.
V. Wood, 11, 110, 243, 328.
V. Woods, 213, 333.
V. Woodward, 120, 155.
V. Worcester, 311.
V. Wright, 42, 66, 139, 153, 206,
207, 210, 211.
V. Wyatt, 497.
V. Zappe, 470.
Conkey v. People, 117, 118.
Conner v. Commonwealth, 26, 29.
V. State, 52.
Connor v. State, 11, 246, 254.
Conrad v. State, 469.
Cook, In re, 65.
V. Cox, 160, 210.
CASES CITED.
673
[The flffures refer to pages.]
Cook V. Nethercote, 43.
V. State, 344, 427, 484, 536, 548.
Cooke V. Maxwell, 123.
Cooke's Case, 223.
Cooper V. Adams, 32, 35.
V. State, 92, 408, 499.
Copperman v. People, 518.
Corbett v. State, 470.
Cornelius v. State, 478.
Cornell v. State, 2:)0, 348.
Cornwall v. State, 478, 479, 490, 530.
Cornwell v. State, 125, 126, 143.
Corryell, In re, 557.
Cotrell V. Commonwealth, 534.
Cotton V. State, 94, 472.
Cottrell, Ex parte, 558.
Coughlin V. People, 470.
Coupey V. Henley, 42.
Coupland, Ex parte, 554.
Courtney v. State, 113.
Covy V. State, 249, 303, 348.
Coward v. Baddeley, 45.
Cowell V. Patterson, 73, 80.
Cowles V. Dunbar, 41.
Oox, Ex parte, 495.
V. Coleridge, 76.
T. People, 168, 529, 530.
V. State, 304, 470.
Coy, Ex parte, 60.
Coyle V. Commonwealth, 535,
Coyles V. Hurtin, 43, 47, 48.
Crabtree v. State, 477.
Crain v. State, 311. «
Craven's Case, 220.
Crawlin, Ex parte, 385.
Creek v. State, 113, 478.
Oregier v. Bunton, 450.
Orichton v. People, 252.
Crim V. State, 494.
Crockett v. State, 358.
Cronin v. State, 339, 340.
Croom V. State, 463.
Cropper v. Commonwealth, 5.
Crosby v. Leng, 398.
V. People, 522.
V. Wadsworth, 371.
Crosby's Case, 87.
Crosland v. Shaw, 40.
Cross V. State, 189, 433.
Crouther's Case, 192.
Crow V. State, 11, 462.
Crowe, In re, 334.
Crowley v. Christensen, 561.
Crowley's Case, 555.
Croy V. State, 452.
Crozier v. Cundey, 70.
Oruikshank v. Comyns, 342.
Crumbley v. State, 361.
Cubreth, In re, 62.
Cudd V. State, 345.
Culver V. State, 539.
Cummins v. People, 432.
Cummis v. People, 510.
Cundiff v. Commonwealth, 203.
Cunningham v. State, 82, 93, 170, 190.
Curnow, Ex parte, 353, ■357.
Curran's Case, 431.
Curry v. State, 486.
V. Walter, 544.
Curtis, Ex parte, 419.
V. People, 144, 191, 196, 197, 299.
Custis y. Commonwealth, 367. '
D
Da Costa, In re, 562.
Dailey v. State, 94, 436, 437, 467.
Dakins, Ex parte, 556.
Dale V. State, 133, 466.
Daley, In re, 560.
V. State, 470.
Damewood v. State, 220.
Damon's Case, 309, 310,
Damron v. State, 165.
Dana v. State, 210, 832.
Daniels v. People, 94.
V. State, 24, 470.
Danovan v. Jones, 42, 43.
Darling v. Hubbell, 93.
Darrah v. Westerlage, 557.
Darst v. People, 436.
Daughtery v. State, 413.
Davidson v. State, 252, 253, 447.
Davis V. Capper, 74.
V. Clements, 28, 101.
V. Commonwealth, 524, 525.
V. People, 263, 449, 479, 588.
V. Russell, 41, 42, 44, 45.
V. State, 169, 189, 198, 268, 276,
294, 296, 298, 314, 358, 368,
417, 432, 462, 471, 474, 475^
478, 479, 482, 514, 523, 530.
Davis' Case, 64, 65, 556.
574
CASES CITED.
[The figures refer to pages.]
Davy V. Baker, 169.
Dawson v. State, 414, 462.
Day V. Commonwealth, 376.
V. Day, 102.
V. People, 489.
Dean v. State, 124, 126.
Dearlng's Case, 197.
De Bernie v. State, 329.
De Haven v. State, 394.
Dehm V. Hinman, 34, 37, 47, 51.
Deitz V. State, 363.
Dekentland v. Somers, 146, 235.
De Lacy v. Antoine, 560.
Denley v. State, 493.
Dennard v. State, 95.
Dennis v. State, 182, 348.
Dereeourt v. Corbishley, 40, 46.
Dickerson v. State, 532.
Dickinson v. Bowes, 147.
V. Kingsbury, 85.
V. State, 95.
Dickson v. State, 548.
Dilger v. Commonwealth, 43, 52.
Dill V. People, 332.
V. State, 46.
Dillingham v. State, 435, 436.
V. U. S., 94, 99.
DiltB V. Kinney, 146, 235.
Dilworth v. Commonwealth, 452.
Dimick v. Downs, 534.
Dingley v. Moor, 313.
Dingman v. State, 415.
Dinkey v. Commonwealth, 351, 354,
400.
Divine's Case, 557.
Dixon V. State, 427.
Dobson V. State, 413.
Doebler v. Commonwealth, 437.
Doering v. State, 40, 41.
Dolan V. People, 377.
Doll, In re, 556.
Dollar V. State, 462, 463.
Donahoe v. Shed, 30, 31, 37.
Donald v. State, 376.
Donnel v. U. S., 342.
Donnelly v. State, 288, 341, 426, 525,
549.
Donohue v. People, 510.
Donohue's Case, 63.
Dooley v. State, 477.
Doo Woon, In re, 62, 63, 562.
Dormer's Case, 313.
Doss V. Commonwealth, 461, 465, 473.
Dougan v. State, 419.
Dougherty v. Commonwealth, 424, 425.
Doughty V. State, 45.
Douglass V. Barber, 40.
V. State, 427.
Dove V. State, 471.
Dow V. State, 414, 477.
Dowdale's Case, 489.
Dowdy V. Commonwealth, 289, 295,
296, 442, 454.
Dowling V. State, 450.
Dowman's Case, 488.
Downing v. State, 334.
Dow's Case, 60.
Doyle V. People, 431, 470.
V. State, 110, 118, 119.
Drennan v. People, 21, 42, 50.
Drew's Case, 21.
Droneberger v. State, 348.
Drummond v. State, 317, 319.
Drury v. State, 557.
Dryman v. State, 469.
Du Bois V. State, 208.
Duchess of Kingston's Case, 546.
Duckworth v. Johnston, 29.
Duffles V. State, 75.
Dufey V. People, 466.
Dugan V. Commonwealth, 84.
Dukes V. State, 366, 433.
Duke's Qa.se, 427.
Dula V. State, 10, 419.
Dull V. Commonwealth, 220.
Dumas v. State, 347.
Duncan, In re, 559.
V. Commonwealth, 399.
V. People, 300.
V. State, 235, 347, 473.
Dunn V. State, 388, 424.
Dunn's Case, 518.
Duppa V. Mayo, 338.
Durell V. Mosher, 444.
Durham v. State, 351.
Dutell V. State, 114.
Duttenhofer v. State, 546.
Dutton V. State, 377.
Dwinnells v. Boynton, 69.
Dyer v. State, 377.
CASES CITED.
675
[The figures refer to pages.]
E
Eakln v. Burger, 323.
Eanes v. State, 41, 42.
Early v. Commonwealth, 280, 415.
Earp V. Commonwealth, 414, 415.
Eastman v. Commonwealth, 181.
Eastwood V. People, 457.
Eckhardt v. People, 264.
Eden's Case, 561.
Edgerton v. Commonwealth, 490.
Edmondson v. Wallace, 446.
Edmundson v. State, 146, 235.
Edsall's Case, 334.
Edwards v. Commonwealth, 239, 254.
V. State. 197, 421.
Edymoin, In re, 558.
Elchorn v. Le Maitre, 378, 379.
Eighmy v. People, 514.
Eldridge v. Commonwealth, 487.
V. State, 377.
Ellenwood v. Commonwealth, 369.
EUiott V. State, 303, 308.
V. Van Buren, 534.
Ellis, Ex parte, 556.
V. State, 117, 484.
Elmore v. State, 510.
Emanuel v. State, 557.
Emerick v. Harris, 435.
Emery v. Chesley, 56.
Emporia v. Volmer, 435.
Engleman v. State, 244.
English V. State, 110, 111, 123, 334.
Enwright v. State, 145.
Erskine v. Davis, 146, 235.
Eskridge v. State, 531.
Evans v. Foster, 85, 90.
V. State, 147, 175.
V. Territory, 355.
Evarts v. State, 247.
Everett v. State, 304, 545.
Bvers, Ex parte, 88.
V. State, 523.
Ezeta, In re, 59.
Fagan, In re, 555.
Faire v. State, 423.
Farley, Ex parte, 561.
Farmer v. People, 194.
Farr v. East, 257.
Parrand, In re, 559.
Farrell v. State, 280.
Farris v. Commonwealth, 280.
Farrow v. State, 342.
Faulkner v. Territory, 417, 467, 541.
Fergus v. State, 188.
Ferguson v. Ferguson, 560.
Ferrens, In re, 560.
Ferris v. People, 385.
Fetter, In re, 62, 65.
Field, Ex parte, 555.
V. Commonwealth, 499.
Fight V. State, 426.
Finch V. State, 157, 266, 425, 557.
Pindlay v. Pruitt, 42, 45, 51.
Finley v. State, 389.
Finney v. State, 13, 202.
Firestone v. Rice, 40, 42, 47, 51.
First Nat Bank v. Post, 443.
Fisher, Ex parte, 557.
V. Commonwealth, 282.
V. People, 466, 541.
Fisk, Ex parte, 558.
Fitton, In re, 66.
Fitzgerald v. State, 473.
Fitzpatrick's Case, 87.
Flagg v. People, 529, 530.
Flaherty v. Longley, 69.
V. Thomas, 204.
■Fleming v. People, 275.
V. State, 245, 457.
Fletcher v. People, 301.
V. State, 477.
Flint V. Commonwealth, 458.
Flora V. State, 228.
Floyd V. State, 29, 471.
Fogarty v. State, 541.
Follett V. Jefferyes, 545.
Foote V. Hayne, 545.
V. State, 497.
Forbes v. Commonwealth, 493.
Ford V. State, 483.
V. Tilly, 498.
Forsythe v. U. S., 5.
Fort V. State, 547.
Fortenberry v. State, 175.
Foster, Ex parte, 88.
V. Commonwealth, 380.
V. People, 511.
V. State, 133, 134, 354, 425, 490.
Foster's Case, 31, 75.
676
CASES CITED.
[The figures refer to pages.]
Fountain v. State, 469.
Poust V. State, 388.
Fouts V. State, 428, 429.
Fowler v. State, 228, 303, 468.
Fox V. Gaunt, 45.
V. People, 510.
Francisco v. State, 280.
Franklin v. Commonwealth, 508.
V. State, 399, 401, 402, 463, 465,
466.
V. Talmadge, 146, 235.
Frazier v. State, 347, 462, 517.
Freegard v. Barnes, 37.
Freel v. State, 486, 490.
Freeman v. Arkell, 121.
V. People, 444, 453-^55.
Freleigh v. State, 208.
French v. State, 424.
Friar v. State, 475.
Friedrich, In re, 559.
Frisby V. State, 335.
Frost V. Commonwealth, 435,
V. Thomas, 50.
Fuechra- v. State, 134.
Fuliambe's Case, 260.
Fulkner v. State, 406.
Fuller Y. State, 312, 314.
Fulmer's Case, 282.
G
Gady v. State, 165, 227.
Gaffney v. Circuit Judge Missaukee
Co., 385.
Gahan v. People, 342.
Galbreath v. State, 303, 308.
Gallagher v. State, 181, 529.
Galliard v. Laxton, 40.
Galvin v. State, 40, 48.
Ganaway v. State, 106, 430.
Gannon, In re, 117.
V. People, 392.
Garcia v. State, 154, 420, 421.
V. Territory, 497.
Gardiner v. People, 385, 510.
V. State, 473.
Gardner v. People, 114, 116.
V. State, 472.
V. Turner, 441.
Garman v. State, 424.
Gamer v. State, 190, 455, 463, 537.
Garrett v. State, 639.
Garthwaite v. Tatum, 446.
Garvey v. Commonwealth, 204.
Gates V. People, 447.
V. State, 193.
Galtewood v. State, 193, 261.
Gee Wo v. State, 271.
Genner v. Sparks, 55, 56.
Gentry v. State, 99.
George v. Pilcher, 553.
V. Radford, 56.
Geraghty v. State, 235.
Gerard v. People, 390.
Gerrish v. State, 146.
Gibbs V. State, 467.
Gibson, Ex parte, 557.
V. Commonwealth, 391, 392,
V. State, 380, 415.
Giftord V. People, 429.
Giles V. State, 260.
Gill V. Scrlvens, 275.
V. State, 242.
Gillespie v. State, 452.
Gillooley v. State, 546.
Gilyard v. State, 467.
Gipson V. State, 486, 489, 490.
Girous V. State, 343.
Gise V. Commonwealth, 133.
Gitchell V. People, 420.
Gladden v. State, 441.
Gleason v. McVickar, 174.
Glenn, In re, 558.
Glover v. State, 415.
Goans, Ex parte, 88.
Goddard v. State, 106.
Godfreidson v. Peopie, 426.
Goersen v. Commonwealth, 430.
Gold V. Bissell, 29, 56.
Golding V. State, 400.
Goldman v. State, 469.
Goldstein v. State, 221, 460.
Gonzales v. State, 447.
Goodrich v. Hooper, 177.
Goodwin v. Dodge, 83.
V. Governor, 94.
V. State, 530, 538.
Gordon's Case, 507.
Gore V. State, 522, 532.
Goshen & S. Turnpike Co. v. Sears^
258.
Gott V. Mit'-hell, 37.
Gouglemao v. People, 198.
CASES CITED.
677
[The figures refer to pages.]
Governor r. Fay, 85, 92.
V. Jackson, 84.
Grace, Bx parte, 435.
Grady v. State, 465, 494.
Graeter v. State, 321.
Graham v. Commonwealth, 133.
V. State, 339, 340.
Grainger v. Hill, 55, 56.
Granice, Ex parte, 556.
Grant v. State, 227, 548.
Gray v. State, 99, 182.
Gray's Case, 525.
Greathouse's Case, 558.
Green, In re, 482.
T, Commonwealth, 199, 373, 417.
V. State, 9, 10, 17, 110, 122, 189,
284, 289.
Greenfield v. People, 535.
Greenough, In re, 65.
Greenwood v. State, 395, 404.
Greeson v. State, 143, 144, 182.
Gregg, In re, 560.
V. State, 199.
Gregory v. Commonwealth, 276, 314.
V. State, 84, 85.
Gresham v. Wallier, 341.
Griffin v. Coleman, 42.
V. State, 210, 284, 333, 358, 447.
V. Wilcox, 555.
Griffith, In re, 133, 134.
V. State, 290.
Grim v. Reimbold, 494.
Grimm v. People, 427.
Grimmett v. Askew, 5.
V. State, 422.
Grimwood v. Barrit, 174.
Grisham v. State, 405.
Griswold v. Sedgwick, 29, 30, 36.
Gross V. State, 119.
Grubb V. State, 541.
Gruber v. State, 386.
Grumon v. Raymond, 29, 36, 69.
Guedel v. People, 390.
Guenther t. Day, 70.
V. People, 485-^90.
Guess V. State, 378.
Guest V. State, 485.
Gunter v. State, 541.
Gurley v. Gurley, 270.
Gumey v. Tufts, 36.
Gumsey v. Lovell, 29.
Guynes v. State, 355.
CKIM.PROC. — 37
H
Hackett V. Commonwealth, 197.
V. King, 507.
Hackney v. Welch, 66.
Hager v. Falk, 6.
Hakewill, In re, 561.
Haley v. State, 342, 353.
Hall V. Commonwealth, 197, 416, 477,
498.
V. Hawkins, 42.
V. Patterson, 557.
V. Roche, 50.
V. State, 93, 94, 244, 341, 424, 426,
476, 482, 508, 522, 537.
V. U. S., 462.
Halsted v. Brice, 29.
Ham V. State, 10, 63, 66.
Hamblett v. State, 219, 227.
Hamilton v. Commonwealth, 262, 424,
494.
V. People, 74, 466, 522, 552.
V. Reg., 190.
T. State, 189, 360, 400.
Hammel, In re, 558.
V. State, 169.
Hammett v. State, 487.
Hammond v. Brewer, 251.
V. People, 562.
Hampton v. Brown, 94.
V. State, 289.
Handcock v. Baker, 45, 46, 54.
Handly v. Commonwealth, 464.
Hankins v. People, 405.
Hanks v. State, 10.
Hannum v. State, 487.
HanofC v. State, 551.
Hanrahan v. People, 247.
Hanson, Ex parte, 559.
Harbin v. State, 98.
Hardin v. State, 119, 340, 37?.
Harding v. People, 271.
Hardison v. State, 498.
Hardy v. Commonwealth, 360.
V. State, 460, 482.
Hardy's Case, 544.
Hargrove v. State, 495, 514, 515, 517
Harlan v. State, 347.
V. Territory, 66, 443.
Harman v. Commonwealth, 198, 293,
294, 299.
Harmon v. Commonwealth, 198, 295.
578
CASES CITED.
[The figures rpfer to pages.}
Harp V. Osgood, 97.
Harp V. State, 407.
Harrall v. State, 115.
Harrington v. Dennie, 96.
Harris v. City of Atlanta, 57.
V. People, 329, 424, 425, 489.
Hart, Ex parte, 63.
V. Cleis, 275.
V. Lindsey, 146, 235.
Hartman v. Aveline, 64, 65.
Hartranft, Appeal of, 544.
Hart's Case, 200.
Hartzell v. Commonwealth, 450.
HaiTey v. Commonwealth, 486, 487.
V. State, 413.
Harvey's Case, 87.
Haskins v. People, 222, 247, 249, 329,
337, 348.
V. Young, 30, 32, 56.
Easlip V. State, 276, 314.
Hastings v. Levering, 174.
Hatcher v. State, 472.
Hathaway v. State, 116.
Hatwood V. State, 240.
Haught V. Commonwealth, 149.
Hawkes v. Hawkey, 177.
Hawkins v. Commonwealth, 53, 54.
V. State, 431, 468.
Oaworth v. State, 228.
Hawthorn v. State, 221, 324.
Hayes v. State, 367.
Hayley v. Grant, 413.
Haynes v. Commonwealth, 204, 513.
Hayne's Case, 228.
Hays V. Hamilton, 413.
Head v. Martin, 52.
Headley v. Shaw, 146, 235.
Heath V. State, 281.
Heckman v. Swartz, 29, 31.
Hector V. State, 386.
Heikes v. Commonwealth, 249, 348.
Heine v. Commonwealth, 521.
Heineman v. State, 279.
Helm V. State, 448.
Henderson v. Commonwealth, 414.
V. State, 347.
Hendrick v. Commonwealth, 395, 445,
453.
Hendricks v. Commonwealth, 380.
Hendryx v. State, 433.
Hennessey v. State, 333.
Hennessy v. State, 209.
Henwood v. Commonwealth, 295.
Herman v. People, 295, 351, 359,
Hernandez v. State, 328.
Herris, In re, 60.
Herron v. State, 341, 493.
Hess V. State, 197, 209, 301, 359.
Hewitt V. State, 108, 141, 271.
Hewitt's Case, 414.
Heyden's Case, 200.
Heydon's Case, 243, 254, 304.
Heymann v. Reg., 320.
Hibbs, Ex parte, 60.
Hibler v. State, 557.
Hickam v. People, 416.
Hickman v. People, 420.
Hicks v. State, 418.
V. Territory, 10, 347.
Higges V. Henwood, 155, 305.
Higginbotham v. State, 414.
Higgins V. Commonwealth, 421,
V. People, 513.
Hightv. U.S., 88.
Hightower v. State, 155.
Hilderbrand v. State, 294.
Hill, Ex parte, 560.
V. Commonwealth, 471, 548.
T. People, 429, 436.
V. State, 360, 371, 427.
Hines v. State, 386, 389.
Hinkle v. Commonwealth, 282, 283.
Him V. State, 271.
Hite V. Commonwealth, 425, 426, 534.
V. State, 390, 406.
Hittner v. State, 475.
Ho Ah Kow V. Nunan, 559.
Hobbs, Ex parte, 63.
V. Branscomb, 41, 42.
V. State, 220.
Hoberg v. State, 475, 470, 479.
Hodge V. State, 408, 505, 508, 541.
Hoffman v. State, 386.
Hogg V. Ward, 41.
Hoggatt V. Bigley, 39.
Hoghtaling v. Osborn, 482.
Hogshead v. State, 443.
Holcomb V. Cornish, 39.
V. Holcomb, 534.
Holden v. State, 465.
Holder v. State, 458, 459, 517.
Holford V. State, 233.
Holley V. Mix, 41, 44, 45.
HoUingsworth v. Duane, 442.
CASES CITED.
579
[The figures refer to pages.]
HoUoway v. Reg., 164.
Holman, Ex parte, 560.
V. Mayor, 558.
Holmes, Ex parte, 59.
Case, 309.
T. Commonwealth, 427.
V. Jennison, 59.
V. State, 379, 534, 540.
V. Walsh, 306.
Holt V. Commonwealth, 415.
Hood V. State, 416.
Hooker v. Commonwealth, 426.
V. State, 222, 336, 453.
Hooper, In re, 63.
V. State, 208, 396.
Hoover v. State, 345.
Hope V. Commonwealth, 226, 338.
V. People, 113, 518.
Hopkins, Ex parte, 104, 140, 154.
V. Crowe, 42.
Hopson, In re, 562.
Hopt V. Utah, 424, 425.
Horan v. State, 194.
Horbach v. State, 506, 537.
Horn' V. State, 354, 355, 421, 467, 470,
510, 517.
Hombeck v. State, 513.
Homsby v. State, 300, 325.
Horsey v. State, 493.
Horthbury v. Levingham, 313.
Horton v. State, 170, 524.
Hosklns T. State, 282, 330, 487.
Houghton V. Bachman, 71.
Housh V. People, 26.
How V. Strode, 498.
Howard v. Commonwealth, 420.
V. State, 541.
Howel V. Commonwealth, 262.
Howell's Case, 198.
Howie V. State, 95.
Hoye V. Bush, 29.
Hoyt V. People, 281.
Hronek v. People, 468, 486, 543.
Hubbard, Ex parte, 557.
V. Mace, 55.
V. State, 428.
Hudson V. State, 110, 118, 299, 312,
453.
Huff V. State, 392.
Huffman v. Commonwealth, 269.
Huffman's Case, 144.
Huggins V. State, 193.
Hughes V. State, 9, 486.
Huldekoper v. Cotton, 121.
Huish V. Sheldon, 498.
Huling V. State, 119.
Humbard v. State, 339, 340.
Hume V. Ogle, 251, 380.
Humes v. Taber, 37, 69.
Hummel v. State, 220.
Hunt V. Commonwealth, 414.
V. State, 392, 466.
Hunter v. Commonwealth, 294, 295,
359.
V. State, 288, 289, 342, 477.
Huntington v. Shultz, 56.
Hurd V. Commonwealth, 414, 417.
Hurley v. State, 142, 143.
Hurt V. State, 895.
Hurtado v. California, 108.
Hussey v. Davis, 70.
Hutchins r. State, 232.
Hutchinson v. State, 242.
Hutchison v. Birch, 55.
V. Commonwealth, 473.
Hyden v. State, 471.
Ike V. State, 262.
Imlay V. Rogers. 123.
Ingalls V. State, 540, 547.
Ingram v. State, 89, 380.
Inwood V. State, 435.
Irwin V. State, 93.
Isaacs V. Wiley, 146, 235.
Jackson, Ex parte, 556.
V. Commonwealth, 5, 73, 75, 424,
425, 526.
V. Pesked, 320.
V. Prevost, 235.
V. State, .52, 110, 175, 262, 341, 344,
386, 414, 420, 466, 470, 482,
498.
Jackson's Case, 48, 65.
Jacobs v. Commonwealth, 242, 253,
344, 424.
V. State, 43.
Jacquemine v. State, 84.
580
CASES CITED.
[The figures refer to pagesj
Jambor v. State, 385.
James v. Commonwealth, 161.
V. Rutlech, 177.
T. State, 296, 298, 494.
Jamison v. People, 415, 420, 510.
Jane v. Commonwealth, 203.
V. State, 197, 237, 251, 254.
Jansen v. Ostrander, 174.
Jefferds v. People, 531.
JefEerson v. People, 272.
V. State, 367, 460.
Jeffries t. Commonwealth, 172, 243.
Jenkins v. MitcheU, 455.
V. State, 354.
Jennings v. Commonwealth, 280, 299,
300.
Jensen v. State, 272.
Jerry y. State, 125, 144, 196.
Jesse V. State, 443.
Jewell V. Commonwealth, 426, 451.
Jillard v. Commonwealth, 280.
Jim V. State, 468.
Johns V. State, 14.
Johnson v. Castle, 535.
V. Commonwealth, 415.
V. Leigh, 54.
V. Mayor, etc., of Americus, 57.
V. People, 367.
V. State, 29, 31, 116, 221, 296, 297,
305, 328, 392, 419, 443, ,447,
455, 468, 487, 499, 513, 515,
525, 543.
V. U. S., 132.
Johnston v. Riley, 29, 65.
V. State, 508.
Jones, Ex parte, 90.
V. Commonwealth, 246, 299, 300,
387, 486, 487.
V. Fletcher, 69.
V. Kelly, 557.
V. Leonard, 65.
V. Macquillin, 146, 342.
V. Reg., 156, 268.
V. Robbins, 107, 108, 435.
V. State, 147, 175, 189, 340, 341,
347, 353, 366, 447, 450, 467,
471. 472, 476, 479, 492, 511) 522,
525, 526, 534.
V. Timberlake, 556.
Jorasco v. State, 340.
Jordan, In re, 561.
V. Commonwealth, 515.
Jordan v. State, 530.
Jordt V. State, 223.
Josslyn V. Commonwealth. 201.
Joy y. State, 386, 392.
Judah y. McNamee, 455.
Jugiro, In re, 559.
Jumpertz y. People, 474, 478.
Justice y. Commonwealth, 405.
y. State, 347, 365, 526.
K
Kaelin y. Commonwealth, 197.
Kahn v. Reedy, 443.
Kalloch V. Superior Court, 377.
Kane y. People, 288, 289, 291, 293, 296,
299, 301, 313, 366.
Kearney, Ex parte, 557.
Keeeh v. State, 494.
Keefer y. State, 289.
Keehn y. Stein, 30.
Keenan y. State, 44, 46, 478.
Keene y. Meade, 146, 235.
Keener v. State, 505.
Keeton y. Commonwealth, 403-405.
Keith y. Tuttle, 49.
Keithler v. State, 433, 472.
Keller y. State, 175.
Kelley y. People, 512, 522.
V. State, 147.
Kellum V. State, 429, 486.
Kelly, Ex parte, 558, 560.
In re, 14, 102.
V. State, 425, 460.
y. Wright, 53.
Kelsey y. Parmelee, 33.
Kemmler, In re, 497.
Kemp's Case, 555.
Kendrick y. Commonwealth, 546.
Kennedy y. Duncklee, 35, 36.
y. People, 342, 354, 355.
y. State, 44, 228.
Kennegar v. State, 289.
Kenriek y. U. S., 313.
Kent y. State, 535.
Kentucky y. Dennison, 64.
Kenyon, Ex parte, 559.
Kernan y. State, 50.
Kerr y. Illinois, 60, 557.
Keyes y. State, 433.
Kilboum y. State, 276.
CASES CITED.
681
[The figures refer to pages.]
KlUlns V. State, 515.
Kilrow V. Commonwealth, 141.
Kimpton's Case, 64.
Klncaid v. Howe, 146, 235.
V. People, 215.
Kindred v. Stitt, 44, 45.
King, In re, 559.
V. Fearnley, 192.
V. Marsh, 110.
V. State, 93, 95, 96, 107, 212, 284,
346, 416, 420, 445, 452, 476,
479, 480, 499, 531, 541.
Kingsbury's Case, 64, 65.
Kinney v. State, 145, 263.
Kirby v. State, 444, 558.
V. Territory, 513.
Kirk T. Commonwealth, 490.
Kirton v. Williams, 371.
Kitchingman v. State, 296.
Kitrol V. State, 119, 120.
Klein v. People, 307.
Klock V. People, 386, 412.
Knoll V. State, 536.
Knot V. Gay, 40.
Knowles v. State, 314, 414.
Knox T. State, 390.
Kohlheimer v. State, 390,
Kopke V. People, 271.
Kowalsky, In re, 557.
Kramer v. Commonwealth, 518, 519.
Krans, Ex parte, 42.
Kroer v. People, 293.
Krug V. Ward, 33.
Lacey v. State, 135.
Lackey v. State, 130.
Laclede Bank v. Keeler, 552.
Lacy V. State, 118.
Lagrone v. State, 266.
Lamb v. State, 441.
Lambert v. People, 154, 161, 324
Lambeth v. State, 472.
Lamkin v. People, 240.
Lancaster v. Lane, 39, 40.
V. State, 455.
Landa v. State, 13, 15.
Lander v. People, 514.
Lane y. People, 392.
Lanergan v. People, 512.
Lang T. State, 353.
Langdale v. People, 174, 209, 333.
Langdon v. People, 235, 541.
Lange, Ex parte, 383, 389, 495, 558.
Langford v. State, 518.
Lanier v. State, 189.
Larned v. Commonwealth, 162, 189,
219, 220, 226, 259, 338.
Lascelles v. Georgia, 60, 66.
V. State. 289.
Launock v. Brown, 55.
Lavarre v. State, 221.
Lavelle v. State, 321.
Lavender v. State, 222.
Lavlna v. State, 62.
Lawn V. People, 427.
Lawrence, Ex parte, 562.
V. Commonwealth, 455.
T. Hedger, 41, 42.
V. State, 343.
Lawson v. Buzines, 33, 56.
