(Staxmii ICam ^rfyool ICihtaty
Cornell University Library
KF9218.B36 1915
A selection of cases and other authoriti
3 1924 020 139 089
The original of tiiis bool< is in
tine Cornell University Library.
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http://www.archive.org/details/cu31924020139089
A SELECTION OF CASES
AND OTHER AUTHORITIES UPON
CRIMINAL LAW
BY
JOSEPH HENRY BEALE
SOTALL PSOFE8SOB OF IjXW IN HABTABD UNITBB8ITT
THIRD EDITION
CAMBEIDGE
HAEVAED UNIVERSITY PEESS
i^H%nH
Copyrighi, 1915,
By Joseph Henry Bbalk
^•1
PREFACE
TO THE THIRD EDITION.
A EEABBANGEMBNT of courses in the Harvard Law School has
taken out of the course on Criminal Law and included in a new
course the topics of Causation, Justification, and Excuse. The
chapters in which these topics were considered have therefore been
removed from this book. This third edition is identical with the
second, except that the chapters mentioned, viz., Chapters V, VIII,
and IX, and part of Chapter III of the old edition, have been
removed ; but this change has made necessary an entire renum-
bering of the pages in this edition.
Joseph Henby Beale.
Cahbbidoe, January 1, 1915.
TABLE OF CONTENTS.
Pages.
Chaptbk I. Introductory.
Section I. Common Law and Statute 1
Section II. Natm-e of Crime 22
Chapter II. The Offence.
Section I. Felonies ... . 33
Section II. Misdemeanors . 39
Section III. Public Torts 81
Section IV. Incomplete Offences . . 102
Section V. A Specific Intent as Part of an Offence ...... 133
Section VI. Jurisdiction over an Offence . . ..;... 152
Chapter III. The Offence: Modifying Circumstances.
Section 1. Participation of a Public Officer 177
Section II. Acquiescence of the Injured Party 182
Section III. Consent of the Injiu-ed Party 192
Section IV. Fault of the Injured Party 216
Section V. Negligence of the Injured Party 226
Section VI. Condonation 228
Chapter IV. Culpability.
Section I. What Crimes Require a Giiilty Mind 236
Section II. The mens rea: Intent . . . 274
Section III. The mens rea: Negligence .... 302
Section IV. Concurrence of Offence and Guilty Mind . . 320
Chapter V. Culpability: Modifying Circumstances.
Section I. Insanity . . . 326
Section II. Intoxication . 350
Section III. Coercion . .... . . 361
Section IV. Infancy: Incorporation . . 365
Section V. Ignorance or Mistake 368
Section VI. Impossibility . 378
Section VII. Custom 382
Chapter VI. Parties in Crime.
Section I. Who are Parties 389
Section II. Innocent Agents . . 409
Section III. Joint Principals ... 412
VI TABLE OF CONTENTS.
Pages.
Chapter VI. Parties in Crime (Contirmed).
Section IV. Principals in the Second Degree . ... 415
Section . V. Accessories . . 420
Section VI. Acts done in Pursuance of a Common Design . 425
Chapter VII. Chimes against the Person.
Section I. General Principles . . 442
Section II. Assault and Battery .... 444
Section III. Rape 449
Section IV. Murder . . . . 453
Section V. Degrees of Murder . 467
Section VI. Manslaughter 469
Chapter VIII. Larceny.
Section I. What Property is the Subject of Larceny 484
Section II. Possession.
(a) The Act of Assuming Possession . 504
(6) Distinction between Possession and Custody . 519
(c) Possession in case of Finding . . . 554
(d) Tortious Possession 589
Section III. Taking after Delivery.
(o) .Larceny by Bailee . . 623
(6) Larceny by Breaking Bulk, etc. .... . . 630
Section IV. Taking with Consent.
(o) What constitutes Consent . . . 640
(6) Larceny by Trick . . . . 647
(c) Delivery by Mistake . . 656
Section V. Transfer of Title . ... 672
Section VI. Animus Furandi .... ... 693
Section VII. Aggravated Larceny.
(a) Robbery and Larceny from the Person 731
(6) Larceny from a Building . . . 733
Chapter IX. Embbzzubment ; .. 738
Chapter X. Obtaining Property by False Pretences.
Section I. The Question of Title 750
Section II. Property . 763
Section III. The Pretence 757
-Chapter XI. Receiving Stolen Property.
Section I. The Receiving 794
Section II. Stolen Property . 801
Section III. Guilty Knowledge 813
Chapter XII. Crimes against the Dwelling-House.
Section I. Burglary . ... . . . . 816
Section II. Arson 833
Chapter XIII. Forgery . . 837
TABLE OF CONTENTS.
Vll
Pages.
Chaptee XIV. Criminal Conspiracy.
Section I. Under Ancient Statutes 852
Section II. Conspiracy in General 855
Section III. Conspiracy and other Offences against Trade . . . 865
Chapter XV. The Indictment.
Section I. General Requisites of an Indictment 891
Section II. Statement of the Crime 921
Section III. Particular Allegations 926
Section IV. Counts " 941
Section V. Statutory Simplifications of Criminal Pleading . . . 951
Chapter XVI. Former Conviction or Acquittal.
Section I. Double Jeopardy 965
Appendix ; . . 1007
TABLE OF CASES.
Adams v. S.
C. ...
R. i;.'(22 Q. B. D. 66)
R. V. (R. & R. 225)
R. V. (1 F. & F. 86)
Alderman, C. v.
Aldrioh v. P.
Allen, S. V.
Anon. (Comb. 46)
(1 Cox, 250)
(Dyer, 99 a)
(Fost. 439)
(Kel. 31)
(Kel. 35)
(2 Leon. 12)
(3 Mod. 97)
(8 Mod. 165)
(12 Mod. 342)
(Moore, 660)
(R. & R. 489)
(Y. B. 2 & 3 Ed. II. 120)
(Y. B. 1 Ed. III. 16)
(Y. B. 11 & 12 Edw. III. 640)
(Lib. Assis. 137)
(Lib. Assis. 137)
(Y. B. 7 Hen. IV. 43)
(Y. B. 4 Hen. VII. 5)
(Y. B. 11 Hen. VII. 1)
(Y. B. 13 Hen. VII. 10)
(Y. B. 13 Hen. VII. 14)
(Y. B. 19 Hen. VIII. 2)
Armstrong, R. v.
Articles of Inquest
Asher, S. v.
Ashton's Case
Ashwell, R. V.
Atcheson v. Everitt
Atkinson, R. v.
B.
Bailey, R. v.
Baker v. S.
Baldwin, C. v.
S.v.
Pages.
Pages.
Ball, U. S. V.
972
698
Bamber, R. v.
378
291
Bancroft v. Mitchell
25
72
Bank of New South Wales v.
752
Piper
262
813
Banks, R. v.
624
968
Bankus v. S.
384
516
Bannen, R. o.
410
427
Barker v. P.
10
63
Barnard, R. v.
759
217
Barnes, R. v.
742
817
Barrow, R. v.
207
372
Barry, C. v.
507
362
Bass, R. V.
538
520
Bazeley's Case
530
382
Bean, C. v.
924
53
Beaton, S. v.
934
389
Beecham, R. v.
716
99
Berry, C. v.
746
818
Bingley, R. v.
412
926
Birney v. S.
267
76
Black, S. V.
755
52
Blackham, R. v.
289
0) 484
Blake, R. v.
64
361
Botkin, P. V.
175
519
Boyce, R. v.
134
607
Boynton, C. v.
Bradford, R. v.
270
608
23
833
Bradlaugh, R. v.
87
415
Bradshaw, R. v.
212
288
Branworth, R. v.
93
486
Breese v. S.
419
154
Brennan v. P.
978
866
Brig William Gray, The
378
324
Brocheshevet v. Maren
38
425
Brooks, C. V.
380
573
Brown, R. v. (3 Salk. 189)
22
24
R. V. (14 Cox, 144)
422
674
S. V. 892
, 961
Bruce, R. v.
289
Bryan, R. v.
761
Buckmaster, R. v.
677
369
Bunce, R. v.
650
94
Burke, C. v.
449
846
Burnett, R. v.
100
27
Button, R. V.
791
TABLE OF CASES.
G.
jra^va.
Eggington's Case
Elder, P. v.
184
439
Cabbage, R. v.
701
Esop, R. V.
371
CaUaghan, C. v.
46
Calvi, R. V.
989
F.
Campbell, S. v.
909
Carr, R. v.
Carrier|s Case
Carter,'S. v.
Carver, S. v.
Case, R. v.
Castro V. Queen
Chamberlain, R. v.
Cheafor, R. v.
Chicago, M. & S. P. Ry., S. v.
810
630
164
61
192
941
304
488
272
Fabian v. Godfrey
Faulkner, R. v.
Fidling, R. v.
Finlayson, R. v.
Fitchburg R. R., C. v.
Flanagan v. P.
Fleener v. S.
Flowers, R. v.
Fnlpv R ■//
37
144
819
572
948
336
229
581
593
Chisholm v. Doulton
Chissers, R. v.
255
520
Foster, C. v.
Francis, R. tJ.
747
731
Choice V. S.
Claasen v. U. S.
Clair, C. V.
358
950
1004
Franklin, R. v.-
Fray's Case
290
473
Clarence, R. v.
196
Clayton, R. v.
421
G.
Closs, R. V.
837
CoUberg, C. v.
214
Gamlen, R. v.
351
CoUins, R. V.
103
Gardner, P. v.
610
Colvin V. S.
848
R.v.
705
Coney, R. v.
393
Gessert, S. v.
153
Cook, R. V.
39
Gibney, C. v.
65
Coombs, S. v.
605
Glover v. C.
118
Cross, R. V.
98
Goodenow, S. v.
376
Crouther's Case
45
Goodhall, R. v.
757
Cruikshank, U. S. v.
903
Gore's Case
140
Crump V. C.
882
Goss, R. V.
769
R. V.
704
Gray, R. v.
820
CuUum, R. V.
739
Green, C. v.
Grey's Case
105, 968
455
D.
Daley, C. v.
Grimm v. IT. S.
178
364
H.
Damon, S. v.
1000
Damon's Case
893
Hadley v. S.
465
Davies, R. v. '
821
C.v.
398
Davis, R. V. (14 Cox, 563)
351
Halfin V. 8.
19
(5 Cox, 237)
928
Hall, R. V. (3 C.
&P. 409)
370
U. S. V.
152
R. V. (3 Cox, 245)
715
Deane, R. v.
967
Hall's Case
98
Delaval, R. v.
92
Hands, R. v.
643
Dickinson, R. v.
703
Harmon, R. v.
76
Dobbs's Case
133
Harkins, C. v.
784
Dodge, S. V.
935
Harmon, U. S. v
287
Dolan, R. v.
801
Harrington, C. v
906
Donaldson, S. o.
877
Hartnett, C. v.
733
Doody, R. V.
350
Haskins v. P.
938
Drew, C. V.
776
Hathaway, R. v.
73
Dykes, R. v.
363
Hawkins, R. v.
Haynes, R. v.
430
329
E.
Hays, C. v.
743
Headge, R. v.
738
Eckert, C. v.
81
Hehir, R. v.
584
Edmonds v. S.
510
Hendry v. S.
387
Edwards, R. v. (13 Cox, 384)
641
Henry, C. v.
850
R. V. (8 Mod. 320)
855
Hersey, C. v.
898
Egan, R. v.
319
Hildebrand v. P.
524
TABLE OF CASES.
XI
Him V. S.
901
Holder, C. v.
610
Holland, R. v.
226
HoUoway, R. v.
711
Holmes's Case
833
Holt, S. V.
60
Hormed v. Hacon
34
Horton, S. v.
293
Hudson, R. v.
218
U. S. V.
8
Huggett's Case
470
Hugh, R. V. (Abbr. Plac. 19)
38
R. V. (Y. B. 30 & 31 Ed. I
. 529) 34
Hunt, C. V.
870
S.«.
515
Hurley, S. v.
130
Hurst, P. V.
748
I.
Ingles, S. V.
999
Isaac's Case
835
Ivens, R. v.
43
Ives, S. V.
811
J.
Jackson v. C.
155
S. ».
40
Jaffe, P. V.
112
James, C. v.
637
n.v.
927
Jennison, R. v.
774
Johnson v. S.
314
S.v.
359
,934
Johnson's Case
821
Jones, R. v. (2 Ld. Raym. 1013)
23
R. V. (2 Str. 1146) ■
43
Journeyman-Tailors, R. v.
869
K.
Kanavan's Case
Keefer, 'P. v.
Keenan, S. v.
Kelley, C. v.
Kelly, R. v.
Kennedy, C. v. (170 Mass. 18)
C. V. (160 Mass. 312)
Kennel v. Church
Kew, R. V.
Kilham, R. v.
King V. P.
C.J).
Knapp, C. V.
Knight, R. v.
Kostenbauder, G. v.
L.
Xafferty, Ohio v.
Lannan, C. v.
Lamer, 'R. v.
89
431
31
958
134
119
229
33
227
750
95
84
416
151
406
1
526
789
Lascelles v. 8.
Latimer, R. v.
Lavender, R. v.
Ledgerwood v. S.
Ledginham, R. v.
Lee Kong, P. v.
Leigh's Case
Leighton, v. P.
Le Mott's Case
Leonard, C. v.
Lester, C. v.
Levett's Case
Lewis, In re
S.v.
Libby, S. v.
Lindsey v. S.
Linkhaw, S. v.
Little, R. V.
Lombard's Case
Loud, C. u.
Lovell, R. V.
Lowrey, C. v.
Lucas, S. V.
Lynn, R. v.
Lyons, R. v.
M.
McCarty, S. ».
McCord V. P.
McDaniel's Case
McDonald, C. v.
McGowan, P. v.
M'Growther's Case
M'Naghten's Case
Mace, S. v.
Macloon, C. v.
Madox, R. V.
Maher v. P.
Malin, Resp. v.
Manney's Case
Mansfield, R. v.
Marshall, C. v.
Martin, R. v. (R. & R. 196)
R. V. (2 Moo. 123)
Mash, C. V.
Mason v. P.
Maud, R. V.
Memorandum (Kel. 52)
Merry v. Green
Meyer, P. v.
Middleton, R. v
Miller, R. v.
Mills, P. V.
R. V.
Mink, C. V.
Mitchell V. 8.
Mitchum v. 8.
Moore, P. v.
R. V.
S.o.
Morfit, R. V.
850
148
539
13
922
108
624
468
819
814
737
368
232
1001
929
162
87
671
867
970
641
414
429
88
820
909
222
182
107
1002
362
326
907
166
633
478
111
52
936
18
177
211
268
824
75
409
555
613
656
796
180
759
300
6
645
446
672
321
702
xu
TABLE OF CASES.
Pages.
R.
Morly's Case
469
Pages.
Morrill, C. v.
220
Ragg, R. V.
769
Morris, R. v.
991
Randolph, C. v.
127
Morris Run Coal Co. v. Barclay
Raven, R. v.
623
Coal Co.
888
Ray, C. V.
844
Morrison, R. v.
501
Reed, R. v. (12 Cox, 1)
382
Morse v. S.
320
R. V. (6 Cox, 284)
543
P. ».
721
Renshaw, R. v.
444
Muoklow, R. V.
654
Resolution (And.
114)
818
MuUaly v. P.
498
Reynolds v. U. S.
286
Myers v. S.
266
Richards, R. v.
B.v.
82
333
N.
Richardson, R. v.
(Leach, 387)
389
R. V. (6 C. & P. 335)
794
Napper, R. v.
930
Riley, R. v.
603
Nelson v. Rex
718
Ritson, R. V.
840
New Bedford Bridge, C. v.
366
Robins, R. v.
536
Newbury Bridge
Q.v.
923
Robinson, R. v.
753
NichoUs, R. V.
307
Roby, C. V.
995
Noble, S. V.
937
Roderick, R. v.
Rogers, Q. u.
102
Norris v. Buttingham
37
330
Norton, C. v.
782
V.v.
353
Nerval, R. v.
542
Rothwell, R. V.
477
Note (Dyer 5 a)
529
Rowe, R. V.
569
(Y. B. 3 Hen. VII. 12)
528
Rubin, C. v.
654
(Y. B. 21 Hen. VII. 14)
529
Ruggles, P. V.
85
Ruloff V. P.
425
Ruperes v. Ashby
39
0.
RussoU, S. V.
925
Olmstead, P. v.
955
Russett, R. V.
685
O'Malley, C. v.
P.
523
Ryan, C. v.
S.
550
Pardenton, R. v.
101
St. John, C. V.
231
Parks, P. V.
402
Salmon, R. v.
306
Parsons v. S.
337
Schmidt, R. v.
805
Patterson, S. v.
223
Searing, R. a.
487
Pear, R. v.
647
Selway, R. v.
732
Pearson's Case
350
Sern6, R. v.
457
Peaslee, C. v.
122
Serra v. Mortiga
917
Pembliton, R. v.
141
Sexton, S. v.
931
Perkins, C. v.
928
Seymour, R. v.
49
Perrigo, C. v.
902
Sharpe, R. v.
274
Phillips, C. V.
422
Sharpless, C. v.
90
Pierce, C. v.
309
R. «.
640
Pigot, R. V.
23
Shaw, C. V.
497
Plant, R. V.
989
Sheppard, R. v.
139
Poulterer's Case
852
Sherras v. De Rutzen
259
Powers, R. v.
609
Shickle, R. v.
492
Poyser, R. v.
635
Silsbee, C. v.
41
Pratt, R. V.
627
Simmons v. U. S.
986
Pray, C. v.
895
Skerrit, R. v.
415
Preston, R. v.
564
Slattery, C. v.
228
Prince, R. v. (L.
R. 2 C. C. 154)
275
Slowly, R. V.
521
R. V. (L. R.
1 C. C. 150)
674
Smith V. P. (53 N
. Y. Ill)
652
Prius, C. V.
861
(25 lU. 17)
862
Pywell, R. V.
858
C. i;. (6 Cush. 80)
(111 Mass. 429)
95
735
Q.
R. V. (1 Stra. 704)
97
(Dears. 559)
135
Quinn v. P.
825
(1 Cox, 260)
365
TABLE OF CASES.
Xlll
Smith, R. V. (Dears. 494)
796
Tuck, C. V.
947
S.v.
460, 932
Tucker, C. v.
836
U. S. V.
7
Tunnard's Case
632
Solomons, R. v.
682
Turner, R. t.
856
Spies V. P.
432
Tyrrell, R. v.
403
Spurgeon, R. v.
704
Stanley v. S.
617
V.
Starin v. P.
423
Steams, S. V.
29
Vandercomb's Case
987
Stedman, R. v.
473
Vane's Case
930
SteimUng, C. v.
600
Vaux's Case
965
Stephens, R. v.
252
Vick V. S.
386
U. S. V.
115
Stephenson, C. v.
823
n.v.
54
W.
Stevens v. Dimond
20
Wade, R. v.
794
Steward, C. v.
822
Wakeling, R. v.
758
Stone, C. V.
940
Walker v. S.
830
Stonehouse, R. v.
22
■P.v.
360
Stratton, C. v.
209
Walsh V. P.
125
U.v.
216
U.v.
504
Swindall, R. v.
390
Warburton, R. v.
859
Ward V. P.
607
T.
Watson, R. v.
539
Watts, R. V.
489
Taylor, C. v.
69
Webster, C. v.
461
S. V. (70 Vt. 1)
137, 441
U.V.
695
(3 Dutch. 117)
494
Welsh, R. V.
475
Taylor's Case
51
Wemyss v. Hopkins
997
Teischer, R. v.
67
West, R. V.
568
Thomas, P. v.
754
Wheatly, R. v.
77
Thompson v. S.
512
Whitcomb, C. v.
783
C.v.
375
White, C. V.
445
n.v.
473
R. V. (6 Cox, 213)
505
Thristle, R. v.
625
(1 F. & F. 665)
814
Thurborn, R. v.
658
Wilkinson, R. v.
693
Tibbits, R. v.
56
Willard, C. v.
404
Tideswell, R. v.
688
WilUams, R. v.
136
Tinkler, R.<;.
Titus, C. V.
373
Wilson, R. u.
927
570
Wing, C. V.
73
ToUett, R. V.
540
Wispington v. Edlington
33
ToUiver, C. v.
932
Wody, R. V.
485
Tolson, R. V.
236
Wolfstein v. P.
668
Tomson, R. v.
454
Woodward, R. v.
799
Topolewski v. 8.
186
Wright's Case
209
Townley, R. v.
589
Wyckoff, S. V.
157
Towse, R. V.
374
Traverse, C. v.
933
Trebilcock, R. v.
707
Y.
Trono v. U. S.
