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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. 

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 

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. 

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 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 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 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 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 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 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 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 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 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. 

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. 

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 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 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 

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 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. 

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 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. 

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 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 

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. 

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 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. 

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 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. 
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 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. 

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 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 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 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 
m