Layer's Case, 77.
Lazier v. Commonwealth, 175, 244, 288,
296, 379.
Leach v. People, 445.
Leache v. State, 541.
Leathers v. State, 110.
Lebkovitz v. State, 284.
Ledbetter v. State, 33.
Ledgerwood v. State, 6, 391, 496.
Ledwith v. Catchpole, 41.
Lee V. Clarke, 262, 312.
V. Gansel, 55.
V. State, 98, 100, 120, 242, 386, 423,
426, 445.
Lefevre v. State, 530.
Lefler v. State, 175, 468.
Leftwich v. Commonwealth, 165, 221,
225.
Leigh V. Cole, 51.
Lembro & Hamper's Case, 263.
Lemons v. State, 310.
Lenox v. Fuller, 552.
Lester v. State, 87, 90, 254, 386.
Leverette v. State, 335.
Levison v. State, 135.
Levy V. Edwards, 43.
V. State, 395.
Lewallen v. State, 486.
Lewellen v. State, 305, 510.
Lewis V. Board of Com'rs, 105, 109.
V. State, 41, 50, 184, 221, 339, 340,
415, 445, 447, 454, 462.
582
CASES CITED.
[The figures refer to pages.]
Lewson v. Reddleston, 126.
Lienburger v. State, 118.
Lilly V. People, 499.
Linbeck v. State, 425.
Linda v. Hudson, 560.
Lindsay v. Commonwealth, 136.
Lindsey v. State, 303, 308.
Linford v. Fitzroy, 84.
Linsday v. People, 543.
Lisle V. State, 452.
Lister v. Mundell, 498.
Lithgow V. Commonwealth, 446.
Litman v. State, 334.
LitteU V. State, 178, 179.
Little V. Commonwealth, 514, 516.
Livingston v. Commonwealth, 535.
Lloyd, In re, 360.
V. State, 24.
Loakman v. State, 415.
LoefCner v. State, 461, 541.
Logan V. State, 117.
V. U. S., 387, 428, 447, 521, 522,
543.
Lohman v. People, 360, 551.
Long V. People, 367, 414, 417, 430.
V. State, 44, 46, 50, 228, 426, 443,
469, 472, 486.
Long's Case, 197-199, 231.
Lopez V. State, 542.
Lopez & Battler's Case, 60.
Lord T. State, 429, 482, 483.
Lorton v. State, 282, 329, 337,
Lott V. State, 358.
Lougee v. State, IOC.
Lough V. Millard, 28, 556.
LouisviUe, N. O. & T. R. Co. v. Mask,
444.
Lovett V. State, 392.
Low T. People, 219, 227.
Lowe V. State, 468.
Lowery v. State, 533.
Low's Case, 114, 123.
Loyd V. State, 413.
Lucas V. State, 357.
Lumm V. State, 88-90, 561.
Lusk V. State, 124.
Luter V. State, 160.
Lnittrell v. State, 332.
Lutz V. Commonwealth, 492.
Lynch v. Grayson, 536.
V. People, 88, 90, 557.
V. State, 462, 400.
Lynes v. State, 342.
Lynn, Ex parte, 556.
Lyons v. People, 290.
V. State, 99.
M
Mabry v. State, 443, 445.
McAnally, Ex parte, 88.
McAuly V. State, 221.
McBean v. State, 491.
McBride v. State, 247.
McCabe, Ex parte, 59.
McCall V. McDowell, 555.
McCann v. Commonwealth, 385.
V. State, 475.
McCarty v. State, 95, 217, 221.
McClain v. Commonwealth, 468.
V. State, 388.
McClellan, Ex parte, 560.
McClinchy v. Barrows, 69.
McClure v. State, 123, 452.
McCole V. State, 85.
McCombs V. State, 347.
McConnell v. Kennedy, 33.
McConologue's Case, 558, 560.
McCorkle v. State, 482.
McCowan v. State, 229.
McCoy V. State, 73, 246, 467, 470, 471.
McCreary v. Commonwealth, 474.
McOuUough V. Commonwealth, 40, 109,
113, 116, 311.
V. State, 290, 361.
McCutcheon v. People, 264.
McDade v. State, 344.
McDaniels' Case, 264.
McDermott t. State, 415.
McDonald v. State, 220.
V. Wilkie, 36.
McDonnell v. State, 210.
McDonough v. State, 94.
McDuffie V. State, 444.
McElroy v. State, 198.
McElvalne v. Brush, 497.
McEntee v. State, 486, 489.
McFadden v. Commonwealth, 388,
452.
McFarlan v. People, 5.
McFarland v. State, 394, 406.
McGear v. Woodi-uff, 435.
McGee v. State, 335.
CASES CITED.
583
fThe figures refer to pages.]
McGehee v. State, 243.
McGowan v. State, 446, 466.
McGraw v. Commonwealth, 522.
M'Gregg v. State, 291, 445, 484.
McGregor v. State, 178.
McGuffle V. State, 468, 488.
McGuire v. People, 542.
V. State, 312, 452.
McHargue v. Commonwealth, 527.
Mclntire v. Commonwealth, 115.
Mclntyre v. People, 482.
V. Raduns, 43.
McJunklns v. State, 432.
Mackalley's Case, 304, 328.
McKane v. State, 222.
McKay v. Speak, 146, 235.
McKee v. State, 114.
McKenzie v. State, 296.
Mackin v. U. S., 107.
McKinley v. State, 317.
McKnlght, Ex parte, 66.
McLaln v. State, 478.
McLane v. State, 240.
McLaughlin, Ex parte, 386, 387,
V. Commonwealth, 175.
V. State, 141, 317, 318, 341.
McLean v. State, 461, 474, 478.
McLennon v. Richardson, 54.
McMahan v. Green, 47.
V. State, 214.
McMeen v. Commonwealth, 471.
McMiUan v. State, 419.
McNealy v. State, 415.
McQuald V. People, 207.'
McQuillen v. State, 117, 118.
McRea v. Mayor, 395.
McRobets, Ex parte, 560.
Macrow v. Hull, 498.
McVay v. State, 535.
McWhirt v. Commonwealth, 358.
McWllliams v. State, 477, 480.
Madison v. Commonwealth, 93.
Mahan v. State, 125.
Mahajiey v. St. Louis & H. R. Co., 443.
Maher v. State, 478.
Mahon v. Justice, 60.
Maile v. Commonwealth, 198.
Main v. McCarty, 43, 49.
Maine v. State, 526.
Major's Case, 221.
Malone v. State, 354.
Maloney v. Traverse, 413.
Manchester, In re, 64.
Mangum v. State, 484.
Manke v. People, 536.
Manly v. State, 421.
Mann v. Glover, 453.
Mansfield v. State, 461.
March v. Commonwealth, 82.
Markley v. State, 242.
Markwell v. Warren Co., 80.
Marler v. Commonwealth, 290, 415.
Marsh V. State, 454.
Martin, In re, 558.
V. Commonwealth, 377, 408, 508.
V. People, 393.
V. State, 132, 190, 292, 378, 417,
421, 447, 485, 534, 543.
Marvin v. State, 329.
Mask v. State, 307.
Mason v. State, 12, 262, 341.
Massey v. State, 425.
Massle v. Commonwealth, 11.
V. State, 21.
Mastronada v. State, 373.
Mato, Ex parte, 557.
Maton V. People, 431.
Matthews v. State, 271, 272.
Mattox V. U. S., 491.
MauU V. State, 354, 415.
Maurer v. People, 425.
Maxwell v. State, 541.
May V. State, 413.
Mayer v. People, 518.
Mayo V. State, 289, 291.
Mayor v. Quh-k, 545.
Mayor of Doncaster v. Day, 533
Mead v. Haws, 29, 30.
V. State, 166, 299, 471.
Medlock v. State, 344.
Mee V. State, 209, 333.
Meece v. Commonwealth, 482.
Meek v. Pierce, 33, 68, 69.
Megowan v. Commonwealth, 239, 345k
Melton V. State, 165.
Melvin V. Fisher, 29.
Mercer v. State, 484, 491.
Merdeth v. People, 431.
Merrick v. State, 288.
Merryman, Ex parte, 555.
Mershon v. State, 118, 119, 288, 29&
Merwin v. People, 221, 226.
Messner v. People, 494.
Meyers v. State, 526.
684
CASES CITED.
[The figures refer to pages.]
Miazza v. State, 385.
Milan v. State, 190.
Milburn, In re, 562.
Miles, In re, 60.
V. State, 470.
Miller v. Foley, 29.
V. Grice, 36.
T. People, 191, 209, 333, 367, 495,
530.
V. State, 279, 289, 299, 315, 318,
416, 460.
MlUigan, Bx parte, 555.
V. State, 468.
Mills V. Commonwealth, 6, 296, 484,
487.
V. State, 408.
Minet v. Morgan, 546.
Minis y. U. S., 270.
Minor v. State, 93.
Mishler v. Commonwealth, 99.
MltcheU, In re, 560.
V. Lemon, 43.
V. State, 47, 416, 431, 482, 485, 499.
Mix V. Woodward, 177.
Mixon V. State, 386.
Mockabee v. Commonwealth, 20.
Mohr, In re, 65.
Monaiian v. State, 373.
Money v. Leach, 29, 30.
Montag V. People, 541.
Montague v. Commonwealth, 453.
Montee y. Commonwealth, 466.
Montgomery y. State, 466, 525.
Moody y. People, 417.
Mooney, Ex parte, 558.
Moore V. Commonwealth, 190, 455,
541.
y. Illinois, 395.
y. People, 347.
y. State, 175, 340, 347, 349, 524.
y. U. S., 508, 517.
V. "Watts, 29, 36.
Moran v. Commonwealth, 445.
Morgan y. Commonwealth, 170.
V. Edwards, 174.
y. State, 328, 386, 441, 482.
Morley V. Chase, 45.
Morman v. State, 194.
Morrell y. Quarles, 62.
Morris y. State, 5, 353, 367, 392, 400,
453, 490.
Morrow v. State, 84, 398.
Morton y. People, 141.
y. Skinner, 65.
Mose y. State, 106, 115.
Moses y. State, 444, 445.
Mott's Case, 223.
Mount y. State, 386, 395, 430.
Mowbray y. Commonwealth, 300.
Mowry y. Chase, 55, 56.
Moyer y. Commonwealth, 178.
Moyle's Case, 223.
Muely y. State, 468.
Mulcahy y. Reg., 126.
Mullinix y. People, 293.
Mull's Case, 415.
Munford y. State, 390.
Munly y. State, 453.
Munshower y. State, 493.
Munson y. State, 208, 358, 367, 486,
Murdock y. Ripley, 51.
Mure y. Kaye, 41.
Murphy y. Commonwealth, 399, 402,
438.
y. People, 435.
V. State, 141, 329, 391, 436, 465,
512.
Murray y. Fitzpatrick, 258, 349.
y. State, 189, 289.
Muscoe V. Commonwealth, 421,
Musgraye y. State, 66.
Musiek y. People, 119, 120.
Myers y. Commonwealth, 319.
N
Nabors y. State, 486, 490.
Neales y. State, 436.
Nealy y. State, 498.
Ned V. State, 444.
Neely y. People, 445.
Neider y. Reuff, 561.
Neiderluck y. State, 342.
Nelms y. State, 445.
Nelson y. Commonwealth, 414.
y. State, 442.
y. U. S., 271.
Nemo y. Commonwealth, 484, 487.
Neubrandt y. State, 331.
Newberry y. State, 414.
Newcomb y. State, 141, 324, 468.
Newman v. State, 288, 289.
Newton, Ex parte, 560.
CASES CITED.
685
[The figures refer to pages.]
Newton v. Maxwell, 147.
V. State, 468.
Nicely, Appeal of, 484.
Nichols V. IngersoU, 83, 97.
v. State, 320, 322, 363.
V. Thomas, 29, 35.
Nicholson v. Hardwick, 41.
V. State, 94, 531.
Nixon V. State, 412, 414.
Noble V. People, 444, 446.
V. State, 170.
Noblin V. State, 473.
Nochols V. Cornelius, 561.
Noe V. People, 247.
Nolan T. State, 386, 392, 424.
Noland v. State, 468.
Noles V. State, 33, 36, 123, 141.
Nomaque v. People, 114, 116, 427, 482,
485.
Noonan v. State, 536.
Norrls v. Newton, 559.
V. State, 11.
North T. People, 39, 412-414, 417.
Norton v. People, 228.
V. State, 482.
Nowak V. Waller, 57, 74.
Nugent V. State, 386.
Nye, Ex parte, 557.
O
O'Brlan v. Commonwealth, 386, 389.
V. State, 39.
O'Brien v. Commonwealth, 467.
V. People, 431.
V. State, 349.
O'Connell v. Reg., 300.
O'Connor v. State, 42, 447.
O'Hara v. People, 81, 130.
Ohio & M. R. Co. V. Fitch, 560.
Oily's Case, 125.
Olds V. Commonwealth, 416.
O'Leary v. Peoplp, 354, 355.
Olive V. State, 538.
Oliver, In re, 555.
O'Malia v. Went worth, 556.
O'Meara v. State, 385.
Omer v. Commonwealth, 537.
Omlchund v. Barker, 543.
Orman v. State, 545.
Ormsby v. People, 522.
Orr V. State, 296.
Osborn, Ex parte, 90.
V. Commonwealth, 80.
Osborne v. State, 339, 340.
O'Shields v. State, 431.
Osiander v. Commonwealth, 444.
Owen V. State, 289.
Owens V. State, 110, 339, 340.
Pace V. Commonwealth, 416.
Pack V. State, 94, 99.
Packer, In re, 495.
Padfleld v. CabeU, 28.
V. People, 470, 539.
Padgett V. Lawrence, 146, 235.
Page V. Commonwealth, 486, 489, 490.
T. State, 341, 443.
Pain, Ex parte, 178.
Paine v. Fox, 174.
Painter v. People, 472, 508, 518, 519.
Palfrey's Case, 309, 310.
Palin V. State, 344, 431.
Palmer v. People, 239, 253.
V. State, 446.
Palmore v. State, 440.
Palmquist v. State, 424.
Pancho v. State, 145.
Papineau v. Bacon, 57, 73, 75.
Parchman v. State, 342, 390, 398.
Pardee v. Smith, 74.
Park V. State, 99.
Parker, In re, 560.
V. Bidwell, 97.
V. Commonwealth, 488.
V. Elding, 375.
V. State, 485, 539.
V. Walrod, 35, 36.
V. Webb, 313.
Parkinson v. People, 367.
Parris v. People, 107.
Parrish v. State, 363, 466.
Parrott's Case, 559.
Parsons v. Lloyd, 35, 36.
V. State, 541.
Partain v. State, 486.
Pate V. State, 508.
Patrick v. People, 315.
Pattee v. State, 324, 373.
Patterson v. Commonwealth, 114.
58G
CASES CITED.
[The figures refer to pages.]
Patterson v. People, 432.
V. State, 94, 328, 385, 454, 465.
Pattison, Ex parte, 87, 562.
Payne v. People, 226.
V. State, 445, 446.
Peake v. OldMm, 177.
Pearce v. Atwood, 28, 35, 36, 49.
V. State, 64.
V. Texas, 64.
Pearvear v. Commonweaitn, 497.
Pease v. Burt, 97.
V. State, 460.
Peebles v. State, 317.
Peiffer v. Commonwealth, 475.
Pell V. Prevost, 146.
Pellum V. State, 469.
Pendleton v. Commonwealth, 208.
Pennsylvania v. Bell, 127, 314.
V. Huston, 308.
V. McKee, 242.
People V. Abbott, 353, 360, 459.
V. Ackerman, 469.
V. Adams, 11, 14, 181, 241.
V. Adler, 45, 290, 291.
V. Ah Lee Doon, 414, 415.
V. Ah Sing, 229.
V. Aiken, 291, 292.
T. Allen, 262.
V. Anderson, 414, 466.
V. Antonio, 488.
V. Arnold, 522, 532.
V. Austin, 291.
V. Badgley, 208.
V. Baker, 253.
T. Ball, 221.
r. Bannister, 487.
V. Barrett, 346, 386, 390.
V. Barric, 392.
V. Barry, 467.
V. Bartz, 40, 41.
T. Baughman, 94.
V. Bawden, 363.
V. Beach, 549.
V. Beatty, 119.
V. Beauchamp, 423.
T. Becktel, 24.
V. Belcher, 29.
V. Bemm'erly, 479, 541.
V. Bentley, 355.
V. Blakeley, 545.
V. Blankman, 94.
V. Bodine, 420, 455.
People V. Bogart, 208, 229.
V. Boggs, 486.
V. Bonney, 484.
V. Bosworth, 527, 543.
V. Bowden, 541.
V. Brady, 64, 527, 557.
V. Breese, 248.
V. Burgess, 240, 344.
V. Burk, 263.
V. Burt, 37, 41.
V. Burtnett, 556.
V. Bush, 164.
V. Butler, 110.
V. Cage, 386, 387.
v. Campbell, 6, 104, 105, 108, 141,
315, 317, 318.
V. Carolin, 447.
V. Carpenter, 89, 95.
V. Casborus, 390, 392, 395.
V. Casey, 281, 455, 546.
V. Cassells, 558.
V. Cassidy, 527.
V. Cavanagh, 558, 562.
V. Chalmers, 354, 359.
V. Chapman, 77.
V. Chase, 526.
V. Chin Mook Sow, 525.
V. Chuey Ying Git, 221.
V. Chung Lit, 442.
V. Chun Heong, 498.
V. Clark, 133, 390, 426, 443, 536.
V. Clary, 97.
y. Clement, 133.
V. Cole, 52, 549.
V. Collins, 146, 211, 235, 376, 413,
418, 521.
V. Congleton, 188.
V. Connor, 387-389.
V. Cook, 467.
V. Corbett, 427.
V. Corning, 393.
V. Costello, 289, 293.
V. Court of Sessions, 496.
V. Coyodo, 441.
V. Craig, 246.
V. Crapo, 551.
V. Cross, 66.
V. Crotty, 17.
V. Crowley, 331.
V. Cunningham, 89, 558.
V. Curling, *300, 488.
V. Curtis, 59, 79.
CASES CITED.
687
[The figures refer to pages.]
People V. Dailey, 518.
V. Damon, 447, 452.
T. Danlhy, 298.
V. Davidson, 355.
V. Davis, 16, 430, 443, 514, 516, 521,
525, 533.
V. Dennis, 93, 94.
V. Derringer, 470.
V. Devine, 551.
V. Dill, 393.
V. Dillon, 541.
V. Dimick, 222.
V. Dixon, 86, 557.
T. Douglass, 476, 478-480.
V. Dowdigan, 80.
V. Duford, 174.
V. Dumar, 141, 160.
V. Eastwood, 534.
V. Bbner, 98, 427.
V. Eckford, 364, 365.
V. Ellsworth, 354^356.
V. Enoch, 264, 276, 310, 312.
T. Evans, 81.
V. Fa hey, 6.
V. Falrchild, 230.
V. Fancher, 562.
V. Fanshawe, 447.
V. Fay, 334.
V. Fice, 471.
T. Finley, 539.
V. Fisher, 385.
V. Franklin, 209, 210, 333.
V. Fuller, 75, 445.
v. Furman, 419.
V. Garbutt, 541.
V. Gardner, 11, 387.
y. Garnitt, 397.
V. Gates, 230, 546.
V. Gaul, 555.
V. Getchell, 190.
V. Gibbs, 517.
T. Gill, 10.
V. GIrardin, 208.
V. Gleason, 78, 154.
V. Goldenson, 112, 414.
V. Goldstein, a96.
V. Goodwin, 384, 387, 436, 437.
V. Gordon, 392, 533.
V. Gosch, 30.
V. Grady, 76.
V. Graham, 420.
V. Granlce, 6.
People V. Graves, 298.
V. Gray, 526.
V. Gregory, 240, 251.
V. Green, 461.
V. Greene, 387.
V. Guernsey, 126.
V. Hackey, 558.
V. Hagan, 318.
V. Haines, 113.
V. Haley, 20, 43, 194.
V. Hall, 331.
V. Hamilton, 279.
V. Handley, 396.
V. Hanifan, 82.
V. Hardisson, 392.
V. Harper, 469.
V. Harrington, 77.
V. Harris, 420, 429, 472, 507, 508.
V. Hart, 473.
V. Hartman, 422.
V. Hawes, 470.
V. Hawkins, 303, 308.
V. Hayes, 460, 547.
V. Haynes, 329, 335.
V. HefCron, 26, 157.
V. Hennessey, 532.
V. Henries, 451.
V. Hidden, 117.
V. Hlggins, 391.
V. Hllderbrand, 31.
V. Holbrook, 220.
V. Holcomb, 28, 69.
V. Honeyman, 249, 250, 347, 341
445.
V. Hood, 169.
V. Horton, 109, 118.
V. Hovey, 548.
V. Howell, 220, 302.
V. Huggins, 95.
V. Hughes, 475.
V. Hulbut, 113, 121, 122.
V. Hunter, 94, 99.
V. Hyler, 114.
V. Irving, 551.
V. Jaekman, 211, 279.
V. Jacks, 352.
V. Jackson, 197, 351. 359, 413.
V. Jacobs, 552.
V. Jassino, 470.
V. Jefferson, 271.
V. Jewett, 117, 119, 120, 123.
V. Johnson, 41. 102, 282.
588
CASES CITED.
[The figures refer to pages.]
People T. Jones, 73, 400, 424.
V. Justices, 435.
V. Kane, 92, 95.
V. Kearney, 547.
V. Keefer, 446, 447.
V. KeUy, 318, 492, 496, 546.
V. Kelm, 180.
V. Kemmler, 497.
V. Kennedy, 437.
V. Kenyon, 548.
V. Kern, 387, 396.
V. Kerrigan, 422.
V. Kibler, 194.
V. Kindelberger, 460.
V. King, 110, 113.
V. Kingsley, 206, 208.
V. Knapp, 400.
V. Kuhn, 73.
V. Lane, 463, 515, 517, 532.
V. Lange, 449.
V. Langtree, 543.
V. Larubia, 454, 455.
V. Lauder, 112, 118, 377.
V. Lawrence, 178.
V. Lee, 420.
V. Lee Yune Chong, 484,
V. Lemperle, 472.
V. Leong Quong, 147.
V. Lewis, 415, 515.
V. Linzey, 476.
V. Liscomb, 496.
V. Littlefleld, 217, 487.
V. Lockwood, 146, 235.
V. Loftus, 513.
V. Logan, 413.
V. Loliman, 194.
V. Luby, 372, 437.
V. Lynch, 24.
V. McCallam, 352, 465.
V. McCann, 541.
V. McCausey, 133.
V. McGloin, 543.
V. McGonegal, 413, 447, 496.
V. McGowan, 351, 399, 400.
V. McGuire, 462, 505, 509.
V. McHale, 367.
V. Machen, 429.
V. Mclntyre, 432.
V. Mack, 94, 499.
V. McKay, 392, 451.
V. McKenna, 324.
V. Macklnder, 530.
People V. McKinney, 292.
V. McLean, 42, 48, 442.
V. McLeod, 90, 136, 557.
V. McNutt, 467.
V. McQuaid, 586.
V. Mahoney, 447.
V. Marion, 332.
V. Markham, 381.
V. Marks, 471.
V. Marquis, 484.
V. Martin, 132.
V. Mather, 242, 419, 411 116, 45i,
550-552.
V. Matteson, 543.
V. Mead, 29, 515, 518, 537.
V. Mercein, 560, 561.
V. Miller, 240.
V. Mitchell, 190, 193, 202, 480.
V. Mondon, 118.
V. Monroe Oyer and Terminer, 363.
V. Moore, 47.
V. Morehouse, 45.
V. Mosher, 13.
V. Moyer, 459.
V. Mulkey, 331.
V. MuUings, 458.
T. Murphy, 11.
V. Murray, 263, 422.
T. Myers, 541.
V. Nash, 50.
V. Neumann, 469.
V. Nevlns, 101.
V. Newman, 533.
V. Newton, 516, 523.
V. Noelke, 551.
V. Ny Sam Chung, 386.
V. O'Brien, 462, 468.
V. Ogle, 547.
V. Olcott, 387.
V. Olivera, 203.
V. O'NeU, 437.
V. Parker, 230, 279, 514.
V. Pelham, 561.
V. Perdue, 486.
V. Perkins, 424.
V. Perry, 87, 88, 90.
V. Peterson, 419.
V. Petit, 189.
V. Phelps, 209.
V. Phillips, 29, 333, 468, 529, 530.
V. Pico, 223.
V. Piper, 485.
CASES CITED.
589
[The figures refer to pages.]
People V. Pirfenbrlnk, 558.
V. Pline, 387.
V. Pool, 20, 50, 56.
V. Porter, 135.
V. Powell, 433.
V. Prague, 354, 355.
V. Price, 114.
V. Purcell, 399, 401, 403.
V. Pyckett, 459.
V. Quanstrom, 543.
V. Queen, 457.
V. Raher, 471.
T. Rathbun, 14, 15, 444, 446, 454,
468, 510.
V. Rawn, 449.
V. Recorder, 26.
T. Reed, 259, 334, 335.
V. Reggel, 122.
V. Reilly, 496.
V. Reynolds, 447.
V. Richmond, 469.
V. Robinson, 425.
V. Roby, 194.
V. Rogers, 202.
T. Rohl, 467.
T. Rohrer, 291, 293.
V. Rose, 6.
V. Ross, 386.
V. Rowe, 60.
V. Royal, 536.
V. Rynders, 289-291, 295-297, 330.
V. St. Clair, 175.
V. Sansome, 480.
V. Saunders, 399, 402.
V. Schenck, 11, 62.
V. Schmidt, 365, 381, 392.
V. Schultz, 246, 324.
V. Sennott, 66.
V. Shaw, 525.
V. Sherman, 79.
V. Shirley, 89.
V. Shufelt, 412.
V. Shulman, 518.
T. Simpson, 516, 527, 531.
V. Slater, 250, 348.
V. Smith, 76, 87, 98, 193, 299, 300,
324, 373.
V. Soto, 223.
V. Squires, 242.
V. Stager, 97.
V. Stanford, 218, 222.
V. Stanley, 515, 522, 534
People V. Staples, 11.
V. Stark, 141, 160.
V. Stevens, 395, 522, 532.
y. Stewart, 447, 513.
T. Stokes, 25, 480.
V. Symonds, 475, 478, 479.
V. Tanner, 447.
V. Taylor, 152, 160, 168, 208, 269,
380.
V. Telford, 272.
V. Tender, 557.
V. Thurston, 110.
V. Tinder, 88.
V. Tomlinson, 169, 519.
V. Tower, 325.
V. Troy, 446.
V. Urquidas, 499.
V. Van Alstine, 191.
V. Van Blarcum, 230.
V. Van Home, 86.
V. Van SantToord, 241, 344.
V. Van Wyck, 426.
V. Vermilyea, 89, 414, 416, 419.
V. Villarino, 381.
V. Vincent, 420.
V. Walbridge, 258, 313, 350.
V. Waller, 443.
V. Walters, 363.
V. Warner, 174, 175, 208, 334.
V. Warren, 36, 37.
V. Webb, 386, 419.
V. Weeks, 412, 437.
V. Weiger, 532.
V. Weil, 455.
V. Wells, 458, 489.
V. Wentz, 530, 531.
V. Wessel, 167.
V. West, 262, 269, 486.
T. Westbrook, 543.
V. Wheeler, 447.
V. White, 197, 351-353, 359, 537.
V. Whitely, 486.
V. Wiley, 16, 226, 329, 334, 337.
V. Willett, 512.
V. Williams, 225.
V. Wilson, 40, 415.
V. Winchell, 427.
V. Wolcott, 529.
V. Wong, 524.
V. Wong Wang, 247.
V. Wood, 518, 519.
V. Wreden, 534.
590
CASES CITED,
[The figures refer to pages.]
People V. Wright, 62, 73, 81, 206, 279,
. 285, 299, 320, 323, 548.
v. Young, 534.
V. Yut Ling, 457.
Peoples, In re, 74.
Peppin V. Solomons, 183.
Perliins, Ex parte, 558.
y. Commonwealth, 209, 333.
V. State, 121, 122, 366.
Perrin v. State, 420, 421, 508, 509.
Perry, In re, 558.
V. State, 494.
Perteet v. People, 419.
Petchet V. Woolston, 313.
Peter v. State, 33.
Peters v. State, 117, 425.
V. U. S., 420.
Peterson v. State, 302, 499.
Petrie v. Woodworth, 147, 341.
Pettit V. State, 414.
Pfister V. State, 218.
Pfitzer, Ex parte, 62.
Phelan's Case, 560.
Phelps V. People, 220, 262.
Philips T. Commonwealth, 475.
V. Smith, 126.
Phillips V. Commonwealth,. 324, 414.
V. Fadden, 57.
V. Fielding, 298.
V. People, 388, 395.
V. State, 324, 328.
V. Trull, 44-46.
Pickens v. State, 479.
Pickins v. State, 145.
Pierce v. State, 447, 466.
Pierson v. People, 508, 518, 546.
V. State, 420, 454, 463, 466.
Pike V. Hanson, 56.
pncher V. State, 516.
Pinkney v. Inhabitants of East Hun-
dred, 313, 338.
Pitcher v. People, 202.
Pittman v. State, 354, 355.
Plake V. State, 541.
Piatt V. Hai-rison, 557.
V. Hill, 258, 349.
Plummer v. State, 471.
Plunkett V. Cobbett, 544.
Podfleld V. People, 487.
PofC V. Commonwealth, 522.
Pointer v. U. S., 289, 292, 470.
Polite V. State, 352.
Pollard V. Commonwealth, 445.
V. State, 462.
Poison V. State, 353, 360, 486, 513.
Pond V. People, 52.
Poole, In re, 560.
V. Symonds, 228.
Pope V. State, 477, 479."
Porter v. State, 189, 328.
Portwood V. State, 189, 199.
Posteene v. Hanson, 85.
Poteete v. State, 24.
potter V. Casterline, 115.
V. State, 333.
Pow V. Beckner, 40.
PoweU V. State, 93, 95.
Power V. People, 421.
Powers, In re, 562.
V. State, 193, 194, 444, 482.
Pratt V. State, 353.
Presley v. State, 341.
Preston v. People, 395.
Preswood v. State, 455.
Prewitt V. Lambert, 455.
Price V. Graham, 29.
v. People, 413, 417.
V. Seeley, 45, 46.
V. State, 146, 235, 386, 415, 531.
Prindeville v. People, 359.