980
Yong's Case
454
" Nothing is more common than to hear those who have taken
only a superficial view of the Crown Law charge it with number
less hardships and undistinguishing rigor; whereas those who
have more fully examined it agree that it wants nothing to make
it admired for clemency and equity, as well as justice, but to be
understood. It is so agreeable to reason, that even those who
suffer by it cannot charge it with injustice ; so adapted to the
common good as to suffer no folly to go unpunished, which that
requires to be restrained ; and yet so tender of the infirmities of
human nature, as never to refuse an indulgence where the safety
of the public will bear it. It gives the Prince no power, but of
doing good ; and restrains the people from no liberty, but of
doing evil." — Preface to Hawkins' Pleas of the Crown.
CASES ON CRIMINAL LAW.
CHAPTER I.
INTRODUCTORY.
SECTION I.
Common Law and Statute,
OHIO V. LAFFERTY.
Court of Common Plras, Ohio. 1817.
[Beported Tappan, 81. J
Lapfertt was convicted, on three several indictments, for selling
unwholesome provisions.
Wright, for the defend-ant, moved, in arrest of judgment " for that
there is no law of this state against selling, unwholesome provisions."
He observed, that the indictment was bottomed upon the common law
of England, which was not in force in this state, it never having been
adopted by our constitution, or recognized by our laws or judicial de-
cisions.
Tappan, President. The question raised on this motion, whether
the common law is a rule of decision in this state? is one of very great
interest and importance, and one upon which contradictory opinions
have been holden both at the bar and upon the bench.
No just government ever did, nor probably ever can, exist without
an unwritten or common law. By the common law is meant those
maxiitts,— iM-inoiples, aad^prms of judicial proceeding which have no
written law to prescribe or warrant themj,but which, founded on the
laws of nature and the dictates of reason, have, bj- usage and custom,
"become interwTJven wrtir tfie~wntten Taws, and, by such incorporation,*
form a part ofTSe municipal code of each state or nation which has
emerged from the loose and erratic habits of savage life to civilization,
order, and a government of laws.
For the forms of process, indictment, and trial, we have no statute
law directing us ; and for almost the whole law of evidence, in criminal
as well as in civil proceedings, we must look to the common law, for
2 OHIO V. LAFFEETY. CHAP. I-
we have no other guide. Can it be said, then, that the commou law is
not in force when, without its aid and sanction, justice cannot be ad-
ministered ; when even the written laws cannot be construed, explained,
and enforced without the common law, which furnishes the rules and
principles of such construction ?
Wfiami^-ga-fuxtherT-ftael-fiay-that-Jiot^only is the common law neces-_
saTilyinJoree-Jifir6r-b«t-thatJ±S-ji^^
wntteiTTawsT for it not only furnishes the rules andprincipiesby
wkijch the statutelaws~OTr-C5nstrueo[7But it ascertaTn8~and determines
tbevaMitylaJid-iaitfagrMiy JC::^m. It is, •therefore,~tFatXord Hobart
said that a statute law againstreasSHT'as to make a man a judge in his
own cause, was void.
As the laws of nature and reason are necessarily in force in every
community of civilized men (because nature is the common parent, and
leason the common guardian of man), so with communities as with
individuals, the right of self-preservation is a right paramount to the
institution of written law ; and hence _the_maxijii^ the ffftfcfy nf the
'Hople is the supreme law, needs not the sanction of a constitution or
-sLaluLe to gTveTTvalidity^and force. But it cannot have validity and
fSr&c, as lawr-uatess- tfae-JTidTCTal—tffbunals have power to punish all
• such actions as directly tend to jeopardize that safety ; unless, indeed,
the judicial tribunals are the guardians of public morals, and the con-
servators of the public peace and order. Whatever acts, then, are
wicked and immoral in themselves, and directly tend to injure the
community, are crimes against the community, which not only may,
but must, be repressed and punished, or government and social order
(cannot be preserved. It is this salutary principle of the common law
which spreads its shield over society to protect it from the incessant
activity and novel inventions of the profligate and unprincipled, —
inventions which the most perfect legislation could not always foresee
and guard against.
But although the common law in all countries has its foundation in
reason and the laws of nature, and therefore is similar in its general
principles, yet in its application it has been modified and adapted to
various forms of government; as the different orders of architecture,
having their foundation in utility and graceful proportion, rise in vari-
ous forms of symmetry and beauty, in accordance with the taste and
judgment of the builder. It is also a law of liberty ; and hence we
find that when North America was colonized by emigrants who fled
from the pressure of monarchy and priestcraft in the old world to enjoy
freedom in the new, they brought with them the common law of Eng-
land (their mother country), claiming it as their birthright and inher-
itance. In their charters from the crown they were careful to have it
recognized as the foundation on which they were to erect their laws
and governments ; not more anxious was ^neas to secure from the
Ijurning ruins of Troy his household gods, than were these first settlers
of America to secure to themselves and their children the benefits of
SECT. I.] OHIO V. LAFFEETT. 3
the common law of England. From thence, through every stage of the
colonial governments, the common law was in force so far as it was found
necessary or useful. "When the revolution commenced, and independ-
ent state governments were formed ; in the midst of hostile collisions
with the mother country, when the passions of men were inflamed, and
a deep and general abhorrence of the tyranny of the British govern-
ment was felt, the sages and patriots who commenced that revolution,
and founded those state governments, recognized in the common law a
guardian of liberty and social order. The common law of England has
thus alwaj's been the common law of the colonies and states of North
America ; not, indeed, in its full extent, supporting a monarchy, aris-
tocracy, and hierarchy, but so far as it was applicable to our more free
and happy habits of government.
Has society been formed and government instituted in Ohio on dif-
ferent principles from the other states in this respect? The answer
to this question will be found in our written laws.
The ordinance passed by the congress of the United States on the
13th of July, 1787, "for the government of the territory of the United!
States North "West of the river Ohio," is the earliest of our written '
laws. Possessing the Northwestern Territory in absolute sovereignty,
the United States, by that instrument, provide for the temporary go\-
ernment of the people who may settle there ; and, to use the language
of that instrument, " for extending the fundamental principles of civil
and religious liberty, which form the basis whereon these republics,
their laws and constitutions, are erected ; to fix and establish those
principles as the basis of all laws, constitutions and governments,
which forever hereafter shall be formed in the said territory ; to pro-
vide also for the establishment of states and permanent government
therein ; and for their admission to a share in the federal councils, on
an equal footing with the original states, at as early periods as may be
consistent with the general interest," it was ordained and declared,
"that the inhabitants of the said territory shall always be entitled to
the benefits of the writ of habeas corpus, and of the trial by jury ; of a
proportionate representation of the people in the legislature, and orf
pidicial, proeeedinas accordinci to the course of the common law," — as
one of the articles of compact between the original states, and the
people and states in the said territory, to i-emain forever unalterable
unless by common consent. Under this ordinance we purchased lands
and made settlements in this then Northwestern Territory ; we be-
came voluntary parties to this contract, and made it, by our own act,
what it was intended to be, " the basis of all our laws, constitutions
and government-" — and thus the common law became here, as it had
become in the earliest colonies, the foundation of our whole sj'stem
of jurisprudence.
That these articles of compact were of perpetual obligation upon the
people and states to be formed in the territory, unless altered by the
mutual consent of such states and of the original states, is a position
4 OHIO V. LAFFERTT. [CHAP. I.
which I have never heard controverted ; 3-et it may not be useless to
advert to express recognitions of it by both the contracting parties.
First, the United States, by the act of congress entitled "an act to
enable the people of the eastern division of the territory North West of
the river Ohio, to form a constitution and state government, and for
the admission of such state into the Union, on an equal footing vrith the
original states, and for other purposes," under the authority of which
Ohio became an independent state, authorized the people of said divis-
ion to form a constitution and state government, " provided the same
shall be republican, and not repugnant to the ordinance of the 13th of
July, 1787, between the original states and the people and states of
the territory North West of the river Ohio." Section 5th. Second,
the people of Ohio, by the preamble to their state constitution, declare,
that they ordain and establish that constitution, " consistent with the
constitution of the United States, the ordinance of congress of 1787,
and the law of congress."
The common law being a part of the existing system of jurisprudence
at the time when the state government was formed, and its continuance
being expressly provided for by the 4th section of the last article or
schedule to this constitution, which declares that " all laws and parts
of laws now in force in this territory, not inconsistent with this consti-
tution, shall continue and remain in full effect until repealed b3' the
legislature." We will next examine the power of this court to en-
force it.
The 1st section of the 3d ai'ticle of tlie constitution declares that
" the judicial power of the state, both as to matters of law and equit3-,
shall be vested in a supreme court, in courts of common pleas for each
count}'," etc. The 2d section declares that the supreme court '' shall
have original and appellate jurisdiction, both in common law and
chancery, in such cases as shall be directed by law ; " and the 3d
section, that " the court of common pleas shall have common law and
chancer}- jurisdiction in all such cases as shall be directed by law."
These sections refer to future legislative provision to mark the bound-
aries of jurisdiction between the court of common pleas and the
supreme court, and to fix their extent; but they do not refer to such
provision to point out the particular wrongs which nia\' be redressed
by petition in equitj', by private suit, or by criminal prosecution. Such
has been the uniform construction of these sections by the legislature
since the constitution was formed, as must be evident from the fact
that no statute law has ever been made or projected to detail those
wrongs, private or public, which the judicial tribunals were to redress
by virtue of their chancery powers, or " according to the course of the
common law." Such a statute would indeed be a phenomenon, the
result of a more perfect legislation than man has yet attained to.
But it has been urged that the 4th section of the 3d article is tlie
only part of the constitution which gives this court jurisdiction in
criminal cases, and that it expressly refers to future statutory provis-
SECT. I.J OHIO V. LAFFERTY. 5
ion, to point out the cases in which such jurisdiction may be exercised.
The language of this section is : '^ The judges of the supreme court
and courts of common pleas shall have complete criminal jurisdiction
in such cases, and in such manner as may be pointed out by law."
The laws in existence at the time when the constitution was formed,
November 29, 1802, and the state government commenced (beside
those of the United States), were the common law, the statutes of
other states adopted by the governor and judges of the territory, an<i
the acts of the territorial legislatures, — all which were continued in
force by the constitution. This section of the constitution, by giving
jurisdiction in matters of crime, "in such cases and in such manner as
man he pointed out hy law" must mean, in such cases and in such
manner as may be now or hereafter pointed out by law ; for it must
either intend to give the court jurisdiction according to the then ex-
isting laws, or to require of the legislature an immediate and perfect
criminal code, and so operate as a repeal of the former. It could not
intend the latter, because neitlier a convention or legislature can ever
be construed to have exceeded their power, unless such intent is clearly
and positively expressed ; and so far is such intent from being ex-
pressed, by the section referred to, that the utmost latitude of con-
struction leaves the intent that way ambiguous. It must intend the
former: 1. Because the convention who framed the constitution were
limited in their powers by the ordinance and law of congress ; they liad
not power to deprive the people of Ohio of the benefit of judicial pro-
ceedings according to the course of the common law. 2. Because the
convention intended the constitution to be consistent with the ordi-
nance and law. 3. Because the constitution expressly continues in
force all existing laws.
Such seems ever to have been the opinion of the legislature of this
state ; for the first general assembl}- whicii sat under the constitution
passed an act to fix the extent of jurisdiction in the courts, and gave
to the common pleas " cognizance of all crimes, offences, and misde-
meanors, the punishment whereof is not capital." Stat. Laws, vol. i, 40.
But neither the first or second general assembly deemed it necessary
to make an}' material alteration in the criminal code they had received
from the territorial government ; nor had the state any other criminal
laws until the first of August, 1805. And when the state courts super-
seded the territorial, they were required, " agreeable to their respective
jurisdictions," to "take cognizance of all judgments, causes, and mat-
ters whatsoever, whether civil or criminal, that are now pending, unde-
termined or unsatisfied," in the territorial courts ; and they were
"authorized and required to hear and decide upon the said matters."
Stat. Laws, vol. i, 50. In prosecutions at common law, then depending*
in the territorial courts, the state courts were thus directed to take cog-
nizance, to hear and decide upon them, " according to the course of the
common law."
But suppose that the position is a correct one, that the principles of
6 MITCHELL V. STATE. [CHAP. I.
the commoE law have no force or authority ia this state, and what are
the consequences? They are these: that there are no legal forms of
process, of indictments, or trial; there is no law of evidence, and the
statute laws cannot be enforced, but must remain inoperative from the
uncertain signification of the terms used in defining criminal offences.
Beside, the constitution gives jurisdiction to this court in criminal
J matters, "in such cases and in such manner as may be pointed out by
law ; " and as we have no statute pointing out the manner in which
such jurisdiction shall be exercised, the consequence follows that it
cannot be lawfully exercised in an3' manner whatever.
On the whole, therefore, it may be concluded that, were the written
laws wholly silent on the subject, the principles and maxims of the
common law must, of necessity, be the rule and guide of judicial decis-
ion in criminal as well as in civil cases ; to supply the defects of a
necessarily imperfect legislation, and to prevent " the will of the judge,
that law of tyrants," being substituted in the room of known and
settled rules of law in the administration of justice.
And that by the ordinance of congress, the constitution and laws of
the state, a common-law jurisdiction in criminal cases is established and
vested in this court. The motion in arrest is, therefore, overruled.
The defendant was fined fifty dollars in each case, with costs.
MITCHELL V. STATE.
Supreme Court of Ohio. 1884.
[Reported 42 Ohio State, 383.]
Oket, J.* The following positions are shown by the authorities to
be impregnable.
1. In Ohio, as under the federal government (U. S. v. Hudson, 7 Cr.
32 ; U. S. V. Coolidge, 1 Wheat. 415 ; U. S. v. Britton, 108 U. S.
197) we have no common-law ofi'ences. No act, however atrocious,
can be punished criminally, excep't in pursuance of a statute or ordi-
nance lawfully enacted. This proposition was not established without
prolonged discussion. In Ohio v. Laffer.ty, Tappan, 81 (1817), it was
held in an able opinion by Judge Tappan, that common-law crimes are
punishable in Ohio; but Judge Goodenow, a member of this court
under the former constitution, in his work entitled " Historical Sketches
of the Principles and Maxims of American Jurisprudence, in Contrast
with the 'Doctrines of the English Common Law, on the Subject of
Crimes and Punishments," (1819), completely refuted the soundness of
1 Only so much of the case as discusses the province of the common law in Ohio is
given.
SECT. I.] UNITED STATES V. SMITH, 7
that view, and it is now perfectly well settled that Ohio v. Lafferty is
not law. Key v. Vattier, 1 Ohio, 132, 144 ; Winn v. State, 10 Ohio,
345 ; Vanvalkenburgh v. State, 11 Ohio, 404 ; Allen v. State, 10 Ohio
St. 287,' 301 ; Smith v. State, 12 Ohio St. 466, 469 ; Knapp v. Thomas,
39 Ohio St. 377, 385.
2. In order that this statement may not mislead, it is proper to say,
that while the rule is well settled that a statute defining a crime and
prescribing punishment therefore must be strictly construed (Denbow
V. State, 18 Ohio, 11 ; Hall v. State, 20 Ohio, 1 ; Shultz v. Cambridge,
38 Ohio St. 659) ; still, where the legislature, in defining a crime, adopts
the language employed by writers of recognized authority in defining
the crime at common law, the presumption is that it was intended the
commission of acts which at common law would constitute such crime,
should constitute a crime under the statute, and the statute will be so
construed. Accordingly it was held in Ducher y. State, 18 Ohio, 308,
that where the defendant obtained entrance into a house by fraud, with
intent to steal, he entered "forcibly;" and, on the same principle, it
was held in Turner v. State, 1 Ohio St. 422, that where, b}' putting a
person in fear, money is taken, not from his person, but from his
presence, the money being under his immediate control, the crime of
robbery is shown, within the meaning of the statute which punishes
taking money " from the person of another." *
UNITED STATES v. SMITH.
Circuit Coubt of the United States. 1792.
[Report 6 Dane's Abridgment, 718].
Four indictments at common law against the defendants for counter-
feiting bank bills of the Bank of the United States, passing them, and
having tools to counterfeit, etc. Smith was found guilty of passing
bank bills of the said bank, counterfeited.
1 See to the same effect, Hartford v. State, 96 Ind. 461 ; Estes v. Carter, 10 la. 400 ;
Pitcher v. People, 16 Mich. 142 ; Ex parte Meyers, 44 Mo. 279 ; State v. De Wolfe,
67 Neb. 321 ; State v. Gaunt, 13 Or. 115. In a few states the crime must not only
be made punishable but must also be defined by statute : Williams v. State, 18 Ga.
356 ; State v. Young, 55 Kan. 349.
The criminal law of England was adopted by statute in Texas. Chandler v. State,
2Tex. 305. But it is now provided that noact shall be a crime unless it is so provided
by statute. Ex parte Bergen, 14 Tex. App. 52.
In Louisiana the common law has also been adopted by statute ; but the legislature
mast declare and define all crimes. State v. Gaster, 48 La. Ann. 636. — En
8 UNITED STATES V. HUDSON. [CHAP. 1.
Parsons moved in arrest of judgment, because there was no federal
statute on the subject ; hence only an offence at common law ; and the
state courts exclusively have jurisdiction of these offences.
The Court held, the act incorporating the bank of the United States
was a constitutional act, and that by the Constitution of the United
States the federal courts had jurisdiction of all causes or cases in law
and equity, arising under the said constitution and laws of the United'
States ; that this was a case arising under those laws, for those bills
were made in virtue thereof, though there was no statute describing or
punishing the offence of counterfeiting them ; and therefore to counter-
feit them was a contempt of and misdemeanor against the United
States, and punishable by them as such.
UNITED STATES v. HUDSON.
Supreme Court op the United States. 1812.
[Reported 7 Cranch, 32.]
This was a case certified from the Circuit Court for the District of
Connecticut, in which, upon argument of a general demurrer to an in-
dictment for a libel on the President and Congress of the United States,
contained in the " Connecticut Currant " of the 7th of May, 1806, charg-
ing them with having in secret voted two millions of dollars as a pres-
ent to Bonaparte for leave to make a treaty with Spain, the judges of
that court were divided in opinion upon the question, whether the Cir-
cuit Court of the United States had a common-law jurisdiction in cases
of libel.
Pinkney, Attorney-General, in behalf of the United States, and
Dana, for the defendants, declined arguing the case.
The Court having taken time to consider, the following opinion was
delivered (on the last day of the term, all the judges being present) by
Johnson, J.
The only question which this case presents is, whether the Circuit
Courts of the United States can exercise a common-law jurisdiction in
criminal cases. We state it thus broadly because a decision on a case
of libel will apply to evervjasg" in Which jun'sdictiotr la nuL t'ciulud la
tlisae-flftui'ts bj^gtatUTeT
Although this qUft^ion is brought up now for the first time to be
decided by this court, we consider it as having been long since settled
in public opinion. In no other case for manj^ years has this jurisdic-
tion been asserted ; and the general acquiescence of legal men shows
the prevalence of opinion in favor of the negative of the proposition.
SECT. I.J UNITED STATUS V. HUDSON. 9
The course of reasoning which leads to this conclusion is simple,
obvious, and admits of but little illustration. The powers of the gen-
eral government are made up of concessions from the several States,
— whatever is not express^ given to the former, the latter exprosslj^
reserve. The judicial power of the United States is a constituent part
of those concessions, — that power is to be exercised bj' courts organ-
ized for the purpose, and brought into existence by an effort of the
legislative power of the Union. Of all the courts which the United
.States may, under their general powers, constitute, one only, the Su-
preme Court, possesses jurisdiction derived immediately from the Con-
stitution, and of which the legislative power cannot deprive it. All
other courts created by the general government possess no jurisdiction
but what is given them by the power that creates them, and can be
vested with none but what the power ceded to the general government
will authorize them to confer.
It is not necessary to inquire whether the general government, in
any and what extent, possesses the power of conferring oh its courts
a jurisdiction in cases similar to the present. It is enough that such
jurisdiction has not been conferred bj' any legislative a?ty if it doca not -
sXSSutt-ttrthose courts as « 7?rr:-, ;jii; ^j' iha\y ar€^VM^n
And such is the opinion of the majority of this court ; for the power
which Congress possess- to create courts of inferior jurisdiction neces-
sarily implies the power to limit the jurisdiction of those courts to par-
ticular objects ; and when a court is created and its operations confined
to certain specific objects, with what proprietj- can it assume to itself
a jurisdiction much more extended, in its nature very indefinite, appli-
cable to a great variety of subjects, varying in every State in the
Union, and with regard to which there exists no definite criterion of
distribution between the district and Circuit Courts of the same
district?
The only ground on which it has ever been contended that this
jurisdiction could be maintained is, that upon the formation of an}'
political body an implied power to preserve its own existence and pro-
mote the end and object of its creation necessarilj' results to it. But
without examining how far this consideration is applicable to the pecu-
liar character of our Constitution, it may be remarked that it is a prin-
ciple bj' no means peculiar to the common law. It is coeval probably
with the first formation of a limited government, belongs to a system
of universal law, and may as well support the assumption of many
other powers as those more pecuUarly acknowledged by the common
law of England.