Pritchett v. State, 390, 431.
Prindle v. State, 202.
Prine v. Commonwealth, 425.
Proper v. State, 513.
Pruitt V. State, 237, 455.
Pugh V. State, 93.
Purvis V. State, 373.
Pybos V. State, 110.
Pye's Case, 339.
Q
Quesenberry v. State, 445.
Quinn v. Helsel, 40, 42, 43.
V. State, 293, 421, 474, 475.
R
R. V. Cole, 517.
V. Dove, 535.
V. Fowkes, 516.
V. Palmer, 509, 535, 536.
OASES CITED.
591
[The figures refer to pages.]
R. V. Patch, 510.
Reg. V. Bowman, 388.
Rafe V. State, 447.
V. Boyes, 546.
Raflferty, In re, 561.
V. Brown, 380, 381.
V. People, 21, 28, 36.
V. Brownlow, 254.
Rahm V. State, 545.
V. Campbell, 340.
Rains v. State, 530.
V. Castro, 138.
Raisler v. State, 178.
V. Charlesworth, 316, 371
372.
Ramsey v. State, 41, 51.
V. Chidley, 531.
Randolph v. Commonwealth, 157.
V. Clark, 284.
V. State, 347.
V. Clarke, 189.
Ransom v. State, 367.
V. Cohen, 301.
Rasmussen v. State, 318.
V. Cooke, 220.
Ratcllffe V. Burton, 55.
V. Cooper, 161, 518.
Rather v. State, 541.
V. Coulson, 208.
Ratlgan v. State, 470.
V. Cox, 224.
Rawlins v. Ellis, 49.
V. Craddock, 172.
Rawson v. Brown, 435.
V. Cranage, 349.
V. State, 244.
V. Crespin, 182.
Read v. Case, 97.
V. Crisham, 159.
Real V. People, 535.
V. Dale, 146, 234.
Rector t. Commonwealth, 530.
V. Davis, 343.
Redd V. State, 509.
V. Deane, 387.
Reddick v. State, 396.
v. Devett, 303, 308.
Redman v. State, 298, 431.
V. Dixon, 154.
Redmond v. State, 78, 82.
V. Dovey, 302, 306.
Reed, Ex parte, 558.
V. Downey, 31.
V. Commonwealth, 229.
V. Drake, 210, 332-334.
V. Rice, 47, 67, 69.
V. Driiry, 392.
V. State, 340.
V. Foxby, 200.
Reese v. U. S., 96.
V. Francis, 518.
Reeve v. Wood, 543.
V. Frost, 429, 452.
Reeves v. State, 123, 377, 530.
V. Fussell, 335.
Reggel, Ex parte, 64, 65.
V. Gallears, 224.
Reg. V. Ackroyd, 204.
V. Garbett, 532, 546.
V. Allday, 488.
V. Gazard, 544.
V. Aspinall, 154, 156, 169, 320.
V. Geering, 520.
V. Atkinson, 302, 303.
V, Giddins, 281, 292.
V. Austin, 133.
V. Goddard, 163, 371, 377,
385, 406,
V. Badger, 84.
407.
V. Bedingfield, 516.
V. Goldsmith, 320.
V. Beeston, 533.
V. Gorbutt, 358.
V. Berry, 428.
V. Gould, 400, 530.
V. Bidwell, 176.
V. Gray, 197, 486, 519.
V. Bird, 328, 335, 383, 406.
V. Hall, 106.
V. Birmingham & G. Ry. Co. 148.
V. Harman, 311.
V. Blake, 521.
V. Harper, 220.
V. Boardman, 221.
V. Harris, 156, 171.
V. Bolam, 416.
V. Hind, 525.
V." Bond, 219.
V. Hodgson, 191.
V. Boswell, 528, 529,
V. Holmes, 314, 553.
V. Bowen, 280.
V. Ingham, 130.
V. Bowers, 283.
V. Ingram, 300.
592
CASES CITED.
[The figures refer to pages.]
Reg,
J. y. James, 192, 342, 363.
Reg. y. Stephenson, 131.
V. Jenkins, 526.
y. Stokes, 172, 541.
V. Jolnnson, 79.
y. Stonnell, 204.
V. Jones, 299.
y. Stroud, 340.
V. King, 168, 169.
y. Swinnerton, 78.
y. Lane, 310.
y. Taylor, 187.
y. Langhurst, 417.
y. Templeman, 374.
y. Langley, 309, 310.
y. Thompson, 21, 531.
V. Larkin, 193.
y. Trueman, 288, 293.
y. Light, 43.
y. Tuchin, 323.
V. Mabel, 40.
y. Vaux, 390.
y. McKay, 71.
V. Vodden, 483, 484.
V. McKenna, 184.
y. Walker, 42, 43.
V. McNamara, 457.
V. Warman, 328.
y. Mansfield, 218.
y. Waters, 149, 299, 320.
y. Marsden, 43.
y. Wayerton, 299.
y. Martin, 149, 457.
y. Webster, 228.
y. Mawgridge, 198.
V. West, 221.
y. Michael, 14.
y. Westley, 258, 259, 350.
y. Moore, 261, 529.
V. Whalley, 457.
y. Morris, 399, 402, 403.
y. Whitehead, 229, 549.
y. Murdock, 12.
y. Wigg, 276, 314.
V. Neale, 360.
y. WUliams, 212, 301, 353,
V. Newboult, 339.
y. Willis, 204.
y. Nott, 268.
y. Wilson, 333, 340, 362.
y. O'Brien, 288.
y. Wyat, 309, 314.
y. O'Connor, 246, 247.
y. Wyatt, 176.
y. Parker, 133.
Reich y. State, 117, 120.
y. Payne, 543.
Reid y. Ham, 66.
y. Pelham, 254.
y. State, 441, 482.
y. Pikesley, 78.
Reifsnyder y. Lee, 71.
y. Powner, 268.
Relnhart y. People, 508.
y. Price, 131.
Reinltz, In re, 60.
y. Pugh, 257.
Reins y. People, 475, 479.
V. Purchase, 381.
Remsen y. People, 537. '
y. Eadley, 181.
Reneau y. State, 52.
V. Rhodes, 248, 329.
Respublica v. Arnold, 178L
V. Richardson, 520, 544.
y. Cleaver, 365.
y. Rider, 456.
y. Honeyman, 198.
V. Robins, 132.
y. Mesca, 442.
y. Robinson, 531,
y. Newell, 314.
y. Rogers, 12.
y. Tryer, 262.
V. Rowed, 152.
Reuck y. McGregor, 44-46.
y. Rowlands, 156.
Revoir y. State, 541.
V. St. George, 368.
Rex y. , 147, 171, 234, 341.
V. St. John, 250, 348.
y. Adams, 228.
y. Salvi, 396.
y. Airey, 264.
y. Scaife, 89, 533.
y. Aiford, 327.
V. Scott, 531.
y. Atkinson, 213.
y. Sell, 373.
y. Bailey, 146, 236.
y. Sheen, 372.
y. Sainton, 365.
V. Simpson, 423.
y. Baldwin, 3C6.
CASES CITED.
693
[The figures refer to pages.]
Rex V. Ball, 499.
Rex
r. Clerk, 311.
V. Baxter, 166, 167,
228,
271, 274.
V.
Clewes, 507, 508, 530.
V. Beach, 174, 332.
V.
Collins, 313.
V. Beaney, 222, 352.
V.
Combs, 362.
V. Bear, 209, 210.
.
V.
Coogan, 399, 406.
V. Beech, 175.
V.
Cook, 201, 309-311.
V. Bellamy, 327.
V.
Cooke, 377, 378.
V. Belstead, 230.
V.
Cooper, 160, 161, 314.
V. Benfield, 281, 282,
293,
294, 301-
V.
Oowle^ 418.
304.
V.
Cox, 313.
V. Berriman, 233, 338
,341
,
V.
Cramlington, 201.
V. Berry, 312.
V.
Craven, 220.
V. Bethuen, 562.
V.
Crighton, 197.
V. Birch. 213.
V.
Crowhurst, 162.
V. Birchenough, 398.
V.
Curvan, 42.
V. Birkett, 220, 332.
V.
Darley, 125, 126.
V. Blackson, 290.
V.
Davis, 263, 265.
V. Boltz, 426.
V.
Dawson, 331, 400, 489.
V. Bootle, 57.
V.
Deakin, 228, 340.
V. Bourne, 495.
V.
Dean, 377, '378.
V. Bowman, 406.
V.
De Berenger, 169.
V. Boyall, 254.
V.
Deeley, 183, 232, 343.
V. Bramley, 228.
V.
D'Eon, 413-415, 417.
V. Brereton, 169.
V.
Dickenson, 312, 313.
V. Bright, 42.
V.
Dixon, 241.
V. Brisac, 13, 16.
V.
Donellan, 507.
V. Brown, 365.
V.
Doolin, 549.
V. Bryan, 271.
V.
Dowlln, 174.
V. Bullock, 249, 250,
347
348.
V.
Duflin, 331.
V. Bnrder, 881.
V.
Eden, 327.
V. Burdett, 11, 13, 14
,16,
218, 338.
V.
Edmonds, 445.
V. Burglss, 71.
V.
Edmunds, 512.
T. Burkett, 365.
V.
Edwards, 90, 218, 224, 336, 386
V. Burks, 200.
V.
Emden, 390, 396, 399, 405.
V. Burnett, 196.
V.
Etherington, 353.
V. Burrldge, 201, 246,
247,
306, 494.
V.
Evans, 125.
V. Burroughs, 207.
V.
Everett, 158.
V. Bush, 340.
V.
Eagg, 78.
V. Butler, 540.
V.
Fauntleroy, 283.
T. Butterworth, 307.
V.
Fea:rnley, 124, 375, 379, 381.
T. Carlile, 423.
V.
Fell, 102.
V. Carson, 338.
V.
Einnerty, 52.
T. Cartwright, 251.
V.
Flint, 170.
V. Cary, 304.
V.
Folkes, 292.
V. Chalkley, 161, 217,
266.
V.
Ford, 20, 42.
V. Chandler, 33.
V.
Forsgate, 390, 398.
V. Chappie, 223.
V.
Forsyth. 217. 338.
V. Chard, 164, 220.
V.
Foster, 225, 341, 516.
V. Chatbum, 312.
V.
Francis, 254, 353, 489.
V. Clark, 399.
V.
Freeman, 157.
V. Clarke, 85, 553.
V.
Frith, 363.
V. Clendon, 281.
V.
Fry, 221.
CEIM.PKOC.— 38
594
CASES CITED.
[The figures refer to pages.]
Rex V. Fuller, 159, 226, 264,
294, 299.
Rex ^
V. Furneaux, 335.
V.
V. Furnival, 187.
V.
V. Gakes, 201.
V.
V. Gascoine, 456.
V.
V. Geary, 494.
V.
V. Gibbs, 225.
V. Gibson, 371, 378, 380,
406.
V.
V. Gilbert, 124, 225.
V.
T. Gilchrist, 160, 171, 206
210, 332.
V.
V. Gilham, 529.
V.
V. Gill, 179.
V. Gillham, 174, 218, 329
338.
V. Girdwood, 15.
V.
V. Goddard, 378.
V.
V. Goldstein, 207, 221.
V. Goodall, 556.
V.
V. Gough, 294.
V.
V. Gray, 416.
V.
V. Great Canfield, 250, 348.
V.
V. Green, 78, 79, 300,
V.
V. Greepe, 177.
V. Griffith, 198.
V.
V. Gutch, 158.
V.
V. Haddock, 381.
V.
V. Halloway, 224, 336.
V.
T. Hammersmith, 376.
Y.
V. Hardy, 521, 522.
V.
V. Hargrave, 10.
V.
V. Harris, 251, 276, 314,
316, 494.
V.
V. Hart, 174, 175, 333.
V.
V. Hayes, 126.
V.
•V. Haynes, 246, 252, 298.
V.
V. Heaps, 307.
V.
V. Hempstead, 806, 307.
V.
V. Hems, 43.
V.
V. Henry, 166.
V.
V. Hensey, 368.
V.
V. Higgins, 189, 332.
V.
V. Hill, 258. 329, 335.
V.
. V. Hogg, 533.
V.
V. Holland, 108, 316, 380
V.
V. HoUingberry, 180.
V.
V. Hollond, 194, 238, 246,
252, 301.
V.
V. Holloway, 218.
V.
V. Hood, 29, 36.
V.
V. Home, 152, 157, 160, 164, 282. |
V.
V. How, 160.
V.
V. Howarth, 50, 50.
V.
V. Humphrey, 161.
V.
V. Hunt, 44, 46, 330.
V.
V. Hunter, 206, 212, 332.
T.
V. Inhabitants of Belton, 364.
Inhabitants of Bothwick, 546.
V. Inhabitants of Cliviger, 546.
Inhabitants of Eriswell, 533.
Inhabitants of Gamlingay, 251.
V. Inhabitants of St. Weonard's,
250, 348.
V. Jarvis, 271.
. Jenks, 230.
Jenour, 281.
Johnson, 13, 16, 200, 218, 220,
262, 290, 294, 296, 364, 375,
378.
, JolUfee, 416.
Jones, 9, 71, 180, 185, 293, 296,
298, 334, 369, 415, 417.
Judd, 102.
Kendal, 102.
Kendall, 33.
Kettle, 219, 336.
. Kingston, 192, 289, 293, 296,
305, 308, 309.
Kinnear, 475.
Kinnersley, 307, 333.
Kinsey, 71.
Knight, 163.
Knollys, 378.
Lad, 198.
Landaff, 823.
Lawley, 138, 195.
Lease, 365.
Leefe, 211.
Levy, 293.
Lewellin, 261.
Light, 43.
Lincoln, 328.
Lloyd, 529.
Lookup, 310.
Lovell, 233, 234.
Lyon, 210, 881.
McKenzie, 493.
Mallinson, 261.
Marchioness Dowager, 250, 348.
Mariot, 201.
Marks, 102, 556.
Marsack, 258, 349.
Marshall, 162, 259.
Martin, 212, 221, 553.
Mason, 162, 266, 430.
Mathews, 182, 251, 276, 314.
Mawbey, 166, 498.
May, 208.
CASES CITED.
695
[The figures refer to pages.]
Rex V. Mayhew, 547.
Rex V. Hushworth, 190-193, 195.
V. Mead, 560.
V. Ryan, 263.
' V. Messiagham, 306.
V. Sadi, 231.
V. Michael, 165.
V. Sawyer, 312.
V. Middlehurst, 169, 330.
V. Semple, 363.
V. Monteth, 381, 358.
V. Shakespeare, 145, 147, 342, 378.
V. Morley, 140.
V. Sheen, 406.
V. Morphew, 415.
V. Singer, 201.
V. Morris, 179, 181, 182, 342, 455,
V. Smith, 78, 102, 165, 166, 233.
V. Mosley, 155, 525-527.
V. Speke, 494.
V. Munoz, 266.
V. Sterling, 201.
V. Napper, 250, 348.
V. Sterne, 290, 353.
V. Nichols, 307.
V. Stevens, 153, 172, 180, 243.
V. Nield, 206, 207.
V. Stevenson, 386.
V. Nixon, 316.
V. Steventon, 262.
V. North, 170.
V. Stock, 230.
V. Norton, 233, 340, 341.
V. Stocker, 169.
V. O'Donnell, 71.
V. Stoughton, 169.
V. Ogilvie, 236.
V. Stratton, 362, 377, 385, 407.
V. Palmer, 274, 275.
V. Streek, 427.
V. Pappineau, 314.
V. Suddis, 153.
V. Patience, 47.
V. Sulls, 233, 234, 236, 341.
V. Patrick, 148, 228.
V. Sutton, 257, 442.
V. Peace, 146, 236.
V. Tannet, 342.
V. Peas, 11.
V. Taylor, 12, 274, 302, 304, 406.
V. Pedley, 290.
V. Testick, 212.
V. Pemberton, 167, 271.
V. Thomas, 260, 365.
V. Perclval, 446.
V. Thompson, 306.
V. Perrott, 153-155, 160, 264, 266.
V. Tilley, 164.
V. Pewtress, 300, 366.
V. Tomlinson, 155.
V. Philipps, 186-188, 191, 200.
V. Towle, 304.
V. Philips, 303.
V. Trafford, 303.
V. Plant, 396, 398.
V. Trelawney, 26L
T. Piatt, 102.
V. Trevilian, 365.
V. Plestow, 328.
V. Trueman, 292.
V. Plummer, 489.
v. Turner, 166, 263.
V. Powell, 200, 210, 332.
V. Tyers, 335.
V. Powner, 190.
V. Vandercomb, 352, 389, 396, 405,
V. Pratten, 275.
406.
V. Pritchard, 369, 428.
V. Waddington, 494.
V. -Quail, 307.
V. Walker, 340.
V. Reading, 171.
V. Ward, 254.
V. Remnant, 102, 228.
V. Wardle, 178, 249, 347.
V. Rickman, 230.
V. Warre, 124.
V. Ridley, 250, 348.
V. Watson, 13.
V. Rivers, 78.
V. Webster, 398.
V. Robinson, 107, 493.
V. Weir, 33.
V. Roche, 406.
V. Welland, 261.
V. Rogers, 230..
V. Westbeer, 358.
V. Rosslter, 269.
V. Weston, 308, 365.
V. Royce, 124, 125, 489,
V. Whcatly, 364, 366.
V. Roysted, 124.
V. White, 230, 250, 340, 348.
596
CASES CITED.
[Tlie figures refer to pages.]
Rex V. Whitehead, 162.
V. Whitney, 223.
V. Wicks, 220.
V. Wilcox, 212.
V. Wildey, 405, 406.
V. Willies, 102, 211, 315, 316, 495.
V. Wilkins, 228.
V. Williams, 163, 234, 255, 330, 365,
495.
v. Wilson, 200.
V. Winter, 311.
V. Withal, 280, 352.
V. Woodfall, 186, 465.
V. Woodward, 250, 348.
V. Wooller, 484, 490, 491.
V. Woolmer, 41, 50.
V. Wright, 562.
V. Wyndham, 87, 102.
V. Wynn, 363, 364.
V. York, 102.
V. Young, 302.
Reyes v. State, 322.
Reynolds v. Orvis, 32, 33, 37»
V. People, 398.
V. State, 272, 446, 451.
v. U. S., 533.
Rhea v. State, 415, 539.
Rhodes v. State, 443.
Rice V. Commonwealth, 548.
V. Rice, 534.
V. State, 5, 446.
Rich V. State, 193.
Richards v. Commonwealth, 364, 442.
V. Moore, 442.
T. State, 130, 408, 424, 477, 480,
513.
Richardson v. Fisher, 498.
Richey v. Commonwealth, 346.
Richie V. Commonwealth, 425.
V. State, 553.
Richmond, The, v. U. S., 60.
Ricker, In re, 102.
Rickles V. State, 405.
Riddle V. State, 335.
Riley v. State, 10.
Ritchey v. State, 227.
Rivers, Ex parte, 419.
V. State, 261, 339.
Rix V. State, 531.
Robbins v. People, 395.
Roberts v. Commonwealth, 418.
V. Orchard, 42.
Roberts v. People. 414.
V. Reilly, 64, 65.
V. State, 20, 42, 43, 50, 237, 252,
264, 425, 478, 487, 538.
V. Trenayne, 263.
Robertson v. State, 428.
Robinson, Ex parte, 559, 562.
In re, 61.
V. Commonwealth, 214, 217.
V. Harlan, 35.
V. State, 133, 330, 331, 390, 392,
414, 467, 484.
Roddy V. Finnegan, 43.
Rodman v. Harcourt, 36.
Rodriquez v. State, 509.
Roe V. State, 111, 125.
Rogers v. Commonwealth, 164, 190,
309, 310, 482.
V. People, 351, 359.
V. State, 211, 234, 235, 341.
Roguemore v. State, 547.
Rohan v. Sawin, 41, 42, 45.
Rolland v. Commonwealth, 117.
Rollins, Ex parte, 557.
V. State, 229, 417.
Rolls V. State, 400, 424, 425.
Rooker v. State, 206.
Roosevelt v. Gardinier, 146, 235.
Roper V. Territory, 478.
Rose V. State, 123, 300.
Rosenberger v. Commonwealth, 115.
Ross V. Irving, 434.
V. State, 40, 42, 133.
Roten V. State, 506.
Rothbauer v. State, 483.
Rough V. Commonwealth, 317, 318.
Rough's Case, 224, 336.
Rountree v. State, 199.
Rouse V. State, 447.
RouseU V. Commonwealth, 415.
Roush V. State, 191, 332.
Rowan v. State, 107, 108, 141.
Rowand v. Commonwealth, 365.
Rowe V. State, 479, 480.
Rowland v. State, 377.
Roy V. Inhabitants of Yarton, 125, 201.
Royall, Ex parte, 558, 559.
Rudder v. State, 387.
Ruf er V. State, 531.
Ruloff V. People, 44, 46, 457.
Runnels v. State, 499.
Russel V. Commonwealth, 312.
CASES CITED.
597
[The flgures refer to pages.]
Russell V. Hubbard, 37.
V. State, 170.
Russen v. Lucas, 56.
Rust V. State, 397.
Rutherford v. Commonwealth, 457.
Ryalls V. Reg., 180.
Ryan v. People, 510.
V. State, 510, 532.
Ryle's Case, 199.
S
Sacheyerell's Case, 206, 207, 214.
Safford V. People, 494.
Sale V. State, 24.
Salisbury v. Commonwealth, 45.
V. State, 220.
Salm T. State, 420.
Sam, Ex parte, 557.
V. State, 446.
Samuel v. Payne, 41.
V. State, 404.
Sanders v. State, 284, 315, 475, 523.
Sanderson v. Commonwealth, 289.
Sandford v. Nichols, 35, 37, 69.
Sandilands, Ex parte, 560.
Santo V. State, 67, 69.
Sarah v. State, 197, 289, 291.
Sargent v. State, 484.
Sasse V. State, 457.
Savacool v. Boughton, 35, 36.
Savage v. State, 408.
Savory v. Price, 342.
Sayres v. Commonwealth, 508.
Scavage v. Tateham, 74.
Schaser v. State, 549.
Schayer v. People, 330.
Scheer v. Keown, 30.
Schmidt, Ex parte, 121.
Schneider v. Commonwealth, 85.
Schnell v. State, 452, 453.
Schnier v. People, 466.
Schumaker v. State, 442.
Schurman, In re, 103.
Schwab V. Berggren, 426, 494.
Scircle v. Neeves, 57.
Scoggins v. State, 133.
Scoggs v. State, 424.
Scott, Ex parte, 60.
v. Brest, 14.
V. Commonwealth, 294, 329, 366.
Scott v. Eldrldge, 42.
V. Ely, 29.
V. People, 190, 429, 468, 470, 525.
V. Soans, 376.
v. State, 414, 415.
Scudder v. State, 197.
Scurry v. Freeman, 14.
Seal V. State, 442.
Sealy v. State, 451.
Seavey v. Seymour, 561.
Secrest, In re, 73.
Serpentine v. State, 238, 242.
Severin v. People, 399, 402.
Seville v. State, 521.
Shadgett v. Slipson, 30.
Shaffner v. Commonwealth, 517.
Shanley v. Wells, 40, 42, 43, 53.
Shannon v. Jones, 56.
V. State, 212, 445.
Sharp V. State, 262, 317, 328, 335, 460.
Shattuck V. People, 95.
Shaw T. State, 368.
Shay V. People, 175.
Shearman v. State, 482.
Shefflett V. Commonwealth, 427.
Sheldon, Ex parte, 63.
Shelton v. Commonwealth, 116, 240,
424, 425.
V. State, 237, 240, 486.
Shepherd v. State, 109.
Sheppard v. State, 338.
Sherwood, Ex parte, 43, 44.
Shideler v. State, 394.
Shifflet V. Commonwealth, 529.
Shifflett Y. Commonwealth, 318, 427,
494.
Shirk's Case, 560.
Shoecraft v. State, 516, 523.
Shoemaker v. State, 442.
Shoop V. People, 113.
Shore v. State, 88, 98.
Shouse V. Commonwealth, 307.
Shovlin V. Commonwealth, 50.
Shular v. State, 457.
Shultz V. State, 472.
Slebold, Ex parte, 558.
Simmons v. Commonwealth, 11, 244.
V. State, 198.
V. U. S., 386, 468.
V. "Vandyke, 57, 73.
Simons v. People, 429, 525.
Simpson v. Commonwealth, 94.
:98
CASES CITED.
[The figures refer to pages.]
Simpson v. State, 11, 14, 44, 420, 499.
Sims V. State, 11, 543.
Sim's Case, 561.
Skates v. State, 415.
Slseen v. Monkeimer, 560.
Skidmore v. State, 51.
Slaten v. People, 93.
Slattery v. People, 512.
Slaughter v. Commonwealth, 189.
V. State, 234, 341, 392, 400.
Sledd V. Commonwealth, 483.
Sloan V. People, 511.
Slomer v. People, 21, 34, 37.
Small V. Commonwealth, 527.
Smith, Ex parte, 88, 556, 557, 561.
V. Boucher, 26.
V. Bouchier, 29.
V. Clark, 34.
V. Cleveland, 319.
V. Coimmonwealth, 288, 404, 445,
475, 529, 532, 547.
V. Cooker, 177.
V. Donelly, 43, 44.
V. State, 64, 99, 206, 209, 221, 333,
365, 397, 405, 413, 417, 426,
455, 490, 522.
V. Wilson, 545.
Smoke v. State, 230.
Sneed v. State, 414.
Snodgrass v. Commonwealth, 425.
Snowden v. State, 557.
Solomon v. People, 84, 93.
Somervell v. Hunt, 28, 101.
Somerville v. Richards, 41.
Sontag, Ex parte, 121.
South V. People, 532.
Sou'thworth v. State, 276, 314.
Spangler, In re, 5G0.
V. Commonwealth. 220.
Sparenherger v. State, 112.
Sparf V. U. S., 465-467.
Sparks v. Commonwealth, 114.
V. State, 471.
Spaulding v. Preston, 43.
Spears, Ex parte, 64.
Speart's Case, 1G9.
Speers v. Commonwealth, 280, 290,
294.
Spencer v. Commonwealth, 12.
Sperry v. Commonwealth, 424.
Spieres v. Parker, 275.
Spies v. People, 465, 466, 470.
Spradling v. State, 5.
Sprague v. Birchard, 36.
Spratt V. State, 114.
Sprouce v. Commonwealth, 444.
Spurlock V. Commonwealth, 506.
Staff, In re, 435, 436.
Stalls V. State, 447.
Stanley, Ex parte, 63, 412.
V. State, 11, 119.
Stanton v. State, 472, 491.
Stape V. People, 547.
Staples V. State, 40, 42.
Starkey v. People, 526.
Starr v. Commonwealth, 99.
Startup V. State, 317.
State V. Abbey, 272, 273, 275.
V. Abbott, 87.
V. Able, 533.
V. Abresch, 380.
V. Absence, 268.
V. Ackles, 190, 356.
V. Adam, 113.
V. Adams, 95, 110, 191, 204, 271.
V. Addy, 496.
V. Albee, 418, 419.
V. Albin, 362, 365.
V. Alexander, 541.
V. Alford, 503, 505, 550.
T. Allen, 63, 94, 226, 228, 310, 354,
386, 465, 479.
V. Allison, 302, 308.
V. Almy, 437.
T. Aired, 417.
V. Ames, 247.
V. Amidon, 324.
V. Ammons, 157.
V. Anderson, 281, 448, 471, 498.
V. Angel, 147.
V. Anthony, 143, 237.
V. Antonio, 442.
V. Archer, 360.
V. Armstrong, 286.
V. Arnold, 246, 365.
V. Arthur, 85, 451.
V. Asbury, 133.
V. Atkins, 177.
V. Atkinson, 215, 305, 538.
V. Austin, 483, 485.
V. Bacon, 194, 252, 253.
V. Baden, 222.
V. Bagan, 353.
V. Bagwell, 260.
CASES CITED.
599
[The figures refer to pages.]
ite V. Bailey, 12, 180, 253, 289, 414,
State T. Blaisdell, 242.
417.
V. Blakeney, 239, 1,'52, 253.
V. Baker, 122, 237.
V. Blan, 302.
V. Baldwin, 280.
T. Bland, 52.
V. Baldy, 476, 479.
V. Blankenship, 341.
V. Ball, 379.
V. Bleekley, 117.
V. BaUard, 163.
V. Blize, 547.
V. Bancroft, 240, 344.
V. Bloedow, 194.
V. Bandy, 102.
V. Bloodworth, 272.
V. Banks, 198, 415, 416.
v. Bloom, 5, 556.
V. Barber, 289, 448, 454.
V. Bone, 451.
V. Barker, 110, 111, 447.
V. Bonney, 210.
V. Barnes, 364, 405.
V. Borroum, 117, 118.
V. Barrett, 320.
V. Boswell, 108.
V. Barrontine, 451.
V. Bougher, 262.
V. Bartlett, 11, 433.
V. Boughner, 281, 429, 463.
V. Barton, 478.
v. Bowen, 40.
V. Bates, 517.
V. Bowers, 223, 227.
V. Battle, 394.
V. Bowman, 265.
V. Beadon, 188.
V. Boyd, 113.
V. Bean, 333, 341.
V. Bradley, 214, 306, 418, 431,
510,
V. Beasley, 462.
512.
V. Beaton, 237, 241.
T. Brady, 145, 175, 189, 280, 351.
V. Beatty, 426.
V. Brainerd, 120.
V. Beauclelgh, 246.
V. Brandenburg, 464.
V. Beckwith, 237, 240, 25a
V. Branham, 344.
V. Bedard, 513.
V. Brannon, 351, 400.
V. Bedell, 215.
V. Bray, 196.
V. Beebe, 97.
V. Brecht, 25.
V. Beeder, 429.
V. Brennan, 124.
V. Behlmer, 392.
V. Brennan's Liquors, 49.
V. Behm, 238.
V. Brent, 354.
V. Behrman, 527.
V. Brewington, 214.
V. Belden, 392, 400.
V. Brewster, 60, 511, 557.
V. Belk, 56.
V. Brickell, 123, 127.
V. Belknap, 478, 512.
V. Briggs, 546.
V. Bell, 147, 247, 289, 295, 340, 344.
V. Brilly, 262.
V. Belvel, 111, 420.
V. Brinyea, 541.
V. Benham, 13G, 385, 395, 407.
V. Brisbane, 461.
V. Benjamin, 265, 266, 392, 485.
V. Brooks, 139, 140, 377, 412,
422,
V. Bennett, 265, 491.
443, 471.
y. Benzion, 85.
V. Brougbton, 122, 178.
V. Bergman, 75.
V. Brown, 11, 40, 42, 115, 154,
163,
V. Beming, 486.
173, 193, 194, 208, 225,
237,
V. Berry, 93, 313.
262, 263, 285, 302, 389,
390,
V. Best, 490.
394, 399.
V. Beswick, 141.
V. Brownlow, 207, 210.
V. Bibb, 3^.
V. Bruce, 135, 479.
V. Bielby, 281.
V. Brumley, 471.
V. Bierce, 266.
V. Brunker, 345.
V. Bisbop, 149, 150, 363.
V. Bmnson, 157.
V. Black, 146, 364.
V. Bryan, 197, 493.
600
CASES CITED.
[The figures refer to pages.]
ite V. Bryant, 28, 50, 94, 99, 261,
State V. Chamberlain, 317, 319.
340, 377, 534.
V. Chambers, 543.
V. Bryson, 345.
V. Champeau, 385, 387.
V. Buchanan, 393.
V. Chandler. 262.
V. Buchman, 314.
V. Chapin, 14.
V. Buckman, 276.
V. Charlton, 169.
V. Bugbee, 488.
V. Cherry, 253.
V. Buhs, 426.
V. Child, 133.
V. Bullard, 476, 479.
V. Chisnell, 284, 285.
V. :6undy, 341.
V. Ohitty, 162, 430.
V. Burgdoerfer, 393.
V. Christian, 318.
V. Burge, 482.
V. Christmas, 284.
V. Burgess, 347.
V. City of Bangor, 492.
V. Burk, 351, 352.
V. Clair, 469.
V. Burke, 135.
V. Clarissa, 117, 118.
V. Burket, 385.
V. Clark, 84, 441.
V. Burlingham, 363.
V. Clayton, UO.
V. Burpee, 465, 466.
V. Clements, 460.
V. Burrell, 26.
V. Click, 269.
V. Burt, 225, 312, 314.
V. Clifford, 395.
v. Bush, 202.
V. Cobb, 73, 258.
V. Bushey, 163, 251.
V. Cocker, 352.
V. Buster, 262.
V. Oockfleld, 335, 336.
V. Butcher, 157.
V. Coella, 444, 457, 534.
V. Butler, 275, 464.
T. Coffey, 214.
V. Buzme, 62, 556.
V. Cohn, 508. 509.
V. Buzzell, 457.
V. Colbert, 364.
V. Byrne, 513.
V. Cole, 120, 362, 394
V. Cadle, 310, 314.
V. Coleman, 115, 299.
V. Cady, 262, 469.
V. Coley, 426, 538.
V. Cain, 364.
V. Collins, 106, 161, 333, 470.
V. Caldwell, 50, 197.
V. Collis, 115.
V. Calfer, 130.
V. Collyer, 355, 364.
V. Callahan, 208.
V. Colter, 352.
V. Cameron, 281, 329, 837.
T. Colvin, 394.
V. Cannon, 95.
V. Comings, 284.
V. Cantlin, 470, 499.
V. Oomstock, 141.
V. Canty, 482.
V. Conable, 420.
V. Carlos, 499.
V. Conlan, 375.
V. Carpenter, 194.
V. Conley, 123, 124, 247, 432.
V. Carr, 210.
V. Conlin, 435.
V. Carroll, 331.
V. Conner, 282.
V. Carter, 10, 69, 175, 318, 458.
V. Connor, 355.
V. Carver, 117, 118, 493.
V. Conrad, 364.
V. Casados, 262.
V. Conway, 493.
V. Casavant, 318.
V. Cooler, 446.
V. Casey, 493.
V. Coon, 485.
V. Cassel, 220, 269, 3ia
T. Cooper, 5, 286.
V. Castor, 227.
V. Copeland, 371, 393.
V. Caswell," 28, 101.
V. Copp, 207.
V. Catlin, 472.
V. Corbett, 177.
V. Chairs, 120.
V. Corrigan, 180.
CASES CITED.
601
[The figures refer to pages.]
State T. Corson, 141.
State V. Devlin, 432.
T. Cotton, 247, 253, 348.
V. De Wolf, 369.
V. Couneham, 98.
V. Dibble, 377.
V. Cowan, 114, 199.
V. Dickinson, 525, 526.
V. Cowell, 354.
V. Dickson, 508, 535.
V. Cox, 105, 106, 114-lie
.
V. Dieberger, 51, 52,
V. Coy, 351, 354.
V. Dimmitt, 499.
V. Coyle, 28.
V. Dineen, 331.
V. Crab, 521.
V. Divine, 489.
V. Grafton, 421, 433, 475,
534.
V. Dixon, 385.
V. Crane, 175, 479.
V. Doax, 93.
V. Crank, 155, 233, 300.
V. Dodge, 237, 238,
V. Craton, 451.
V. Doe, 144.
V. Crawford, 242, 281.
V. Dominique, 426.
V. Crimmins, 284, 346.
V. Donelon, 514, 522.
V. Crippen, 92, 93.
V. Dooley, 33.
V. Crocket, 424.
V. Dorr, 314.
V. Crofton, 420.
V. Douglas, 11.
V. Crogan, 348, 349.
V. Douglass, 486,
V. Cronin, 525, 527.
V. Dove, 445.
V. Cross, 424, 427.
V. Dover, 129.
T. Croteau, 465, 466.
v. Dowell, 217, 218.
V. Crow, 36, 222, 223.
V. Dowers, 161.
V. Crummey, 360.
V. Doyle, 120, 492, 542.
V. Curran, 342.
V. Drake, 28, 170, 239, 345, 529.
V. Curtis, 28, 50, 206.
V. DriscoU, 452.
V. Damery, 549.
V. DufCy, 415, 445, 468, 521.
V. Damon, 403, 405.
V. Dugan, 478, 480.
V. Dandy, 242.
V. Duggan, 377.
V. Daubert, 289, 295.
V. Dukes, 523.
T. Daugherty, 141, 347, 524.
V. Duncan, 117-120, 413, 423, 424,
V. Davidson, 114.
488, 510, 515, 524.
V. Davis, 5, 110, 120, 175
181, 188,
V. Dunn, 207, 321.
190, 208, 228, 234,
240, 261,
V. Durham Fertilizer Co., 120.
263, 341, 344, 436,
443, 485,
V. Durr, 472.
541.
V. Dusenberry, 417, 479, 490.
V. Dawes, 217.
V. Eames, 264.
V. Dawkins, 468.
V. Ban, 178, 344, 459.
V. Dawson, 545.
V. Early, 288.
V. Day, 201, 449.
V. Eason, 364.
V. Dayton, 112, 113, 144,
313, 362,
V. Easter, 117-120.
364.
V. Eaton, 365, 377.
V. Dearborn, 400.
V. Eberline, 553.
T. Deaton, 303.
V. Ebert, 107.
V. Decker, 275.
V. Eddon, 525.
V. De Graff, 445, 499, 529.
V. Edlavitch, 365.
V. Delaney, 355.
V. Edson, 217.
V. De Lay, 264.
V. Edwards, 175, 197.
V. Dent, 157, 443.
V. Egglesht, 282.
V. Denton, 419.
v. Elden, 392, 395.
V. Desctiamps, 412.
V. Elder, 390.
V. Devine, 73, 75.
V. Eldred, 14.
602
CASES CITED,
[The figures refer to pages.]
State V. Elkins, 114, 426.
State
V. Ellington, 44b.
V.
V. Ellis, 170, 178, 228.
V.
V. Ellison, 340.
V.
V. EUvin, 413.
V.
V. Elrod, 58.
V.
V. Emery, 372, 377.
V.
V. Engeman, 126, 472.
V.
V. England, 143.
V.
V. Engle, 475.
V.
V. English, 339.
V.
T. Eno, 351, 488.
V.
V. Epps, 388, 394, 425, 427.
T. Estlinbaum, 285.
V.
V. Evans, 309, 311, 312, 354, 355,
V.
472.
V.
V. Everett, 29.
V.
V. Ewing, 489.
V.
V. Fairlamb, 442, 462, 479.
V.
V. Fancher, 154.
V.
V. Farley, 347.
V.
V. Farmer, 293.
V.
V. Farr, 408.
V.
V. Faxrand, 334.
V.
V. Farrell, 344.
V.
V. Farrington, 415.
V.
V. Fasset, 112, 113, 121, 122.
V.
V. Fee, 190.
V.
V. Peeny, 146.
V.
V. Fellows, 364.
V.
V. Fenlason, 483.
V. Fenn, 226, 337.
V.
V. Ferry, 253.
V.
V. Fesperman, 6.
V.
V. Field, 445.
V.
V. Files, 415.
V.
V. Finlayson, 489.
V.
V. Fitts, 157.
V.
V. Fitzgerald, 6.
V.
V. Fitzpatrick, 70.
V.
V. Fitzsimmen, 513.
V.
V. Fitzsimmons, 518.
V.
V. Fitzsimon, 291, 295.
V.
V. Flanders, 284, 522.
V.
V. Fleming, 135, 141, 215, 352.
V.
V. Flemming, 117.
V.
V. Fletcher, 524.
V.
T. Flint, 170, 358.
V.
V. Flowers, 364.
V.
V. Flye, 289, 291.
V.
V. Flynn, 71, 538.
V.
V. Fontenette, 367.
V. Foot, 93.
Ford, 427, 443.
Forshner, 110, 449.
Foster, 420, 445, 478.
Fowler, 113, 291.
Fox, 126, 231, 284, 417.
Foy, 225.
France, 234, 341.
Frank, 360.
Franzreb, 289.
Frazier, 296.
Freeman, 74, 114, 175, 194, 317,
318, 320, 322.
Friend, 218, 222.
Frier, 445, 447, 475.
Frisby, 335.
Froiseth, 113.
Fuller, 51, 428
Gainor, 515.
Gardiner, 430.
Gardner, 193.
Garrett, 50, 52.
Garvey, 188.
Gary, 123.
Gates, 201.
Gay, 301.
Geiger, 147.
Gessert, 10.
Gibbs, 121.
Gilbert, 85, 123, 126, 127, 170,
178, 183, 197, 244,
Gile, 445, 469.
Gill, 390.
Gilmore, 175.
Ginger, 535.
Glasgow, 125.
Glave, 367.
Gleason, 129.
Glenn, 435, 558.
Glover, 66.
Glynn, 551.
Godfrey, 247, 474,
Goode, 249.
Goodenow, 194.
Goodman, 210.
Goodrich, 226.
(Joulding, 265.
Gove, 194, 263, 314, 320, 493.
Goyette, 28.
Graham, 147, 425, 457.
Grant, 5, 41, 42, 146, 209, 235,
281, 333, 521, 522, 551, 552.
CASES CITED.
603
[The figures refer to pages.]
State V. Grate, 426.
State
V. Gray, 168.
V.
V. Grear, 531.
V.
V. Great Works Milling,
etc..
Co.,
V.
148.
V.
V. Green, 155, 170, 388, 394, 522.
V.
V. Greenman, 117.
V.
V. Griffin, 267.
V.
V. Grigsby, 99.
V.
V. Grisham, 160, 233, 352
V.
V. G. S., 237, 240, 244, 344.
V.
V. Guest, 149.
V.
V. Guild, 495.
V.
V. Guinness, 427.
V.
V. Gummer, 293.
V.
V. Gustin, 206.
V.
V. Gut, 419.
V.
V. Hack, 464, 524.
V.
V. Hacliett, 397.
V.
V. Hadcocli, 229.
V.
V. Haddock, 127, 244.
V.
V. Hailey, 134.
V.
V. Haider, 174.
V.
V. Hale, 427.
V.
V. Halford, 331.
V.
T- Hall, 65, 66, 154, 365,
386,
469.
V.
V. Hambleton, 223.
V.
T. Hamer, 94.
V.
V. Hamlin, 118, 119, 121,
122.
V.
V. Hand, 145.
V.
V. Haney, 174, 282, 288, 344.
V.
V. Hang Tong, 197.
V.
V. Hanks, 318.
V.
V. Hanson, 237.
V.
V. Harden, 483, 485.
V.
V. Hardwick, 171.
V.
V. Hare, 841.
V.
V. Harkins, 547.
T.
V. Harlow, 478.
V.
V. Harmon, 358, 486.
V.
V. Harper, 92.
V.
V. Harris, 52, 115, 126,
144,
289,
V.
335, 338, 385, 484.
V.
V. Harrison, 190, 417, 430
478,
479.
V.
V. Hart, 191.
V.
T. Hartfiel, 194.
V.
V. Hartnett, 347.
V.
V. Hartwell, 79.
V.
V. Harvell, 133.
V.
V. Hascall, 329.
V.
V. Haskell, 12.
V.
V. Haskett, 136.
V.
V. Hastings, 385.
Hattaborougli, 399, 401, 402.
Havely, 343.
Haven, 163, 171, 279.
Hawks, 113.
Hawley, 459, 460, 469.
Haycroft, 368.
Hayden, 121, 212, 534-536.
Hayes, 254.
Hayward, 130, 208, 547.
Hazard, 289.
Heathman, 101.
Heck. 174, 194.
Hedge, 175.
Heed, 547.
Heller, 133.
Helvin, 80.
Henderson, 118, 524.
Hendrix, 499.
Henn, 284, 286.
Hennessey, 281, 282, 337.
Henning, 419, 421.
Henry, 291.
Hertzog, 298.
Hester, 170, 478.
Hickman, 264, 365, 416.
Higgins, 266, 268.
Hilderbrand, 522.
Hill, 84, 87-89, 227, 464, 477.
HiUstock, 414.
Hobbs, 26, 29, 240, 246, 347.
Hobgood, 510.
Hodge, 511.
Hodgeden, 244.
Hodges, 280, 296, 297.
Hodgkins, 388.
Hodgson, 141, 492.
Hoffman, 223.
Hogan, 288.
Hollingsworth, 116.
Holly, 312.
Holmes, 46, 80, 217.
Homan, 303.
Honeycutt, 386.
Hood, 295.
Hooker, 162.
Hopgood, 454.
Hopson, 89.
Horan, 334.
Horton, 363.
HQUse, 194.
Hciuser, 341, 469, 533.
604
CASES CITED.
[The figures refer to pages.]
State V. Hover, 262.
State V. Kansas City, S. & M. Ry. Co.,
V. Howard, 419, 429, 459, 463.
260.
V. Howell, 415, 479, 499, 510.
T. Kattlemann, 392, 490.
V. Hoyt, 485, 509.
V. Keach, 161.
V. Hudson, 15, 17.
V. Kealy, 66.
V. Huffman, 393.
V. Kean, 146, 201, 234, 309-311.
V. Hufford, 63.
V. Keeland, 353, 360.
V. Hughes, 146, 149, 285, 316,
365,
V. Keen, 264, 354, 356.
367, 391, 424.
V. Keena, 115, 129, 230.
V. Hull, 20.
V. Kelley, 517.
V. Humphreys, 221, 311.
V. Kelly, 425, 426.
V. Hunter, 11, 123, 367.
V. Kelm, 129.
V. Hurds, 187.
V. Kemp, 393.
V. Hurlbut, 425.
V. KendaU, 178.
V. Hurley, 364.
V. Keneston, 262.
V. Hutchinson, 486, 487.
V. Kenna, 215.
V. Huting, 541.
V. Kennade, 473, 538.
V. Hutson, 341.
V. Kennedy, 315, 359.
V. Ice, 455.
V. Kern, 178.
V. Igo, 478. ^
V. Kerr, 144.
V. Ingalls, 240.
V. Kesslering, 269.
V. Ingles, 403.
V. Keyes, 107.
T. Ingram, 508.
V. Kibby, 293, 296.
T. Inness, 404.
V. Kilcrease, 112.
V. Inskeep, 280.
V. Killet, 24, 25, 556.
v.- I. S. S., 136.
V. Kinder, 78.
V. Ivey, 115.
V. King, 355, 469.
V. Ivins, 513.
V. Kinney, 513.
V. Izard, 489.
V. Kirby, 35, 50, 58.
V. Jackson, 190, 209, 222, 254,
260,
V. Klinger, 415, 536.
269, 271, 289, 333, 449,
471,
V. Knapp, 419, 513.
479.
V. Knight, 472, 552.
V. Jacobs, 120, 250, 348.
V. Knouse, 392.
V. James, 26, 37, 47, 446.
V. Koontz, 413.
V. Jenkins, 318.
V. Kring, 77, 423.
V. Jennings, 189, 355, 488, 494
,
V. Kruise, 74, 92.
V. Jesse, 197.
V. Kye, 327.
V. Jewell, 447.
V. Kyne, 353.
V. Jim, 198, 221, 311.
V. La Bore, 232.
V. John, 164, 485.
V. Lacey, 360.
V. Johnson, 10, 13, 14, 145,
146,
V. Lakey, 254.
171, 237, 247, 253, 280,
311,
V. Lamon, 249, 847.
312, 318, 341, 355, 359,
365,
V. Land, 239.
433, 526.
V. Landry, 251.
V. Johnston, 134.
V. Lane, 123, 143, 244.
V. Jones, 9, 29, 31, 35, 80, 84, 85,
V. Lang, 305.
123, 127, 169, 243, 364,
367,
V. Langford, 479, 513.
424, 426, 469, 486.
V. Lapage, 519.
V. Jordan, 355, 467.
V. Larger, 487,
V. J. P., 365.
V. Larkin, 398.
V. Kane, 259.
V. Lawlor, 552.
CASES CITED.
605
[The figures refer to pages.]
State T. Leabe, 447.
State V. M'Cory, 435.
V. Leaci, 20, 29.
V. McCoy, 310, 371, 415, 541.
V. Leak, 333.
V. McCracken, 248, 254.
V. Learned, 141, 317.
V. McCue, 490.
V. Le Blanch, 11.
V. McDaniel, 245.
V. Le Cerf, 97.
V. McDonald, 36, 199, 281.
T. Ledford, 108, 435.
V. McDonnell, 465^67, 469.
V. LedufC, 445, 455.
V. McDowell, 238.
V. Lee, 392, 393, 395, 431, 432, 486,
V. Mace, 141, 157, 160.
488, 533.
V. McGaflin, 264.
V. Lee Doon, 425.
V. McGinniss, 347.
V. Leasing, 400.
V. McGlothlen, 547.
V. Leunig, 475.
V. McGregor, 150.
V. Levy, 374.
V. McGrew, 431.
V. Lewis, 40, 43, 77, 109, 402, 413,
V. Mclntire, 340.
461, 541.
V. Mcintosh, 447.
V. Lincoln, 290, 295, 341.
V. Mack, 483, 462, 463.
V. Lindsey, 353.
V. M'Kee, 385-387.
V. Lltch, 242, 243.
V. McKiernan, 202, 300.
V. Little, 264, 388, 394.
V. McKinney, 467.
V. Littlefield, 399, 402.
V. M'Lain, 222, 318, 336, 46&
V. Lockbaum, 269.
V. McLennen, 355.
Y. Lockhart, 100, 189.
V. McNab, 86.
V. Locklin, 406.
V. McNally, 28.
V. Lockwood, 171, 436.
V. McNaught, 490.
v. Loeb, 94, 100.
V. McNeill, J36.
V. Loehr, 429.
V. McNinch, 51.
V. Logan, 112, 113.
V. MacEae, 228.
V. Long, 488.
V. Maddox, 120, 271, 414.
V. Longbottoms, 221, 338.
V. Madigan, 479, 517.
V. Longley, 298.
V. Magrath, 344.
T. Langton, 82.
V. Mahon, 51, 56, 97.
V. Lonsdale, 546.
V. Main, 385.
V. Lopez, 310.
V. Maine, 436.
V. Lord, 14.
V. Mainor, 302.
V. Louver, 24.
V. Malia, 376, 377.
V. Love, 109.
V. Mallon, 510.
V. Lowder, 31.
V. Malloy, 215.
V. Lowry, 394, 489.
V. Maloney, 194, 446.
V. Lucker, 427.
V. Manley, 102, 162.
V. Luke, 239.
V. Mann, 23, 37.
V. Lund, 285, 346.
V. Manning, 146, 235, 817, 318.
V. Lyon, 252, 299.
V. Mansfield, 436.
V. McAfee, 41, 441.
V. Marcks, 280, 357.
V. McAllister, 144, 298, 299.
V. Marion, 283.
V. McAvoy, 354, 356.
V. Marlier, 207.
V. McBride, 485.
V. Marqueze, 471.
V. McCarter, 187.
V. Marshall, 94, 454.
V. McCarthy, 237, 315, 317, 318.
V. Martin, 117, 118, 146, 235, 337,
V. McClung, 199, 352, 380, 488.
392, 421, 493.
V. McCord, 392.
V. Martinez, 89.
V. McCormick, 493.
V. Massey, 263.
606
CASES CITED.
[The figures refer to pages.]
ite V. Mathers, 544.
State
V. Matthews, 117, 282.
V.
V. Maurignos, 558.
V.
V. May, 241, 353.
V.
V. Mays, 73.
V.
V. Mead, 389.
V.
V. Meadows, 202.
V.
V. Meakins, 390.
V.
V. Meek, 272.
V.
V. Blelrose, 522.
V.
V. Melton, 100, 356-
358.
V. Mercer, 447.
V.
V. Merriman, 443, 535.
V.
T. Merrill, 282, 285.
V.
y. Metsch, 328.
V.
V. Mewherter, 545.
V.
V. Meyer, 465.
V.
V. Meyers, 100, 141,
250,
348, 493.
V.
V. Michael, 542.
V.
V. Middleton, 119.
V.
v. Miller, 68, 73, 110, 133
, 215, 286,
V.
352, 425, 470, 478.
V.
V. Millican, 461.
V.
V. Mills, 84, 482.
V.
V. Minski, 421.
V.
V. Minton, 522.
V.
V. Mitchell, 360, 365,
V.
T. Mix, 475.
V.
V. Moberly, 498.
V.
V. Molier, 175, 332,
334.
V. Montague, 294, 296, 298.
V.
V. Montgomery, 367
,488.
V.
V. Moody, 136, 436,
454.
V.
V. Moor, 386, 387.
V.
V. Sloore, 52, 129,
284,
329, 331,
V.
337, 434, 515.
V.
V. Moran, 424.
V.
V. Morea, 445, 452.
V.
V. Morey, 224.
V.
V. Morgan, 141, 263
V.
V. Morphin, 282.
V.
V. Morris, 105, 106,
133,
352.
V.
V. Morse, 201.
V.
V. Morton, 283.
V.
T. Moses, 155.
V.
V. Mott, 177.
V.
V. Mowry, 50.
V.
V. Mueller, 353.
V.
V. Mulkern, 513.
V.
V. Munch, 244.
V.
V. Munger, 201, 241
272,
344.
V.
T. Murdock, 197.
V. Murdy, 414, 417.
Murphy, 99, 203, 221,- 282, 283.
Murray, 20.
Myers, 115, 175.
Myrick, 425.
Nail, 305.
. Naramore, 170.
, Narrows Island Club, 272.
Nash, 404, 415, 452, 488, 538.
. Nelson, 92, 279, 282, 283, 285,
288, 291, 296, 299.
, Nerbovig, 74.
. New, 11.
Newton, 282.
, Nichols, 290, 345, 547.
Nickleson, 263, 425.
Niers, 167.
Niles, 513.
Nixon, 142, 216, 250, 348.
Noble, 182, 183.
Noland, 242.
Nordstrom, 538.
Norton, 125, 429.
Norvell, 391, 392, 395.
Nowell, 301.
Nulty, 317.
Oakley, 221.
O'Bannon, 169, 260.
O'Brien, 271, 272, 301, 306, 432,
478.
O'Connor, 64.
Odell, 388.
O'Donald, 308.
O'Donnell, 237, 242, 273.
Offutt, 237.
O'Grady, 470.
Olds, 420.
Oleson, 395.
Oliver, 55.
O'Neal, 471.
O'Neil, 281, 493.
Orrell, 252.
Orrick, 433.
Ostrander, 119.
Owen, 155, 332.
Owens, 340.
Oxendine, 431.
Palmer, 13, 280, 284, 477.
Pankey, 418, 482.
Parish, 353, 395, 404.
Parker, 21, 161, 238, 263, 280,
388.
CASES CITED.
607
[The figures refer to pages.]
State V. Parmelee, 360.
State
V. Parrisb, 392, 395.
V.
V. Passaic Agr. Soc, 380.
V.
V. Paterno, 385.
V.
V. Patrick, 189, 224.
V.
V. Patterson, 66, 93, 95, 161, 245,
V.
526, 530, 532.
V.
V. Paul, 163.
V.
V. Pauley, 10.
y.
V. Payne, 388.
V.
V. Peacock, 425, 428.
V. Perkins, 262.
V.
V. Peri-y, 82, 154, 163, 476.
V.
V. Peters, 201, 324, 327.
V.
V. Peterson, 341, 342, 543.
V.
V. Pettit, 469.
V.
V. Peyton, 5.
V.
V. Phelps, 276, 310, 314, 517.
V. Phillips, 388, 393, 521.
V.
V. Phinney, 50, 174.
V.
V. Pierre, 147.
V.
V. Pike, 149.
V.
V. Pile, 302.
V.
V. Pitts, 115.
V.
V. Place, 478
V.
V. Plunket, 223, 261.
T.
V. PoUet, 429.
T.
V. Populus, 475.
V.
V. Porter, 290.
V.
V. Potter, 445, 499, 556
V.
V. Potts, 208, 443.
V.
V. Powell, 393.
V.
V. Pratt, 242.
V.
V. Prescott, 478.
V.
V. Presley, 468.
V.
V. Price, 125, 253, 355.
V.
V. Primeaux, 418.
V.
V. Pritchett, 428.
V.
V. Proctor, 364.
V.
V. Pugh, 20, 51.
V.
V. Pullens, 210, 341.
V.
V. Purdie, 360.
V.
V. Push, 443.
V.
V. Quarrel, 442.
V.
T. Quimby, 110, 119, 449.
V.
V. Quinn, 430.
V.
V. Raiford, 261.
V.
V. Railway Co., 154.
V.
V. Raines, 262.
V.
V. Rainsberger, 413.
V.
V. Randolph, 93, 543, 552.
V.
V. Rankin, 395.
V.
V. Ratts, 312.
Raven, 524.
Ray, 390.
Raymond, 175.
Reckards, 427.
Record, 157.
Recorder, 74.
Rector, 175, 198, 364.
Redman, 385, 386, 391, 392.
Reed, 115, 244, 400, 425, 443,
470, 479, 526, 527, 553.
Reeves, 363, 371.
Reid, 247, 459.
Reidell, 541.
Renfrow, 368.
Reonnals, 11.
Reynolds, 141, 324, 330, 339, 340,
393.
Rheams, 466.
Rhodes, 392.
Richards, 473.
Richter, 65.
Ricketts, 482.
Rickey, 120, 363, 305.
Ridley, 5.
Riebe, 206.
Rifee, 363.
Riggs, 519.
Ripley, 311.
Ritty, 80.
Rivers, 430.
Roach, 237, 240, 365.
Roane, 44, 52.
Roberts, 5, 42, 161, 162, 207.
Robinson, 127, 240, 354, 386, 470.
Rockafellow, 87, 119, 120.
Roe, 135.
Roesener, 539.
Rohfrischt, 487.
Rollins, 100, 53a
Roper, 197.
Rose, 537.
Ross, 60, 470, 522.
Roth, 25.
Roulstone, 304.
Rout, 220.
Rowe, 29, 98.
Rowlen, 190.
Rowley, 316.
Rucker, 197.
Rush, 221, 273, 491, 552.
Rushing, 340.
608
CASES CITED.
[The figures refer to pages.]
te V. Russell, 161, 162,
420,
430,
State V. Soper, 431, 544.
459, 548.
V. Sorenson, 75.
V. Bust, 262.
V. Sortor, 463.
V. Ryan, 228.
V. Soule, 309, 311, 312.
V. S. A. L., 247.
V. Sparks, 197.
V. Salts, 24T.
V. Sparrow, 480.
V. Sanders, 155, 347, 424,
457.
V. Spear, 177.
V. Sauvinet, 558.
T. Spencer, 69, 202, 445, 541.
V. Schaefer, 541.
V. Spidle, 498.
V. Scheie, 355.
V. SpiUman, 414.
T. Schieler, 80.
V. Spray, 489.
V. Schoenwald, 466.
V. Spurgln, 391.
V. Schricker, 317, 318.
V. Squire, 115, 315, 323.
V. Schumm, 363.
V. Stalcup, 51.
V. Scott, 96, 296, 353, 359
,443
562.
V. Staley, 529, 531.
Y. Scribner, 157, 269.
V. Stalmaker, 451.
V. Scurry, 340, 341.
V. Stanton, 202.
T. Seamons, 244.
V. Staples, 69.
V. Security Bank, 365, 377.
V. Starling, 541.
V. Sexton, 242, 315, 323,
365.
V. Startup, 141, 31T.
V. ShaefCer, 11.
V. Staton, 537.
V. Shanley, 373.
V. Stedman, 268, 359.
V. Sharp, 119, 120.
V. Stegner, 413.
T. Shaw, 39, 47, 53, 76,
181,
261,
V. Steifel, 353.
264, 444.
V. Stein, 202.
T. Shear, 356.
V. Stephen, 190, 212.
V. Sheeley, 446.
V. Stephens, 100.
V. Shelton, 28, 36.
V. Stephenson, 169.
V. Shepard, 359, 400.
V. Stevens, 220, 240, 281.
V. Sherburne, 182.
V. Stewart, 10, 16, 64, 66, 207, 288,
V. SherriU, 339.
295, 296, 367, 368, 447.
V. Shores, 116.
V. Stickney, 410.
V. Shuler, 262.
V. Stimson, 220, 221, 227.
V. Sides, 324.
V. Stout, 280.
V. Sigman, 51.
V. Street, 157.
V. Simien, 417.
V. Stucky, 232.
V. Simmons, 61, 302, 393
V. Stunkle, 110.
V. Simpson, 268, 394, 430
•
V. Sullivan, 414, 420.
V. Sims, 43, 467.
V. Sullivant, 95.
V. Slocum, 247.
V. Summons, 86-88.
V. Small, 12.
V. Sutton, 124, 295, 391.
V. Smalley, 290, 294-297.
V. Swaim, 344.
V. Smith, 49, 53, 54, 60,
123,
165,
V. Swope, 63.
194, 202, 242, 249,
279,
280,
V. Symonds, 110, 118.
282, 291, 306, 324,
348,
370,
V. Talbert, 525, 527.
390, 399, 401, 402,
424,
460,
V. Talmage, 353.
468, 492, 511, 549.