But if admitted as applicable to the state of things in this country,
the consequence would not result from it which is here contended for.
If it may communicate certain implied powers to the general govern-
ment, it would not follow that the courts of that government are vested
with jurisdiction over any particular act done by an individual in sup-
posed violation of the peace and dignity of the sovereign power. The
10 BARKEK V. PEOPLE. [CHAP. I.
legislative authority of the Union must first make an act a crime, affix
a punishment to it, and declare the court that shall have jurisdiction
of the offence.
Certain implied powers must necessarily result to our courts of jus-
tice from the nature of their institution ; but jurisdiction of crimes
against the State is not among those powers. To fine for contempt,
imprison for contumacj-, enforce the observance of order, etc., are
powers which cannot be dispensed with in a court, because they are
necessary to the exercise of all otliers ; and so far our courts no doubt
possess powers not immediately derived from statute ; butjJI-esewise
nf j^]-i"'''*<''t ^llrTs^th^ikin in common-law casesjK&-aro a£.^ptEton_is not
within their implied powers.-' "^
BARKER V. PEOPLE.
Court op Erkors, New Yokk. 1824.
[Reported 3 Cowen, 686.]
Error to the Supreme Court. In February, 1822, Jacob Barker,
the plaintiff in error, was indicted in the Court of General Sessions of
the Peace, of the city and county of New York, for sending a challenge
to David Rogers to fight a duel. The indictment contained five counts ;
the first four ofwhich alleged the oflTence to have been committed by
Barker in the city of New York, on various days, in the months of
January and February, 1822, " against the form of the statute in such
case made and provided," being founded on the act "to suppress
duelling," passed the 5th of November, 1816. The fifth count was for a
similar offence at common law. The plaintiff in error was tried on the
indictment, at the Court of General Sessions, held in the city of New
York, in May, 1822. The jujc^;rendefad-«^seneral verdict of guilty,
and the District Attorney having entered a twii^-pfoseqiekjierMie fifth
count (for the offence at common law), the Court, thereupon, gave
judgment that the plaintiff in error, " for the offence aforesaid, as
charged in the first, second, third, and fourth counts of the said indict-
ment, whereof he is convicted, be incapable of holding, or being elected
to any post of profit, trust, or emolument, civil or military, under the
State of New York."
A writ of error was brought, on this judgment, to the Supreme Court,
which, in January term, 1823, affirmed the judgment of the General
1 The common law defines the terms and prevails in all questions except Jurisdiotion
to punish for crimes, U. S. v. Carll. 105 U. S. 611.
The common law as to crime prevails in the District of Columbia. Tyner u U S
23 App. D. C. 324. — Ed. • • ■•
SECT. I.] BAKKEB V. PEOPLE. 11
Sessions. {Vide 20 John. Rep. 457 S. C, tvhich contains the reasons
assigned to this Court in support of the judgment.) ^
Sanford, Chancellor. The first section of the act of the fifth of
November 1816, to suppress duelling, prescribes, that "the person
convicted shall be incapable of holding or being elected to anj' post
of profit, trust, or emolument, civil or military, under this state : "
and the obiectiea-juw made is. that thiH--pTrptahmQ]]j|ia inconsistent
withthejjaastitution.
■"THeconstitution of the United States provides that cruel and unusual
punishments shall not be inflicted. The power of the legislature in
the punishment of crimes is not a special grant, or a limited authority
to do any particular thing, or to act in any particular manner. It is a
part of " the legislative power of this state," mentioned in the first
sentence of the constitution. It is the sovereign power of a state
to maintain social order by laws for the due punishment of crimes. It
is a power to take life, and liberty, and all the rights of both, when the
sacrifice is necessary to the peace, order, and safety of the community.
This general authority is vested in the legislature, and it is one of the
most ample of their powers, its due exercise is among the highest of
their duties. When an offender is imprisoned, he is deprived of the
exercise of most of the rights of a citizen ; and when he suffers death,
all his rights are extinguished. The legislature have power to prescribe
imprisonment or death as the punishment of any offence. The rights
■of a citizen are thus subject to the power of the state in the punishment
of crimes ; and the restrictions of the constitution upon this, as upon
all the general powers of the government, are, that no citizen shall be
deprived of his rights, unless bj' the law of the land or the judgment of
his peers, and that no person shall be deprived of life, liberty, or
propertj', without due process of law.
The constitution has, in one case, limited punishment. When an oflBcer
■of the state is convicted upon impeachment, the judgment cannot ex-
tend farther than removal ffom office and disqualification to hold office.
This provision stands here a restriction, not an authority. As the pun-
ishment is not to extend farther than removal and disqualification, the
sense of the terms, and the known course of proceedings in the country
from which we derive the history and practice of impeachments, both
show that tills provision is a mere limitation of a greater power, a
power to inflict other punishments, as well as removal and disqualifica-
tion. Impeachments of public officers, a peculiar species of accusation
made and tried in a peculiar manner, are to extend no farther in their
effect than to discharge an officer from his trust, and to render him
incapable of holding oflice ; but if the cause for which the officer is thus
punished is a public offence, he may be also indicted, tried, and pun-
ished according to law ; the constitution leaving the definition of the
offence and its particular punishment in this ease, as in all the others,
1 Arguments of counsel and parts of the opinion of the court are omitted. — Ed.
12 BARKER V. PEOPLE. [CHAP. I.
to the general power of the legislature. This part of the constitution
concerning judgment on impeachments is therefore a limitation of the
power of the court for the trial of impeachments, and not a restriction,
upon the general power of tiie legislature over crimes.
The power of the state over crimes is thus committed to the legisla-
ture without a defiuitlon of any crime, without a description of any
punishment to be adopted or to be rejected, and without any direction
to the legislature concerning punishments. It is, then, a power to pro-
duce the end by adequate means ; a power to establish a criminal code,
with competent sanctions; a power to define crimes and prescribe-
punishments by laws in the discretion of the legislature.
But though no crime is defined in the constitution, and no species of
punishment is specially forbidden to the legislature, yet there are nu-
merous regulations of the constitution which must operate as restrictions
upon this general power. The whole constitution must be supported,
and all its powers and rules must be reconciled into concord. A law
which should declare it a crime to exercise any fundamental right of the
constitution, as the right of suffrage, or the free exercise of religious
worship, would infringe an express rule of the system, and would there-
fore not be within the general power over crimes. Particular punish-
ments would also encroach upon rules and rights established by the
constitution. Though the legislature have an undoubted power to
prescribe capital punishment and other punishments which produce a
disability to enjoy constitutional rights, yet ' a mere deprivation of
rights would, even as a punishment, be, in many eases, repugnant to
rules and rights expressly established. Many rights are plainly ex-
pressed, and intended to be fundamental and inviolable in all circum-
stances. A law enacting that a criminal should, as a punishment for
his offence, forfeit the right of trial by jury, would contravene the
constitution ; and a deprivation of this right could not be allowed in
the form of a punishment. Any other right thus secured, as universal
and inviolable, must equally prevail against the general power of the
legislature to select and prescribe punishments. These rights are" se-
cured to all ; to criminals as well as to others ; and a punishment
consisting solely in the deprivation of such a right would be an evident
infringement of the constitution. Any punishment operating as an
infringement of some rule thus expressly established, or some risjht
thus expressly secured, would be unconstitutional ; and all punishments
which do not subvert such rules and riglits of the constitution are
within the scope and clioice of the legislative power.
Butwhileraany rights are consecrated^iis-iHtiKersal and inviolable,
tjie right of'eIegti»a^r"t!«-«gee4aeiS?l!S«^^»^^ It is not one of the
express rules of the constrtution, and is not declared as a right, or men-
tioned in termt as a principle, in any part of the instrument.
Important as this right is, it stands, as the right to life itself stands,
subject to the general power of the legislature over crimes and
punishments.
■SECT. I.] LEDGERWOOD V. STATE. id
It has been strongly urged that the power to prescribe this species
■of punishment maj' be abused. That such a power may be abused
cannot be denied, since all power entrusted to men is subject to abuse.
Tlie power to declare crimes and prescribe punishments is high, indefi-
nite, and discretionary, and therefore affords ample room for abuse.
Yet the legislature by their acts, instead of any tendency to severity,
«how a strong disposition to mildness in the use of tlieir power over
•crimes and punishments. That disqualification to hold public trusts
will become a frequent punishment seems not probable ; the legis-
lature having hitliurto ado[)ted this punishment only in the two
cases of briber}^ and duels. But whatever ma}' he the danger of abuse,
the punishment itself is not unconstitutional. The remedj- for abuse of
the legislative power, in enacting laws which may be unwise, while they
are not unconstitutional, is not in the courts of justice. It is found in
other parts of the system, in frequent elections and in the due course
of the legislative power itself, which alike enacts and repeals laws in
pursuance of public opinion. That this punishment is little consonant
to the genius of our institutions ; that there is an ample choice of pun-
ishments for crimes without adopting this ; that the electors and the
appointing powers should enjoy their free choice for public statiqns,
without legal exclusions even far crimes, are reasons of great force;
but they are reasons upon which the legislature must decide.
Mj' opinion upon the whole case is, that the punishment of incapac-
ity to hold office, prescribed by the act to suppress duelling, is
not inconsistent with the constitution ; and- that this cause has been
rightly determined by the courts through which it has passed.
Bowman, Burt, Clark, Dcdlet, Eakll, Gardiner, Height,
Lynde, Malloby, M'Call, M'Intyris, Redfield, Sudam, Thorn,
Ward, Wooster, and Wright, Senators, concurred.
Ogden, Senator, dissented.
LEDGEEWOOD v. STATE.
Supreme Court op Indiana. 1893.
[Reported 134 Ind. 81].
McCabb, J. — The appellant was convicted by the Circuit Court on
a plea of guilty on an indictment charging him and Samuel Harbin with
arson, and each was sentenced to the State's prison for the period of
seventeen years, and the court fined each of them one hundred dollars,
and rendered judgment accordingly. The appellant alone appeals.
The errors assigned are :
1 and 2. That the indictment does not state facts sufficient to con-
stitute a public offence.
3. That the court had no jurisdiction of the subject.
14 liEDGEEWOOD V. STATE. [CHAP. I.
4. That the court had no jurisdiction over the person of appellant.
5. That there was error in overruling appellant's motion to be
discharged .
6. That there was error in permitting the state to file counter- motions
and affidavits to appellant's motion for discharge.
7. That there was error in overruling the motion to strike out parts
of said counter-affidavits.
8. That there was error in overruling appellant's motion in arrest of
judgment.
9. That there was error in overruling appellant's motion for a new
trial.
There were two counts in the indictment. Therefore, if either count
was sufficient, there was no error in overruling the motion in arrest of
judgment. Brj-ant v. State, 106 Ind. 549.
The first count reads as follows, omitting the formal part: "That
Bazil Ledgerwood and Samuel Harbin, on the 7th da}' of October,
1891, at and in the count}' of Daviess, in the State of Indiana, did
then and there unlawfully, wilfully, maliciously, and feloniousl}' set on
fire and attempt, to burn down and destroy the county court-house,
situate in the cit}' of Washington, in Daviess county, in the State of
Indiana, which county court-hou'se was then and there the propert}'
of Daviess county, and then and there of the value of fifty thousand
dollars."
We think this count is sufficient in its statement of the facts consti-
tuting the offence defined by section 1927, R. S. 1881, as amended by
the act approved March 9th, 1891, to withstand a motion in arrest.
Acts 1891, p. 402.
It is insisted by appellant's counsel that the latter act is invalid,
because it .does not define the crime of arson, and in support of that
contention thej' cite the statute which provides that " Crimes and mis-
demeanors shall be defined and punishment therefor fixed by statutes
of this State, and not otherwise." Section 237, R. S. 1881.
This statute was enacted in 1852 as the second section of an act
entitled " An act declaring the law governing this State " approved
May 31st, 1852. Section 605, 1 R. S. 1876. All that part of the act
relating to what laws were in force, and especially that part adopting
the English common law, with certain exceptions, had substantially
been in force in this state before. Indeed, the English common law,
with the exceptions mentioned, had been adopted in this state as far
back as the year 1795 by the Governor and judges of the then Terri-
tory, and that provision was spbstantially reenacted by the Territorial
Legislature in 1807, and has been substantially reenacted at every
revision of our statute since that time. Stevenson v. Cloud, 5 Blackf.
92. But in the act of 1852, above referred to, the provision as to the
definition of crimes and misdemeanors was added for the first time,
it being the first provision of the kind ever adopted in this state.
In support of their construction of the statute above cited, appellant's
SECT. I.^ LEDGERWOOD V. STATE. 15
counsel cite Rosenbaum v. State, 4 Ind. 699 ; Smoot v. State, 18 Ind.
18 ; State v. President, etc., Ohio, etc., R. R. Co., 23 Ind. 362 ; State v.
Johnson, 69 Ind. 85 ; Stephens v. State, 107 Ind. 185.
We have examined these cases, and find them not at all in point, for
reasons so obvious that further comment on them is unnecessary.
The appellant's attorneys further seek to support their contention by
citing Hackney v. State, 8 Ind. 494 ; Jennings v. State, 16 Ind. 335 ;
and Marvin v. State, 19 Ind. 181. It must be conceded that these
cases all directly support appellant's contention, and hold that a
statute that does not define a public offence with some degree of
minuteness is void because not in conformity' to the first statute above
quoted. But these cases, and others like them, were all overruled by
this court in Wall v. State, 23 Ind. 150. That case has been followed
by an unbroken line of decisions b}' this court until the present time.
But the ground upon which Feazeb, Judge, speaking for the whole
court, placed the decision in that case, has given rise to some confu-
sion as to the real condition of our criminal code. That able jurist in
that case said " That the Legislature can not in such a matter impose
limits or restrictions upon its own future action, and that when two
statutes are inconsistent, the last enactment stands as the law, are very
plain propositions, which we presume will never be controverted. It
follows that the act of May 31st, if in conflict with the act of June 10th
(which was the date of the enactment of the criminal code of 1852),
is so far repealed by the latter act. To hold that the legislature may,
b3' mere exercise of legislative power, say what a future legislature
may or ma^' not do, would be but to declare that the whole legis-
lative power of the government may be lawfuUj- annihilated, and the
government summarily brought to an end by the action of one of its
departments.''
While the principle thus announced was correct in the abstract, yet
it was not applicable to the case, and did not furnish the true and real
reason that made the conclusion reached in the case sound and good
law. The court went on to hold, that inasmuch as the statute above
quoted was enacted before the criminal statute then in question was
enacted, which it was complained did not define the crime sufficiently ;
that the last act, the criminal statute, in so far as it conflicted with the
first; operated as a repeal of the statute above quoted.
As before stated, this decision has been followed by a large number
of cases in which the same reason is given for the ruling, and, finally,
in Hood v. State, 66 Ind. 263, and Ardery v. State, 56 Ind. 328, it was
held that the section of the statute above quoted was repealed by the
act creating crimes and misdemeanors. And though that section has
not since been reenacted by the legislature, and the decisions of
this court in Hood v. State, supra, and Ardery v. State, supra, have
not been overruled, this court has, in Jones v. State, 59 Ind. 229, and
Stephens v. State, 107 Ind. 186, said of this section, that "That pro-
vision of law still continues in force." Other cases, perhaps, make the
16 LEDGERWOOD V. STATE. [CHAP. I.
same declaration. How such a conclusion is reached neither of the
learned judges, Howk and Niblack, delivering the opinions, respec-
tively, in those cases, tells us. The truth is, the long line of cases
culminating in the two cases in 56 Ind., supra, not being overruled,
and the statute therein held to be repealed, never having been reenacted,
it is difficult to see how it still remained in force.
In the case in 107 Ind., supra, Niblack, J., cites in support of the
opinion Hackney v. State, supra, which, as we have seen, had long
before been overruled, and, as we now hold, correctly overruled. The
inevitable result is, if the statute mentioned has been repealed, as this
court held in the cases in 56 Ind., supra, it makes a great difference
in our criminal law. With that statute repealed, instead of public
offences being, as is generally supposed, of statutory creation exclu-
sively, we have all common-law offences as well as those of statutory
origin as parts of our criminal law.
Such a result as that, it is well understood, i% very undesirable with
the courts, the legal profession, and the people. This undesirable
result has been brought about by assigning a wrong reason for a right
decision, in Wall v. State, supra, and following that reason to its
legitimate result in the subsequent cases. The section of the statute
in question was never intended, by the legislature that enacted it, to
place a restriction upon the action of future legislatures, or even upon
itself, as to the manner of defining crimes and misdemeanors. This
is apparent when we take into consideration the history of the whole
act in which this provision is found and the evils sought to be remedied
by the provision.
As we have already seen, that part of the act adopting the Englisb
common law, which was enacted by the Governor and judges of thf
Indiana Territory in 1795, and reenacted in all the revisions of oui
statutes substantially as it now is, until 1852, and then for the firs*:
time the provision in question was added to that act. Prior to thai
time the common law as to crimes and misdemeanors was in force
because it was so enacted by adopting the common law by the legisla-
tive authority of the state without exeception of limitation as to crime?
and misdemeanors. State v. Bertheol, 6 Blackf. 474.
It was undoubtedly the intention of the legislature in 1852, by add-
ing the provision under consideration to the act adopting the commou
law, to adopt a new and different system of criminal law from that
which had formerly prevailed ; it was the intention to modify the act
adopting the common law so as not to adopt that part of it relating
to crimes and midemeanors. It was the evil of the common law as to
criminal offences which were so great in number, and sometimes very
shadowy and unsubstantial, imposing upon the people and the courts
the necessity of wading through volumes of abstrJse learning to ascer-
tain what acts were criminal that the legislature proposed to rid the
people of. That could be, and was, accomplished by not adopting the
common law as to crimes and misdemeanors. It was desirable and
necessary to the public weal to adopt the common law as to other
SECT. I.] LEDGERWOOD V. STATE. 17
subjects. Therefore, the intention as to public offences was made
manifest and effectual by adding the provision to the act adopting
the common law that " crimes and misdemeanors shall be defined,
and punishment therefor fixed, by statutes of this state and not
otherwise."
It was not for the purpose of securing a more minute definition of
crimes and misdemeanors than the common law afforded, that this pro-
vision was added, but it was to get rid of common-law offences entirely
by not adopting that part of the common law. If the common law
had not been adopted at all, in whole or in part, the provision in ques-
tion would have had no significance or force whatever. Because, if no
part of the common law had been adopted, the provision in question
would have been the law without being enacted. If there was no
common law of any kind in force, crimes and misdemeanors must,
of necessity, be defined and punishment therefor fixed by statutes
of this state and not otherwise. Therefore, this provision was only
made necessary to secure a purely statutory criminal code because
of the adoption of the common law. This view of the provision
relieves it from the charge that it sought to trammel future legis-
latures, requiring of them any degree of minuteness in defining crimes ;
indeed, no act subsequent to that, however vague and general in its
definition of public offences, is at all inconsistent with that act ; on the
contrary, all such acts are in harmony with it. It has been held, and
we think properly under that statute, that the crime may be designated
by the statute without any definition, and the punishment fixed, and
the courts would define the crime by the aid of common-law definitions,
and the general import of the language employed. Hedderich v. State,
101 Ind. 564; State v. Berdetta, 73 Ind. 185.
We think, therefore, it was error to hold that the enactOient of
criminal statutes without specifically defining the crimes designated
therein repealed the provision in question or even modified it. And
while a proper conclusion was reached in each of the two cases in
56 Ind., supra, and the cases leading up to them, yet they were placed
on wrong grounds, and so far as they hold that the provision in ques-
tion had been repealed or modified, thej' are overruled, and we ad-
judge that said provision is still in force, unrepealed and unmodified.
And, therefore, that we have no common-law offences in Indiana, and
that the statute under which this prosecution is waged, which reads
as follows : " whoever wilfully and maliciously burns or attempts to
burn anj' dwelling-house or other building, finished or unfinished, occu-
pied or unoccupied, whether the building be used or intended for a
dwelling-house or any other purpose ; " . . . "the property so burned
or attempted to be burned, being of the value of twenty dollars or
upwards, and being the property of another, ... is guilty of arson,
and upon the conviction thereof shall be imprisoned in the state prison
not more than twenty-one years, nor less than one year, and fined not
exceeding double the value of the property burned, ..." is not invalid
for indefiniteness.
18 'COMMONWEAIjJf V. MARSHALL. , ^CHAP, L
COMMONWEALTH v. MARSHALL.
Supreme Judicial Codrt of Massachusetts. 1831.