V. Tatro, 529.
V. Sneed, 250, 348.
V. Taunt, 208, 226, 338.
V. Snell, 332.
V. Taylor, 93, 351, 363, 367, 431.
V. Snow, 465.
510.
V. Solomons, 393.
V. Temple, 241.
T. Sommers, 271.
V. Tennison, 79.
CASES CITED.
[The figures refer to pages.]
State V. Terrebonne, 315, 316.
State
V. Thomas, 19T, 226.
V
V. Thomason, 220.
V
V. Thompson, 28, 69, 237, 290, 343,
V
479.
V. Thome, 264.
V
V. Thornton, 355, 395.
V
7. Thurston, 282.
V.
V. Tllghman, 478-480.
V
V. Tillery, 226.
V
V. Timmens, 342.
V
V. Tingler, 191.
V.
T. Toland, 449.
V
V. Tolleston Olub, 6.
V
V. Toltever, 247.
V
V. Tomlinson, 106, 133.
V.
V. Town, 447.
V.
V. Town of Newfane, 118.
V
V. Townsend, 50, 206, 207, 321, 332,
V.
429.
V.
T. Trapp, 340.
V.
T. Trefethen, 275.
T.
V. Triplett, 354, 361.
V.
V. Trout, 541.
V.
V. Tucker, 113.
V.
V. Tuller, 244, 294.
V.
T. Turlington, 52, 414, 420.
V.
V. Tumage, 312.
V.
V. Turnbull, 250, 267, 349.
V.
V. Turner. 468.
V.
V. Twitty, 207, 210.
V
T. Tyler, 533.
V.
V. Tyrell, 189.
V.
v. Tyrrell, 231.
V.
V. ririch, 543, 544.
V. Underwood, 11, 41, 416, 417.
V.
v. Upton, 147, 479.
V.
V. Valentine, 358, 391.
V.
V. Van Cleve, 317, 3ia
V.
V. Vanderpool, 60.
V.
V. Van Doran, 169.
V.
V. Vaughan, 427.
V.
V. Vaughn, 101.
V. Vermont C. R. Co., 148.
V. Vincent, 116, 142, 365.
V. Vittum, 146, 235.
V.
V. Wadsworth, 301.
V.
V. Wagner, 144, 282, 298, 299.
V.
V. Wakefield, 394.
V.' Walcott, 112.
V.
V. Walker, 106, 367, 386.
V.
V. Wall, 182, 363.
V.
. CRIM.PKOC— 39
V. Walsh, 273.
. Walters, 468.
. Walton, 519.
. Ward, 117, 212, 282, 363, 377,
393, 447, 551.
. Ware, 318.
. Warner, 397, 513.
. Warren, 282.
. Wasden, 123.
. Washington, 309.
. Waters, 354.
. Watson, 81, 264,
. Watts, 359.
. Way, 479.
. Weare, 316.
. Weatherspoon, 388.
Weaver, 332, 333,
. Webb, 385.
. Weber, 488.
Webster, 146, 272, 445.
. Weed, 28, 35, 37,
. Weeks, 484, 486.
. Welch, 264.
. Weldon, 542, 543.
. Welker, 252.
. Wellman, 95.
, Wensel, 60.
. Wenzel, 31, 93.
West, 426, 489, 524.
. Wheeler, 206, 209, 333.
. Whipple, 385.
. Whiskey, 70.
. Whitaker, 29, 31.
. White, 314, 316, 353, 355, 860,
427.
. Whitney, 174, 175.
. Whitson, 387, 510, 511.
. Whitt, 197.
. Whitton, 117, 417.
. Wilcox, 109.
. Wilkins, 511, 512.
Williams, 94, 124, 126, 132, 146,
168, 193, 220, 253, 260, 281,
290, 337, 358, 367, 373, 390,
398, 443^45, 495, 510.
Williamson, 534.
, Willis, 252.
. Wilson, 190, 340, 367, 470^72,
480, 482, 486, 526.
, Wimberly, 174, 198, 334, 359.
, Wimbush, 23, 24, 29.
, Winchester, 469.
610
CASES GITED
[The figures refer to pages.]
State V. Wininger, 84, 85.
V. Wise, 80, 418, 485.
V. Wishon, 366.
V. Witham, 210.
V. Witt, 341.
V. Wofford, 421.
V. Wood, 282, 525.
V. Woodard, 296, 297, 301.
V. Woodley, 94.
V. Woodruff, 387.
V. Woods, 73, 82.
V. Woolard,'462.
V. Worden, 435.
V. Workman, 470.
V. Worley, 28.
V. Wright, 110, 206, 311.
V. Wyatt, 181, 261.
V. Yancey, 125.
T. Yanta, 355, 35G.
V. Yarbrough, 394.
T. Yates, 373.
T. Yocum, 513.
V. Young, 447, 517.
V. Zule, 125.
■Stazey v. State, 347.
Steagald v. State, 546.
Stedman's Case, 157.
Steel V. Smith, 271, 275.
Steele v. People, 414.
Steerman v. State, 10.
Stegars v. State, 97.
Stein V. State, 193.
Steiner's Case, 395.
Stennel v. Hogg, 319.
Stephens v. Commonwealth, 414.
V. People, 427, 475, 535.
V. State, 207, 303, 308, 446, 455,
486, 487, 489.
V. Wllkins, 36.
Stephen's Case, 247.
Stemack v. Brooks, 43.
Stetson V. Packer, 31.
Stevens v. Commonwealth, 283, 329.
339.
V. Dimond, 311.
V. Fassett, 389.
V. State, 295, 351, 353.
Stevick V. Commonwealth, 295.
Stewart v. Commonwealth, 225.
V. .Tessup, 11.
V. People, 483.
V. State, 113, 220, 288, 354, 359,
367, 386, 387, 412, 447, 533.
Stichtd V. State, 335.
Stiener v. State, 4C7.
Stiff, Ex parte, 87.
Stocken v. Carter, 42.
Stockholm v. State, 414.
Stocks V. State, 386.
Stoddard v. Tarbell, 35.
Stokes V. People, 446, 505, 551.
V. State, 189.
StoUenwerk v. State, 222.
Stoltz V. People, 490.
Stone V. Dana, 69, 70.
V. People, 155, 386.
V. State, 125, 479.
Stoneham v. Commonwealth, 367.
Stoner v. State, 557.
Storrs V. State, 294.
Stoughton V. State, 10, 190.
Stout V. Commonwealth, 197, 253.
V. State, 10, 364, 478.
Stover V. People, 511, 537, 540.
Strang v. State, 15.
Strange v. State, 114.
Stratton v. Commonwealth, 161.
Strawhern v. State, 364.
Street v. State, 557.
Streshley v. Fisher, 101.
Strickland v. State, 247.
Stroder v. State, 175.
Stuart V. Commonwealth, 385, 484.
V. People, 73, 81.
Stubbs V. State, 424, 425, 427.
Stukeley v. Butler, 173.
Stultz V. State, 415.
Sugg V. Pool, 42.
Sullivan v. Commonwealth, 353.
V. People, 347.
V. State, 202, 490, 525.
Sultan, In re, 64, 65.
Sutcliffe V. State, 392.
Sutton V. People, 414, 417, 474, 496.
Swaim v. Stafford, 42.
Swallow V. State, 472.
Swann v. State, 465.
Swart V. Kimball, 26, 434, 442.
Swartzbaugh v. People, 271.
Swearingen, Ex parte, 64.
Sweat V. State, 12.
Sweet V. Sherman, 553.
Swiney v. State, 362.
Swisher v. Commonwealth, 527.
Sylvester v. State, 496.
CASES CITED.
611
[The figures refer to pages.]
T
Tabart v. Tipper, 209, 211.
Tabler v. State, 427.
Tackett v. State, 28.
Taintor v. Taylor, 63.
Tarble, In re, 560.
Tarble's Case, 559, 560.
Tarlton v. Fisher, 37.
Tayloe, Ex parte, 86.
Tayloe's Case, 88.
Taylor v. Commonwealth, 117, 124,
126, 190, 247, 340, 341, 472,
490, 510.
V. Foster, 545.
T. State, 115, 179, 223, 375, 548.
V. Strong, 40, 43.
V. Taintor, 63, 65, 96.
Teachout y. People, 532.
Teagarden v. Graham, 45.
Teas V. State, 115.
Teat V. State, 386.
TefCt V. Ashbaugh, 36.
V. Commonwealth, 123, 142.
Templeton v. People, 80.
Terrill, In re, 5. .
Territory v. Brash, 367.
V. Cutinola, 128, 129.
V. Day, 425.
V. Doe, 248.
V. Dooley, 361.
V. Galliff, 355.
V. Godfrey, 513.
V. Harding, 115.
V. Hart, 110, 123.
V. McFarlane, 201.
V. McKem, 534.
V. O'Donnell, 165.
V. O'Hare, 468.
V. Pendry, 227.
V. Pratt, 246.
Terry, Ex parte, 435.
Testick's Case, 221.
Thayer v. People, Hi
Thomas v. Commonwealth, 170, 328.
V. Croswell, 177.
V. Klnkead, 52.
V. Russell, 42.
V. State, 87, 208, 215, 230, 281,443,
449.
T. Village of Ashland, 43.
Thompson, In re, 560.
Thompson v. Commonwealth, 310,
390, 470, 479, 499, 530, 531.
V. Fellows, 28, 101.
V. Lee, 146, 235.
V. Oglesby, 556.
V. People, 431.
V. Eichardson, 328.
V. State, 246, 289, 462, 473, 513,
527, 538, 548.
Thornell v. People, 115.
Threadgill v. State, 527.
Thurmond v. State, 235.
Tidwell V. State, 347.
Tilley v. Commonwealth, 377.
Tilton V. State, 485.
Timmerman v. Territory, 239.
Timms v. State, 340.
Timothy v. Simpson, 46.
Tindle v. Nichols, 121, 122.
Tippins V. State, 10, 11.
Tipton V. State, 126, 143, 201, 463.
Tobart v. Tipper, 333.
Tomby v. State, 212.
Tomlin v. Fisher, 558.
Tomlinson v. Territory, 286.
Tompkins v. State, 290.
Tooel V. Commonwealth, 452.
Tooke V. State, 426.
Toole V. State, 246.
Totten V. U. S., 544.
Tousey v. State, 94.
Tower v. Commonwealth, 247.
Townley v. State, 313.
Town of Van Buren v. Wells, 395.
Townsend v. People, 299.
Trabune v. Commonwealth, 538.
Tracy, Ex parte, 427.
V. Commonwealth, 281.
V. WiUiams, 29, 36, 39, 75.
Trask v. People, 209, 333.
Treasurer of Middletown v. Ames,
444.
Trimble v. State, 446.
Trogdon v. State, 472.
Troia, In re, 557.
Trout T. State, 179.
Troutman, In re, 63.
True V. Plumley, 482.
Tubbs V. Tukey, 32, 37, 57, 74.
Tucker's Case, 118, 120.
Tuell V. Wrink, 69.
Tullis V. Fleming, 62.
612
OASES CITED.
[The figures refer to pages.]
TuUy V. Commonwealth, 134, 202, 268.
V. People, 264.
Turk V. State, 300.
Turner v. Conkey, 421.
V. Muskegon Circuit Judge, 178,
356, 357.
V. Pearte, 498.
V. People, 107, 145, 150, 344.
V. State, 194, 280, 828.
Tumerls Case, 155.
Turns v. Commonwealth, 125, 150, 247,
255, 376.
Turpin v. State, 302, 308.
Tuttle V. Commonwealth, 204
Tweedy v. Jarvis, 146, 234.
Twohig, Ex parte, 557.
Twombley v. Humphrey, IL
Tyler v. People, 10.
Tyra v. Commonwealth, 438.
U
UUery v. Commonwealth, 88.
Union, The, 77.
U. S. V. Aaron Burr, 119.
V. Amy, 394.
V. AngeU, 533.
V. Bachelder, 262-264.
V. Ballard, 132-134.
V. Barnhart, 394, 395.
V. Battiste, 466.
V. Benner, 56.
V. Bennett, 220.
V. Benson, 121.
V. Bishop, 97.
V. Blodgett, 118.
V. Bornemann, 123, 127.
V. Boyd, 44.
V. Britton, 12, 206, 262, 265.
V. Brooks, 430.
V. Brown, 113, 409.
V. Burns, 247.
V. Buzzo, 194.
V. Carll, 193.
V. Clark, 193, 194.
V. Conrad, 237.
V. Cook, 241, 260, 270, 273.
V. Coolidge, 364.
V. Oruikshank, 152, 154, 156, 160i
161, 223, 266.
T. Davis, 426.
U..S. V. De Walt, 107.
V. Douglass, 451.
V. Ducournau, 498.
V. Eagan, 117.
V. Edwards, 201, 202.
V. Elliot, 261.
V. Elliott, 180, 181.
V. Ewan, 121.
V. Faulkner, 541.
V. Feeley, 98.
V. Fox, 161, 411, 412.
V. Furlong, 813.
V. Gale, 492.
V. Gibert, 313, 369, 387.
V. Goggin, 266.
V. Gooding, 159, 265, 269.
V. Green, 560, 561.
V. Hall, 543.
V. Hamilton, 87, 557.
V. Hanway, 446.
V. Harding, 307.
V. Haskell, 476.
y. Hess, 266.
V. Hill, 109.
T. Howard, 182, 184, 185, 329, 339,
340, 342.
V. Howell, 213.
V. Insurgents, 125.
V. Irvine, 133.
V. Jailer, 558.
V. Jones, 87, 120, 390.
V. Keller, 466.
V. Kelly, 431.
V. LaCoste, 181, 241.
V. Lancaster, 262.
V. Lawrence, 561.
V. Lehman, 181, 261.
V. Leonard, 353.
V. McNeal, 346.
V. Malloy, 367.
V. Mayfield, 532.
V. Mills, 269.
V. Moller, 405.
V. More, 393.
V. Moses, 544.
V. Nathan, 193.
V. Nelson, 272.
V. Nickerson, 257.
V. Olsen, 395.
V. Patterson, 101.
V. Perez, 387.
V. PU-ates, 298-300, 394.
CASES CITED.
613
[The figures refer to pages.]
U. S. V. Plumer, 300.
V. Plummer, 494.
V. Rauscher, 60, 557.
V. Reed, 109.
V. Reese, 152, 160.
T. Reichert, 173.
V. Sanges, 393.
V. Santos, 427.
V. Scott, 294.
V. Shoemaker, 136.
V. Simmons, 113, 115.
V. Slacum, 133.
V. Smith, 238, 312.
V. Staats, 202, 203, 262.
V. Stone, 529.
V. Swan, 478.
v.. Taylor, 465, 466.
V. Thompkins, 109.
V. Tureaud, 129.
V. Tuska, 121.
V. Watkinds, 193.
V. Watson, 135.
V. West, 296.
V. White, 77, 99, 119, 120, 133, 431.
V. Williams, 118-120.
V. Wilson, 407, 523.
V. Wong Dep Ken, 107.
V. Wood, 547.
Unsel V. Commonwealth, 415.
Updegraff v. Commonwealth, 260, 262.
Updegraph v. Commonwealth, 214.
Upshur V. State, 288.
Upstone V. People, 534.
V
Vaden v. State, 289.
Valentine v. State, 487.
Valesco v. State, 222, 336.
Vanauken v. Beemer, 441.
Van Blaricum v. People, 452.
Vance v. Commonwealth, 413.
V. State, 342, 548.
Vander v. Griffith, 257. ■
Vanderkarr v. State, 106, 115, 419.
Vandermark v. People, 146.
Vander Plunken v. Griffith, 349.
Vandeveer v. Mattocks, 40.
Vandeventer y. State, 539.
Vane's Case, 344.
Vanhook v'. State, 118.
Van Meter v. People, 416.
Van Sceiver, In re, 64.
Vanvickle v. State, 144.
Vaughan v. Commonwealth, 280, 404.
V. State, 461, 462, 464, 472, 478,
533.
Vaughn v. Commonwealth, 416.
V. State, 377.
Vaux V. Brook, 199.
Vaux's Case, 154, 163, 405.
Vavasour v. Ormrod, 275.
Veatch v. State, 392, 487.
Vermilyea, Ex parte, 440, 445.
Village of Chorley, Case of, 33.
Villareal v. Mellish, 560.
Vincent v. People, 96.
Virginia, Ex parte, 558.
Voorhees, In re, 64, 65.
Vowells V. Commonwealth, 242.
W
Waddell v. State, 293.
Wade V. Chaffee, 41, 42.
V. State, 425, 476.
Wadgymar v. State, 130.
Wakely y. Hart, 39, 4-1, 45.
Wales V. Whitney, 554.
WalfCorth v. State, 498.
Walker v. Kearney, 25.
V. People, 541.
V. State, 227, 280, 327, 414, 418,
528, 542.
Walker's Case, 455.
Wall V. State, 295.
Wallace v. People, 208.
V. State, 117, 344.
Wallenweber v. Commonwealth, 84,
85.
Waller v. Commonwealth, 134.
V. State, 482.
Walls V. State, 13.
Wall's Case, 558.
Walpole, Ex parte, 560.
Walsh, Ex parte, 80.
In re, 495, 496.
V. State, 207, 210.
Walston V. Commonwealth, 450.
Walter v. People, 450.
Walters v. State, 541.
Walton V. State, 214, 552.
614
CASES CITED.
[The figures refer to pages.]
Walton's Case, 414.
Wandell v. State, 270.
Ward V. Bird, 275.
V. People, 229, 436, 530.
V. State, 109, 112, 175, 839, 341,
452.
Warmer v. State, 389, 394.
Warner ,v. Lockerby, 552.
V. Shed, 35.
V. State, 356, 358, 417, 494.
Warren t. Commonwealth, 451.
V. Paul, 555.
V. State, 427.
Washburn v. People, 73.
Washington v. State, 113.
Waterman y. State, 66, 116.
Waters v. People, 540.
Watkins, Ex parte, 554, 558, 561,
Watson, In re, 557.
V. State, 47.
V. Watson, 37.
Watson's Case, 555, 561.
Watts V. Commonwealth, 49.
Way, In re, 26, 42.
Weatherford v. Commonwealth, 301.
V. State, 487.
Weathers v. State, 209.
Weaver v. People, 496.
V. State, 388.
Webb V. State, 24, 34, 43, 454, 553.
Webber v. Gay, 37.
Webster v. Commonwealth, 288.
V. People, 329.
Webster's Case, 114.
Weimer v. Bunbury, 44.
Weinzorpflin v. State, 490.
Welch V. Gleason, 71.
V. Scott, 26, 28, 37.
V. State, 94.
Wells V. Commonwealth, 165, 166, 181,
241, 242, 244.
V. Iggulden, 311.
V. Jackson, 23, 28, 29, 31.
V. State, 100, 341.
Welsh V. State, 467, 524.
Wemyss v. Hopkins, 388.
Wertz V. State, 348.
Wesley v. State, 475.
West V. Cabell, 29.
T.' Commonwealth, 496.
V. State, 155.
Westbrook t. State, 486.
Weston V. State, 390.
Whalen v. Commonwealth, 221.
Wheeler v. Nesbitt, 74.
V. State, 419.
V. Whiting, 46.
Wheeless v. State, 459, 463, 473.
Whitaker, Ex parte, 557.
Whitcher v. State, 358.
White, Ex parte, 63, 557.
In re, 64, 65, 495, 556.
V. Commonwealth, 198, 312, 415.
V. Edmunds, 43.
V. Kent, 43.
V. People, 302, 307, 340.
V. Polk Co., 433.
V. Reg., 152, 160.
V. State, 99, 377, 417, 499, 531.
V. Territory, 209, 333, 353, 468.
Whitesides v. People, 244.
Whithead v. Keyes, 56.
Whiting V. Putnam, 557.
V. State, 262, 266.
Whitworth v. Clifton, 37.
Widner v. State, 218.
Wiggins V. Norton, 57, 74, 75.
Wilburn v. State, 118.
Wilcox V. Nolze, 65.
V. Smith, 36.
Wile V. State, 197.
Wiley V. State, 474, 475.
Wilkerson v. State, 508, 515,
V. Utah, 497.
Wilks V. Lorck, 30.
Williams v. City Council of Augusta,
435.
V. Commonwealth, 242, 329, 387,
430.
V. Dickinson, 543.
T. Jones, 56.
V. Ogle, 341.
V. Reg., 312.
V. Shelby, 93, 95.
V. Spencer, 55.
V. State, 141, 197, 221, 264, 344,
347, S65, 366, 436, 447, 468,
477, 480, 498, .521.
V. Weber, 66.
Williamson v. Allison, 183,
V. State, 347.
Williamson's Case, 554,
Willis V. People, 233.
V. State, 444, 530.
CASES CITED.
615
[The figures refer to pages.]
WUmarth v. Burt, 35, 37.
"Wilson, Ex parte, 107.
In re, 101.
V. Laws, 380.
T. People, 209, 333.
V. Rastall, 545.
V. State, 44, 113, 219, 226, 391, 397,
425, 472.
Winburn v. State, 6.
Winebiddle v. Porterfield, 42.
Winfleld v. State, 244.
Wingard v. State, 249, 348.
Wingfield's Case, 251, 252.
Winn V. State, 396, 471.
Wlnslow V. State, 187, 189, 230.
Winsor v. Reg., 387.
Wise V. State, 416.
Witliers v. Commonwealth, 432.
V. Harris, 210.
V. State, 349.
Withipole's Case, 377, 385, 40T.
Witt T. State, 198, 425.
Wofeord T. State, 221.
Wohlf ord V. State, 463.
Wohlgemuth v. U. S., 335.
Wolf V. Commonwealth, 529.
V. State, 40, 50, 106, 141.
Womaek v. State, 289, 290, 404.
Wong V. City of Astoria, 435.
Wong Yimg Quy, In re, 559.
Wood, In re, 559.
T. Brown, 206, 207, 210.
V. Commonwealth, 358.
V. Fletcher, 146, 235.
V. Ross, 32, 33, 37.
V. State, 465, 473, 47T.
Woodburne's Case, 330.
Woodford v. Ashley, 328.
V. People, 230.
Woodin V. People, 468.
Wooding V. Oxley, 45.
Woodruff V. U. S., 495.
Woods V. People, 553.
V. State, 264.
Woodsides v. State, 126, 142, 143.
Woolfolk V. State, 415, 416.
Woolnoth V. Meadows, 177.
Work V. Ccarington, 63, 64.
Work V. State, 434, 437, 438.
Wormeley v. Commonwealth, 415, 420.
Wortham v. Commonwealth, 135, 136,
388.
Worthington v. Mencer, 542.
Wragg V. Penn, 395.
Wray, Ex parte, 88.
V. People, 414.
Wrexford v. Smith, 44.
Wright V. Clements, 210.
V. Commonwealth, 189.
V. Court, 51, 57, 74.
V. Keith, 49, 51.
V. People, 489.
V. Rex, 172.
V. State, 135, 386, 391.
V. Tatham, 533.
Wrote V. Wigges, 400, 401,
Wyatt V. Aland, 180.
V. State, 351, 478.
Wynn v. State, 487.
Yaner v. People, 79.
Yarber v. State, 488.
Yarbrough, Ex parte, 558.
V. Commonwealth, 96.
Yates V. People, 21, 50, 56, 562.
V. State, 421.
Yeldell v. State, 461, 499.
Young V. People, 94.
V. Rex, 289, 296, 298, 302, 303, 305,
308.
V. State, 125, 144, 473, 530, 531.
Youree v. Territory, 527.
Yudkin v. Gates, 561.
Zachary v. State, 405.
Zarresseller v. People, 310.
Zeigler v. Commonwealth, 121.
Zellers v. State, 340, 342.
Zembrod v. State, 88.
Zoldoske v. State, 535, 54a
INDEX.
[the figures refer to pages.]
ABATEMENT,
see "Plea In Abatement"
ABBREVIATIONS,
use of, in indictment, 173, 244.
ABSENCE,
of the accused, during preliminary examination, 76.
during the trial, 423.
of judge during trial, 430.
of defendant as ground for continuance, 413.
of defendant's counsel as ground for continuance, 413.
of witnesses as ground for continuance, 414.
ACCESSARIES,
jurisdiction of offense, 15.
indictment against, 305, 306.
ACCUSATION,
mode of accusation, 104.
necessity for formal accusation, 104.
necessity to use form prescribed by statute, 104.
see, also, "Complaint"; "Indictment"; "Information"; "Pleading."
ADDITION,
of defendant, pleading, 148.
of third persons, 235.
see, also, "Names."
ADJOURNMENT,
of preliminary examination, 74.
see, also, "Continuance."
AFFIDAVITS,
on application for continuance, 416.
on application for change of venue, 420.
of jurors, to impeach verdict, 490.
CRIM.PKOC. (617)
618 INDEX.
[The flgures refer to pages.]
AGGRAVATING CIRCUMSTANCES,
allegation of, 203.
AIDER BY VERDICT,
In general, 319.
ALTERNATIVE ALLEGATIONS,
in general, 169.
rejection of matter as surplusage, 178.
AMBIGUITY,
In indictment, 172.
AMENDMENT,
of indictments, 315.
of caption of indictment, 123, 126, 316.
of information, 316.
efeect of modern statutes, 316, 317.
of plea in abatement, 378.
of verdict, 483, 485.
see, also, "Aider by Verdict"; "Formal Defects."
ANIMALS,
description of, 222.
dead animals, 224,
ANTICIPATING DEFENSES,
not necessary in pleading, 168.
APPEAL,
in general, 500.
by state, 393, 500.
ARGUMENT,
of counsel, 460.
ARRAIGNMENT,
in general, 366.
necessity for, 366.
on new trial, 367.
on appeal from justice's court, 367.
on change of venue, 368.
manner of, 368.
standing mute, 369.
deafness and dumbness, 369.
insanity, 369.
joint defendants, 369.
ARREST,
in general, 19.
INDEX. 619
[The figures refer to pages.]
ARREST— Continued.
rights and liabilities of parties, lawful arrest, 20.
unlawful arrest, 21.
by warrant, 21.
issuance of warrant, 22.
bench warrant, 22.
necessity for complaint, 23.
sufficiency of complaint, 23.
competency of complainant, 25.
evidence to authorize issuance of warrant, 26.
sufficiency of warrant, 26.
form, 26, 28.
jurisdiction, 26.
time of issuance, 27.
contents, 28.
before whom warrant returnable, 31,
life of wan'ant, 31.
alteration, 3ll
execution of the warrant, 32.
the warrant as a protection to the officer, 34.
arrest without a warrant, 39.
by officer, 39.
by private person, 44.
assisting officer, posse comitatus, 47.
hue and cry, 48.
time of arrest, 49.
notice of purpose and authority, 49.
use of force in effecting arrest, 51.
breaking doors, windows, etc., 53.
what constitutes an arrest, 55.
duty after arrest, 56.
authorized arrest in unauthorized manner, 58.
taking property from person arrested, 71.
see, also, "Bail"; "Fugitives from Justice"; "Habeas Corpus"; "Pre-
liminary Examination"; "Searches and Seizures."
ARREST OF JUDGMENT,
In general, 492.
motion in arrest after pleading guilty, 374.
effect, former jeopardy, 391.
ATTORNEYS,
for the state, who may act, 432.
for defendant, appointment, 432.
620 INDEX,
[The figures refer to pages.]
ATTORNEYS— Con tinued.
on preliminary examination, 76.
opening of case, 456.
arguments of, 460.
misconduct of, 458, 462.
AUTREFOIS ACQUIT AND CONVICT, PLEAS OF,
in general, 382, 405.
necessity for plea, 405.
character and sufficiency of plea, 405.
pleading over in plea, 405.
reply and issue on plea, 406.
demurrer to plea, 406.
when bad for duplicity, 406.
right to plead oyer after plea Is overruled, 406.
time of pleading, 406.
degree of certainty required, 407.
■what constitutes former jeopardy, 384.
jurisdiction of former court, 387.
character of court, 388, 395.
courts-martial and state courts, 395.
errors and irregularities on former trial, 388.
Insufficiency of former indictment, 389.
variance between former indictment and proof, 389.
former judgment executed, 390.
mistrial through defendant's fault or by consent, 391.
verdict set aside, judgment arrested or reversed, new trial, 391.
writ of error or appeal by state, 393.
new trial after acquittal, 393.
effect of fraud on former prosecution, 393.
several sovereignties, 394.
violation of statute and of municipal ordinance, 395.
necessity for former judgment, 395.
identity of offenses, 396.
B
BAIL,
in general, 83.
jurisdiction to admit to ball, 84.
liability of magistrate for refusing or delaying to admit to bail, 85.
right to release on bail, 85.
sufficiency of baU, 88.
sufficiency of sureties, justification, 89.
who may become bail, 90.
INDEX. 621
[The figures refer to pages.]
BAIL — Continued.
remedy of the accused on. denial of bail, 90, 554.
the bail bond or recognizance, 91.
release of sureties, 96.
arrest and surrender of the accilsed, 97.
breach of bond or recognizance, or forfeiture of bail, 98.
BENCH WARRANT,
for arrest, 22.
BILL OP PARTICULARS,
in general, 429.
BINDING OVER,
see "Bail"; "Recognizance."
BOND,
to keep the peace, or for good behavior, 2,
see "Ball."
BREACH OF PEACE,
surety to keep the peace, 2.
BURDEN OP PROOP,
see "Evidence."
0
CAPTION,
of indictment, 123.
what it should show, 123.
showing as to court, 123.
as to place of holding court, 124.
as to time of presenting indictment, 124.
name of judge or judges, 125.
that finding is upon oath or affirmation, 125.
names of grand jurors, 125.
number of grand jurors, 125.
qualifications of grand jurors, 125.
reasons for affirming Instead of swearing jurors, 125.
place from which jurors were summoned, 126.
defects, how objected to, 126.
amendment, 126.
reference to other parts of record, 126.
CERTAINTY,
see "Pleading."
CHALLENGE,
of jurors, see "Grand Jury"; "Petit Jury."
622 INDEX.
[The figures refer to pages.]
CHANGE OF VENUB,
in general, 418.
on application of state, 419.
on application of defendant, 419.
grounds, 419.
affidavits, 420.
discretion of court, 420.
number of applications, 421.
joint defendants, 421.
erroneous denial of motion, effect on jurisdiction, 421.