[Reported 11 Pick. 350. |
At April term 1831 of this Court, in the county of Franklin, the
defendants were indicted for a misdemeanor in disinterring a dead body
on the 20th of February of the same year, contra formam statuti. The
defendants pleaded nolo contendere, and afterwards moved in arrest of
judgment, for the following reasons : 1. Because the offence charged in
the indictment is therein stated to have been committed in violation of
the statute passed March 2, 1815 (St. 1814, c. 175), which was re-
pealed by the statute of Feb. 28, 1831 (St. 1880, c. 57), without any
saving or excepting clause whatever ; and, 2. Because no offence now
known by the laws of this commonwealth, is therein described.
Shaw, C. J., delivered the opinion of the Court. This indictment
cannot be maintained, consistently with the decision of the Court last
year, in the case in this count}', of Commonwealth v. Cooley, 10 Pick.
37. In that case it was held, that the statute of 1814, containing a
series of provisions in relation to the whole subject-matter of the dis-
interment of dead bodies, had superseded and by necessary impliea-
lion repealed the provisions of the common law on the same subject.
If it be true, as contended, that as a general rule the repeal of a re-
pealing law, revives the pre-existing law, it would be difficult to main-
tain that such a clause of repeal, in a statute containing a sei-ies of
provisions, revising the whole subject, and superseding the existing
statute, would revive the pre-existing provisions of the common law.
But were that point conceded, as contended for, it would not aid this
indictment.
In the case supposed, the common law would not be in force during
the existence of the statute, and if revived bj' its repeal, such revival
would take effect onl}' from the time of such repeal.
It is clear, that there can be no legal conviction for an offence, unless
the act be contrary to law at the time it is committed ; nor can there
be a judgment, unless the law is in force at the time of the indictment
and judgment. If the law ceases to operate, by its own limitation or by
a repeal, at any time before judgment, no judgment can be given.
Hence, it is usual in every repealing law to make it operate prospec-
tively only, and to insert a saving clause, preventing the operation of
the repeal, and continuing the repealed law in force, as to all pending
prosecutions, and often as to all violations of the existing law alread\'
committed.
These principles settle the present case. By the statute 1830, c. 57,
j 6, that of 1814 was repealed without any saving clause. The act
i^harged upon the defendants as an offence was done after the passing
SECT. I.] HALFIN V. STATE. 19
of the statute of 1814, and before that of 1830. The act cannot be
punished as an offence at common law, for that was not in force during
the existence of the statute ; nor by the statute of 1814, because it has
been repealed without any saving clause ; nor bj- the statute of 1830,
for the act was done before that statute was passed. No judgment
therefore can be rendered against the defendants, on this indictment.
Judgment arrested.
HALFIN V. STATE.
Court of Appeals of Texas. 1878.
[Reported 5 Tex. App. 212.]
Winkler, J. The appellant is prosecuted by information in the
County Court, and was convicted on a charge of having violated the
provisions of the act of the legislature of 1876, entitled "An act to
prohibit the sale, exchange, or gift of intoxicating liquors in any
county, justice's precinct, city, or town in this state that may so elect ;"
prescribing the mode of election, and affixing a punishment for its
violation, — commonly known as the local-option law. Acts 1876,
p. 26.
It is not disputed that, prior to the alleged commission of the offence
charged against the appellant, Caldwell County had, by ^t)te in accord-
ance with the provisions of the act, declared that liquors should not
be sold in the county except as authorized by the act aforesaid. But
it is insisted on in behalf of the appellant that, since this prosecution
was commenced, another election has been held in the county under the
provisions of the act in question, by which it was determined that the
act should no longer be enforced so as to prohibit the sale of liquors in
the county ; and that the effect of this last election is to relieve from
prosecution and punishment those who had, prior thereto, been accused
of violating its provisions.
It is provided, in the third section of the act, for the holding of a
special session of the Commissioners' Court, for the purpose of open-
ing the polls and counting the votes, and directing that " if a majority
of the votes cast are for prohibition, said court shall immediately make
an order declaring the result of said vote, and absolutely' prohibiting
the sale of intoxicating liquors within the prescribed bounds (except
for the purposes specified in section 1 of this act) until such time as
the qualified voters therein may, at a legal election held for the purpose,
by a majority vote decide otherwise." The section goes on to prescribe
the manner of making publication of the result and the order of
prohibition.
We are of opinion that the words in the third section, ' ' until such
time as the qualified voters therein may, at a legal election held for the
20 STEVENS V. DIMOND. [CHAP. I.
purpose, by a majority vote decide otiierwise," must be construed as
an authority giving the voters interested an opportunity to decide —
after the expiration of twelve months, mentioned in the fourth section
— by vote whether the prohibition named in the first section shall be
longer continued or not, and that a majority vote at this second elec-
tion would annul, from the time it is held and the result declared and
published, the prohibition provided for in the first section of the act.
It being made to appear that the second election contemplated in
the act has been held, and that it has resulted in a majority vote
against prohibition, we are of opinion that there is no law now in force
in Caldwell County by which persons who may be charged under the
act can lawfully be punished.
" The repeal of a penal law, when the repealing statute substitutes
no other penalty, will be held to exempt from punishment all persons
who have offended against the provisions of said repealed law, unless
it be declared otherwise in the repealing statute." Penal Code, art. 15
(Pose. Dig., arts. 16, 17) ; Montgomery «. The State, 2 Texas, Ct. App.
618.
There being no law now in force in Caldwell County to punish oflfen-
ders against the local-option law, since its annulment by the second
vote of the county against prohibition, the judgment will be reversed
and this prosecution will be dismissed. Heversed and dismissed.
STEVENS V. DIMOND.
Superior Court of Judicature, New Hampshire. 1833.
[Reported 6 N. H. 330.]
This was a writ of error brought to reverse a judgment of the court
of common pleas in this county.
It appeared by the record, that Stevens brought an action of debt
against Dimond upon the statute of June 17, 1811, entitled " an act to
authorize towns to malie by-laws to prevent horses, etc., from going at
large," and upon a by-law made by the town of Hawke, on the 9th
March, 1830, "that if any horse, horse kind, etc., shall be found going
at large from and after the first day of April until the last day of
October, in any street, highway, or common in said town, the owner
thereof shall, for each and every offence forfeit and pay the sum of
four dollars, with costs of suit, to any person who may sue for the
same, to be recovered in an action of debt, etc., unless such horse,
etc., shall be going at large without the knowledge or negligence of the
owner or owners."
It was alleged in the declaration that Dimond, on the 11th May,
1830, at Hawke, let one mare and one colt, he being the owner thereof,
go at large in a certain highway in said Hawke, with his own knowl-
edge and consent, contrary to the form and effect of the law aforesaid.
SECT. I.j STEVENS V. DIMOND. 21
The defendant pleaded that he did not owe in manner and form as
alleged, and the cause was tried in the common pleas, at October term,
1831, when the plaintiff proved the making of the bj'-law, and that the
mare and colt of the defendant were, on the 11 Ma}-, 1830, at large,
with his consent, in a highway in Hawke ; but the court directed the
jury that the said by-law being in force for a year only, from the time
of making thereof, and having expired by its own limitation, the
plaintiff could not sustain his action. The jury having returned a ver-
dict for the defendant, a bill of exceptions to the directions of the court
to the jury was filed and allowed, and this writ of error brought.
Richardson, C. J., delivered the opinion of the court.
The action, the judgment in which is now before us, was founded as
well upon the statute which authorized towns to make bj'-laws, as upon
the by-law, and it was necessary to allege in the declaration, that the
offence was committed as well against the form of the statute, as against
the form of the by-law. 1 Chitty's PI. 358 ; 3 Pickering, 462, Com-
monwealth V. Worcester ; 5 ditto, 44, Commonwealth v. Gay.
The statute, on which that action was founded, still remains in force;
and the by-law has never been repealed by the town.
But the court below were of opinion that the by-law expired with the
year by its own limitation, and ceased to be in force. And if this be
correct, it is clear that the verdict was right ; for after a law ceases to
be in force no penalty can be enforced, nor punishment inflicted for
violations of the law wliile it was in force.
The question, then, is, did the by-law in this case cease to be in force
after the year, so that no action for a penalty incurred under it can now
be maintained?
There is nothing in the by-law itself which, in express terms, declares
it shall not be in force after the year. When the period it was intended
to regulate expired, it, without doubt, ceased to be a rule to regulate
what was done afterwards. But did it cease to be the law of that
period ?
In many cases statutes that are repealed, or that cease to be in force
by their own limitation, continue to be the law of the period when they
were in force. It is, however, settled, that this is not the case with
laws inflicting penalties. When these expire by their own limitation,
or are repealed, they cease to be the law in relation to the past as well
as the future, and can no longer be enforced in an}- case. No case is,
however, to be found in which it was ever held before that they thus
ceased to be law, unless they expired by express limitation in them-
selves, or were repealed. It has never been decided that they cease to
be law merely because the time the}' were intended to regulate had ex-
pired. Many laws have been passed which were limited in their opera-
tion to particular seasons of the year. This was the case with the
statutes which regulated the hunting of deer, and the taking of fish in
rivers and ponds. But it is imagined that no one ever supposed that
those laws expired by their own limitations every time the season they
22 KEX V. BfiOWN. [chap. I.
were intended to regulate expired, and revived again with tiie return
of the season. The same is the case with the statutes regulating the
observance of the sabbath. The statutes apply only to one day in the
week. Bnt we imagine no person will contend that they remain in force
only during Sunday.
So we have a statute which prohibits the publication of the revised
laws within the period of ten years from a certain time under a penalty.
It seems to us that no one would seriously suppose that a penalty in-
curred under that statute could not be enforced after the expiration of
the ten years.
A very little consideration of the subject will convince any one that
a limitation of the time to which a statute is to apply, is a very different
thing from the limitation of the time a statute is to continue in force.
We are, therefore, of opinion, that the instructions given to the jury
by the court below were incorrect, and that the judgment must be re-
versed.
SECTION 11.
Nature of Crime.
EEX V. STONEHOUSE.
King's Bench. 1696.
[Reported 3 Salk. 188.]
Indictment against Elizabeth Stonehouse, for that she, intending to
deprive Henry Bradshaw of several sums of money, did falsely and
maliciously accuse him of felony and of robbing her.
This indictment was adjudged ill, because it was for a fact not
indictable, it not being laid by way of conspiracy, so as to make it
a public crime ; and it being only a private wrong the party hath his
remedy by action on the case.
REX V. BROWN.
King's Bench. 1696.
[Reported 3 Salk. 189.]
The justices made an order, that the defendant should pay Stephen
Paine, a taylor, 71. for work done ; which he (the defendant) refusing
to do, was indicted.
But it was quashed, for 't is a matter not indictable.
SECT. II.J REGINA V. JONES. 23
REX V. BRADFORD.
King's Bench. 1698.
[Reported 3 SaUc. 189.]
The defendant was indicted for not curing the prosecutor of an
ulcerated throat, as he had agreed and undertaken to do.
Quashed, for 't is no public offence, and no more in effect than an
action on the case.
HEX V. PIGOT.
King's Bench. 1701.
t [Reported 12 Mod. 516]
He was convicted upon an indictment for misdemeanor in attempt*
Ing forcibly to carry away one Mrs. Hescot, a woman of great fortune.
Lord Holt, C. J. Sure this concerns all the people in England that
would dispose of their children well.
And he was fined two hundred marks, and the lady's maid, who was
privy to the contrivance, was fined twenty marks, and to go to all the
courts with a paper upon her, with her offence writ in large characters.
REGINA V. JONES. •
Queen's Bench. 1704.
[Eepcfrted 2 Ld. Raym. 1013.]
Mr. Parker moved to quash an indictment. It is, that the defend-
ant came to J. D. and pretended to be sent to him by F. S. to receive
20^. for his use ; whereas F. S. did not send him. This is no crime,
and he has remedy by action.
LoKD Holt, C. J. It is no crime unless he came with false tokens.
Shall we indict one man for making a fool of another? Let him bring
bis action.
Powell, J., agreed. Quash it nisi.
24 ATCHESON V. EVEEITT. [CHAP. L
ATCHESON V. EVERITT.
King's Bench. 1776.
[Reported 1 Cowp. 382.]
This was an action of debt upon the stat. 2 Geo. 2, c. 24, sect. 7,
against briberj-. Plea, Not guilty. Verdict for the plaintiff.
On behalf of the defendant, it was moved last term, that there might
be a new trial ; because a Quaker had been received as a witness on
his affirmation ; and it jras obiectftd, t>)at t.hig hpinc
his evidence ought not to have DeeHTeceived. '
LoED Mansfield, C. J. ... We come then to this question : Is the
present a criminal cause? A Quaker appears, and offers himself as
a witness ; can he give evidence without being sworn ? If it is a crimi-
nal case, he must be sworn, or he cannot give evidence.
Now there is no distinction better known than the distinction
between civil and criminal law ; or between criminal prosecutions and
civil actions.
Mr. Justice Blackstone, and all modern and ancient writers upon
the subject distinguish between them. Penal actions were never yet
i>ut under theJicad of criminal la.w. or Crimea. . The construction of the
"■stanitemust be extended by equity to make this a criminal cause. It
is as much a civil action, as an action for money had and received.
The legislature, when they excepted to the evidence of Quakers in
criminal causes, must be understood to mean causes technically crimi-
nal ; and a different construction would not only be injurious to
Quakers, but prejudicial to the rest of the King's subjects who may want
their testimony. The case mentioned by Mr. Eooke of Sir Watkyn
Williams Wynne v. Middleton, Vide 1 Wils. 125. 2 Str. 1227, is a
very full authority, and alone sufficient to warrant the distinction
between civil and criminal proceedings. In that case the question was,
Whether the stat. 7 & 8 Wm. 3, c. 7, was penal or remedial? The
court held it was not a penal statute. But '' supposing it was to be
considered as a penal statute, yet it was also a remedial law ; and
therefore the objection taken was cured by stat. 16 & 17 Car. 2, c. 8."
Now the words of exception in that statute, and also in stat. 32 Hen.
8, c. 30, and in stat. 18 Eliz. c. 14, are " penal actions and criminal
proceedings." But Lord Chief Justice Willes, in. delivering the solemn
judgment of the court, says, there is another act which would decide of
itself, if considered in the light of a new law, or as an interpretation of
what was meant by penal actions in the stat. 16 & 17 Car 2, c. 8.
This is the statute of jeofails 4 Geo. 2, c. 26, for turning all law pro-
ceedings into English, and it has this remarkable conclusion, "that
every statute of jeofails shall extend to all forms and proceedings in
1 Arguments of counsel and parts of the opinion of the court have been omitted
— Ed.
SECT, ll.j BANCROFT V. MITCHELL. 25
English (except in criminal cases) ; and that this clause shall be con-
strued in the most beneficial manner." This is very decisive.
No authority _whitnTrnT hnn hrrn r"P"t,innpd on the other side, ynr n^y
case cliid where it has been held that a ppna.1 aM.inr, ia n fr^Tn^.na] (^^sjp ;
arid perhiip« the poltlL was never Defore doubted. The single authority
mentioned against receiving the evidence of the Quaker in this case is
an appeal of murder, 2 Str. 856. But that is only a different mode of
prosecuting an offender to death. Instead of proceeding by indictment
in the usual way, it allows^ the relation to carry on the prosecution for
the purpose of attaining the same end, which the King's prosecution
would have had if the offender had been convicted, namely, execution :
and therefore, the writers on the law of England class an appeal of
murder in the books under the head of criminal cases. . . .
In the case of Rex v. Turner, 2 Str. 1219, on a motion to quash an
appointment of overseers, the court said, though the prosecution is
in the King's name, the end of it is a civil remedj', and very properly
allowed the Quaker's affirmation to be read.
It is extraordinary, that upon all the cases of attachment not one
was argued upon the ground of its being a criminal case; and to be
sure the exception might as well hold on an aflSrmation taken to hold
to bail ; because it deprives a man of his liberty. The very last
attachment for non-performance of an award was obtained in this
court upon a Quaker's aflSrmation, and not a word said by way of
objection to it. That was the case of Taylor v. Scott.
We are not under the least embarrassment in the present case : for
there is not a single authority to prove, that upon a penal action
a Quaker's evidence may not be received upon his affirmation. There-
fore, I am of opinion that Mr. Justice Nares did perfectly right in
admitting this Quaker to be a witness upon his affirmation ; and con-
sequently that the rule for a new trial should be discharged.
The three other Judges concurred.
Hule discharged.
BANCROFT v. MITCHELL.
Queen's Bench. 1867.
[Reported L. E. 2 Q. B. 549.]
This was an action for false imprisonment. The plaintiff was arrested
while he was protected from arrest on civil suits by an order of the
Court of Bankruptcy. The defence was that the plaintiff was arrested
on a warrant for failure to obey the order of a magistrate for paying
3s. per week for the support of his mother. At the trial the jury found
one farthing damages.
The learned judge, being of opinion that the plaintiff was not protected
from arrest, directed a nonsuit, with leave to the plaintiff to move to
enter a verdict for 15^. and a farthing.
26 BANCROFT V. MITCHELL. [CHAP. I.
A rule was accordingly obtained.'
Blackbdkk, J. The question whicli arises under s. 113 of 12 & 13
Vict. c. 106 is, whether or not the plaintiff was protected by the order
of the county court from the process under which he was arrested.
That depends upon the nature of the process under which he was
arrested and the nature of the process from which the bankrupt is pro-
tected. Section 113 relates back to s. 112, which provides that, if a
bankrupt be not in prison, he shall be free, from arrest in coming to
surrender, and after such surrender for suci further time as shall be
allowed him by the commissioner ; and if he be in prison he maj' be
brought up to be examined or to surrender, and after he has been
adjudged a bankrupt and has surrendered and obtained his protection
from arrest, if he be in prison or arrested for debt, the Court may order
his immediate release. Now, the words of s. 112 are nearly similar to
those contained in the bankruptcy acts passed before 12 & 13 Vict. c.
106, and the point was considered in Darby v. Baugham, 5 T. R. 209,
and the decision of the Court was, that the object of the enactment
then in force was to give protection to the same extent, and in the
same way, to a bankrupt, as a witness who was going to court to give
evidence would receive protection, and therefore a bankrupt's creditors
could not arrest him as he was going to surrender. The protection
which the bankrupt receives being analogous to that accorded to a wiF"
n8ys, the process against which he is protected ia In tne nature of civil
BrocesSj__but.if nn tho other hand the pioueatj itj Ih the nature of cnmr-
je question remains, what is the nature of the process under which
the plaintiff was arrested? What is it that the plaintiff has done or
omitted to do? He is the son of a woman who is chargeable to the
parish, and he is of sufficient ability to support her. There was a
moral duty on him, but at common law no legal dutj', to support her.
By statute 43 Eliz. c. 2, s. 7, it is enacted, that the children of every
poor person not being able to work, being of sufficient ability, shall, at
their own charge, relieve and maintain everj- such poor person in that
manner, and according to that rate, as by the justices shall be assessed,
upon pain that every one of them shalUica:feit20s. for e^seiyTironth
which they shall fail therein. It was as a punishment "lorthe disobedi-
ence of an order made under this section that the plaintiff was arrested.
Mr. Williams' argument is that the plaintiff was arrested for not paying
a sum of money which he was ordered to pay to the parish, and there-
fore it was only for the non-payment of a debt that he was arrested.
But the payment of the sum is only one mode by which the plaintiff
complies with the statute. The statute makes what was a duty of im-
perfect obligation a positive duty. I agree that the fact that an indict-
ment will lie for a disobedience of an order of sessions is no reason
1 This short statement of the facts is substituted for that of the Reporter. Argu-
ments of counsel are omitted. — Ed.
SECT. 11.] STATE V. BALDWIN. 27
that the disobedience should be an offence of a criminal nature;^
^offence here is that the plaiirtiff-beiBg' of abilily wuuld not au|)port
Impotent, relative — that is a duty the neglect ofwhioh^ tiho"|^h ""\y,
jaSfgttj wrung before the gtatutey-i^'-^ggg'^'^'' ''' 'ly 'I'" rtatntc.. It
seems to me, therefore, that the commitment is not in the nature of
civil, but of criminal process to punish the plaintiff for not performing
the duty imposed on him by statute. It is quite true that on payment
of the money he would get off the imprisonment, but still it is in the
nature of criminal process, and consequently the plaintiff was not
entitled to his discharge. He must, therefore, fail to recover the 15/.
penalty or the farthing damages which the jury have given him, because
he was properly imprisoned as a misdemeanant, and not as a debtor.
There was evidence that it was necessary for his health, and for the
sake of cleanliness, that his hair and whiskers should be cut, and it
was a question for the jurj' whether there was any excess in this
respect, and I think we must take it there was none.
Melloe, J. I am of the same opinion. I was impressed by the
argument of Mr. Williams that whether the plaintiff could be indicted
or not for a disobedience of the order, was not the test whether the
offence was criminal or not. But I have come to the conclusion that
the duty of a son to support his mother, having been originally moral
onl3', was made a positive duty by the statute, which requires that, in
the event of the son neglecting that duty, he shall pay such sum as the
justices shall order, and then the ultimate enforcement of that duty is
carried out by fixing a penalty, and in the event of the nonpayment of
that penalty a punishment of not more than three months imprisonment
is imposed. That is in the nature of a punishment for a criminal
oifence. It is not at all analogous to the case of an indictment fordis-
obe^'ing an order of sessions for the payment of poor-rates, nor to an
attachment for nonpayment of money pursuant to the order of the
Court of Chancery, where the process is in the nature of an execution
I for a debt. The circumstances of this case show that the imprisonment
k-a-punishment for an offence, ^rici not lor enforcing a mere obligation
"uj paji muuey. — Th« plaibtitt, therefore, is not entitled to the penally
for which he sues, nor to the damages the jury have given him ; the rule
must be discharged. Rule discharged.
STATE V. BALDWIN.
Supreme Court of North Carolina. 1835.
[Reported I Dev. ^ Bat. 195.]
Gaston, J.* ... The act here charged is not made up of a number
of acts frequently repeated, and which cannot be distinctly and spec-
ially set forth without inconvenient prolixity. It is an act single and
distinct, and committed on a particular occasion. It is charged that
1 Part of the opinion is omitted. — Ed.
28 STATE V. BALDWIN. [CHAP. I.
the defendants assembled at a public place, and profanely and with a
loud voice cursed, swore, and quarrelled, in the hearing of divers per-
sons, and it is alleged, that by means thereof a certain singing school
then and there kept and held was broken up and disturbed. This pro-
fane and loud cursing and quarrelling on that particular occasion,
might have been an annoyance to those who heard and witnessed it ;
but it could not have been an annoyance to the citizens in general,
unless there were some other facts in the case. If there were such
other facts, then these ought to have been set forth ; for an indictment
must specify all the facts which constitute the offence. It is possible
that a frequent and habitual repetition of acts which singlj- are but
private annoyances may constitute a public or common nuisance. But
if so, this frequent and habitual repetition should be appropriately
charged. No injurious consequences of an abiding kind, and therefore
affecting not simply those present at the commission of the act, but
affecting the citizens suceessiveh', and as they come within the reach
of these consequences, are charged, or can be presumed to have followed
from the act. "The singing school" is indeed said to have been
broken up and disturbed. Of whom that school was composed does
not even appear, but whether it consisted of the defendants or of others
its interruption cannot be legally pronounced an inconvenience to the
whole community. Thji InPiFi rf inRtr""'^iop W the aco^TTiplighj&pwt., to
those who would fain acquire it, does not vervgravely influence the
guud Ot'der or enioyment or convenience of the citizens m general, so
tio to call for ■rgdrggl^on.JJie-oe-m plain L of Ihtrytate.
*~ If we yutiLain this as an indictment for a common nuisance, we shall
be ol)liged to hold, that whenever two or more persons talk loud or
curse or quarrel in the presence of others, it may be charged that this
was done to the common nuisance, and if so found, will warrant
punishment as for a crime. This would be either to extend the doctrine
of common nuisances far beyond the limits within which they have
hitherto been confined, or to allow of a vagueness and generality in
criminal charges, inconsistent with that precision and certainty on the
records so essential as restraints on capricious power, and so salutary
as the safeguards of innocent men.
Independently of the averment " to the common nuisance," the
indictment contains no criminal charge. No conspiracy is alleged, no
special intent or purpose is averred, which would impress an extraor-
dinary character on the act done. The persons disturbed are not rep-
resented as having been enfracrprl i"n thn perform fi.npe of any public
■gntr==^a3"enp8ftf^ in religions worship, attending nt Tin Hnntirtn, ftrnnt
_a_coiart — Upon a demurrer to the indictment, we should be unable to
render a judgment for the state. It is our opinion, therefore, that
there is no error in the proceedings below, and that the judgment
appealed from must be affirmed.
Per Curiam. Judgment affirmed
SECT. 11.] STATE V. STEAENS. 29
STATE V. STEARNS.
SuFERiOB Court of Judicatuuk, New Hampshire. 1855.
[Reported 31 N. H. 106.]
This is a prosecution against the respondent, for a breach of an
ordinance of the city of Portsmouth, regulating bowling alleys, com-
menced by a complaint before a justice of the peace.^
A warrant was issued upon this complaint, returnable before the
police court of the city of Portsmouth, and the respondent being there
found guilt}', took an appeal to the court of common pleas.
In the court of common pleas, the respondent was ordered to pay
the costs of the copies, and entry in that court, to which order he ex-
cepted. The respondent demurred to the complaint and- declaration in
this court, and the court sustained the demurrer and dismissed the
complaint. The respondent then moved for costs of this court, and
also of the police court, to be taxed against the city of Portsmouth, or
the complainant in said prosecution, which motion was refused by the
court, and the respondent excepted.
The penalty to be recovered for the breach of this ordinance is, by
law, to be appropriated for such uses as shall be directed hy the city
council of said city.
The questions arising upon these exceptions were transferred to this
court for decision.
Bell, J. . . . It is contended for the respondent that this proceeding
is not in its nature criminal, but is essentially a civil action, falling within
the statute rule that " costs shall follow the event of every action or
petition, unless otherwise directed bj' law, or by the court." Rev. Stat,
ch. 191, § 1. And first it is said that the form of proceeding by com-
plaint is not conclusive that the ease is of a criminal nature, and to this
position we are inclined to yield our assent ; but we think it very clear
that a statute provision prescribing such proceedings in a giveTTcase, as "
a^g-asiialTy made appropriate_by__thp lawrT(wvnminal cases, is strong
evidence that the cases werejegajdfiiiJ3y-4b«4egiek;tmtra:s-ofXcrTmiiiSt"
nature.
We thin¥, too, it maj-, in general, be justlj- inferred, where the legis-
.lature prescribe a course of proceedings adopted bj' the common law
for proceedings of a nature enti-rely different, that the design of the
legislature was to prescribe all the known and usual incidents of the
prescribed process, and to give to parties the advantages of proceed-
ings in that form. As, if the legislature grant a remedy in assumpsit,
where, at common law, trespass would be appropriate, they design that
the action of assumpsit shall retain its proper character and rules in
that case.
^ The form of the complaint and pare of the opinion of the court are omitted. — Ed.
30 STATE V. STEAENS. [CHAP I.
Neither does the appropriation of the fine or penalty imposed in a
given case, whether it be to the state, county, or town, or to a corpo-
ration, or individual, furnish any decisive test that a proceeding is
criminal or civil. * When a statute forbids fraudulent mortgages and
the concealment of attachable property, it by no means follows,
because half th'e fine is given to the complainant, that the prosecution
is civil, nor would it do so if {he whole fine were so appropriated.
ThequestioB Tvhpthpr n l''^:^^! pr""°°'^'""g- " <•" ^'^ >ipprnpH niiri] »i-_
criminal, or as partaking of the nature of civil and criminal prncped-
itigs, is t,o -be-determinexHSS-Iire consideration whether the law is de-
to suppress and punish a public wrong, an injury affectuig~tbe-
-^eaee-rand- Welfare of the commanitj' and the general— sfecuf^gi^r
trlintJTnritJn_flr lignrrl in.iiinly tiTTrfFirj-fl Jii rrmrdy to g" indiyjdl!.^]^''
an injury done to his person or property. Upon this question the ap-
^rnprintinn nf -the fin" 'H'-p°TTflTlyTTa° a bearing, since,- if it is applied
to the public use, no idea can be entertained that the proceeding is
designed as a remedy for a private loss or injury, though it maj' some-
times have a different tendencj', where the amount is appropriated to
the use of a suffering partJ^
And, in a similar way, the adoption of a course of proceeding usual
in criminal cases alone may bear upon the main question before referred
to, because, ordinarily, proceedings adapted to the punishment of
offences are, to a great degree, unsuitable for the redress of private in-
juries. The party injured has no exclusive privilege to institute
criminal proceedings ; they are equally open to others ; he has no con-
trol over such prosecutions, which are generally managed bj' the public
authorities ; the fines and penalties are, for the most part, payable
to others, and liable to be remitted by the proper oflScers without
reference to his wishes or his interest.
'^^^'° prPfiPn^ """^ ^'^ """ "^ " immP'^lit'"" Tnr flTt-rsffanfip rngrla penal
by a city "HJP^JICP) bfiO"""^ "^ '*•" <'iippr>n''fl nvil nnnfingnnnnnti tf> gr».
ciety: — TTTiasno relation to any individual wrong, and the remedy
prescribed~}s such as indicates a criminal proceeding. It is prosecuted
by a public oflBcer, as part of his official duty, but might be prosecuted
by any other person as well. The fine is payable to the city, but not
to compensate anywrongja tlir' i l.ll■^l^J^]^ll^ The burden of "adminis-
terTlfg justicCtsTIereimposed upon counties, cities, and towns, and
fines and forfeitures are payable to them, as the representatives of the
public, to aid in defraying this part of the expense of civil government.
The case then seems to us to lack all the indicia of a civil action, and
to be, in fact, as it appears, a criminal prosecution.
The court were in error in requiring the costs of the copies and entry
to be paid, but the costs were properly' disallowed.
SECT. II.J STATE V. KEENAN. 31
STATE V. KEENAN.
Supreme Court of Errors of Connecticut. 1889.
[Reported 57 Conn. 286.]
Carpenter, J. This is a criminal prosecution for the violation of an
ordinance of the city of New Haven. The City Court convicted the
defendant, and he appealed to the Court of Common Pleas, ('riminal
Bide. In the appellate court the defendant's counsel moved to erase
the case from the docket on the ground tliat tiie alleged offence was not
a crime ; and on that motion the case was reserved for the advice of
this court.
The ordinance is as follows : — "no vehicle, or the animahs attached
thereto, shall stand waiting for employment within ten feet of any
cross-walk." Another section prescribes a penalty of not less than one
nor more than ten dollars for every violation of the ordinance. The
only nqfistif'" '" -"^t^^^hn.- '^-^|■\^ ^noiation is a crime.
If the legislature itself had prohilnted the act and prescribed the
penalty in precisely the same terms, there can be little doubt that
the act would be a misdemeanor and might be prosecuted criminally.
It cannot be disputed that the legislature in fact granted the power to
enact this hy-lnw, and the power lias been exercised. Logically it
would seem to follow that the b\'-law should be of the same character
and have the same force within local limits as if enacted by the
legislature.
The test whether a proceedincr is civil y^r i'riif'nfi1| i° t-T d°t°rminf
whether its purpose is to redress a private or a piihli(! wrong. Is the
-law uiiuie lo prevent a private injury or a nuisance?
In Hinman v. Taylor, 2 Conn. 357, which was a prosecution under
the bastardy act, it was contended that because the proceeding was in
form criminal it must be regarded as a criminal prosecution ; but the
court took a different view. Swift, C. J., held that the proposition
that the form of the process decided the character of the action, was
repugnant to reason and precedent. " Suppose," he says, " the legis-
lature should authorize a forthwith process on a note of hand ; no one.
will seriously pretend that this would convert an action of assumpsit
into a criminal suit. To constitute a criminal suit some punishment
must be inflicted in hiilialj of (i|" yi,"'" " — He evidently regauled IhiS
'Objeet and nature ot the suit as determining the character of the pro-
ceeding. Judge HosMEB, in the same case, is still more explicit.
He says : " The criterion to ascertain a crime is not the mere form of
process, but ^e nature of the act.o'' »migsjnn it it be~a violation of a
pubhc law, it is_a_crime or misdemeanor." We find the same doctrine
cleai'ly stated in State v. Stearns, 31 N. Hamp. 106.
3& STATE V. KEBNAN". [CHAP. I.
Let ua-fttwhHtottesl. A criminal form of proceeding is clearly
authorized, and the act is an offence against the public and not an injury
to an individual. Tive penalty is not in the nature_QLgaiBpensation^to
the city for an injury sustained, but is designed asa punishment for a
wrong done~to the community -- a wrong prohibitedTbecause'it may
-4'esatt Ifl hai^m~or inoonvenielTce to individuals, who may or may not
be inhabitants of the city. Thus tested the nature of the act as well
as the form of process is clearly criminal.
Two reasons are urged why a criminal prosecution cannot be main-
tained and that the motion to dismiss should prevail. First, that the
charter expressly provides that an action may be brought for the penalty
in the name of the city treasurer, and that consequently that remedy
alone must be pursued. But this argument overlooks the object of the
bv-law, which is to prevent a nuisance, a matter in its nature criminal.
It is no uncommon thing-for a statute to authorize an action to recover
a penalty incurred by doing a forbidden act, even where a public prose-
cution can be sustained, as is the case in all qui tarn actions. Here
not onlj' a civil suit but a public prosecution is authorized in the charter.
But to avoid injustice it is expressly provided that "no person shall
be prosecuted both civilly and criminally for the same breach of a
by-law."
In the second place, it is contended that the right of imprisonment to
coerce the payment of a penalty is not expressly' given ; and if not
expressly granted, it cannot exist. This argument seems to beg the
question b}' assuming that the sole object of the suit is to collect a
penalty for the benefit of the city of New Haven ; whereas the real
purpose of the bj'-law, and consequently of the action, is to suppress a
public nuisance. For that purpose there can be no serious objection
to putting in operation the powerand legal machinery of the state.
We advise that the motion to dismiss be denied. .
la this opinion the other judges concurred.
SECT. 1.] WISPINGTON V. EDLINGTON. 3S
CHAPTER II.
THE OFFENCE.
SECTION I.
Felonies.
KENNEL V. CHURCH.
• CoKNiSH Etre. 1201.
[1 Selden Soc. 7.]
OsBERT Chukch, accused of the death of Roland, son of Reginald of
Xennel, on the appeal of the said Reginald, was detained in gaol and
defends word by word. And Reginald offers proof by the body of aK
certain freeman, Arkald, who has his daughter to wife, who is to prove V
in his stead since he has passed the age of sixty. Osbert Church
-defends all of it. The knights of the hundred of Penwith saj' that they
suspect him of the said death. The knights of Kerrier say the same.
The knights of Penwith saj' the same. The knights of Pyder say the
same. Judgment : let him purge himself by water.
And Reginald is in mercy for he does not allege sight and hearing,
and because he has withdrawn himself, and put another in his place,
who neither saw nor heard and yet offered to prove it, and so let both
^Reginald and Arkald be in mercy.
Osbert is gurggd-by the water.^
WISPINGTON V. EDLINGTON.
Lincolnshire Eyre. 1202.
[1 Selden Soc. 10.]
AsTiN of Wispington appeals Simon of Edlington, for that he
■wickedly and in the king's peace assaulted him in his meadows and
put_oul_hi8-eye-s»4Jia^he is maimed of thatjsyg ; and this he offers to
■prove, &c. Simon comes and defends all of it word by word. And the
coronors and the county testify that hitherto the appeal has been duly
sued, at first by [Astin's] wife, and then by [Astin] himself.
1 For cases on the modern law of Homicide see Chap. XIII. — Ed.
34 EEX v. HUGH. [chap. II.
Judgment: let law be made, and let it be in the election of the ap-
pellee whether he or Astin shall carry the iron. He has chosen that
Astin shall carry it. Astin has waged the law. Simon's pledges Wil-
liam of Laud and his franljpledge and Ralph of Stures. Astin's pledge,
Roger of Thorpe, Osgot of Wispingtou, and William, Joel's brother.
Afterwards came [the appellor and appellee] and both put themselves
in mercy.
JORDAN DE HORMED v. WALTER HACON.
Hertford Eyre. 1198.
[1 Rotuli Curiae Regis, 160.]
Jordan of Hormed appeals Walter Hacon for that in the peace of the
king and wickedly in felony he assaulted him in his house at Strange near
Ikenton, aridwojiaded--biHi4nthe head andinjiifijiand ; and he shows
the wounds and offers to pr&ve it Irfms bodj- aS~the court shall
consider.
Walter defends all, word for word, against him as against a champion
hired and paid, who twice had started on this course and as often retired
without completing it.
Jordan denies that he is a champion, and pursues his suit against him.
And a jury of knights testifj' that on another opcasion he had appealed
him of the robbery- of a sword and cape of which he now made no
mention.
They are to have a day at Dunstable.^
REX V. HUGH
Cornish Eyre. 1302.
[Year Book 30 ^ 31 Ed. I, 529.]
H. was presented by the twelve of Y. , for that he seized a certain
girl, and carried her to his manor in a certain vill, and carnally knew
her against her will.
H. was brought to the bar by Brian and Nicholas de N.
The Justiciar. Brian, we are given to understand that you would
have induced the prisoner not to put liimself upon the jury which ac-
cused him, and you have done ill, but because he is j-our relative, we
1 Foi' cases on the modern law of Assault see Chap. XIII., Sect. II. — Br>
SECT. I.J EEX V. HUGH. 35
are willing that you should stand by him, but not that you should act
as his counsel.
Brian. My lord, he is my relative, but I wish to disprove this, &c.,
and I desire that it should be well with him ; but he will be well ad-
vised by me to refuse his common law. And lest I should be at all
suspected of strife, I will withdraw.
The Justiciar. Hugh, the presentment is made to us that you
carried off, &c., as is set forth; how will you acquit yourself?
Hugh. My lord, I pray that I may have counsel, lest I be undone
in the King's court for lack of counsel.
The Justiciar. You must know that the king is a party in this case,
and prosecutes ex officio; therefore the law in this case does not suffer
j'ou to have counsel against the king, who prosecutes ex officio; but if
the woman should proceed against you, you might have counsel against
her, but not against the king. And therefore we order on the king's
behalf that all pleaders of your counsel withdraw. (These were removed.)
Hugh, answer. You see the thing charged against you is a very possi-
ble thing, and a thing of j'ourown doing ; so you can well enough, with-
out any counsel, answer whether you did it or not. Moreover, the law
ought to be general, and applicable to all persons ; and the law is that
the king is a party ex officio., against whom one shall not have counsel ;
and if, in contradiction to law, we should allow 3'ou counsel, and
the Jury should give a verdict in your favor (as, please God, they will
do), people would say that you were acquitted bj' reason of the favor
of the Justiciars ; consequently we do not dare grant your request,
nor ought you to make it. Therefore, answer.
Hugh. My lord, I am a clerk, and ought not to be required to
answer except unto my ordinary.
The Justiciak. Are j-ou a clerk ?
Hugh. Yes, my lord, for I have been rector of the church of N.
Ordinary. We demand him as a clerk.
Hugh. He speaks for me.
The Justiciar. We say that you have forfeited your benefit of
clergj', inasmuch as you are a bigamist, having married a widow ; tell
us whether she was a virgin when you married her ; and it is as well to
know the truth at once as to delay, for we can find out in a moment
from a jury.
Hugh. My lord, she was a virgin when I married her.
The Justiciar. This should be known at once. And he asked the
twelve whether Hugh, &c., who said on their oath that she was a
widow when Lord Hugh married her. But note that they were not
sworn anew, because they had been sworn before.
The Justiciar. Therefore this court adjudges that you answer as
a layman, and agree to those good men of the twelve ; for we know
that they wiU not lie to us.
Hugh. My lord, I am accused by them ; therefore I shall not agree
36 EEX V. HUGH. [chap. H.
to them. Besides, my lord, I am a knight, and I ought not to be tried
except by my peers.^
The Justiciar. Since you are a knight, we are willing that j-ou be
judged by your peers. And knights were named ; and he was asked if
he wished to propound any challenges against them.
Hugh. My lord, I do not agree to them ; you shall take whatever
inquisition you will ex officio, but I will not agree.
The Justiciar. Lord Hugh, if you will agree to them, God willing,
tliey will find for you if you will only consent to them. But if you will
refuse the common law, you will incur the penalty therefor ordained, to
wit, " one day you shall eat, and the next daj' you shall drink ; and on
the day when you drink you shall not eat, and e contra ; and }'ou shall
eat barley-bread, and not wheaten-bread, and drink water," &e. ex-
plaining many reasons why it would not be well to delay at this point,
but would be better to agree to' these.
Hugh. I will agree to my peers, but not to the twelve by whom I
am accused ; wherefore hear my challenges against them.
The Justiciar. Willingly ; let them be read ; but if you have any-
thing to say wherefore they ought to be removed, say it with j'our own
voice or in writing.
Hugh. My lord, I pray counsel, for I cannot read.
The Justiciar. No, for it is a matter touching our Lord, the King.
Hugh. Do you take them and read them.
The Justiciar. No, for they ought to be proposed by your own
mouth.
Hugh. But I cannot read them.
The Justiciar. How is this, that you would have claimed your
benefit of clergy, and cannot read your challenges ? (Hugh stood silent
in confusion.) Do not be struck dumb, now is the time to talk. (To
Lord N. de Leyc.) Will you read Lord Hugh's challenges ?
Lord N. My lord, if I do, let me have the book which he has in his
bands. (After receiving it) My lord, here are written challenges against
several ; shall I read them aloud?
The Justiciar. No, just read them secretly to the prisoner, for they
ought to be offered by his own mouth. And so it was done. And
when they had been offered by his own mouth, since they were found
true challenges, those against whom they were offered were removed
from the inquisition.