CHARGE OF COURT,
to grand jury. 111.
to petit jury, see "Instructions."
CLERICAL ERRORS,
in tile indictment, 145, 175.
in statement of time, 244.
in verdict, 486.
COERCION,
of jury, 477.
COLLATERAL ATTACK,
on judgment, 4.
COMMENCEMENT,
of indictment, 141.
see, also, "Pleading."
of separate counts, 298.
COMMITMENT,
by magistrate, 100.
sufficiency, 101.
effect of errors and irregularities, 102.
COMPLAINT,
for issuance of vyarrant of arrest, 23.
for Issuance of search warrant, 68.
on preliminary examination, 75.
In prosecutions in inferior courts, 131.
form and sufficiency, see "Pleading."
CONCLUSION OF INDICTMENT,
in general, 309.
against the peace, etc., 309.
of vchat government, 310.
against the form of the statute (contra formam statutl), 310.
INDEX. 623
[The figures refer to pages.]
CONCLUSION OF INDICTMENT— Continued.
when necessary, 311.
statufii or statutorum, 313.
rejection as surplusage, 276, 314.
several counts, 298, 312.
constitutional and statutory provisions, 314.
"to the great damage of," etc., 314.
"to the evil example of all others," 314.
"to the great displeasure of Almighty God," 314.
"to the common nuisance," etc., 314.
CONCLUSIONS OF LAW,,
see "Pleading."
CONDUCT,
of judge, 459.
of the jury, 474.
of attorneys, see "Attorneys."'
of trial, see "Trial."
CONDUCT OP TRIAL,
Bee "Trial."
CONFESSION,
or plea of guilty, 372.
after plea of not guilty, 371, 373.
after demurrer, 371.
after plea to the jurisdiction, in abatement, or specially In bar, 371.
withdrawal of, to plead not guilty, 371, 373.
effect as a waiver of errors and defects In pleading, 374.
implied confession, or plea of nolo contendere, 374.
extrajudicial confessions as evidence, see "Evidence."
CONSENT,
cannot confer jurisdiction, 5, 104.
cannot cure fatal defect in indictment, 104.
of defendant, to discharge of jury, 387.
waiver of right to be present during trial, see "Presence of Defendant"
waiver of jury trial, see "Petit Jury."
CONSOLIDATION,
of indictments, 432.
CONSTITUTIONAL LAW,
see specific titles.
CONTINUANCE,
right to speedy trial, 411.
624 INDEX.
[The figures refer to pages.]
CONTINUANCE-Continued.
on application of state, 411,
on application of defendant, 412.
want of preparation, 412.
absence or sickness of defendant, 413.
absence or sickness of defendant's counsel, 413.
absence of witnesses, 414.
local prejudice or excitement, 416,
practice, affidavits, 416.
joint defendants, 417.
discretion of court, 418.
of preliminary examination, 74.
CONTINUANDO,
see "Time and Place."
CORONER'S INQUISITION,
in general, 130.
as dispensing with necessity for preliminary ezaminattoa, 73^
COUNSEL,
for the state, who may act, 432.
for the defendant, appointment, 432.
at preliminary examination, 76.
argument of, 460.
misconduct, 458, 462.
sickness or absence of, as ground for continuance, 411, 413.
COUNTS,
see "Joinder of Counts and Election."
COUNTY,
see "Place of Trial"; "Pleading"; "Venue."
COUNTY ATTORNEY,
see "Attorneys."
COURTS,
of criminal jurisdiction, 4.
efCect of illegality In creation or constitution of, 4.
place of sitting, 4.
time of sitting, 4.
number of judges, 4.
de facto court or judge, 5.
collateral attack on judgment, 6.
jurisdiction by consent, 5.
the various state courts, 6.
the federal courts, 7.
see "Jurisdiction."
INDEX. 626
[The figures refer to pagea.J
CRUEL PUNIS-HMBNT,
In general, 496.
CUSTODY,
of the jury, 474.
of defendant during trial, 422.
D
DARREIN CONTINUANCE,
plea puis darrein continuance, 372.
DB FACTO,
judge or court, 5.
DEFENSES,
matters of defense need not be anticipated In pleading, 166.
DELAY,
In granting preliminary examination, 74.
see "Continuance"; "Time of Prosecution"; "Time of TrlaL"
DELIBERATIONS,
of the jury, 474.
DEMURRER,
to indictment, 379.
necessity for, 381.
general or special, 379.
time of demurring, 372, 381.
Indictment good in part, 380.
withdrawal of, to plead guilty, 37L
effect of sustaining, 381.
defects cured by amendment, 380.
see, also, "Amendment."
to plea in abatement, 377.
to plea of autrefois acquit or convict, 406.
pleading over, after demurrer to indictment, 371, 380.
after demurrer to plea in abatement, 378.
after demurrer to replication to plea in abatement, 378.
to evidence, 473.
DEMURRER TO EVIDENCE,
in general, 473.
DISCHARGE OF JURY,
effect, 385. '
CRIM.PROC. — iO
626 INDEX.
[The figures refer to pages.]
DISJUNCTIVE ALLEGATIONS,
in general, 169.
rejection as surplusage, 178.
DI SQU ALIFIOATION,
of jurors, see "Grand Jury"; "Petit Jury."
of judge as ground for change of Tenue, 419.
DISTRICT ATTORNEY,
see "Attorneys."
DUPLICITY,
in general, 278.
suiplusage, 284.
effect, 278, 285.
rejection of matter as surplusage, 178.
In special plea In bar, 372.
in plea of autrefois acquit or convict, 406.
E
ELECTION,
between counts, see "Joinder of Counts and Election."
between several offenses shown by the evidence, 284, 346.
ERROR, WRIT OF,
In general, 500.
by state, 393.
EXAMINATION,
of witnesses, see "Evidence."
see "Preliminary Examination."
EXCEPTIONS AND PROVISOS,
in statute, negativing in indictment, 270.
EXCESSIVE BAIL,
see "Bail."
EXCESSIVE PUNISHMENT,
In general, 496.
EXTRADITION,
see "Fugitives from Justice."
EXCLUSION,
of persons from court room, 421.
EVIDENCE,
facts In issue, 501.
facts relevant to facts in issue, 502.
INDEX. 627
[The figures refer to pages.]
EVIDENCE— Continued.
facts necessary to explain or introduce relevant facts, 506.
motive, 507.
preparation, 509.
subsequent conduct or condition of defendant, 510.
statements accompanying acts, 511.
statements in presence of defendant, 511.
conduct and complaint by person injured, 512.
res gestae, 513.
other crimes, 516.
acts and declarations of conspirators, 520.
hearsay, 523.
declarations of persons other than defendant, 523.
dying declarations, 525.
admissions and declarations by defendant, 527.
confessions, 528.
evidence given in former proceeding, 532.
opinion evidence, 534.
experts, 535.
character, 536.
evidence wrongfully obtained, 538.
presumption of innocence, burden of proof, 538.
witnesses, their competency, and mode of examination, 542.
who may testify, 542.
privileged communications, 544.
defendant not to be compelled to criminate himself, 546.
of jurors to impeach verdict, 490.
secrecy as to proceedings by grand jury, 121.
corroboration, when required, 547.
number of witnesses necessary, 547.
excluding witnesses from court room, 548.
failure to call witnesses, 548.
compelling state to call witnesses, 548.
examination of witnesses, 548.
examination In chief, cross-examination, and re-examlnatlon, 548.
to what matters cross-examination and re-examination must be
directed, 549.
leading questions, 550.
questions proper on cross-examination, 550.
exclusion of evidence to contradict answers to questions testing
veracity, 551.
statements inconsistent with present testimony may be proved,
551.
628 INDEX.
[The figures refer to pages.]
EVIDENCE— Continued.
Impeaching credit of witness, 552.
offenses against women, examination of prosecutrix, 553.
demurrer to, 473.
at preliminary examination, 77-79.
before grand Jury, 112.
compelling the accused to testify before grand jury, 113.
see "Pleading and Proof— Variance."
F
FEDERAL COURTS,
see "Courts"; "Habeas Corpus."
FORCE,
use of force in restraining the accused, 77.
restraint of defendant during trial, 422.
in making arrest, see "Arrest"
FORFEITURE,
of bail, 98.
FORM,
of indictment, etc., see "Pleading."
FORMAL DEFECTS,
. in general, 140, 152, 316, 317, 319, 322.
cure by amendment, 316.
aider by verdict, 319.
cure by statute, 140, 322.
waiver of, by pleading guilty, 374.
see "Clerical Errors."
FORMER JEOPARDY,
see "Autrefois Acquit and Convict, Pleas oV
FRAUD,
effect on plea of former jeopardy, 393.
FUGITIVES FROM JUSTICE,
in general, 59.
international extradition, 59.
Interstate rendition, 61.
trial on a different charge, 60, 65.
fugitives fraudulently or forcibly apprehended, rights, 60, 66.
• see "Arrest."
INDEX. 629
[The figures refer to pages.]
G
GENERAL ISSUE,
see "Plea of Not Guilty."
GENERAL VERDICT,
see "Verdict."
GOOD BEHAVIOR,
requiring surety for, 2.
GRAMMATICAL ERRORS,
in the indictment, 145, 175.
In statement of time, 244.
in verdict, 486.
GRAND JURY,
jurisdiction and powers, 108.
selecting and summoning, 109, 117.
qualifications of jurors, 109, 117.
exemption from jury duty, 110.
constitution of, 110.
impaneling and swearing, 110.
number of jurors, 110.
charge of the court, 111.
finding indictments, 112.
witnesses and evidence, 112.
rights of persons against whom charge Is pending, 112, 117.
effect of hearing illegal evidence, 112.
effect of compelling the accused to testify, 113.
presence of persons in jury room, 113.
the finding of the jury, 114.
indorsement of finding on bill, 114.
sufficiency of evidence to authorize finding, 114.
number of Indictments, 115.
resubmitting case, 115.
effect of ignoring bUl, 115.
countersigning by prosecuting officer, 115.
presentation and filing of indictment, 115.
Indorsing names of witnesses and of prosecutor, 116.
minutes of testimony before grand jury, 116.
dissolution of jury, 117.
objections to organization, constitution, and qualifications of jury or ju-
rors, 117.
secrecy as to proceedings, 121.
630 iNDiac.
[The figures refer to pages.]
GRAND JURY— Continued.
record of indictment and finding thereof, 123.
caption of indictment, see "Caption."
GUILTY,
see "Plea of Guilty."
H
HABEAS CORPUS,
in general, 554.
nature and history of the writ, 554
jurisdiction, by whom issued, 556.
questions reviewable, when discharge granted, 556.
jurisdiction as between state and federal courts, 558.
application for writ, by whom, 560.
form of application, 560.
form of writ, to whom directed, service, 561,
return, 561.
second application, appeal, 562.
HABITUAL CRIMINALS,
Indictment for second or third offense, 203.
HEARING,
see "Preliminary Examination."
HUE AND CRY,
see "Arrest."
I
IMPEACHMENT,
of verdict by jurors, 490.
IMPLIED CONFESSION,
or plea of nolo contendere, 374.
IMPRISONMENT,
see "Arrest"; "Bail"; "Commitment"; "Habeas Corpus"; "Judgment and
Sentence"; "Preliminary Examination."
INCONSISTENCY,
in indictment, 171.
INDICTMENT,
necessity for formal accusation, 104.
fatal defects not curable by consent, 104.
presentment and indictment distinguished, 105, 116.
when lies, 106.
when necessary, 107.
the grand jury, jurisdiction and powers, 108.
INDEX. 631
*
[The figures refer to pages.]
INDICTMENT— Continued.
selecting and summoning, 109, 117.
qualifications of jurors, 109, 117.
exemption from jury duty, 110.
constitution of jury, 110.
Impaneling and swearing, 110.
number of jurors, 110.
charge of the coui-t. 111.
finding Indictments, 112.
witnesses and evidence, 112.
rights of persons against whom charge Is pending, 112, 117.
effect of hearing illegal evidence, 112.
effect of compelling the accused to testify, 113.
presence of persons in jury room, 118.
the finding of the jury, 114.
indorsement of finding on bill, 114.
sufficiency of evidence to authorize finding, 114.
number of indictments, 115.
resubmitting cases, 115.
effect of ignoring bill, 115.
countersigning of indictment by prosecuting officer, 115. "^
presentation and filing of indictment, 115.
Indorsing names of witnesses and prosecutor, 116.
minutes of testimony before grand jury, 116.
dissolution of grand jury, 117.
objections to organization, constitution, and qualifications of Jury or ju-
rors, 117.
secrecy as to proceedings of grand jury, 121.
record of Indictment and finding thereof, 123.
caption of indictment, see "Caption."
furnishing copy to defendant, 428.
loss of, supplying copy, 430.
consolidation of indictments, 432.
form of indictment, see "Pleading."
sufficiency, see "Pleading."
effect of want of preliminary examination or irregularities therein, 80.
as dispensing with necessity for preliminary examination, 73.
INDUCEMENT,
In general, 162, 176, 211.
INFERENCE,
cannot aid indictment, 162.
632 INDEX.
[The figures refer to pages.]
INFORMATION,
In general, 127.
distinguished from indictment, 128.
when lies, 127.
different kinds, 128.
effect of want of preliminary examination or irregularities therein, 80.
loss of, supplying copy, 430.
form and sufficiency, see "Pleading."
INNUENDO,
in general, 176, 211.
INSANITY,
of defendant, effect, 369, 427.
INSTRUCTIONS,
in general, 464.
province of court and jury, 465.
jurors as judges of the law, 465.
jurors as judges of the facts, 468.
direction of verdict by court, 469.
character of, whether erroneous, 469.
on what points necessary, 471.
necessity for request to charge, 471.
granting and refusing requests, 471.
objections and exceptions, 473.
INTENT,
allegation of, 186.
rejection as surplusage, 192.
variance between indictment and proof, 330.
INTERNATIONAL EXTRADITION,
see "Fugitives from Justice."
INTERSTATE RENDITION,
see "Fugitives from Justice."
JEOFAILS, STATUTES OF,
In general, 323.
JOINDER OF COUNTS AND ELECTION,
in general, 286.
same offense charged in different ways, 287.
charging same transaction as constituting different offenses, 289.
joining statutory and common law offenses, 290.
INDEX. 633
[The figures refer to pages.]
JOINDER OF COUNTS AND ELECTION— Continued,
separate and distinct ofEenses, 291.
exceptional doctrine in Massacliusetts and otlier states, 293.
joining felony and misdemeanor, 294.
efCect of misjoinder, 296.
construction and form of separate counts, 298.
commencement, 142, 298.
conclusion, 298.
showing as to oath of grand jury, 144.
repeating name and description of defendant, 149.
reference in one count to matter contained In another, 142, note 10,
144, 149, 298.
some counts bad, effect, 298, 488.
JOINDER OF OFFENSES,
In a single count, see "Duplicity."
in separate counts, see "Joinder of Counts and Election."
JOINDER OP PARTIES,
in general, 300.
principals in first and second degree, 301, 304.
principal and accessory, 305.
conviction of one and acquittal of the other, 306.
effect of misjoinder, 308.
several counts, 308.
arraignment and pleas, 369.
continuance as to some defendants only, 417.
separate trial of joint defendants, 431.
change of venue as to some defendants only, 421.
JUDGE,
number of judges, 4.
de facto judge, 5.
objection to, by plea to the jurisdiction, 375.
misconduct and improper remarks by, 459.
absence from court room during trial, 430.
prejudice or disqualification as ground for change of venue, 419.
see "Courts."
JUDGMENT AND SENTENCE,
in general, 494.
excessive punishment, 496.
cruel and unusual punishment, 496.
collateral attack on judgment, 4.
on confession, plea of guilty, 372.
634 INDEX.
[The figures refer to pages.]
JUDGMENT AND SENTENCE— Continued.
on plea of nolo contendere, 374. "
evidence in mitigation of sentence, 374.
on overruling demurrer or plea, 371, 380, 406.
after plea in abatement is overruled, 378.
after overruling of demurrer to plea in abatement, 378.
after overruling of demurrer to replication to plea, 378,
see "Jurisdiction."
JUDICIAL NOTICE,
facts judicially noticed, pleading, 165.
JURISDICTION,
In general, 4.
courts illegally created or constituted, 4.
place of holding court, 4.
time of holding court, 4.
number of judges, 4.
de facto court or judge, 5.
collateral attack on judgment, 5.
the various state courts, 6.
the federal courts, 7.
as determined by locality of crime, 9. See "Venue."
to issue warrant of arrest, 26.
to admit to ball, 84.
to conduct preliminary examination, 75.
of magistrate, 82.
see, also, "Arrest"; "Bail"; "Commitment"; "Preliminary Examina-
tion."
of grand jury, 108. •
effect of erroneous denial of motloa for change of venue, 421,
by consent, 5, 104.
plea to the jurisdiction, 375.
as bearing on question of former jeopardy, 387,
JURY,
see "(irand Jury"; "Petit Jury,"
JURY TRIAL,
see "Petit Jury."
JUSTICES OF THE PEACE,
jurisdiction to punish, 82.
see, also, "Arrest"; "Bail"; "Commitment"; "Preliminary Examina-
tion."
INDEX. 636
[The filrures refer to pages.]
KNOWLEDGE,
allegation of, 192.
rejection as surplusage, 195.
variance between allegation, and proof, 332.
LANGUAGE,
of indictment, 172.
see, also, "Pleading."
LIMITATIONS,
, see "Time of Prosecution."
LOCALITY OF CRIME,
see "Venue."
LOCAL PREJUDICE,
as ground for continuance, 416.
as ground for change of venue, 419.
LOSS,
of indictment or information, supplying copy, 430.
M
MAGISTRATES,
jurisdiction to punish, 82.
see, also, "Arrest"; "Bail"; "Commitment"; "Preliminary Examina-
tion."
MAINPRISE,
explained, 83.
MINERALS,
description of, 224.
MISCONDUCT,
of judge, 459.
see, also, "Judge."
of the jury, 474.
see, also, "Petit Jury."
of attorneys, see "Attorneys."
MISJOINDER,
of offenses, see "Duplicity"; "Joinder of Counts and Election."
of parties, see "Joinder of Parties."
636 INDEX.
[The figures refer to pages.]
MISNOMER,
see "Names"; "Pleading."
MONEY,
description of, 221.
MOTION IN ARREST,
see "Arrest of Judgment"
MOTION TO QUASH,
in general, 362.
grounds, 362, 364.
time of motion, 363.
objections to grand jury, see "Grand Jury."
MITTIMUS,
see "Commitment."
N
NAMES,
of defendant in the indictment, 145.
of third persons in the indictment, 231, 339.
using initials, 146, 234.
middle name or initial, 146, 234, 342.
junior, senior, etc., 146, 235.
idem sonans, 147, 341, 343.
names of same derivation differing In sound, 147.
person known by more than one name, 147, 233, 341,
name held out by defendant, 147.
giving second name after alius dictus, 147, 342.
name of defendant unlmown, 147.
name of third person unlinown, 233, 340.
of corporation, 147, 235, 342.
variance between indictment and proof, 330, 339.
NEW TRIAL,
in general, 497.
on motion of state, 393.
plea of former jeopardy, 391,
NOLLE PROSEQUI,
In general, 135.
effect, 385.
NOLO CONTENDERE,
plea of, 374.
NOT GUILTY,
see "Plea of Not Guilty."
INDEX. 637
[The figures refer to pageal
NOTICE,
allegation of, 192.
NUMBER,
statement of, in describing property, 225.
O
OATH,
to grand jury, see "Grand Jury."
to petit jury, see "Petit Jury."
to officer in charge of jury, see "Petit Jury."
OFFICERS,
see "Arrest"; "Fugitives from Justice"; "Searches and Seizures."
OPENING,
of case by counsel, 456.
OWNERSHIP,
allegation of, 227.
variance between indictment and proof, 338.
PARDON,
plea of pardon, 407.
time of pleading, 407.
PARTIAL VERDICT,
in general, 489.
PARTICULARS, BILL OF,
in general, 429.
PEACE,
surety to keep the peace, 2.
PEREMPTORY CHALLENGE,
see "Petit Jury."
PERSONAL PROPERTY,
description of, in the indictment, 214
written instruments, 219.
money, 221.
animals, 222.
dead animals, 224.
minerals, 224.
trees, crops, etc., 224.
number and quantity, 225.
638 INDEX.
[The figures refer to pages.]
PERSONAL PROPERTY— Continued,
value, 225.
ownership, 227.
name of owner, see "Names."
variance between indictment and proof, 335.
PETIT JURY,
right to trial by jury, 434.
waiver of right, 435.
fumishing defendant a list of Jurors, 428.
number of jurors, 437.
selecting and summoning, 438.
qualification of jurors, 438.
challenges, 438.
to the array, 441.
to the polls, 441.
principal challenges, 441.
propter defectum, 442.
propter affectam, 443.
propter delictum, 448.
for favor, 448.
peremptory challenges, 449.
passing jurors at request of state, 450.
time and mode of challenge, practice, 451.
examination on voir dire, 453.
appointment of triers, 453.
effect of error in overruling challenge, 454
exemption from jury duty, 449.
discharging and excusing jurors, 454.
swearing the jiuy, 455.
impeachment of verdict by jurors, 490.
discharge of, effect, 385.
custody, conduct, and deliberations of jury, 474.
coercion of jurors, 477.
manner of arriving at verdict, 477.
province of, see "Instructions."
view of locus in quo, 457.
see "Verdict."
PLACE,
see "Time and Place"; "Venue."
PLACE OF TRIAL,
in general, 9, 418.
see, also, "Venue."
INDEX. 639
[The figures refer to pages.]
PLACE OF TRIAL— Continued,
change of venue. 418.
on application of state, 419.
on application of defendant, 419.
grounds, 419.
afadavits, 420.
discretion of court, 420.
number of applications, 421.
Joint defendants, 421.
erroneous denial of motion, effect on jurisdiction, 421.
PLEADING,
the accusation, 137-323.
form of indictment, in general, 137.
statutory forms, 139, 140.
following precedents, 139.
power of the legislature to prescribe or dispense with forms, 140.
commencement of indictment, 141.
commencement of subsequent counts, 141.
statement of venue, 142.
showing as to presentment, etc., 143.
showing prosecution by authority of state, 144.
showing as to oath or afllrmation, 144.
clerical and grammatical errors, 145.
the statement, 145.
name and description of defendant, 145,
see, also, "Names."
addition of defendant, 148.
repeating name and description, 149.
effect of misnomer, 149.
statement of offense, 150.
in general of certainty^ 150.
reasons for requiring certainty, 150.
degrees of certainty, 151.
strictness in applying rules, 152.
stating Ingredients of ofCense, 153.
facts to be stated, and not conclusions of law, 156.
descending to particulars to Identify offense, 159.
mode of averment, argument, and inference, 162.
unnecessary matter not to be stated, 163.
facts necessarily implied from facts stated, 164.
facts judicially noticed, 165.
conclusions of law from facts stated, 165.
640 INDEX.
[The figures refer to pages.]
PLEADIN a— Continued.
matters of evidence, 166.
matters of defense, 166.
facts particularly within the defendant's knowledge, 168.
factB not known, 168.
disjunctive or alternative allegations, 169.
repugnancy, 171, 242, 251.
English language, 172.
abbreviations, 173, 244.
use of videlicet or scilicet, 174.
clerical or grammatical errors, 175, 244.
inducement, 176.
Innuendo, 176.
surplusage, 178.
allegation of intent, 187.
allegation of notice and request, 192.
allegation of knowledge, 192.
technical terms and phrases, 195.
"unlawfully," 196.
In indictments for treason, 196.
"feloniously" in indictments for felony, 196, 202.
Indictments for mnrder, 197, 198, 200, 202.
for rape, 198.
for burglary, 199, 201, 202.
for larceny, 199.
for robbery, 199.
for piracy, 200.
common barretors, common scolds, etc., 200.
In indictments for riot, 200.
for maintenance, 200.
for forcible entry, 200.
"not having the fear of God before his eyes," etc., 200i,
"being moved and seduced by the devil," 200.
"with force and arms," or "vi et armis," 200.
"larceny," 201.
In indictments for perjury, 201.
for forgery or counterfeiting, 202.
statutory offenses, 202, 262.
aggravating circumstances, 203.
second or third offense, 203.
setting forth written instruments, 205.
describing written instruments, 205, 219.
setting forth spoken words, 213.
INDEX. 641
[The figures rpfer to pages.]
PLEADING— Continued.
description of real property, 214.
description of personal property, 216.
written instruments, 219.
money, 221.
animals, 222.
dead animals, 224.
minerals, 224.
trees, crops, etc., 224.
number and quantity, 225.
value, 225.
ownership of property, 227.
description of third persons, 231.
see, also, "Names."
addition of third person, 235.
statement of time, 237.
time of day, 239.
contiuuando, 241.
statement showing prosecution barred, 240.
stating impossible or future day, 242.
clerical and grammatical errors, 244.
Biatement of place, 245.
transitory ofCenses, 248.
local ofeenses, 249.
local description, 250.
repugnancy, 251.
"from" and "into," 251.
repeating time and place, 251.
use of words "then and there," 251.
use of word "and," 252.
the word "immediately." 254.
"instantly," 254.
"being," 254.
Indictments on statutes, 256.
reciting or referring to statute, 257.
recital of statute as surplusage, 258.
designation of offense as surplusage, 181, 261.
description of offense, 259.
necessity to follow language of statute, 262.
when sufficient to follow language of statute, 265.
negativing exceptions and provisos, 270.
when indictment professedly on statute is good at common
law, 276.
«
CEIM.PEOC— 41
642 INDEX.
[The figures refer to pages.]
PLEADING— Continued.
conclusion, contra formam statuti as surplusage, 276.
against principals In the first and second degrees, 304.
against principal and accessory, 305.
against accessory, 306.
duplicity, 278.
surplusage, 284.
effect, 285.
Joinder of counts, and election, 286.
same offense charged in different ways, 287.
same transaction as constituting different offenses, 289.
statutory and common-law offenses, 290.
distinct offenses, 291.
exceptional doctrine in Massachusetts and other states, 283.
Joinder of felony and misdemeanor, 294.
effect of misjoinder, 296.
construction and form of separate counts, 298.
commencement, 298.
conclusion, 298.
reference in one count to matter in another, 298.
some counts bad, effect, 299.
Joinder of parties in different counts, 308.
Joinder of parties, 300.
see, also, "Joinder of Parties."
principal in first and second degrees, 301, 304.
principal and accessory, 305.
effect of misjoinder, 308.
several counts, 308.
conclusion of indictment or information, 309.
against the peace, etc., 309.
of what government, 310.
against the form of the statute, 310.
when necessary, 311.
statuti or statutorum, 313.
rejection as surplusage, 276, 314.
several counts, 298, 312.
constitutional and statutory provisions, 314.
"to the great damage of," etc., 314.
"to the evil example of all others," 314.
"to the great displeasure of Almighty God," 314.
"to the common nuisance," etc., 314.
amendment, in general, 315.
of indictment, 315.
INDEX. 643
[The figures refer to pages.]
PLEADING— Continued.
of caption, 123, 316.
of information, 316.
effect of modern statutes of amendment, 316.
aider by verdict, 319.
formal defects cured by statute, 322.
waiver of objections, 319, 322.
see "Pleading and Proof— Variance."
motion to quash, 362.
grounds, 362, 364.
time of motion, 363.
demurrer, to indictment, 379.
necessity for, 381.
general or special, 379.
time of demurring, 372, 381.
indictment good in part, 380.
withdrawal of, to plead guilty, 371.
effect of sustaining, 381.
defects cured by amendment, 380.
see, also, "Amendment."
to plea, in abatement, 377.
to plea of autrefois acquit or convict, 406.
pleading over after demurrer to indictment, 371, 380.
after demurrer to plea in abatement, 378.
after demurrer to replication to plea in abatement, 378,
pleas of the defendant. In general, 366.
the various pleas, 370.
number of pleas, successive pleas, 371.
time of pleading, 372, 377, 406.
duplicity, 372, 406.
confession or plea of guilty, 372.
after plea of not guilty, 371, 373.
after demurrer, 371.
after plea to the jurisdiction. In abatement, or specially In bar, 371,
withdrawal of, to plead not guilty, 371, 373.
effect as waiver of errors and defects in pleading, 374.
Implied confession, or plea of nolo contendere, 374.
plea to the jurisdiction, 375.
degree of certainty required, 375.
plea in abatement, 375.
pendency of another indictment, 377.
misnomer of defendant, 149, 375.
degree of certainty required, 377.
644 INDEX.
[The figures refer tc pages.]
PLEADING— Continued,
duplicity, 372.
time of filing, 377.
after plea of not guilty, 372.
demurrer to plea, 377.
issue on plea, 376-378.
right to plead over after plea is overruled, 378.
quashing plea, 377.
amendment of plea, 378.
pleas in bar, 382.
special pleas in bar, 382.
after plea of not guilty, 372.
plea puis darrein continuance, 372.
duplicity, 372.
autrefois acquit and convict, or former jeopardy, 382, 405.
necessity for plea, 405.
character and sufficiency of plea, 405.
pleading over in plea, 405.
reply and issue on plea, 406.
demurrer to plea, 406.
when bad for duplicity, 406.
right to plead over after plea is overruled, 406.
time of pleading, 406.
degree of certainty required, 407.
■what constitutes jeopardy, 384.
jurisdiction of former court, 387.
character of court, 388, 395.
courts-martial and state courts, 395.
errors and irregularities on former trial, 388.
insufficiency of former indictment, 389.
variance between former indictment and proof, 389.
former judgment executed, 390.
mistrial through defendant's fault or by consent, 391.
verdict set aside, judgment arrested or reversed, new trial,
391.
writ of error or appeal by state, 393.
new trial after acquittal, 393.
effect of fraud in former prosecution, 393.
several sovereignties, 394.
violations of statute and of mimicipal ordinance, 395,
necessity for former judgment, 395.
identity of offenses, 396.
plea of pardon, 407.
INDEX. G4-3
[The figures refer to pages.]
PLEADING— Continued.
time of pleading, 407.
agreement to turn state's evidence, 408.
plea of not guilty, general issue, 368, 408.
necessity for, 366, 867.
what it puts in issue, 408.
joint defendants, 369.
after plea in abatement or specially in bar, 371, 406.
after pleading guilty, 871.
withdrawal of, to plead guilty, 371.
replication, to plea in abatement, 376-378.
to special plea In bar, 406.
rejoinder, 378.