The Justiciar. We challenge Lord Hugh of j-apg^of a certain
woman, he denies it, and is asked how he will be tried ; he says by a
good jury ; wherefore for good or ill he puts himself upon you ; and so
'^ Magna Charta (9 H. 3.) c. 29. No freeman shall be taken, or imprisoned, or be
disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any
otherwise destroyed; nor we will not pass upon him nor condemn him, but by lawful
judgement of his peers, or by the law of the land. We will sell to no man, we will
not deny or defer to any man either justice or right.
SECT. I.] NORRIS V. BUTTINGHAM. 37
we enjoin you by virtue of your oath, tell us whether Lord Hugh ravished
the aforesaid woman or not.
The Twelve. We say that she was ravished by force by Lord Hugh's
men.
The Justiciar. Was Hugh consenting to the act or not?
The Twelve. No.
The Justiciar. Did they know her carnally ?
The Twelve. Yes.
The Justiciar. Was the woman unwilling or consenting?
The Twelve. Consenting.^
The Justiciar. Lgrd Hugh, since they acquit you, we acquit you.
FABIAN V. GODFREY.
Wiltshire Eyre. 1198.
[Abhreviatio Placitorum, 17.]
Fabian appealed Godfrey Spileman's son for that he and Roger his
son and Humphrej' his man wickedly at night burned his dwelling
house ; and this he offers to prove against him as of his own sight, as
the court of our lord the king shall determine, considering that he is a
man over age. And Godfrey defends for himself and his fellows.
The jurors being asked, said that they do not believe that Godfrey
or any of his fellows did this; and that Fabian is a man who often goes\
out of his head.^
NORRIS V. BUTTINGHAM.
Strafford Eyre. 1198.
[1 Rotuli Curim Regis, 205.]
The jurors say that William Norris appealed William de Buttinghara
and Robert his son for that in the peace of the king, wickedly and in
hamsoke they robbed from him six shillings and sixpence of his chat-
tels, and robbed from his possession twentj'-four lambs, and broke the
doors of his house in his possession, and [robbed from him] chattels
to the value of ten shillings ; and this he offers to prove by his body as
the court shall consider.
William and Robert defend all, word by word ; and they say that
Maurice held of the said William in fee; and at his death William
entered into his fee, and Alexander Fitz-Philip hired of him in the fee
1 Credo quod deberet hie quod iamen post defuit. — Eep.
* For cases on the modem law of Arson, see Chap. XVIII. — Ed.
38 LUKE DE BEOOHESHBVET V. WALTER DE MAKBN. [CHAP II.
a pasture for twenty-five sheep. And afterwards this William Norris
came to that fee and carried away the lambs and put them in another
fee and detained them; so that the said William de Buttingham and
Robert his son went to William Fitz-Gerard, Serjeant of the hundred,
and through him regained possession of the sheep by replevin. And
the Serjeant testified to this fact.
And the whole county testify that men are thus appealed according
to their custom.
It is considered that the appeal against them is null. Judgment:
William Norris is amerced for a false appeal, and William and Robert
are acQuittad.'
REX V. HUGH.
Wiltshire Etre. 1198.
[Abbreviatio Placitorum, 19.]
EoBBET DE LucT was robbed by Hugh Brien's brother and Nicholas
Fitz-priest and EUas a relative of Brien's wife, and many others whom
the jurors (^are unable ?] to enumerate, intjran -nf ]Ttir ; and the robbers
have not come to the peace of our lord the king. And Brian is out-
lawed. And Hugh his brother and Nicholas Fitz-priest and Elias the
relative of Brien's wife are to be sought tlirough the county ; and
'Unless they appear let them be judged by law of the county."
LUKE DE BROCHESHEVET v. WALTER DE MAREN.
Hertford Eyre. 1198.
[1 Rotuli Curiae Regis, 160.]
The jurors say that'Luke of Brocheshevit appealed Walter of Maren
and Godfrey Trenchevent of t.hp^ theft, nf a fl"w- Walter was essoined
as beyond sea. And Godfrey does not come. His pledge was William
of Maren ; so he is in mercy.
They say likewise that the said Luke appealed the said Walter for
that in the peace of the king, and in felony he stole his wife Felicia
and his seal and his chattels to the value of one hundred shillings ; and
this he offers to prove as the court shall consider. It is to await the
coming of the justices.^
1 For cases on the modern law of Burglary, see Chap. XVIII. — Ed.
* For cases on the modern law of Robbery, see Chap. XIV., Sect. XVII. — Ed.
' For cases on the modern law of Larceny, see Chap. XIV. — Ed. '
SECT. II.j REX V. COOK. 39
HUGH OF KUPERES v. JOHN OF ASHBY.
LiiscolnkShirb Eyre. 1202.
[1 Selden Soc. U.]
Hugh of Euperes appeals John of Ashby for that he in the king's
peace and wickedly came into his meadows and depastured them with
his cattle, and this he oflFers, etc. And John comes and defends all of
it. And whereas it was testified by the sheriflF and the coroners, that
in the first instance [Hugh] had appealed John of depasturing his
meadows and of beating his men, and now wishes to pursue his appeal
not as regards his men, but only as regards his meadows, and whereas
an appeal for depasturing meadows does not appertain-fce-tiie'crowrrof
our lord the Emg, It lij ooiibidercd that thu "app^Tis nuU, and so let
Sug'U by Hi mUrwy and John be quit.
Hugh is in custody, for he cannot find pledges.
SECTION n.
Misdemeanors.
REX V. COOK.
MiDDLESKx Sessions. 1696.
[Reported Comberhach, 382,]
Upon an indictment setting forth that Sir John Friend and Sir Wil-
liam Perkins being attainted and about to be executed at Tyburn for
high treason, etc., tbg^defendants, conspiring and intending-(ao mueh
as in them lay) t.n jpstify, nr at ipast; in i!frT.A»ing.tS~gnH lessen their
crimes, and to induce his majesty's subjects to believe that they died
ratlier as martyrs than as traitors, and to incite the king's subjects to
commit the like treasons, they did take upon them to absolve, flud did.
pronounce a forrnrif ahsnlntinn of thern. the said hir William Perkins
and Oil JohirFriend, without any repentance, or any signs of repent-
ance by them given.
It was proved that the defendants asked the criminals the several
questions directed by the rubrlck in the oflflce of visitation of the sick,
and Mr. Cook pronounced the words of absolution of- one of the
traitors, Mr. Snatt and one Mr. Collier (who is not now indicted) lay-
ing their hands upon his head, and after the words pronounced saying
Amen ; and Mr. Collier pronounced the words as to the other traitors,
they all three laying on their hands, etc.
It was proved that the defendants were earnestly requested by Sir
William Perkins and Sir John Friend to assist them at the place of
40 STATE V. JACKSON. [cHAP. II.
execution ; and therefore the jury were directed to acquit them of the
conspiracy, though the Attorney General said the indictment was not
for conspiracy, and conspirantes was put adjectively only to introduce
the other matter, and therefore was not material.
And Holt [L. C. J.] directed the jury that this proceeding of the
defendants was certainly scandalous and irregular ; for if the criminals
had before made a private confession, the absolution should have been
private likewise ; but if they would give a public absolution, they ought
to have required as public a confession, and particularly with respect
to those crimes for which they were attainted, being so notorious, etc.
However, il-the-iurv were of opinion thatthejjidJfc-ouly igitefantly
^id v-Y "2V<-«V ('" wii;,^Vi 17000 if i.!i properly conusable in the Spatitual
court;, then to acquit them ; but if they^id it with ajlBsignto affront
jhu guveriltlient, and to vilify the justice of the nation, then to find
them guilty. ~~ "^ ~
But at The instance of the defendant's counsel it was directed to be
, found specially that Snatt laid his hand on the head, and was assistant
while the other pronounced the words of absolution, and afterwards
Snatt said Amen (it being laid quod pronuntiaverunf).
And accordingly the jury acquitted them of the conspiracy, and found
Cook guilty of the rest ; and as to Snatt, ut supra}
STATE V. JACKSON.
Supreme Judicial Court of Maine. 1881.
[Reported 73 Maine, 81 .]
LiBBET, J. This is an indictment against the defendant for unlaw-
fully and wilfully attempting to influence a qualified voter to give in
his ballot at a municipal election, in the city of Rockland, by offering
and paying him money therefor.
The offence charged is not within R. S., c. 4, § 67.
Isjjribgiy .it a municipal elauliuu a ima4ftm£atiar_atcommon law in
thisstatai — Itas claimed by the learned counselfor the defendant,
thafltis not recognized as such in this country. ^Ee_think-it-465 — It
was an.ofiftioo at coniinuii la tv-4B-Enylaud. 1 Russell on Crimes, 154 ;
Plympton's Case, 2 Ld. Raym. 1377 ; Rex v. Pitt, 3 Burr. 1335.
The common law of England upon the subject of bribery, fraud and
corruption at elections, is generally adopted as the common law in
this country. Comm. v. Silsbeee, 9 Mass. 417 ; Comm. v. Hoxey, 16
Mass. 885 ; 1 Bish. Crim. Law, 355 ; Walsh v. The People, 65 IlL, 58 ;
State V. Purdy, 36 Wis. 224 ; State v. Collier, 72 Mo. 13 ; People v.
Thornton, 32 Hun (N. Y.) 456 ; Comm. of Penn. v. McHale, 97 Pa. 397.
Bishop in his work on Criminal Law, vol. 1, § 922, says : " We see it
to be of the highest importance that persons be elected to carry on the
> See Rex v. Noel, . Coml). 362 ; Penna. 0. Morrison, Add. (Pa.) 274. —Ed.
SECT. II.J COMMONWEALTH V. SILSBEE. 41
government in its various departments, and that in every case a suit-
able choice be made. Therefore any act tending to defeat these I
objects, as forcibly or unlawfully preventing an election being held,
bribing or corruptly influencing an elector, casting more than one vote,
is punishable under the criminal common law."
Paxon, J., in the opinion of the court in Comm. v. McHale, supra,
says: "We are of opinion that all such crimes as especially affect
public society, are indictable at common law. The test is not whether
precedents can be found in the books, but whether they affect the
public policy or economy. It needs no argument to show that the acts
charged in these indictments are of this character. 1|hey arejxot-eBJy
offences whif-|i affpct pn'-li' mi I'ii'ty. liiili llif'y filTt^fTi lli In TIih ^irv"'!'-
nnp.r. An offence against the freedom and purity o^ *^'^ olontmn
is a crime against the nation" JJl strikes at the fnnnrlat.inn r>f rppnl-ili-
CaTiimitTtiJtrons. Its tendency is to prevent the expression of the will
of the people intne choice of rulers, and to weaken the public confi-
dence in elections. When this confidence is once destroyed, the end
of popular government is not distant. Surely if a woman's tongue
can so far affect the good of society as to demand her punishment as a
common scold, the offence which involves the right of a free people to
choose their own rulers in the manner pointed out by law, is not be-
neath the dignity of the common law, nor beyond its power to punish.
The one is an annoyance to a small portion of the body politic, the
other shakes the social fabric to its foundations."
We have no doubt that bribery at a municipal election is a misde-
meanor punishable hy the common law of this state.
An attempt to bribe or corruptly influence the elector, although not
accomplished, will submit the offender to an indictment. State v.
Ames, 64 Maine, 386.
But admitting that attempting to bribe an elector at a municipal
election is an offence at common law, it is claimed by the counsel for
the defendant that the indictment in this case does not properly charge
such offence. ^
Exceptions overruled. Judgment for the State?
COMMONWEALTH v. SILSBEE.
Supreme Judicial Court op Massachusetts. 1812.
\Rej>oHed 9 Massachusetts, 417.]
The indictment charged that the defendant, being admitted as a
legal voter at the town meeting holden on the eleventh day of March,
(1811, at Salem, for the choice of town oflScers, "did then and there
* In the subsequent portion of his opinion the learned judge held that this claim
was unfounded. — Ed.
2 Ace. Taylor's Case, 12 Mod. 314 ; Reg. v. Lancaster, 16 Oox, C. C. 637 ; State v,
Davis, 2 Peunew. (Del.) 139 ; State v . Ellis, 33 TS. J. Law. 102.
42 COMMOXWEALTH V. SILSBEE. [CHAP. II.
wilfully, fraudulently, knowingly, and designedly give in more than
one vote for the clioice of selectmen for said town of Salem at one
time of balloting ; to the great destruction of the freedom of elections,
to the great prejudice of the rights of the other qualified voters in said
town of Salem, to the evil example of others in like case to offend,
and against the peace and dignity of the Commonwealth aforesaid, and
the law of the same in such case made and provided."
After conviction the defendant moved in arrest of judgment, on the
ground of the insufficiency of the indictment.
Dane, for the defendant. Here is no offence charged. The defend-
ant put more than one vote for selectmen into the box at one time ;
and he might well do this, since not less than three selectmen were to
be voted for.
The offence, if any is described in the indictment, cannot be such
by the common law, since that law knows nothing of the office of
selectmen. If the offence is created by statute, the indictment ought
to conclude contra formam statuti ; and if the conclusion of this be
considered so, it belongs to the government to produce the statute
against which the offence was committed. But none such can be
found ; and the usual punishment applied to the act, that of rejecting
the party's vote, is probably all that the government thought necessary
or convenient.
By the Statute of 1795, c. 55, a fine not exceeding twenty nor less
than ten dollars was provided for such as should give in more than
one vote in the election of State officers. It appears that the Legisla-
ture did not contemplate that offence, though of an higher grade than
that here intended to be prosecuted, wortliy of the severe punishment
which may by the common law be imposed on misdemeanors. Indict-
ments of this kind are of late origin, which is an argument that they
do not lie at common law.
No fraud is alleged in the indictment ; for as to the general words
" fraudulently,'' &c., they have no operation, being merely formal.
Tlie Solicitor-General insisted that this was a fraud, upon which the
common law would animadvert. It was a direct infringement of the
highest political rights of others. The indictment, as to its form, is
conformed to the provisions of the statute of 1800, c. 74, respecting
the votes to be given for the governor, &c. of the Commonwealth.
The mischief is growing in various parts of the Commonwealth, and
unless restrained will shortly destroy the purity of our elections, and
with that will go our most valued political institutions.
Curia. There cannot be a doubt that the offence described in the
' indictment is a misdemeanor at common law. It is a general prin-
I i ciple that where a statute gives a privilege, and one wilfully violates
jf snch privilege, the common law will punish such violation. In town
meetmgs every qualified voter has equal rights^and_is_eiilitlediQl^e
<;gne vote for every otKcer to bti tila:j;iii]j. The persoiiwho givoa tt^qto
infringes ann \ loi.'dl^M-tho rightr -of the other voters, and for this
SECT. II.J EEX V. IVENS. 43
offence the common law gives the indictment; and the conclusion of
the one at bar is proper for the case.
The defendant was adjudged to pay a fine often dollars
with the costs of prosecution.^
REX V. JONES.
King's Bench. 1740.
[Reported 2 Strange, 1 146.]
Hk was indicted for not taking upon him the office of overseer of the
poor, upon a regular appointment ; and on demurrer objected, that as
he was to take no oath, and the 43 Eliz. c. 2, had inflicted pecuniary-
penalties for neglect of Aaiy to be recovered in a summary way, he
could not be indicted.
Sed per Curiam, those penalties are for neglect of duty when he is
the officer, whereas this indictment says he has obstinatel}- refused to
take the office upon him : the disobeying an act of Parliament ia indint
able upon the principles of the common law. \
CL -^ ' Judgment for the King!'
REX V. IVENS.
Oxford Circuit. 1835.
[Reported 7 Car. 4r Payne, 213.]
Indictment against the defendant, as an innkeeper, for_nQl-rfiCfiii=-
ing Mr.^Samuel Probyn Wiliiiiuis m> it g'ue&t al hts~inn, and alsg. for
Drse. I'he first count of the indictment averred
tiaTuie prosecutor had offered to pa}' a reasonable sum for his lodg-
ings ; and the first and second counts both stated that there was room
in the inn. Tiie third count omitted these allegations, and also omitted
all mention of the horse. The fourth count was similar to the third,
but in a more general form. Plea — Not guilty.
It was opened by Whitmore, for the prosecution, that the defendant
kept the Bell Inn, at Chepstow, and that the prosecutor Mr. Williams
ha<l gone there on horseback, on the night of Sunda}- the 14th of April ;
and that the defendant and his wife both refused him admittance into
the inn.
Godson, for the defendant. — Does your Lordship think that an
indictment lies against an innkeeper for refusing to receive a guest?
1 Ace. Com. 0. Hoxey, 16 Mass. 385.
2 See Hungerford's Case, 11 Mod. 142.
44 REX V. ivENS. [chap, ir,
I know that an action may be brought against him if he does so ; and
such an action was brought against an innkeeper at Lancaster a lew
j'ears ago. This is only, at most, a private injury to Mr. Williams,
and not an offence against the public.
Coleridge, J. There can be no doubt that this indictment is sus-
tainable in point of law. Mr. Serjeant Hawkins distinctly lays it down
that an indictment lies for this offence.^
Coleridge, J. (in summing up). The facts in this case do not
appear to be much in dispute ; and though I do not recollect to have
ever heard of such an indictment having been tried before, the law
applicable to this case is thja.1. thnt nn indiotmnnt lieg^ against an
"Tnrilrpppprwhn^rpfnHps to receive a guest, hebaying Bt tha tnjieroom.
inTiis house;and either the price~oi ine ameetVeirtM^nmeutoerng
■iSmfeTCd lu hiu], of tiuch uiicumsUmiSS^eeetrrring its-will dieponeo wi-th.
that tendetr-^yhis lawTs fouiiUedin good sense. The innkeeper is not
to select his guests. He has no right to say to one, von shall come
into my inn, and to another you shall not, as ever^"^ one coming and
conducting himself in a proper manner has a right to be received ; and
for this purpose innkeepers are a. .sort of public servants, they having
in return a kind oi' privilege ot entertaining travellers, and supplying:
them with what they want. It is said in the present case that Mr.
Williams, the prosecutor, conducted himself improperly, and therefore
ought not to have been admitted into the house of the defendant. If
a person came to an inn drunk, or behaved in an indecent or improper
manner, I am of opinion that the innkeeper is not bound to receive him.^
You will consider whether Mr. WiUiams did so behave here. It is^
next said that he came to the inn at a late hour of the night, when
-prSRably the family were gone to bed: — Have we iiSTall knocked at inn
doors at late hours of the night, and after the familj' have retired tO'
rest, not for the purpose of annoyance, but to get the people up? In
this case it further appears that the wife of the defendant has a con-
versation with the prosecutor, in which she insists on knowing his-
name and abode. I think that an innkeeper has no right to insist on
knowing those particulars ; and certainly you and I would think an
innkeeper very impertinent, who aslced either the one or the other
of any of us. However, the prosecutor gives his name and residence;
and supposing that he did add the words " anrl he Hamnrd tn ynuj' is
that a sufficient reason for keeping a man oiiV of an inn who has
travelled till midnight? I think that the prosecutor was not guilty
of such misconduct as would entitle the defendant to shut him out
of his house. It hasjmen strongly objected against the prosecutor
by Mr. (rndiion.—tM:frh^Jmd_hppn t.rgvplling rvTfn^jgnfTp^T.^ — Te-makfi.
_that_a*g«fflBTit OI any avaiTTitrnust be contended~ttTat travelling on
a Sunday is illegal. It is not so, although it is what ought to be
avoided whenever it can be. Indeed there is one thing which shows
1 The evidence is omitted — Ed.
SECT. II.] CEOUTHER'S CASE. 45
that travelling on a Sunday is not illegal, which is, that in many places
you pay additional toll at the turnpikes if you pass through them on
a Sunday, by which the legislature plainly contemplates travelling on
a Sunday as a thing not illegal. I do not encourage travelling on Sun-
days, but still it is not illegal. With respect to the non-tender of
money by the prosecutor, it is now a custom so universal with inn-
lieepers, to trust that a person will pay before he leaves an inn, that
it cannot be necessary for a guest to tender money before he goes into
an inn; indeed, in the present case no objection was made that Mr,
Williams did not make a tender ; and thej' did not even insinuate that
they had any suspicion that he could not pa^' for whatever entertain-
ment might be furnished to him. I think, therefore, that that cannot
be set up as a defence. It however remains for me next to consider
the case with respect to the hour of the night at which Mr. Williams
applied for admission ; and the opinion which I have formed is, that
the lateness of the hour is no excuse to the defendant for refusing.' to
receive the prosecutor into his inn. Whj' are inns established? for
the reception of travellers, who are often very far distant from their
own homes. Now, at what time is it most essential that travellers
should not be denied admission into the inns? I should sa}- when they
are benighted, and when, from any casualty, or from the badness of
the roads, they arrive at an inn at a verj' late hour. Indeed, in former
times, when the roads were much worse, and were much infested with
robbers, a late hour of the night was the time, of all others, at which
the traveller most required to be received into an inn. I jthinkj tbe*€-
fore, that if the traveller conducts himself propp^lg, \W '""'rppp^r^
■-is bound to admit him, at whatever hour of the night he may -nrrivp.
':^e-uuly Other question lii this case is, whether the defendant's inn
was full. There is no distinct evidence on the part of the prosecution
that it was not. But I think the conduct of the parties shews that the
inn was not full ; because, if it had been, there could have been no use
in the landlady asking the prosecutor his name, and saying, that if
he would tell it, she would ring for one of the servants.
Verdici Guilty.
Pabk, J,, sentenced the defendant to pay a fine of 20s.^
CROUTHER'S CASE.
Queen's Bench. 1598.
[Reported Croke Elk. 654.]
Crouther was indicted, for that a burglary was committed in th^
night by persons unknown, and J. S. gave' notice thereof unto him
being then constable, and required him to make hue and cry, and he
* See Eex v. Taylor, Willes, 638 note; Reg v. James, 2 Den. C. C. 1.
\
46 , COMMONWEALTH V. CALLAGHAN. [CHAP. II.
refused, etc. Exception was taken to the matter of the indictment,
because it hath been adjudged that an hundred shall not be charged
with a robbery committed in the night, because they are not bound to
give attendance ; no more ought a constable to do it in the night. But
all iJTprViiirt-. hplii thn indii lilli iil li'i bi nronrljjTn^iT'tlTitnndinn; ; for it is
not Iiketo the casa^ an hundred-rirocauae ilTirTtl'ti C0iwm|il|^^'1"'j'i~
upoii nSticefflven unto him, presently to pnrsne.i And itr was said
""that in every case where a statute prohibits anything, and doth not
limit a penalty, the party offending therein may be indicted, as for a
contempt against the statute.^
Another exception was taken, because he did not shew the place of
the notice ; and that was held to be material. Whereupon the party
was discharged.
COMMONWEALTH v. CALLAGHAN,
General Court of Virginia. 1825.
[Reported 2 Virginia Cases, 460.]
This was a case adjourned by the Superior Court of Law of Alleghany
County. The case itself is fully set forth in the following opinion of
the General Court, delivered bj' Barbour, J. : —
This is an adjourned case from the Superior Court of Law for the
County of Alleghany.
It was an information filed against Callaghan and Holloway, two of
the justices of Alleghany, alleging in substance the following charge:
That at a court held for the county of Alleghany, there was an election
for the office of commissioner of the revenue and of clerk of said court,
when the defendants were both present, and acting in their official
character as magistrates in voting in said election ; that the defendant
Callaghan, in said election for commissioner of the revenue, wickedly
and corruptly agreed to vote, and in pursuance of said corrupt agree-
ment did vote, for a certain W. G. Holloway, to be said commissioner,
in consideration of the promise of the defendant Holloway that he
would vote for a certain Oliver Callaghan to be clerk of said court ;
and that the defendant Holloway in the said election of clerk wickedly
and corruptly agreed to vote, and in pursuance of said corrupt agree-
ment did vote, for a certain Oliver Callaghan to be said clerk, in con-
sideration of the promise of the defendant Callaghan that he would vote
for the aforesaid W. G. Holloway to be commissioner. To this infor-
mation the defendants demurred generally, and there was a joinder in
tte-demurrfii:,— -The Superior Court of Law of Alleghany, with the
assent of the defendants, adjourned for novelty and diflficulty to this
court the questions of law arising upon the demurrer to the informa-
tion, and particularly the following, namely : —
1 See Keg. u. Wiatt, U Mod. 53 ; State v. Haywood, 3 Jones (N. C), 399.
* See State v. Parker, 91 N. C. 650. — Ed.
SECT. Il] COMMONWEALTH V. CALLAGHAN. 47
1. Is there any offence stated in said information for which an infor-
mation or indictment will lie ?
2. Is the offence charged in the said information within the true
intent and meaning of the Act of the General Assembly entitled " An
Act against buying and selling offices," passed Oct. 19, 1792, in page
559, 1st vol. Rev. Code of 1819?
3. If the offence be within the said act, is the information filed in
this case a good and sufficient information ?
The first and second questions, for the sake of convenience, will be
considered together.
It is proper to premise that a general demurrer admits the truth of
all facts which are well pleaded ; there being such a demurrer in this
case, and the information distinctly alleging that the defendants, in
giving their votes respectively, acted wickedly and corruptly, such
wicked and corrupt motive will be considered throughout as forming a
part of the case.
The court are unanimously of opinion that the case as stated in the
information is not within the true intent and meaning of the Act of
Assembly referred to in the second question. That act embraces two
descriptions of cases : 1. The sale of an office or the deputation of an
office ; 2. The giving a vote in appointing to an office or the deputa-
tion of office. It would be within the latter description that this case
would fall, if within either ; but the court are decidedl3' of opinion that
this case does nnt_fa11 w'tlivn r,his HpsnripT.irtn^ hpvjflnai^ ttie_plain con-
— stiHieSw^tTKjSe^statute is that the penalties which it denounces are
^^ItiTod onlyhy thooc who reeeive-ui Uku. nil.lmjLilirtttilly <)!■ Iiiilii'tj(ir,1vr.
any money, profit, &c., or the promise to have any money, profiE &c..
"^to thtjir 6wn use orfor tEeir ownbenent. In this case it appears from
the iuPurUJation thatthe promise of each of the defendants to the other,
which constituted the consideration of the vote of that other, and the
vote given in consequence of such promise, inured not to the benefit of
the defendants or either of them, but to the benefit of others. If indeed
it had been alleged in the information that the persons for whom the
votes were given, were, if elected, to have held them upon any agree-
ment, that the defendants should in any degree participate in their
profits or receive from the holders of them any benefit or advantage,
the case would have been different, for then the defendants would have
received a profit indirectly, and thus would have fallen within the stat-
ute ; but there is no such allegation.
The court being thus of opinion that this case was not embraced by
the statute, but at the same time considering that that S3stem of crim-
inal jurisprudence must be essentially defective which had provided no
punishment for acts such as are charged in the information, and which
merit the reprehension of all good men, were led to inquire whether the
acts charged in the infnrmat.iQn did notTcnnsriTute an oit'ence at^ominon
1nw 'i ind ThrynJT nfopininn tlint thi-r dn
JmretationTothose offences which Tiae to the grade of felony there
48 COMMONWEALTH V. CALLAGHAN. [CHAP. II.
is usually, particularly in the designation of them by name, an accuracy
in the definition ; as, for example, murder, burglary, arson, &c., in
each of which the term ex vi termini imports the constituent of the
offence ; but in the general classification of crimes whatever is not
felony is misdemeanor. In relation to these, then, they are not only
numerous but indefinitely diversified, comprehending every act which,
whilst it falls below the grade of felony, is either the omission of some-
thing commanded or the commission of something prohibited by law.
As to these the law can do no more than lay down general principles,
and it belongs t6 the courts of the country to apply those principles to
the particular cases as they occur, and to decide whether they are or
are not embraced by them. T^.s the law^ a j3-eneral-f»ff»pbsition,
prohibits the doing of any act wBTgtrt5~gQHg5I&fl»^*-^2tgrgg- The par-
ticnteracts which come up to this description it is impossible to include
in any precise enumeration ; they must be decided as they occur, by
applying this principle to them as a standard. Thus, again, it is now
established as a principle that the incitement to commit a crime is itself
criminal under some circumstances. 6 East, 464 ; 2 East, 5. As for
example, the mere attempt to stifle evidence, though the persuasion
should not succeed. Cases of this kind may be as various as the vary-
ing combinations of circumstances.
To come more immediately to the present case, we hold it to be a
sound doctrine that the acceptance of every office implies the tacit
agreement on the part of the incumbent that he will execute its duties
with diligence and fidelity. 5 Bac. Abr. 210, Offices and Officers, Let-
ter M. We hold it to be an equally sound doctrine that all officers are
punishable for corruption and oppressive proceedings, according to the
nature and heinousness of the offence, either by indictment, attach-
ment, action at the suit of the party aggrieved, loss of their offices, &c.
5 Bac. Abr. 212, Letter N.
And further, that all wilful breaches nf t.hp rlnt.y nf an nffipp gr.e fnr-
feitures of it, and also punishable by fine (Co. Litt. 233, 234), because
•=gvery bftlce is mstitutea, not for the salce'of the officer, but for the good
of another or others ; and, therefore, he who neglects or refuses to
answer the end for which his office was ordained should give way to
others, and be punished for his neglect or oppressive execution.
Let us apply these principles to the present case. The defendants
were justices of the peace, and as such held an office of high trust and
confidence. In that character they were called upon to vote for others,
for offices also implying trust and confidence. Their duty required
them to vote in reference only to the merit and qualifications of the
officers, and yet upon the pleadings in tliig^casgSt^jppears that \hey
wiclifidly-aiid uuiTUpHy-;Kiolated their duty and betraved the confidence
^posed in them, bv votinglllidor the -iufllTence of a corrupt hfl.rgaln or
reciprocal promise, bywiiich they had come under a reciprocal obliga-
tion to vote respectively for^^rticular person, ja_mattcr hojacggferior
the qualifications to their comj^titors.. it would seem, then, upon
SECT. II.J SEX V. SEYMOUR. 49
these general principlea that the ofTence in the information is indictable
at common law. But there are authorities which apply particularly to
the case of justices. In 1 Bl. Com. j54, n. 17, Christian, it is said if a^
imgistrate abuse his authority from corrupt motives he is pjinishalile
cmntHaHy by iuJiiiLiiieuL or Intormation. •
— Jtgaiii, where magistrates have acted partially, maliciously, or cor-
ruptly, they are liable to an indictment. 1 Term Kep. 692 ; 1 Burr.
556 ; 3 Burr. 1317, 1716, 1786 ; 1 Wils. 7. An instance of their acting
partially is that of their refusing a license from motives of partiality,
the form of the indictment for which is given in 2 Chitty's Crim. Law,
253.
We are then of opinion, for the reasons and upon the authorities
aforesaid, that the oifence stated in the information is a misdemeanor
at common law for which an information will lie, but that it is not
within the statute referred to.
In answer to the third question we are of opinion that the informar
tion is a good and suiBcient one.
All which is ordered to be certified to the Superior Court of Law for
Alleghany County.
REX V. SEYMOUR.
King's Bench. 1740.
[Reported 7 Aforf. 382.]
Setmouh, Boyce, Blatch, and DufHeld attended at the king's bench
in order to receive judgment, upon their being found guilty upon several
informations.^
Chapple, the junior Judge, having attended Baron Carter, who tried
the informations, reported to the Court that there were three several
informations, one against Seymour, and Bo5'ce, a justice of peace ;
another against the same Seymour, and Blatch, a justice of the peace ;
and a third against the said Seymour, and Duffleld, a justice of the
peace.
1 Ace. Rex V. Chalk, Comb. 396 ; Anon., 6 Mod. 96 ; Reg. v. Buck, 6 Mod. 306 ;
Tyner v. U. S., 23 App. D. C. 324, 362 ; People v. Coon, 16 Weud. (N. Y.) 277; Com.
V. Brown, 23 Pa. Super. Ct. 470. ' ' However reprehensible it may be for a member of the
legislature to keep ' open house ' for the entertainment of members, where they may
partake of ' light refreshments, wine, beer, liquors, and cigars,' it falls short of estab-
lishing a case of bribery. A ' bribe ' is defined to be a ' price, reward, gift, or favor
bestowed or promised with a view to pervert the judgment or corrupt the conduct of a I
judge, witness, or other person.' 'To bribe' means 'to give a- bribe to a person to
prevent his judgment or corrupt his actions by some gift or promise.' To give enter-
tainments for the purpose of unduly influencing legislation is wholly bad in morals, but
does not constitute the crime of bribery." Grant, J., in Randall v. Evening News
Ass'n, 97 Mich. 136, 56 N. W. 361.
50 REX V. SEYMOUR. [CHAP 11.
The otfence stated in the information, was matter of extortion used
by Seymour and the three justices against several foreigners who were
settled in the corporation of Colchester, and who had applied to those
three justices for licences to sell ale.
The proceedings were thus : Seymonr and these three justices met in
order to grant licences to sell ale ; when the burgesses applied they had
their licences upon the common and ordinary terras, but when any for-
eigner came for a licence, the constables who were stationed to guard the
outward door .suffered none but the foreigner who applied for a licence
to enter into the first room, where Seymour was ; and the general ques-
tion Seymour put to th"e foreigner was, Whether he was willing to pay
ten shillingsforJiisJicence ? If he refused he was dismissea, but inre-
agr'iitid Lo paj' it to Seymour his sureties were called, and he was ad-
mitted to go along with them into the room to the three justices, where
his recognizance was taken and his licence granted. These informa-
tions were tried by three special juries of gentlemen ; the facts charged
were very fullj' proved upon the trial ; and there were above one
hundred licences granted at the rate of ten shillings apiece.
When Chappie, Justice, had certified as above, Serjeant Price and
Mr. Bootle moved, in mitigation of the fines that should be set by the
Court, upon several affidavits to shew quo animo the fact was done, as
that such fines had been taken for twenty-flve years past; that this
whole procedure was bj- the consent and direction of all the other ruling
members of the corporation ; and that the money was applied to public
uses, as for repairing bridges, streets, etc.
The Court suffered the affidavits to be read, though it was opposed
bj' the counsel on the other side.
The Court. This crime appears upon the informations, and the
affidavits for mitigation, to be of a very high nature ; for here are three
justices, who are intrusted bj' the act of Parliament of the 5. & 6. Edw.
6, c. 25, with a discretionarj' power to grant or refuse licences to the
persons who appl}- for them, for each of which lliesiateteTiiiows olT^
^JuUiHg. It appears there were several applications made for licences,
and that the justices granted them to anybody that was willing to pay
ten shillings, without any regard to the person, whether he was quali-
fied within the intent of the act or not. There was indeed a distinction
made between townsmen and foreigners, the latter being obliged to pay
much more than the former ; and there is no doubt but that by the by-
laws of a corporation, in a great manj' instances, foreigners may be
obliged to pay greater fees than the townsmen, as for the setting up of
any trade, etc., but selling of ale is not a trade, or the subject matter of
any by-law. Licencing public houses is a trust iTp^'-T^d in jnitir;y;ri of thw
peace by the legislatureT^iiid tthi.ii tlicn L.iumitU it' iifTT^ p..r<-i.Q/M.<iin.oi.Y
"manner. neith££_tEc"T!Trtrtom iif iliiiii^JXhJi Lweuty-flve years before, nor
Jh9 ttpplinntiftn nf thf mnnev to publicpurposfes. tlor the nonsent niMte
SECT. II.] Taylor's case. 51
other ruling members of the borough, can excuse these justices from
tlieTitiiiMui'tJS uf this Cuui't. • — *
'riierefore tlie three justices must bo fined one hundred pounds each,
and Seymour, who appears to be an ageiit or instrument to the justices,
must be flnctJ one hundred and twenty pounds, viz., the sum of fort^'
pounds on each information.
The justices and Sej'mour had in court all the fine money, except
one liundred pounds, which they offered to pay.
But the Court said, Let them be gentlemen of ever so large a fortune,
they must pa}' the whole flue in court or be committed, and checked one
of the clerks in court for proposing to undertake for the payment of the
one hundred pounds. The justices then paid the three hundred and
twentj' pounds, and gave their note for the remaining one hundred
pounds, which was accepted by the Court as payment.^
TAYLOE'S CASE.
King's Bench. 1676.
[Reported 1 Veiitris, 293.]
An information exhibited against him in the crown oflSce, for utter-
ing of divers blasphemous expressions, horrible to hear ; viz.. That
Jesus fffl'l"! \\"\" '\ h-i'lnrrl|i iTtmrfirriilctrr ; Religion was a cheat ; and
that he neither feared God, the Devil, or man.
Being upon his trial, he acknowledged the speaking of the words,
except the word bastard ; and for the rest, he pretended to mean them
in another sense than they ordinarily bear; viz., whoreraaster, i. e.,
that Christ was master of the whore of Bab)lon, and such kind of
evasions for the rest. But all the words being proved by several wit-
nesses, he was found guilty.
And Hale said. That such kind of wicked, blasphemous words were
not only "^^j^iflft tin ^"'^ finfl veligion, but a cjime aafiinst-the laws,
te and government, and therefore punishable in this court (for to
say religion is a cheat, is to dissolve all those obligations whereby the
civil societies are preferred) ; and that Christianity is parcel of the laws
of England, and therefore to reproach the Christian religion is to speak
in subversion of the law.
Wherefore they gave judgment upon him ; viz., To stand in the pillory \
in three several places, and to pay one thousand marks fine, and to find
sureties for his good behavior during life.''
» See Rex ». Roberts, Comb. 193.
» See State v. Williams, 4 Jre. (N. C.) 400.
52 ANONYMOUS. [CHAP. IL
HUGH MANNEY'S CASE.
Star Chamber. 16.
[Reported 12 Coke, 101.]
In an information in the p:xchequer against Hugh Manney, Esq.,
the father, and Hugh Manney, the son, for intrusion and cutting of a
great number of trees, in the county of Merioneth, the defendants
plead not guilty; and Rowland ap Eliza, Esq., was produced as a
witness for the King, and deposed upon his oath to the jurors, that
Hugh the father and the son joined in sale of the said trees, and com-
manded the vendees to cut them down, upon which the jurors found
for the King with great damages ; and judgment upon this was given,
and execution had of a great part.
And Hugh Manne}^ the father, exhibited a bill in the Star Chamber,
at the common law, against Rowland ap Eliza, and did assign the per-
jury in this, that the said Hugh, the father, did never join in sale, nor
command the vendees to cut the trees ; and the said Rowland ap
Eliza was by all the lords in the Star Chamber^eQiisiet-of~Coffiipt-ai»d»
wilful perjury- ; and it was resolved bv all, that it was by the common
■hrw pnni!^q,bl'> Hftfnrp f^r^y stg^it.p; and although that the witness de~
pose for the King, yet he shalP^ther be punished than for another ;
for the King is the head and fountain of justice and right ; and he, who
perjures himself for the King, doth more offend than if it was in the
case of a subject.
ANONYMOUS.
Assizes. 1326.
[Reported Year Booh, 1 Ed. in. 16, pi. 7.]
A MAN was indicted for felony, and put in the stocks ; another comes
and enters the house (without breaking the house) and takes him out
of the stocks and gets hira away ; and for this act he was arrested and
brought before the justices and arraigned, etc., on indictment, and put
himself, etc. ; and all this was found by an inquest.
BouRCHiEE, C. J. C. P., said that he should rest in the grace of the
King, and have perpetual prison or other punishment according to the
King's will. But he should never be hanged, because the principal
cause was not tried, nor had the prisoner been attainted ; for he might
yet be acquitted. But it is otherwise whena,si»a:nr!s~c!0rrs4cted by the
inquest on which he has put himself^o;>t^^confession, or by the record,
or is otherwise adjudged ^ d^sktli; he i who_jie*eHes-McE~Tt^maD
shall be hanged, etc.
SECT. II.] ANONYMOUS. 53
ANONYMOUS.
King's Bench. 1686.
[Reported 3 Mod. 97.]
The defendant was indicted for barratry. The evidence against him
was, That one G. was arrested at the suit of C. in an action of four
thousand pounds, and was brought before a judge to give bail to the
action ; and that the defendant, who was a barrister at law, was then
present, and did solicit thi" ff"it-, i^hun in truth at the same time C.
was indebted to G. in two hundred pounds, and that he did not owe
the said C. one farthing.
Hekbert, C. J., was first of opinion that this might be maintenance,
but that it was not barratry, unless it appeared that the defendant
did know that C. had no cause of action after it was brought. If a
man should be arrested for a trifling cause, or for no cause, this is no
barratry, though it is a sign of a very ill Christian, it being against the
express word of God. But a man may arrest another thinking that he
has a just cause so to do, when in truth he has none, for he maj' be mis-
taken, especially where there have been great dealings between the
parties. But if the design was not to recover his own right, but only
to ruin and oppress his neighbor, that is barratry. A man may lay
out money in behalf of another in suits of law to recover a just right,
and this may be done in respect of the poverty of the part}' ; but if
he lend money tY^prnrn r»<-q 3,nH at;.- np ciiitn, thrn ^f i« " barrator.
* Now IL appearmg uporl the evidence that the defendant did entertain C.
in his house, and brought several actions in his name where nothing
was due, he is therefore guilts of that crime. But if an action be first
j^Vft'^Jfl^^i ^^"ri l-hen prosecuted by another. Tin Is m> T)H.rra?f!Trp-(;haagt)
there is no cause f0|r action.
ANONYMOUS
King's Bench. 1688.
[Reported Comberbach, 46.]