PLEADING AND PROOF— VARIANCE,
In general, 326.
mode or manner of committing offense, 327.
surplusage, 329.
proof of part of charge, 329.
name and addition of defendant, 330.
Intent, 330.
knowledge, 332.
written instruments and spoken words, 332.
description and proof of real property, 835, 348.
description and proof of personal property, 335.
ownership of property, 338.
name and description of third persons, 339.
see, also, "Names."
as to time, 344. •
as to place, 846.
indictments on statutes, 349.
effect of modem statutes, 350.
conviction of minor offense, 351.
illustrations of the rule, 852.
minor offense must be charged, 356.
felony and misdemeanor, 358.
on proof of higher offense, 860.
conviction of higher offense, 361.
as bearing on question of former jeopardy, 389.
PLEADING OVER,
see "Pleading."
PLEA IN ABATEMENT,
in general, 375.
646 INDEX.
[Tlie figures refer to pages.]
PLEA IN ABATEMENT— Continued,
pendency of another indictment, 377.
objections to grand jury, see "Grand Jury."
misnomer or misdescription of defendant, 149, 375.
degree of certainty required, 377.
duplicity, 372.
time of filing, 377.
after plea of not guilty, 372.
demurrer to plea, 377.
replication and issue on plea, 37&-378.
right to plead over after plea is overruled, 378.
quashing plea, 377-
amendlng plea, 378.
PLEA OF AUTREFOIS ACQUIT OR CONVICT,
see "Autrefois Acquit and Convict, Pleas of."
PLEA OF GUILTY,
in general, 372.
after plea of not guilty, 371, 373.
after demurrer, 371.
after plea to the jurisdiction in abatement, or specially In bar, 371.
withdrawal of, to plead not guilty, 371, 373.
effect as a waiver of errors and defects in pleading, 374.
implied confession, or plea of nolo contendere, 374.
PLEA OF NOT GUILTY,
in general, 368, 408.
necessity for, 366, 367.
what it puts in issue, 408.
joint defendants, 369.
after pleading in abatement or specially In bar, 371, 406.
after pleading guilty, 371.
withdrawal of, to plead guilty, 371.
PLEA OF NOLO CONTENDERE,
in general, 374.
PLEA OF PARDON,
In general, 407.
time of pleading, 407.
PLEA PUIS DARREIN CONTINUANCE,
In general, 372.
PLEAS,
see "Pleading."
INDEX. 647
[The figures refer to pages.]
PLEAS IN BAE,
see "Agreement to Turn State's Evidence"; "Autrefois Acquit and Con-
vict, Plea of"; "Not Guilty, Plea of"; "Pardon, Plea of"; "Pleading."
PLEA TO THE JURISDICTION,
in general, 375.
degree of certainty required, 375.
POLLING THE JURY,
in general, 484.
POSSE COMITATUS,
see "Arrest."
PRACTICE,
see specific titles.
PREJUDICE,
of community as ground for continuance, 418.
as ground for change of venue, 419.
of Judge as ground for change of venue, 419.
PRELIMINARY EXAMINATION,
In general, 72.
when necessary, 72.
■waiver, 73.
time of granting, effect of delay, 74.
jurisdiction, 75.
change of venue, 75.
mode of conducting examination, 75.
complaint, 75.
attorneys, 76. •
presence of the accused, 76.
Intimidation and restraint of the accused, 77.
examination of witnesses, 77.
examination of the accused, 78.
statement of the accused, 78.
sufficiency of the evidence, 79.
binding over the witnesses, 79.
decision of magistrate and return, 80.
effect of want of examination or irregularities therein, 80.
presumption of regularity of proceedings, 81.
waiver of objections, 82.
power of magistrate to convict and punish, 82.
PRESENCE,
of judge during trial, 430.
of defendant, during trial, 423.
at preliminary examination, 76.
648 INDEX,
[The figures refer to pages.]
PRESENTMENT,
distinguished from indictment, 105, IIS.
PRESUMPTION OF INNOCENCE,
see "Evidence."
PREVENTION OP OFFENSES,
in general, 2.
PRINCIPAL AND ACCESSORY,
jurisdiction of oSense, 15.
see "Pleading."
PROOF,
see "Evidence"; "Pleading and Proof— Variance."
PROPERTT,
see "Personal Property"; "Real Property."
PROSECUTING ATTORNEY,
see "Attorneys."
PROVINCE OP COURT AND JURY,
see "Instructions."
PROVISOS AND EXCEPTIONS,
in statute, negativing in indictment, 270.
PUBLIC TRIAL,
right to, 421.
PUIS DARREIN CONTINUANCE,
the plea, 372.
PUNISHMENT,
see "Judgment and Sentence"; "Verdict."
Q
QUALIFICATION,
of jurors, see "Grand Jury"; "Petit Jury."
QUANTITY,
statement of in describing property, 225.
QUASHING INDICTMENT,
in general, 362.
see, also, "Pleading."
grounds, 362, 364.
time of motion, 363,
INDEX. 649
[The figures refer to pages.]
B
REAL PROPERTY,
description of, in the Indictment, 214,
allegation of ownership, 227.
name of owner, see "Names."
variance between indictment and proof, 335, 346,
REASONABLE DOUBT,
Bee "Evidence."
REOOGNIZANOB,
to keep the peace, or for good behavior, 2.
binding over witnesses on preliminary examination, 79.
see "Bail,"
RECORD,
of indictment and finding thereof, 123.
caption of indictment, what must appear, 123,
showing as to court, 123.
as to place of holding court, 124.
as to time of presenting indictment, 124.
name of judge or judges, 125.
that finding is upon oath or affirmation, 125.
names of grand jurors, 125.
number of grand jurors, 125.
qualifications of grand jurors, 125.
reasons for aflirming instead of swearing jurors, 125.
place from which jurors were summoned, 126.
defects In caption, how objection taken, 126.
amendment of caption, 126.
reference to other parts of record, 126.
REDUNDANCY,
see "Surplusage."
REJOINDER,
in general, 378.
RENDITION OF FUGITIVES,
see "Fugitives from Justice."
REPUGNANCY,
In general, 145, note, 171.
rejection of matter as surplusage, 179.
in statement of time, 242.
in statement of place, 251.
650 INDEX.
[The figures refer to pages.]
REPLICATION,
to plea in abatement, 376-378.
to special plea In bar, 406.
REQUEST,
allegation of, 192,
REQUESTS,
see "Instructions."
RESTRAINT,
of defendant during trial, 422.
of the accused, at preliminary examination, 7T.
S
SCILICET,
use of, in indictment, 174.
SEALED VERDICT,
in general, 483.
SEARCHES AND SEIZURES,
in general, 66.
complaint, 68.
warrant, 69.
execution of warrant, 70.
the warrant as a protection to the officer, 71.
taking property from person arrested, 71.
see "Arrest."
SECOND OR THIRD OFFENSE,
indictment, 203.
SECRECY,
as to proceedings before grand Jury, 121.
SEIZURES,
see "Arrest"; "Searches and Seizures."
SENTENCE,
see "Judgment and Sentence."
SEPARATE COUNTS,
see "Joinder of Counts and Election."
SEPARATION,
of the jury, 474.
SEVERAL COUNTS,
see "Joinder of Counts and Election."
INDEX. 651
[The figures refer to pages.]
SEVERANCE,
of joint defendants, 431.
SICKNESS,
of defendant as ground for continuance, 413.
of defendant's counsel, 413.
of prosecuting attorney, 411.
of witnesses, 414.
SPECIAL PLEAS IN BAR,
see "Agreement to Turn State's Evidence"; "Autrefois Acquit and Con-
vict, Plea of"; "Pardon, Plea of"; "Pleading."
SPECIAL VERDICT,
in general, 48S.
SPEEDY TRIAL,
right to, 410.
SPOKEN WORDS,
setting forth in indictment, 213.
variance between indictment and proof, 332.
STATE COURTS,
see "Courts"; "Habeas Corpus."
STATE'S ATTORNEY,
see "Attorneys."
STATUTES OF JEOFAILS,
in general, 323.
STATUTES OF LIMITATION,
see "Time of Prosecution."
STATUTORY OFFENSES,
Indictments on statutes, 256.
reciting or referring to the statute, 257.
recital of statute as surplusage, 258.
designation of offense as surplusage, 181, 261.
description of ofCense, 259.
necessity to follow language of statute, 262.
use of technical terms, 202, 262.
when sufficient to follow language of statute, 265.
negativing exceptions and provisos, 270.
when indictment professedly on statute good at common law, 276.
conclusion contra formam statutl as surplusage, 270.
SUMMING UP,
of counsel, 460.
662 INDEX.
[The figures refer to pages.]
SURETIES,
to keep the peace, or for good behavior, 2.
see "Bail."
SURPLUSAGE,
in general, 178.
disjunctive allegations, 178.
duplicity, 178, 284.
repugnancy, 179.
erroneous designation of offense, 181, 261.
erroneous recital of statute, 258.
erroneous conclusion contra formam statuti, 276.
failure to prove, not a variance, 329.
allegation of intent, 192, 331.
allegation of knowledge, 195, 332.
unnecessary use of the term "feloniously," 197.
allegations as to property, 182, 336.
unnecessary matter of description not surplusage, 182.
allegation as to ownership of property, 339.
name and description of third persons, 342, 343.
allegations as to time, 344, 345.
allegations as to place, 347, 348.
place stated as matter of local description, 249, 250,
use of videlicet or scilicet, 173.
In verdict, 486, 487, 490.
T
TECHNICAL TERMS AND PHRASES,
in general, 195.
"unlawfully," 196.
in Indictments for treason, 196.
"feloniously" in all indictments for felony, 196, 202.
In Indictments for murder, 197, 198, 200, 202.
for rape, 198.
for burglary, 199, 201, 202.
for larceny, 199.
for robbery, 199.
for piracy, 200.
common barretors, common scolds, etc., 200.
In Indictments for riot, 200.
for maintenance, 200.
for forcible entry, 200.
"not having the fear of God before his eyes," etc., 200.
INDEX. 653
[The figures refer to pages.]
TECHNICAL TERMS AND PHRASES— Continued,
"being moved and seduced by the devil," 200.
"with force and arms," or "vi et armis," 200.
"larceny," 201.
in indictments for perjury, 201.
for forgery or counterfeiting, 202.
statutory ofCenses, 202, 262.
TIME AND PLACE,
statement of time in the indictment, 237.
time of day, 239.
contlnuando, 241.
statement shovFing prosecution barred, 240.
stating Impossible or future day, 242.
clerical and grammatical errors, 244.
variance, 344.
statement of place In the indictment, 245.
transitory ofCpnses, 248.
local offenses, 249.
local description, 250.
surplusage, 183.
repugnancy, 251.
"from" and "Into," 251.
variance, 346.
repeating time and place, 25L
"then and there," 251.
"and," 252.
"Immediately," 254.
"Instantly," 254.
"being," 254.
see, also, "Venue."
TIME OF PROSECUTION,
in general, 132.
efEect of delay at common law, 132.
statutes of limitation, 132.
running of statute, 133.
exceptions, 133.
interruption of statute, 134.
indictment showing prosecution barred, 240,
TIME OF TRIAL,
in general, 410.
right to speedy trial, 411.
continuance on application of state, 411.
654 INDEX.
[The figures refer to pages.]
TIME OP TRIAL-Continued.
continuance on application of defendant, 412.
want of preparation, 412.
absence or sickness of defendant, 413.
absence or sickness of defendant's counsel, 413.
absence of witnesses, 414.
local prejudice or excitement, 416.
practice, affidavits, 416.
joint defendants, 417.
discretion of court, 418.
see, also, "Time of Prosecution."
TRESPASS,
see "Arrest"; "Searches and Seizures."
TRIAL,
time of trial, 410.
right to speedy trial, 411.
continuance on application of state, 411.
continuance on application of defendant, 412.
want of preparation, 412.
absence or sickness of defendant, 413.
absence or sickness of defendant's counsel, 413.
absence of witnesses, 414.
local prejudice or excitement, 416.
practice, affidavits, 416.
joint defendants, 417.
discretion of court, 418.
place of trial, 9, 418.
see, also, "Venue."
change of venue, 418.
on application of the state, 419.
on application of defendant, 419.
grounds, 419.
affidavits, 420.
discretion of court, 420.
number of applications, 421.
joint defendants, 421.
erroneous denial of motion, effect on jurisdiction, 42L
right to public trial, 421.
excluding persons from court room, 421.
custody of defendant, 422.
restraint of defendant, violence and intimidation, 422.
presence of the defendant during trial, 423.
INDEX. 665
[The figures refer to pages.]
TRIAL— Continued.
insanity of defendant, 427.
copy of Indictment, 428.
furnishing defendant list of witnesses, 428.
furnishing list of jurors, 428.
bill of particulars, 429.
supplying lost indictment or information, 430.
presence of judge, 430.
separate trial of joint defendants, 431.
consolidation of indictments, 432.
counsel for the prosecution and the defense, 432.
opening of case by counsel, 456.
view by jury, 457.
misconduct of prosecuting attorney, 458, 462.
misconduct of judge, 459.
summing up and argument of counsel. 460.
instructions or charge of court to the jury, 464.
province of court and jury, 465.
jurors as judges of the law, 465.
jurors as judges of the facts, 468.
direction of verdict by the court, 469.
character of the charge, whether erroneous, 469.
on what points necessary, 471.
necessity for request to charge, 471.
granting and refusing requests, 471.
objections and exceptions, 473.
demurrer to the evidence, 473.
custody, conduct, and deliberations of the jury, 474.
coercion of jurors, 477.
manner of arriving at verdict, 477.
for questions relating to the jury, see "Petit Jury."
see "Verdict."
TRIAL BY JURY,
see "Petit Jury."
V
VALUE,
allegation of, 225.
VARIANCE,
see "Pleading and Proof— Variance."
VENUE,
in general, 9.
constitutionality of statutes, 10.
656 iNHEac.
[The figures refer to pages.]
VENUE-Continued.
homicide, 9, 14, 17,
assault, 14.
larceny, 10.
false pretenses, 11, 14.
embezzlement, 11.
robbery, 12.
forgery, 12.
uttering forged instrument, 15, 17.
threatening letters, 13, 15.
libel, 13, 14.
bigamy, 13.
nuisance, 14.
abduction, inveigling, etc., 14.
seduction, 16.
crimes committed while personally absent, innocent agent, 14, 17.
accessaries in another county, 15.
offenses committed near county boundaries, 16.
offenses partly In one county and partly in another, 16.
locality of crime against the United States, 18.
statement of in charging offense, 245.
see "Time and Place."
statement of in commencement of indictment, 142.
change of venue, see "Place of Trial."
on preliminary examination, 75.
VERDICT,
In general, 480.
direction of, by the court, 469.
custody, conduct, and deliberations of jury, 474.
coercion of jurors, 477.
manner of arriving at verdict, 477.
gambling verdict, 477.
inability to agree, 483.
rendition and reception by court, 481.
sealed verdict, 483.
correction or retraction by jury, 483.
polling the jury, 484.
amendment by court, 485.
sufficiency, In general, 485.
informalities, 48G.
surplusage, 486, 487, 490.
finding degree of crime, 487.
THDEX. 657
[The figures refer to pages.]
VERDICT-Continued,
finding as to punishment, 487.
general verdict, 298, 482, 488.
special verdict, 488.
partial verdict, 489.
impeachment of verdict by jurors, 490.
conviction of minor offense, 351.
conviction of higher offense, 361.
joint defendants, conviction of part, 306.
aider by verdict, 319.
VIDELICET,
use of, in indictment, 174.
VIEW BY JURY,
in general, 457.
VIOLENCE,
in restraining the accused, 77.
in making arrest, see "Arrest."
w
WAIVER,
of objection to grand jury, 117.
of preliminary examination, 73.
of objections to want of preliminary examination, or Irregularities
therein, 82.
of jury trial, see "Petit Jury."
see "Consent."
WANT OF PREPARATION,
as ground for continuance, 411, 412.
WARRANT,
see "Arrest"; "Fugitives from Justice"; "Searches and Seizures."
WITNESSES,
before grand jury, 112.
at preliminary examination, 77.
absence of, as ground for continuance, 414.
compelling accused to testify, before grand jury, 113.
furnishing the defendant a list of, 428.
Indorsing names on indictment, 116.
secrecy as to proceedings before grand jury, 121.
requiring witnesses to enter into a recognizance to appear, 79,
see "Evidence."
CHIM.PEOC— 42
658 INDEX.
[The figures refer to pages.]
WORDS,
setting forth written words in the indictment, 205.
setting forth spoken words, 213.
technical terms and phrases, 195.
see "Technical Terms and Phrases."
WRIT OF ERROR,
see "Error, Writ of."
WRITTEN INSTRUMENTS,
setting forth or describing In Indictment, 205.
variance between indictment and proof, 332.
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SECOND EDITION.
TABLE OF CONTENTS.
Chapter I.
OP NEGOTIABILITY BO FAR AS IT RE-
LATES TO BILLS AND NOTES: Covering
the origin, purpose and indicia of negotiabil-
ity, distinction between negotiability and as-
signability, and payment by negotiable instru-
ment.
Chapter II.
OP NEGOTIABLE BILLS AND NOTES, AND
THEIR PORMAL AND ESSENTIAL REQ-
UISITES : Covering definition, form, and es-
sentials, the order, the promise, specification
of parties, capacity of parties, delivery, date,
value received, and days of grace.
Chapter III.
ACCEPTANCE OP BILLS OP EXCHANGE:
Covering the various kinds of acceptance, and
the rules relating thereto.
Chapter IV.
INDORSEMENT: Defining and explaining the
various kinds of indorsements, and showing
their requisites and effect
Chapter V.
OP THE NATURE OP THE LIABILITIES OP
THE PARTIES: Covering liability of mak-
er, acceptor, drawer, indorser, rights and lia-
bilities of accommodation and accommodated
parties,. estoppel and warranties, and damages
for breach.
Chapter VI.
TRANSFER: Covering definition, validity, and
various methods of transfer, and status of
overdue paper.
Chapter VII.
DEFENSES AS AGAINST PURCHASER FOR
VALUE "WITHOUT NOTICE: Covering the
subject generally and fully.
Chapter VIII.
THE PURCHASER FOR VALUE WITHOUT
NOTICE; Explaining who are, and discuss-
ing consideration, good faith, notice, overdue
paper, presumption, and burden of proof, etc.
Chapter IX.
OF PRESENTMENT AND NOTICE OP DIS-
HONOR: Covering presentment for accept-
ance and for payment, dishonor, protest, no-
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Chapter X.
CHECKS: Covering generally the law relating
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TABLE OF CONTENTS.
CHAPTER I.
DEFINITION OF CRIME ; The nature of crime
and ground of punishment.
CHAPTER II.
CRIMINAL LAW : How the criminal law is pre-
scribed; the common law: statutes, and the
powers of state and federal legislatures.
CHAPTER III.
CLASSIFICATION OF CRIMES : As treason, fel-
onies, misdemeanors, etc. ; merger of offenses.
CHAPTER IV.
THE MENTAL ELEMENT IN CRIME: Con-
sidering the will, intention, motive, and crim-
inal intention or malice.
Chapter v.
persons capable of committing crime:
Covering also exemption from responsibility,
and discussing infancy, insanity, drunkenness,
ignorance or mistake of law or of fact, provo-
cation, necessity and compulsion, married wo-
men and corporations.
chapter VI.
PARTIES CONCERNED: Covering effect of
ioining in criminal purpose, principles in first
and second degrees, accessories before and
after the fact, terms "aider and abettor" and
"accomplice. "
chapter VII.
THE OVERT ACT: Covering also attempts, so-
licitation and conspiracy.
CHAPTER VIII.
OFFENSES AGAINST THE PERSON: Cover-
ing homicide, murder, and manslaughter, with
consideration of the different degrees, acci-
dent, self-defense, etc.
"^^HAPTER IX.
OFFENSES AGAINST THE PERSON (Contin-
ued) : Covering abortion, mayhem, rape, sod-
omy,'seduction, assaults, false imprisonment,
kidnapping, abduction.
CHAPTER X.
OFFENSES AGAINST THE HABITATION:
Covering arson and burglary.
CHAPTER XI.
OFFENSES AGAINST PROPERTY: Covering
larceny, embezzlement, cheating at common
law and by false pretenses, robbery, receiving
stolen goods, malicious mischief, forgery, etc.
CHAPTER XII.
OFFENSES AGAINST THE PUBLIC HEALTH,
MORALS, ETC. : Covering nuisances in gen-
eral, bigamy, polygamy, adultery, fornication,
lewdness, etc.
CHAPTER XIII.
OFFENSES AGAINST PUBLIC JUSTICE AND
AUTHORITY: Covering barretry, obstruct-
ing justice, embracery, prison breach, mispri-
sion of felony, compounding crime, perjury,
bribery, misconduct in office, etc.
CHAPTER XIV.
OFFENSES AGAINST THE PUBLIC PEACE:
Covering dueling, unlawful assembly, riot,
affray, forcible entry and detainer, libels on
private persons, etc.
CHAPTER XV.
OFFENSES AGAINST THE GOVERNMENT:
Covering treason and misprision of treason.
CHAPTER XVI.
OFFENSES AGAINST THE LAW OF NA-
TIONS: As piracy.
CHAPTER XVII.
JURISDICTION: Covering territorial limits of
states and United States, jurisdiction as deter-
mined by locality, federal courts and the com-
mon law, jurisdiction conferred by congress,
persons subject te our laws, etc.
CHAPTER XVIII.
FORMER JEOPARDY; In general.
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CHAPTER I.
CONTRACT IN GENERAL: Covering its defi-
nition, nature, and requisitps, and discussing
agreement, obligation, promise, void, voidable,
and unenforceable agreements, and the essen-
tials of contract, etc.
CHAPTER n.
OFFER AND ACCEPTANCE: Covering im-
plied contracts, necessity for communication
and acceptance, character, mode, place, time,
and effect of acceptance, revocation, and lapse
of offer, etc.
CHAPTER III.
CLASSIFICATION OF CONTRACTS: Cover-
ing contracts of record and contracts under
seal, and their characteristics.
CHAPTER IV.
REQUIREMENT OF WRITING: Covering also
statute of frauds, and discussing promise by
executor, promise to iinswer for another,
agreements in consideration of marriage and
in relation to land, and agreements not to be
performed within a year, sufficiency of memo-
randum, etc.
CHAPTER V.
CONSIDERATION: Covering the necessity for
consideration, its adequacy, reality, and legal-
ity, failure of consideration, etc.
CHAPTER VI.
CAPACITY OF PARTIES: Covering political
and professional status, infants, insane and
drunken persons, married women, and corpo-
rations.
CHAPTER Vn.
REALITY OF CONSENT: Covering mistiike.
misrepresentation, fraud, duress, and undue
influence.
CHAPTER VIII.
LEGALITY OF OBJECT: Covering unlawful
agreements in general, agreements in viola-
tion of positive law and those contrary to pub-
lic policy, effect of illegality, conflict of laws,
etc.
CHAPTER IX.
OPERATION OF CONTRACT: Covering the
limits of the contractual relation, assignment
of contracts, whether by act of parties or by
operation of law, joint and several contracts,
etc.
CHAPTER X.
INTERPRETATION OP CONTRACT: Cover-
ing the rules relating to evidence, proof of
document, rules of construction, penalties and
liquidated damages, etc.
CHAPTER XI.
DISCHARGE OF CONTRACT: Covering dis-
charge by agreement, by performance, by
breach, by impossibility of performance, by
operation of law, etc., and remedies on breach
of contract.
CHAPTER XII.
AGENCY: Covering the creation of the relation,
its effect and determination, tbe capacity,
rights, and liabilities of the parties, etc.
CHAPTER Xm.
QUASI CONTRACT: Covering obligations cre-
ated by law upon which an action ex contractu .
will lie without proof of contract in faotj in-
cluding judgment), obligations Imposed by
statute, acts of parties, etc.
1 VOL., 932 PAGES. $3.75 DELrVERED.
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SECOND EDITION.
TABLE OF CONTENTS.
Chapter I.
FORMS OF ACTION: Covering the nature and
classification of actions, real, personal, and
mixed actions, assumpsit, special and general,
debt, covenant, account or account rendered.
Chapter II.
FORMS OF ACTION (Continued): Covering
trespass, trover, case, detinue, replevin, eject-
ment, writ of entry, forcible entry and detain-
er, etc.
Chapter III.
THE PARTIES TO ACTION S : Covering actions
in form ex contractu and ex delicto, and the
consequences' of misjoinder or nonjoinder of
parties plaintifC or defendant.
Chapter IV.
THE PROCEEDINGS IN AN ACTION: Cover-
ing process, the summons, writ of attachment,
appearance, the declaration, demurrer, and va-
rious pleas, amendments, etc., the verdict, and
proceedings after the verdict, the judgment,
and proceedings thereafter to the writ of exe-
cution.
Chapter V.
THE DECLARATION: Statement of cause of
action in general; form of declaration; es-
sential averments of declaration in special as-
sumpsit or on common counts, in debt, cove-
nant, account, case, detinue, trover, trespass,
replevin, ejectment, and trespass for mesne
profits after ejectment.
Chapter VI.
THE PRODUCTION OF THE ISSUE: Discuss-
ing the rules, and covering the demurrer, the
pleadings, the traverse, forms of the general
issue and of the special traverse, protesta-
tions, exceptions, issues in fact and law, etc.
Chapter VU.
MATERIALITY IN PLEADING: Covering the
general rule, variance, limitation of traverse,
etc.
Chapter VIII.
SINGLENESS OR UNITY IN PLEADING: Cov-
ering the rules in general, duplicity, immate-
rial matter, inducement, protestation, conse-
quences of duplicity and of misjoinder, plea
and demurrer, etc.
Chapter IX.
CERTAINTY IN PLEADING: Covering the
venue, time, quantity, quality, and value,
names of persons, showing title and author-
ity, with subordinate rules, and special re-
quirements in different stages.
Chapter X.
CONSISTENCY AND SIMPLICITY IN PLEAD-
ING : Covering insensibility, repugnancy, am-
biguity, argumentative pleadings, pleadings
in alternative, positive statements, legal effect,
conformance to precedent, commencement and
conclusion.
Chapter XI.
DIRECTNESS AND BREVITY IN PLEADING:
Covering the rules generally, departure, pleas
amounting to general issue, surplusage, etc.
Chapter XII.
MISCELLANEOUS RULES: Covering con-
formance to process, alleging damages and
production of suit, order of pleading, defense,
plea in abatement, dilatory pleas, etc.
APPENDIX: Forms.
This book embodies such of the rules and principles of Common-Law Pleading as are stiy
recognized and applied in this country. A knowledge of the common-law system is of advantage, if
indeed, it is not essential, to a thorough understanding of both code and equity pleading.
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TABLE OF CONTENTS.
Chapter I.
DEFINITIONS AND GENERAL PRINCIPLES:
Considering the meaning of "CoDstltutional"
and "Unconstitutional;" written and unwrit-
ten constitutions, bills of rights, right of revo-
lution, political and personal responsibilities,
etc.
Chapter II.
THE UNITED STATES AND THE STATES:
Considering the nature of the American
Union, sovereignty and rights of the states
and of the people, form of government, the
Federal Constitution, etc.
Chapter III.
ESTABLISHMENT AND AMENDMENT OF
CONSTITUTIONS: Containing an historical
introduction, and considering the establish-
ment and amendment of the Federal Constitu-
tion and of State Constitutions.
Chapter IV.
CONSTRUCTION AND INTERPRETATION OF
CONSTITUTIONS; Considering the ofdce
and duty of the judiciary in this direction.
Chapter V.
THE THREE DEPARTMENTS OF GOVERN-
MENT : Considering the division, limitations
on the departments, political and judicial
questions, etc.
Chapter VI.
THE FEDERAL EXECUTIVE: Considering
the election, qualifications, impeachment,
compensation and independence of the Presi-
dent, his oath of ofSce, veto power, pardoning
and military power, and treaty-making poiver ;
vacancy in officei the cabinet, appointments
to office, presidential messages, diplomatic re-
lations, authority to convene and adjourn con-
gress, execute the laws, etc.
Chapter VII.
FEDERAL JURISDICTION: Considering the
jurisdiction, powers and procedure of Federal
courts, removal of causes, the United States
and the states as parties, etc.
Chapter VIII.
THE POWERS OF CONGRESS: Considering
the constitution, organization and government
of congress, its powers, and the limitations
thereon.
Chapter IX.
INTERSTATE LAW, as determined by the Con-
stitution: Considering its general principles,
the privileges of citizens, interstate extradi-
tion, public acts and judicial proceedings, eto.
Chapter X.
REPUBLICAN GOVEHNMENT GUARANTIED.
Chapter XI.
EXECUTIVE POWER IN THE STATES.
Chapter XII.
JUDICIAL POWERS IN THE STATES: Con-
sidering the system of courts, judges, juris-
diction, process and procedure.
Chapter XIII.
LEGISLATIVE POWER IN THE STATES : Con-
sidering the organization and government of
legislature, limitation and delegation of legis-
lative powers, enactment of laws, etc.
Chapter XIV.
THE POLICE POWER: Considering the police
power as vested in congress and in the states,
and its scope and limitations.
Chapter XV.
THE POWER OF TAXATION: Considering
the purposes of taxation, independence of
Federal and State governments, limitations on
power, taxation and representation, etc.
Chapter XVI.
THE RIGHT OF EMINENT DOMAIN: Defini-
tion and nature of the power, constitutional
provisions, authority to exercise, public pur-
pose, appropriation to new uses, etc.
Chapter XVH.
MUNICIPAL CORPORATIONS; The nature,
control, powers, ofUcers and by-laws of mu-
nicipal corporations, eto.
Chapter XVIII.
CIVIL RIGHTS, AND THEIR PROTECTION
BT THE CONSTITUTION: Considering
rights in general, liberty, due process of law,
vested rights, trial by jury, etc.
Chapter XIX.
POLITICAL AND PUBLIC RIGHTS: Consider,
ing citizenship, right of suffrage, freedom of
speech, right of assembly and petition, eto.
Chapter XX.
CONSTITUTIONAL GUARANTIES IN CRIM-
INAL CASES: Considering trial by jury,
rights of accused, jeopardy, bail, ex post facto
laws, habeas corpus, etc.
Chapter XXI.
LAWS IMPAIRING THE OBLIGATION OP
CONTRACTS: Considering the obligation
and the impairment of the contract, power of
legislature to contract, remedies on contracts,
etc.
Chapter XXII.
RETROACTIVE LAWS: Consideringthevalidity
of retroactive statutes, curative statutes, etc.
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TABLE OF CONTENTS.
Chapter I.
NATURE AND DEFINITION OP EQUITY.
Chapter II.
PRINCIPLES DEFINING AND LIMITING JU-
RISDICTION: Cod siderinfe jurisdiction over
crimes, adequate legal remedy, complete re-
lief, and multiplicity of suits.
Chapter III.
THE MAXIMS OF EQUITY: Definition and
classification of maxims ; the enabling and re-
strictive maxims.
Chapter IV.
THE DOCTRINES OP EQUITY; Considering
estoppel, election, satisfaction, performance,
and conversion.
Chapter V.
THE DOCTRINES OP EQUITY (Continotd) :
Considering conflicting rights of purchasers,
assignees, notice, bona fide purchasers, priori-
ties, etc
Chapter VI.
THE DOCTRINES OF EQUITY (Continued):
Considering penalties and forfeitures, liqui-
dated damages.
Chapter VII.
GROUNDS FOR EQUITABLE RELIEF: Con-
sidering accident, mistake, fraud, etc.
Chapter VIII.
PROPERTY IN EQUITY— TRUSTS: Covering
definition, history, and classification of trusts,
charitable trusts, duties and liabilities of trus-
tees, remedies of cestui que trust, etc.
Chapter IX.
PROPERTY IN EQUITY — MORTGAGES,
LIENS, AND ASSIGNMENTS.
Chapter X.
EQUITABLE REMEDIES : Covering accounting,
contribution, exoneration, subrogation, and
marshaling.
Chapter XI.
EQUITABLE REMEDIES (Continued): Cov-
ering partition and settlement of boundaries.
Chapter XII.
EQUITABLE REMEDIES (Continued): Cov-
ering specific performance, and considering
enforceable contracts, grounds for refusing re-
lief, etc.
Chapter XIII.
EQUITABLE REMEDIES (Continued); Cov-
ering injunctions, and considering their juris-
dictional pi-inciples, classes of cases where
remedy may be used, etc.
Chapter XIV.
REFORMATION, CANCELLATION, AND
QUIETING TITLE.
Chapter XV.
ANCILLARY REMEDIES : Covering discovery,
bills to perpetuate testimony, interpleader,
receivers, etc.
I VOL., 474 PAGES, $3-75. DELIVERED.
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TABLE OF CONTENTS.
Chapter I.
JURISDICTION : Covering courts of criminal ju-
risdlctioa and venue.
Chapter II.
APPREHENSION OF PERSONS AND PROP-
ERTY ; Covering arrest in general, warrants,
extradition, searches and seizures of property,
and taking property from prisoner.
Chapter m.
PRELIMINARY EXAMINATION, BAIL. AND
COMMITMENT : Covering right to release on
bail, habaas corpus, the recognizance, release
of sureties, etc.
Chapter IV.
MODE OF ACCUSATION : Covering the indict-
ment and presentment, information, coroner's
inquisition, time of prosecution, and nolle
prosequi, etc.
Chapter V.
PLEADING — THE ACCUSATION: Covering
form of indictment in general, the commence-
ment, and the statement of offense and descrip-
tion of defendant.
Chapter VI.
PLEADING— THE ACCUSATION (Continued) :
Covering allegation of intent, knowledge, etc. ;
technical terms ; second or third offense; set-
ting forth writings; description of property
and persons; ownership.
Chapter VTI.
PLEADING— THE ACCUSATION (Continued):
Covering statement of time and place.
Chapter VIII.
PLEADING— THE ACCUSATION (Continued);
Covering indictments on statutes.
Chapter IX.
PLEADING— THE ACCUSATION (Continued):
Covering duplicity, joinder of counts and par-
ties, election, conclusion of indictment, amend-
ment, aider by verdict, etc.
Chapter X.
PLEADING AND PROOF: Covering variance
and conviction of minor and higher offense.
Chapter XI.
MOTION TO QUASH: Covering also arraign-
ment, demurrer, and pleas of defendant.
Chapter XII.
TRIAL AND VERDICT: Coveringtimeandplace
of trial, custody and presence of defendant,
bill of particulars, the counsel, judge and jury,
arguments and instructions, etc.
Chapter XIII.
PROCEEDINGS AFTER VERDICT: Covering
motion in arrest of judgment, sentence, new
trial, writ of error, etc.
Chapter XIV.
EVIDENCE: Covering facts in issue, motive,
res gestae, other crimes, declarations, confes-
sions, character, burden of proof, witnesses,
etc.
Chapter XV.
HABEAS CORPUS.
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Author of "Tiffany on Death by Wrongful Act."
TABLE OF CONTENTS.
Chapter I.
FORMATION OF THE CONTRACT: Covering
the capacity of parties, who may sell, the thing
sold, mutual assent, form, and price.
Chapter II.
FORMATION OF THE CONTRACT (Continued) :
Covering the statute of frauds.
Chapter III.
EFFECT OF THE CONTRACT IN PASSING-
THE PROPERTY: Covering sales of specific
' chattels, — unconditional sales, conditional sales,
sale on trial or approval, and sale or return.
Chapter IV.
EFFECT OF THE CONTRACT IN PASSING
THE PROPERTY (Continued) : Covering sales
of chattels not specific, appropriation of property
to the contract, reservation of right of disposal,
etc.
Chapter V.
MISTAKE, FAILURE OF CONSIDERATION,
AND FRAUD : Showing the effect of mistake,
failure of consideration, and fraud generally,
' frauds on creditors, the delivery necessary as
against creditors and purchasers, etc.
Chapter VT.
ILLEGALITY: Covering sales prohibited by the
common law, by public policy, and by statute;
the effect of illegality, and the conflict of laws.
Chapter VII.
CONDITIONS AND "WARRANTIES: Covering
conditions and war ranties generally.
Chapter VIII.
PERFORMANCE: Covering fully delivery, the
buyer's right of examination, acceptance, and
payment.
Chapter IX.
RIGHTS OF- UNPAID SELLER AGAINST THE
GOODS: Covering the seller's lien, stoppage
in transitu, and the right of resale.
Chapter X.
ACTION FOR BREACH OF THE CONTRACT:
Covering the various remedies of the seller and
of the buyer.
J Volume. 356 Pages. $3.75, Delivered.
WEST PUBLISHING CO., St. Paul, Minn.
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TABLE OF CONTENTS.
INTRODUCTION.
Covering the definition, source, and nature of In-
ternational Law.
Chapter I.
PERSONS IN INTERNATIONAL LAW: Cov-
ering states, their loss of identity, various unions
of states, de facto states, belligerency and recog-
nition thereof, and equality of states.
Chapter II.
THE COMMENCEMENT OF STATES— FUNDA-
MENTAL RIGHTS AND DUTIES; Covering
the commencement and recognition of new
states, effect of change of sovereignty, the fun-
damental rights and duties of states, etc.
Chapter III.
TERRITORIAL PROPERTY OF' A STATE:
Covering modes of acquiring property, boun-
daries, territorial waters, etc.
Chapter IV.
TERRITORIAL JURISDICTION: Covering ex-
territoriality, sovereigns and diplomatic agents
and their immunities, vessels, right of asylum,
alienage, responsibility for mob violence, extra-
dition, jurisdiction beyond state limits, etc.
Chapter V.
JURISDICTION ON THE HIGH SEAS AND
UNOCCUPIED PLACES: Covering nature of
jurisdiction, jurisdiction over merchant ships,
piracy, privateers, letters of marque, slave
trade, etc.
Chapter VI.
THE AGENTS OF A STATE IN INTERNA-
TIONAL RELATIONS: Covering public diplo-
matic agents and consuls, and matters relating
to them.
Chapter VII.
INTERVENTION: Covering the subject gener-
ally.
Chapter VIII.
NATIONALITY: Covering citizenship, allegi-
ance, expatriation, naturalization, etc.
Chapter IX.
TREATIES ; Covering the subject generally.
Chapter X.
AMICABLE SETTLEMENT OF DISPUTES:
Covering mediation, arbitration, retorsion, re-
prisals, embargo, pacific blockade, etc.
Chapter XI.
INTERNATIONAL RELATIONS IN "WAR:
Covering the subject of war generally, includ-
ing the kinds, causes, and objects of war.
Chapter XII.
EFFECTS OF WAR— AS TO PERSONS: Cov-
ering the relations of enemies, nonoombatants,
privateers, prisoners of war, and the subjects of
ransom, parole, etc
Chapter XIII.
EFFECTS OF WAR — AS TO PROPERTY:
Covering contributions, requisitions, foraging,
booty, ransom, and other questions in regard
to property.
Chapter XIV.
POSTLIMINIUM: The right and its limitations
defined and explained.
Chapter XV.
MILITARY OCCUPATION: Covering the defi-
nition, extent, and effect of occupation, and the
duties of an occupant.
Chapter XVI.
MEANS OF CARRYING ON HOSTILITIES:
Covering the instruments ani means of war,
spies, etc.
Chapter XVII.
ENEMY CHARACTER: Covering eijemies gen-
erally, domicile, houses of trade, property and
transfer thereof, etc.
Chapter XVIII.
NON-HOSTILE RELATIONS: Covering oom-
mercia belli, flags of truce, passports, safe-con-
ducts, truces or armistices, cartels, etc.
Chapter XIX.
TERMINATION OF WAR: Covering the meth-
ods of termiuation, uti possidetis, treaties of
peace, conquest, etc.
Chapter XX.
OF NEUTRALITY IN GENERAL: Neutrality
defined and explained.
Chapter XXI.
THE LAW OF NEUTRALITY BETWEEN BEL-
LIGERENT AND NEUTRAL STATES: Cov-
ering the rights, duties, and liabilities of neutral
states.
Chapter XXII.
CONTRABAND : Covering the subject generally.
Chapter XXIII. ;i
BLOCKADE : Covering the subject generally.
Chapter XXIV.
VISIT AND SEARCH, AND RIGHT OF AN-
GARY: Covering those subjects generally.
APPENDIX.
Giving in full, as in no other single work, the In-
structions for the Government of Armies of the
United States In the Field (Lieber) ; Papers Car-
ried, or that Ought to be Carried, by Vessels In
Evidence of their Nationality ; The Declaration
of Paris; The Declaration of St. Petersburg^
The Geneva Convention for the Amelioration o^
the Condition of the Sick and Wounded of Ar-
mies in the Field ; The Laws of War on Land,
(Recommended for Adoption by the Institute of J
International Law at Oxford, Sept. 9, 1880) ; and]
The Brussels Conference. I
1 VOLUME. 500 PAGES. S3. 75. DELIVERED.
WEST PUBLISHING CO., St. Pai
llNN.
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Professor of the Law of Torts in the Minnesota University Law School.
TABLE OF CONTENTS.
FART I.— IN GENEBAI..
Chapter I.
GENERAL NATURE OF TORTS : Covering the
law adjective and law substantive, distinctions
between torts and crimes, common-law obliga-
tions and remedies, how and why liability at-
taches for torts, the mental element, connec-
tion as cause, damnum and injuria, common-
law, contract and statutory duties, etc.
Chapter II.
VARIATIONS IN THE NORMAL RIGHT TO
TO SUE; Covering exemptions based on
privilege of actor, as public acts of states, of
judicial and executive officers, etc., and private
acts authorized by statute or common law,
variations based on status or conduct of plain-
tiff, etc.
Chapter III.
LIABILITT FOR TORTS COMMITTED BY OR
WITH OTHERS; Covering liability by con-
cert in action or joint torts, and liability by
relationship, as husband and wife, landlord
and tenant, master and servant, partners, etc.
Chapter IV.
IISCHARGE AND LIMITATION OF LIABILI-
5, ITY FOR TORTS: Covering discharge or
limitation by voluntary act of party and by
operation of law.
Chapter V.
REMEDIES: Covering statutory and common-
law remedies, judicial and extrajudicial reme-
dies, damages, etc.
PART II.— SPECIFIC WRONGS.
Chapter VI.
WRONGS AFFECTING SAFETY AND FREE-
DOM OF PERSONS: Covering false impris-
onment, assault and battery, and the defenses,
as justification and mitigation.
Chapter VII.
INJURIES IN FAMILY RELATIONS: Cover-
ing the lamily at common law, master and
servant, parent and child, husband and wife.
Chapter VIII.
WRONGS AFFECTING REPUTATION: Cover-
ing libel, slander, and slander of title, together
with the defenses.
Chapter IX.
MALICIOUS WRONGS: Covering deceit, mali-
cious prosecution, abuse of process, interfer-
ence with contract, conspiracy, etc..
Chapter X,
WRONGS TO POSSESSION AND PROPERTY:
Covering the nature of possession and its ob-
jects, trespass, waste, conversion, etc.
Chapter XI.
NUISANCE: Covering kinds of nuisance, as pub-
lic, private, and mixed, continuing and legal-
ized, parties to proceedings against, remedies,
etc.
Chapter XII.
NEGLIGENCE : Covering the duty to exercise
care, what is commensurate care, common-law,
contract and statutory duties, damages, con-
tributory negligence, etc.
Chapter XIII.
MASTER AND SERVANT: Covering master's
liability to servant for negligence, master's
duty to servant, assumption of risk by serv-
ant, various kinds of risks, fellow servants,
vice principals, etc.
Chapter XIV.
COMMON CARRIERS: Covering the subject
generally.
2 VOLS. 1,328 PAGES. $7.50, DELIVEJRED.
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V^AIVlr^DCl_l_l_ DL.MOl\t TISES ON CONSTITUTIONAL LAW, JUDGMENTS, ETC.
TABLE OF CONTENTS.
Chapter I.
NATURE AND OFFICE OF INTERPRE-
TATION: Covering definition of terms, ob-
ject of interpretation, rules of construction,
and office of judiciary.
Chapter II.
■CONSTRTJCTTION OF CONSTITUTIONS:
Covering method and niles of construction,
construction as a whole, common law and pre-
vious legislation, retrospective operation, man-
datory and directory provisions, preamble and
titles, extraneous aids, schedule, stare decisis,
etc.
Chapter III.
■GENERAL PRINCIPLES OF STATUTORY
CONSTRUCTION: Covering literal and eq-
uitable construction, scope and purpose of the
act, casus omissus, implications in statutes,
meaningless statutes, errors, misprints, sur-
plusage, interpolation of words, etc.
Chapter IV.
STATUTORY CONSTRUCTION; PRE-
SUMPTIONS: Covering presumptions against
exceeding limitations of legislative power, un-
constitutionality, injustice, irrepealable laws,
implied repeal of laws, etc., presumptions as
to public policy, as to jurisdiction of courts,
etc.
Chapter V.
STATUTORY CONSTRUCTION; WORDS
AND PHRASES. Covering technical and
popular meaning of words, commercial and
trade, general and special, relative and qual-
ifying, and permissive and mandatory terms;
conjunctive and disjunctive particles, adopted
and re-enacted statutes, computation of time,
etc.
Chapter VI.
INTRINSIC AIDS IN STATUTORY CON-
STRUCTION: Covering construction as a
whole, context, title, preamble, interpretation
clause, etc.
Chapter VII.
EXTRINSIC AIDS IN STATUTORY CON-
STRUCTION: Covering admissibility of ex-
trinsic aids, statutes in pari materia, eon-
temporary history, construction and usage,
journals of legislature, opinions of legislators,
etc.
Chapter VIII.
INTERPRETATION WITH REFERENCE
TO COMMON LAW: Ctovering statutes af-
firming, supplementing, superseding or in
derogation of, common law.
Chapter IX.
RETROSPECTIVE INTERPRETATION:
Covering definition, constitutional considera-
tions, vested rights, remedial statutes, and
statutes regulating procedure.
Chapter X.
CONSTRUCTION OF PROVISOS, EXCEP-
TIONS, AND SAVING- CLAUSES: Cov-
ering the subject generally.
Chapter XI.
STRICT AND LIBERAL CONSTRUCTION:
Covering penal and remedial statutes, stat-
utes against common right, against frauds,
and of limitation, legislative grants, revenue
and tax laws, etc.
Chapter XII.
MANDATORY AND DIRECTORY PROVI-
SIONS: Definitions and rules covering the
subject generally.
Chapter XIII.
AMENDATORY AND AMENDED ACTS:
Covering construction of amendments and of
statute as amended, identification of act to be
amended, amendment by way of revision, etc.
Chapter XIV.
CONSTRUCTION OF CODES AND RE-
VISED STATUTES: Covering construction
as a whole, reference to original statutes,
change of language, previous judicial construc-
tion, etc.
Chapter XV.
DECLARATORY STATUTES: Covering defi-
nition and construction in general.
Chapter XVI.
THE RULE OF STARE DECISIS AS AP-
PLIED TO STATUTORY CONSTRUC-
TION: Covering the general principle, re-
versal of construction, federal courts follow-
ing state decisions, construction of statutes of
other states, etc.
Chapter XVII.
INTERPRETATION OF JUDICIAL 'DECI-
SIONS AND THE DOCTRINE OP PREC-
EDENTS: Co+ering the nature of prece-
dents; dicta; stare decisis; the force of prece-
dents as between different courts; the law of
the case, etc.
1 VOLUME.
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TABLE OF CONTENTS.
Chapter I.
IN GENERAI/: Covering definition and gen-
eral principles common to all bailments;
classification of bailments.
Chapter II.
BAILMENTS FOR SOLE BENEFIT OF
BAILOR: Covering depositum and man-
datum, creation, rights and liabilities of
parties, termination, etc.
Chapter III.
-BAILMENTS FOR BAILEE'S SOLE BEN-
EFIT: Commodatum, creation, rights and
liabilities of parties, termination, etc.
Chapter IV.
BAILMENTS FOR MUTUAL BENEFIT-
PLEDGES: Covering definition of pledge,
creation, title of pledgor, rights and liabil-
ities of parties before and after default, ter-
mination, etc.
! Chapter V.
BAILMENTS FOR MUTUAL BENEFIT-
HIRING: Locatio or hiring defined; estab-
lishment of relation; rights and liabilities
i'. of parties; hiring of things for use; hire of
I labor and services; warehousemen; wharf-
ingers; safe-deposit companies; factors, etc.;
termination of relation, etc.
Chapter VI.
INNKEEPERS: Innkeeper defined; who are
guests; commencement of relation; duty
to receive guest; liability for guests' goods;
lien; termination of relation; liability as
ordinary bailee, etc.
Chapter VII.
CARRIERS OF GOODS: Common carriers,
essential characteristics; when liability at-
taches; discrimination; compensation; lieu;
liability as insurers and as ordinary bailees;
carriers of live stock; carriers of baggage;,
contracts and notices limiting liability; ter-
mination of liability: connecting carriers,,
etc.; post-office department; private car-
I'iers.
Chapter VIII.
CARRIERS OF PASSENGERS: Who are
passengers; when liability attaches; duty
to accept passengers; furnishing equal ac-
commodations; ticket as evidence of pns-
senger's rights; right to make regulations;
injuries to passengers; contracts limiting
liability; termination of liability; ejection
from vehicle: connectine- carriers, and cov-
ering the subject generally.
Chapter IX.
ACTIONS AGAINST CARRIERS: Actions-
against carriers of goods and carriers of
passengers: parties: form of action; plead-
ing; evidence; damages.
1 VOLUME. 675 PAGES. $3.75, DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
C995 (13)
^^e gomfiooS ^eries.)
♦ ♦yv^»*
(f g n3?After ©entott ^mit^,
Instructor in the Law Department of the University ol Michigan.
TABLE OF CONTENTS.
Pari I-ELEMENTARY JURISPRUDENCE.
CHAPTER I.
NATURE OF LAW AND THE VARIOUS SYSTEMS:
Moral, divine, municipal, international, mari-
time and martial law.
CHAPTER II.
GOVERNMENT AND ITS FUNCTIONS: Covering
sovereignty, the state, the constitution, and the
forms and functions of government generally.
CHAPTER III.
GOVERNMENT IN THE UNITED STATES: Its
general character, sovereignty, distribution of
powers, citizenship, etc.
CHAPTER IV.
THE UNWRITTEN LAW: The Roman, the Canon
and the Common law.
CHAPTER V.
Nature and jurisdiction of equity;
max-
EQUITT:
ims.
CHAPTER VI.
THE WRITTEN LAW: Relation to unwritten law;
statutory law in general.
CHAPTER VII.
THE AUTHORITIES AND THEIR INTERPRETA-
TION: The rank of authorities, rules of inter-
pretation, statutory construction, etc.
CHAPTER VIII.
PERSONS AND PERSONAL RIGHTS: Legal
rights, wrongs and remedies, rights in rem and
in personam, status, personal security, liberty,
property, constitutional guaranties, etc.
CHAPTER IX.
PROPERTY: Covering, ownershio and possession;
the Feudal system; corporeal and incorporeal,
real and personal, property; llxtures, etc.
CHAPTER X.
CLASSIFICATION OF THE LAW: Substantive
and adjective, public and private law, etc.
Pari II— THE SUBSTANTIVE LAW.
CHAPTER XI.
CONSTITUTIONAL AND ADMINISTRATIVE LAW;
Written and unwritten constitutions, ■ essentials
and construction of constitutions; administra-
tive law, etc.
CHAPTER XII.
CRIMINAL LAW; Covering its general nature,
criminal capacity, classification of crimes, pun-
ishment, etc.
CHAPTER XIII.
THE LAW OF DOMESTIC RELATIONS: Cover-'
Ing marriage and its incidents, parent and child,
guardian and ward, master and servant, etc.
CHAPTER XIV.
CORPOREAL AND INCORPOREAL HEREDITA-
MENTS: Covering the subject generally.
CHAPTER XV.
ESTATES IN REAL PROPERTY: Classification,
estates in possession and in expectancy; free-
holds and estates less than freehold; estates in
severalty, in joint tenancy and in common; ab-
solute and conditional, legal and equitable es-
tates; etc.
CHAPTER Xv:i.
TITLES TO REAL PROPERTY: Covering title by
descent and by purchase, classification and
forms of deeds, etc.
CHAPTER XVII.
PERSONAL PROPERTY: Real and personal chat-
tels, ownership of personal property, acquisition
of title, etc.
CHAPTER XVni. .
SUCCESSION AFTER DEATH: Testate and Intes-
tate succession, escheat, executors and adminis-
trators, etc.
CHAPTER XIX.
CONTRACTS: Definition, validity and classification
of contracts, quasi contracts, etc
CHAPTER XX.
SPECIAL CONTRACTS: Covering contracts of
sale, bailments, negotiable contracts, suretyship,
insurance, etc.
CHAPTER XXI.
AGENCY: Covering the subject generally.
CHAPTER XXII.
COMMERCIAL ASSOCIATIONS: Covering part-
nerships, joint stock companies, voluntary asso-
ciations, corporations, etc.
CHAPTER XXni.
TORTS : Covering the nature and elements of torts,
proximate and remote cause and specific torts.
Pari III— THE ADJECTIVE LAW.
CHAPTER XXIV.
REMEDIES: Extralegal and legal, penal and civil,
common law and equitable, ordinary and extraor-
dinary remedies,
CHAPTER XXV.
COURTS AND THEIR JURISDICTION: Covering
the subject generally.
CHAPTER XXVI.
PROCEDURE: In general; outlines of common
law, equity, code, and criminal procedure.
CHAPTER XXVII.
TRIALS: Early forms, trial procedure, evidence.
1 VOL. 367 PAGES. S3. 75. DELIVERED.
WEST PUBLISHING CO., St. PAUL, Minn.
C1112
(14)
Je J5^tn6ooft Series.)
(^ §ftnl)6ooft of
€^c Ban? of ^ama^e^j
Author of "Bailments and Carriers."
TABLE OF CONTENTSo
CHAPTER I.
'l^FINITIONS AND GENERAL PRINCIPLES:
Deflnition, nature and theory of damages;
wrong and damage; analysis of legal wrongs;
olaasi&cation of damages.
CHAPTER II.
NOMINAL DAMAGES: Deflnition and general na-
ture.
CHAPTER in.
COMPENSATORY DAMAGES: Deflnition; proxi-
mate and remote consequences; direct and con-
sequential losses; aYoidable consequences; cer-
tainty of damages: profits; entirety of demand;
past and futurtO losses; elements of compensa-
tion; aggravation and mitigation of damages-;
reduction of loss; injuries to limited interests,
etc.
CHAPTER IV.
BONDS, LIQUIDATED DAMAGES AND ALTERNA-
TIVE CONTRACTS: Covering the subject gen-
■erally.
CHAPTER V.
INTEREST: Definition; as a debt and as damages;
interest on liquidated and unliquidated de-
mands; on overdue paper, — contract and stat-
ute rate; compound interest; etc.
CHAPTER VI.
VALUE: Deflnition; how estimated; market value;
pretium affectionis; value peculiar to owner;
time and place of assessment; highest Interme-
diate value; etc.
CHAPTER VII.
EXEMPLARY DAMAGES: In general; when re-
coverable; liability of principal for act of agent;
etc.
CHAPTER Vm.
PLEADING AND PRACTICE: Allegation of dam-
age, the ad damnum, form of statement, prov-
ince of court and jury, etc.
CHAPTER IX.
BREACH OP CONTRACTS FOR SALE OF GOODS:
Damages in action by seller for non-acceptance
and non-payment; damages in action by buyer
for non-delivery, breach of warranty, and as for
conversion.
CHAPTER X.
DAMAGES IN ACTIONS AGAINST CARRIER:
Carriers of goods, — refusal to transport, non-
deliver,y, injury in transit, delay, consequential
damages; carriers of passengers, — injuries to
passenger exemplary damages, mental suffering,
delay, wrongful ejection, etc.
CHAPTER XI. ,
DAMAGES IN ACTIONS AGAINST TELEGRAPH
COMPANIES: Actions by sender and by receiv-
er; proximate and certain, remote and specula-
tive daanages; notice of purpose and importance
of message; cipher messages; avoidable conse-
quences; exemplary damages; etc.
CHAPTER XII.
DAMAGES FOR DEATH BY WRONGFUL ACT:
Pecuniary losses; mental suffering'; exemplary
damages; Injury to deceased; medical and fu-
neral expenses; meaning of pecuniary, — care and
support, prospective gitts and inheritances; in-
terest as damages; discretion of jury; nominal
damages, etc.
CHAPTER XIII.
WRONGS AFFECTING REAL PROPERTY: Dam-
ages for detention of real property; trespass;
nuisance; waste; contract to sell real property,
—breach by vendor or vendee; breach of cove-
nants, etc.
CHAPTER XIV.
BREACH OF MARRIAGE PROMISE: In general,
compensatory damages, exemplary damages, etc.
1 VOL 476 PAGES. $3.75, DELIVERED.
WEST PUBLISHING CO., 5t. Paul, Minn.
€1111
(15)^
((5^ ^^oi^nfiooS ^eriee.)
(^ ganbfiooft of
Cpe Baw of (|teaf (pvo^nt^.
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TABLE OF CONTENTS.
Chapter I.
WHAT IS REAL PROPERTY: Real and
.-personal property, fixtures, equitable conver-
"^sion, personal interests in land.
Chapter II.
TENURE AND SEISIN.
^,, Chapter III.
ELATES AS TO QUANTITY— FEE SIM-
jPLE: Classifioatlon of estates, freehold,
iee-simple, creation, right of user and aliena-
tion.
Chapter IV.
ESTATES AS TO QUANTITY (Continued)—
ESTATES TAIL: Classes, origin, crea-
tion, incidents, duration, tenant in tail aft-
er possibility of issue extinct, estates tail in
the United States, quasi entail.
Chapter V.
ESTATES AS TO QUANTITY (Contmned^—
CONVENTIONAL LIFE ESTATES:
Life estates, creation, conventional life es-
tates, incidents, estates per autre vie.
Chapter VI.
ESTATES AS TO QUANTITY (Continuedj—
LEGAL LIFE ESTATES: Estate during
coverture, curtesy, dower, homestead, fed-
eral homestead act.
Chapter VII.
ESTATES AS TO QUANTITY (Continued)—
LESS THAN FREEHOLD: Estates for
years, letting land on shares, tenancies at
will, tenancies from year to year, letting of
lodgings, tenancies at sufferance, licenses.
Chapter VIII.
ESTATES AS TO QUALITY ON CONDI-
•TION— ON LIMITATION: Estate.s on
condition, estates on limitation, base fees.
Chapter IX.
ESTATES AS TO QUALITY (Continued)—
MORTGAGES: Parties, nature, form,
rights and liabilities of mortgagor and mort-
gagee, assignment of the equity of redemp-
tion, assignment of the mortgage, priority
of mortgages and other conveyances, regis-
tration, discharge of a mortgage.
Chapter X.
EQUITABLE ESTATES: Statute of uses,
classification of trusts, — express, implied,
resulting, constructive, — incidents of equita-
ble estates, charitable trusts.
Chapter XI.
ESTATES AS TO TIME OF ENJOYMENT
—FUTURE ESTATES: Reversions, possi-
bilities of reverter, remainders, rule in Shel-
ley's Case, future uses, springing uses,
shifting uses, executory devises, incidents
of future estates.
Chapter XII.
ESTATES AS TO NUMBER OF OWNERS
—JOINT ESTATES: Joint tenancies, ten-
ancies in common, estates in coparcenary,'
estates in entirety, estates in partnership,
incideuts of joint estates, partition.
Chapter Xllf.
INCORPOREAL HEREDITAMENTS:
Easements, creation, classification, inci-
dents, destruction, rights of way, highways,,
light and air, lateral and subjacent sup-
port, party walls, easements in water, prof-
its a prendre, rents, franchises.
Chapter XIV.
LEGAL CAPACITY TO HOLD AND CON-
VEY REALTY: Infants, persons of un-
sound mind, married women, aliens, corpo-
rations.
Chapter XV.
RESTRAINTS ON ALIENATION: Re-
straints imposed by law, restraints in favor
of creditors, restraints imposed in creation
of estate.
Chapter XVI.
TITLE : Acquisition of title by state and pri-
vate persons, grant from state, couveyan-,
ces, common-law convpjances, conveyances:
under statute of uses, modern statutory con-
veyances, registered titles, requisites of
deeds; covenants for title, seisin, against
incumbrances, warranty, further assurance;
estoppel, adverse possession, accretion, de-
vise, descent, judicial process; conveyances
under licenses, under duress; tax titles, em-
inent domain.
1 VOL. ABOUT 600 PAGES. $3.73, DELIVERED.
WEST PUBLISHING CO., 5t. Paul. Minn.
C1191 (16)
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