A MAN was indicted for words spoken of a justice of peace [a bufHe-
headed fellow], and an exception was taken that the words were not
indictable.
But per Curiam, Because it appears they were spoken of him in the
execution of his olBce, the ttiaietmeiil, la guuJ. — And per [Wiight] "C.
J., All actions for slandering a justice m his'oflSce. may be turned into
indictments.^
1 See Pocock'sUlse, 7 Mod. 310 ; Ex parte, The Mayor of Great Yarmouth,
1 Cox, C. C. 122.
54 EEGINA V. STEPHENSON. [cHAP, II.
REGINA V. STEPHENSON,
Crown Case Resekved. 1884.
[Reported 13 Q. B. D. 331.]
Case stated by Hawkins, J. The defendants were convicted upon
an indictment charging them with having burnt the dead bodj' of an
illegitimate infant child (named George Stephenson) to which the de-
fendant Elizabeth Stephenson had recently given birth, with the intent
to prevent the holding of an fnquest upon it. Counsel for tlje
defendants objected to the sufficiency of the indictment.^
Grove, J. This conviction should be affirmed. There are two
points raised by the case which has been stated ; first, is it indictable at
common law to prevent the holding of a coroner's inquisition? and,
secondly, is there enough before us to shew that the coroner had
jurisdiction to hold the inquest?
No case that has been referred to is absolutely in point, hnt. t.her^^ f^p
iiiiiii| I Miliii li ii1i[ II ^.hat interference with statutor}^ duties and the
prrvrnHn" (iP iJii ii piirnrmmrr 's a nn.^i'H.iiil!;i,iJui liu ^LMuril,l"at th?'
mmon law. It is so in cases where statutory provisions are, as here,
for the pulilic benefit, and especially where, as here, the matter is one
concerning life and death. It is most important to the public that a
coroner who on reasonable grounds intends to hold an inquest should
not be prevented from so doing. The consequences would otherwise be
most formidable, especially in the ease, I fear, of young children, for
anj-one might prevent the holding of an inquest by the destruction of a
dead bodj- with impunity, unless it could be proved that the death had
been caused b}- violence. The onl3' evidenxse might be the examination
of the bod3' itself. It might be that the only witness of the death was
the murderer of the person found dead. To hold it no offence to pre-
vent the administration of the law bj' preventing an inquest being hold,
unless proof could be given of the cause of death, and that it was a
violent cause, would set at nought the protection which there is at
present to the public. The inquest is itself an inquiry into the cause
, of death and the present indictment is framed upon this view, the con-
trary view involves this proposition, that a coroner should be certain of
the cause of death before he ventures to hold his inquest — this is cer-
tainlj- not the law. It is certainlj' not what the statute governing this
matter says. A coroner acts and ought to act upon information, not
upon conclusive evidence. He inquires in cases of sudden death where
such inquiry is desirable, tiracton Lib. iii. (De Corona) ch. v, and the
Mirrour (The Mirrour of Justices, by Home, p. 38), shew that the statute
is but an affirmation or confirmation of the common law. In the
statute there is nothing about murder, the words are " suddenly dead"
1 This short statement is substituted for that of the Reporter. — Ed.
SECT. II.J EEGINA V. STEPHENSON. 55
and the statute requires an examination of the dead body, the whole
wording of the statute shews that it is the bodies that are to be ex-
amined to find the cause of (ipath. A coroner's inquir}' would be
useless if the coroner previously had by evidence to satisfy himself of
the cause of death. In the present case it appears that there was at
the least a reasonable suspicion, and indeed probabl}- more than a
reasonable suspicion. The police informed the coroner, the informa-
tion came from parties whose business it was to look into these matters,
probably the coroner honestly believed the information thus given to
him. iJLis clear to my mind that in holding-aH-wetticBt the «atoner
ynnlfl only in such a case be doing his dii1x_jmd in thin duty the
defendants obstruct nim~P'y iJun'HptillOLisIyTaking_av£ay-tli& bodjyind
_j3Urnijg' ^^ fhc^W r»njpi-.r waa r.r» provont tho inqvmaf ; the CaSC in Mod.
Rep. '(7 Mod. Rep. Case 15), seems to me in point. In the particular
case the death was violent, that either means, appeared to have been a
violent one, or it means, was discovered to have been a violent one
when the inquest was held, but Lord Holt seems to indicate that the
offence was the burying the child before the inquest so as to obstruct
the inquest. If it is a crime to bury, a fortiori it is one to burn a body,
because if j'ou bury, exhumation is possible, but if you burn, the body
is destroyed and examination is no longer possible. However, here it
is enough to say the coroner had a right to hold the inquest, and the
prisoners were wrong in secretly and intentionally burning the body to
obstruct him in his dut}' of holding such inquest.
Stephen, J. I am of the same opinion. It is a misdemeanor to
destroj' a bod}' upon which an inquisition is about to be properly held,
with intent to prevent the holding of that inquest. This appears from
many authorities and from the case in Mod. Rep. (7 Mod. Rep. Case 15).
Is it true that it is a misdemeanor to interfere in a case where the
coroner is of opinion that an inquest must be held, or is it necessary
that the facts should be such that the inquest ought to be held ? This
matter is not absolutely covered by authority. In one sense we do
create new offences, that is to saj', that as a Court we can and do define
the law from time to time and apply it to the varying circumstances
which arise. In Reg. v. Price, 12 Q. B. D. 247, 248, I said, " it is a
misdemeanor to prevent the holding of an inquest which ought to be
held by disposing of the bodj-. It is essential to this offence that the
inquest which it is proposed to hold is one which ought to be held.
The coroner has not absolute right to hold inquests in every case in
which he chooses to do so. It would be intolerable if he had power to
intrude without adequate cause upon the privacy of a family in distress,
and to interfere with their arrangements for a funeral. Nothing can
justify such interference except a reasonable suspicion that there may
have been something peculiar in the death, that it may have been due
to other causes than common illness. In such eases the coroner not
only may, but ought to hold an inquest, and to prevent him from doing
80 by disposing of the body in any way — for an inquest must be held
56 EEX V. TIBBITS. [CHAP. II.
on the view of the body — is a misdemeanor." I say the same thing
now, and I concur in my brother Grove's view, indeed any other view
would in my opinion be Vrnr-I jf n rrr"" J^' i ' ^ ^ '' ^1" ""
removes it liiiLiMti|i|il Tf''T5oiip°<^'>'"''ig2;f''^ hpTg''pTHlfA- of an offence if
Inquest intended- to bo hold..was one thai, ibiahtlawT
"*^s M5 been saldin the course of"^ ai'guuiunc, a man who obstructs
an inquest in this way takes his chance of the inquest being one that it
was right to hold. It is an obstruction of an officer of justice, it
prevents the doing of that which the statute authorizes him to do.^
EEX V. TIBBITS.
Court for Crown Cases Reserved. 1901.
[Reported 1902, 1 K. B. 77.]
Lord Alverston, C. J.^ This was a case reserved by Kennedy, J.,
at the last summer assizes at Bristol. Indictments were preferred
against two defendants, Charles John Tibbits and Charles Windust.
The indictments contained sixteen counts, upon each of which the de-
fendants were found guilty. The charges contained in the indictment
related to the publication of certain matters in a newspaper called the
Weekly Dispatch, between January 13, 1901, and March 4, 1901
(inclusive), and particularly to the issues of that newspaper dated
respectively January 13 and February 3, 1901. Prior to the publica-
tion of the first article, two persons, named Allport and Chappell, had
been charged before the magistrate with offences under the Prevention
of Cruelty to Children Act, 1894. Further charges of attempting to
murder, and of conspiracy to murder a child named Arthur Bertie
Allport, and of a conspiracy to commit the offence against s. 1 of the
Prevention of Cruelty to Children Act, 1894, were preferred against
them. On Februarj' 8 Allport and Chappell were committed to take
their trial at the next Bristol Assizes, which had been fixed to com-
mence on Februarj' 20. Their trial on the indictment for the attempt
to murder commenced before Day, J., on March 1, and terminated on
March 5. They were found guilty, and sentenced, Allport to fifteen
years' penal servitude and Chappel to five j-ears' penal servitude. The
publications in the Weekly Dispatch, which formed the subject of the
present indictment against Tibbits and Windust, were statements relat-
ing to the case of Allport and Chappell, contained in the issues of the
Weekly Dispatch during the hearing of the case against Allport and
Chappell before the magistrate, and before and during the trial of these
persons at the assizes. It is unnecessary to refer in detail to any of
1 Concurring opinions of Williams, Mathew, and Hawkins, J. J., are omitted. — Eu.
2 The opinion only is given : it sufficiently states the case. Part of the opinion is
omitted. — Ed.
SECT. II.] KEX V. TIBBITS. 57
the incriminated articles, of which those of January 13 and February
3 were the most important. It is sufficient to say that the publication
went far beyond any fair and bona fide report of the proceedings before
the magistrate. They contained, couched in a florid and sensational
form, a number of statements highly detrimental to Allport and Chap-
pell. Many of these statements related to matters as to which evidence
could not have been admissible against them in any event, and pur-
ported to be the result of investigations made by the " Special Crime
Investigator" of the newspaper. Under these circumstances it was
contended on behalf of the prosecution that there was evidence upon
which the jury might properly convict both the defendants on all the
counts of the indictment. Upon the argument before us we had no
doubt upon the main questions which had been discussed, but, having
regard to the nature of the proceedings and the importance of the case,
we thought it desirable that we should endeavour to lay down as clearly
as possible the law applicable to such a case. Points were raised and
argued on behalf of the defendant Windust as distinguished from the
defendant Tibbits. It will be convenient to postpone the discussion of
those points until we have dealt with the main questions of law raised
on behalf of both prisoners. It was not attempted to be argued by
Mr. Foote, who appeared as counsel for both defendants, that the pub-
lication of such articles was lawful, and that the persons publishing
such articles could not be punished. On the contrary, he contended
that the publication of such articles was a contempt of Court, and could
only properly be punished as such either by summary proceedings or
indictment for contempt. He further urged that there was no evidence
of any intention on the part of either of the defendants to pervert or
interfere with the course of justice, and that any inference which might
otherwise be drawn from the contents of the articles, that they were
calculated to pervert or interfere with the course of justice, was nega-
tived by the fact that the defendants Allport and Chappell had been
subsequently convicted. That the publication of such articles consti-
tuted a contempt of Court and could be punished as such, is well
established. One of the sorts of contempt enumerated by Hardwicke,
L. C, in the year 1742, 2 Atk. 471, is prejudicing mankind against per-
sons before the case was heard, and he adds these important words :
"There cannot be anything of greater consequence than to keep the
realms of justice clear and pure that parties may proceed with safety
both to themselves and their characters." The case of Eex v. Jolliffe,
4 T. R. 285, shews that a criminal information lay for distributing in the
assize town, before the trial at Nisi Prius, handbills reflecting on the con-
duct of a prosecutor, and, in the course of his judgment in that case, Lord
Kenyon made the following very relevant observations, 4 T. R. at p. 298 :
" Now it is impossible for any man to doubt whether or not the publica-
tion of these papers be an offence. Even the charge on the prosecutor
would of itself warrant us to grant the information ; but that is a minor
offence, when compared with that of publishing the papers in question
68 EEX V. TIBBITS. [CHAP. IL
during the pendency of the cause at the assizes, and in the hour of trial.
Bis the pride of the constitution of thisjJOuntvjJhaLalLcauses should
be* decided "Byjiirorsj "who are chagen^in a manner whichexcttni«s all
"iJOMSlJ-l- IJi iilMll , ml uuIl,. i.it^ ..Ua^jijiv baagfcjganif^ l^n ^g^eaant
any possibilityoftheirJifiJag-tainpered'wiS. Sat, if an individuaTcan
bleak dow5^:nv~of~those safeguards which the ^nr°*''''"'''"" '■'"= in
Mmv and ijo (iauUousl.y erected, by poisoning the mindsjoL-theJury.at
■a t.imp toIihmIj^' h.i'h (JHllurl np"n t" HpniHp, he will stab the adminis-
• tration of Tusticein its most vital parts. And, therefore, I cannot for-
"bear saying, tnat, if the publication be brought home to the defendant,
he has been guilty of a crime of the greatest enormity." Again, in the
case of Rex v. Fisher, 2 Camp. 563, the printer, publisher, and editor,
were convicted for publishing a scandalous, defamatorj', and malicious
libel, intending to injure one Richard Stephenson, charged with assault,
and deprive him of the benefit of an impartial trial, " and to injure and
prejudice him in the minds of the liege subjects of our lord the King
and to cause it to be believed that he was guilty of the said assault and
thereby to prevent the due administra,tion of justice and to deprive the
said Richard Stephenson of the benefit of an impartial trial." It was
urged on behalf of the defendants that this was an indictment for libel,
and that, therefore, it was no authority for the indictment in the present
case. But, if the judgment of Lord Ellenborough is examined, it will
be noted that the main ground of the judgment is that the publication
would tend to pervert the public mind and disturb the course of justice
and therefore be illegal, and we cannot doubt that, if the attempt so to
do be made, or means taken, the natural effect of which would be to
create a wide-spread prejudice against persons about to take their trial,
an offence has been committed, whatever the means adopted, provided
there be not some legal justification for the course pursued. The case
of Rex V. Williams, 2 L. J. (K.B.) (O.S.) 30, is another distinct autho-
rity for the same view, in which it was laid down that any attempt
whatever to publicly prejudge a criminal case, whether bj' a detail of the
evidence or by a comment, or by a theatrical exhibition, is an offence
against public justice and a serious misdemeanour. The publication of
proceedings publicly held in a Court of Justice, if fair and accurate, has
now the protection of the Law of Libel Amendment Act, 1888 (51 & 52
Vict. c. 64), s. 3. The law as laid down in the older cases to which
we have referred was summarised by Blackburn, J., in Skipworth's Case,
L. R. 9 Q. B. 230, at p. 232, and with reference to the objection that
the more proper proceeding should be by proceedings for contempt of
Court, we would refer to the judgment of the Court in Reg. v. Gray,
[1900] 2 Q. B. 36, from which it clearly appears that in many cases it
is preferable to proceed by information or indictment rather than by
motion for contempt. We have no doubt whatever that the publication
of the articles in this case, at the time when, and under the circum-
stances in which they were published, constitutes a criminal offence by
whomsoever they were published. We think that the facts, which bring
■SECT. II.] EEX V. TIBBITS. 59
the incriminated articles within the category of misdemeanour, abun-
•dantly appear upon the face of each count, and that, under those circum-
■stances, it is perfectly immaterial whether the articles be described and
oharged as libels or contempts or not. With reference to the argu-
ment, which was strongly urged, that there was no evidence of any
intention to pervert the course of justice, we are clearl}- of opinion, for
the reasons given in the authorities to which we have referred, that this
is one of the cases in which the intent may properly be inferred from
the articles themselves and the circumstances under which they were
published. It would, indeed, be far-fetched to infer that the articles
would in fact have any effect upon the mind of either magistrate or
judge, but the essence of the offence is conduct calculated to produce,
so to speak, an atmosphere of prejudice in the midst of which the pro-
ceedings must go on. Publications of that character have been pun-
ished over and over again as contempts of Court, where the legal
proceedings pending did not involve trial by jurj-, and where no one
■would imagine that the mind of the magistrates or judges charged with
the case would or could be induced thereby to swerve from the straight
course. The offence is much worse where trial by jury is about to take
place, but it certainly is not confined to such cases. We further think
th"at,~ifthe articles are in the opinion of the jury calculated to interfere
with the course of justice or p^iTPftThe minds of the ma^strate or of
the jurors, the persons publishing are criminallj' responsible : see Reg.
V Grant, 7 St. Tr. (N.S.) 507. We are also of opinion that the fact
that AUport and Chappell, the persons referred to, were subsequently
convicted can have no weight in the decision of the question now before
us. To give effect to such a consideration would involve the conse-
quence that the fact of a conviction, though resulting, either wholly or
in part, from the influence upon the minds of the jurors at the trial of
such articles as these, justifies their publication. This is an argument
which we need scarcely say reduces the position almost to an absurditv,
and, indeed, its chief foundation would appear to be a confusion
between the, course of justice and the result arrived at. A person
accused of. crime in this country can properly be convicted in a Court
of Justice only upon evidence which is legally admissible and which is
adduced at his trial in legal form and shape. Though the accused be
really guilty of the offence charged against him, the due course of law
and justice is nevertheless perverted and obstructed if those who have
to try him are induced to approach the question of his guilt or inno-
cence with minds into which prejudice has been instilled by published
assertions of his guilt or imputations against his life and character to
which the laws of the land refuse admissibility as evidence.'
We have now only to consider the special points which were taken
on behalf of the defendant Windust. . . .
Conviction Affiirmed.
60 STATE V. HOLT. [CHAP. II
■ STATE V. HOLT.
Supreme Judicial Court of Maine. 1892.
[Reported 84 Maine, 509.]
Walton, J. A wilful and corrupt attempt to prevent the attend-
ance of a witness before any lawful tribunal organized for the adminis-
tration of justice is an indictable offence at common law. The essence
of the offence consists in a wilful and corrupt attempt to interfere with
and obstruct the administration of justice. And when the act and the
motive are first directly averred, and then clearly proved, punishment
should follow.
In this case the indictment alleges that the defendant, " well know-
ing that one Fred N. Treat had been summoned in due form of law to
appear before the Supreme Judicial Court holden at Belfast within and
for the county of Waldo, on the thirtieth day of April aforesaid, then
and there to give evidence in said court in behalf of the State, and
contriving and intending to obstruct the due course of justice, did then
and there unlawfully and corruptly prevent, and illi iiijil JiH fin i mi
the saidTi;g>4iiiifrtrm apjJUiLlTJ^ tit>BM«U«Q^rt to give evidence as afore-
said "Bythen and there soliciting, enticing, and persuading tlie said
Treat to become intoxicated, and by then and there removing and
abducting him, the said Treat, whereby the said Treat did not appear
at said court and give evidence,'' etc.
It is objected that this indictment is not sufficient, because it does
not aver that the witness had been summoned, or that a summons had
been issued, or that there was a cause pending requiring the attendance
of the witness.
We do not think that either of these objections can be sustained.
In State v. Keyes, 8 Vt. 57 (30 Am. Dec. 450), in a well-considered
opinion by Mr. Justice Redfleld, the court held that it had always.
beenanjDdiglabl£J>ffe"cejL! f"""""" law to attempt to^DrgVEHTthe"
^tfentlance of a wifcness before a court of justice, although_no_auligffina
fer the witness, .had, .been— Served or issued: — It wilPnotdofor a
illUliiyuL, sdid the cOUiL, tu adilntthat wilnesses may be secreted or
bribed, or intimidated, and the guilty parties not be liable unless a
subpoena has been served upon the witnesses. The doing of any act,
continued the court, tending to obstruct the due course of p°ublic justice,
has always been held to be an indictable offence at common law ; and
bribing, intimidating, and persuading witnesses, to prevent them from
testifying, or to prevent them from attending court, has been among
the most common and the most corrupt of this class of offences ; and
whether the witness has been served with a subpoena, or is about to be
served with one, or is about to attend in obedience to a voluntary
promise, is not material ; for any attempt, in either case, to prevent hia
SECT. II.]_ STATE V. CAKVEE. 61
attendance, is equally corrupt, equally criminal, and equally deserving
of punishment.
In Com. V. Reynolds, 14 Gray, 87, the court held it to be an in-
dictable offence at common law to dissuade, hinder, or prevent a witness
from attending before a court of justice ; and that an indictment for
such an offence need not allege in whose behalf the witness had been
summoned, nor that his testimonj' was material. The offence, said
Mr. Justice Metcalf, is the obstruction of the due course of justice ;
and the obstruction of the due course of justice means not only the
due conviction and punishment, or the due acquittal and discharge,
of an accused party, as justice may require ; but it also means the due
course of the proceedings in the administration of justice ; that, by
obstructing these proceedings, public justice is obstructed.
Intentionally and designedly to get a witness drunk, for the express
purpose of preventing his attendance before the grand jury, or in open
court, is such an interference with the proceedings in the administration
of justice as will constitute an indictable offence, and one for which the
guilty party ought to be promptly and severely punished. And it is
important that it should be understood that the suppression of evidence
by such, or by any similarly wicked and corrupt means, cannot be
practiced with impunity.
Exceptions overruled. Indictment adjudged sufficient.
STATE V. CARVER.
SuTPEEME Court op New Hampshire. 1898.
[Reported 69 N. H. 216.]
Indictment charging that one Fernald had sold one quart of spirituous
liquor contrary to the statute, and that the defendant corruptly and
without authority made composition with Fernald and took from him
thirtj' dollars for forbearing to prosecute the supposed offence. The
defendant moved to quash the indictment. He also excepted to a
ruling of the court at the trial, which is discussed in the opinion.-'
Blodgett, J. Wj^atever diversity of opinion there may justly be as
I^Mji^-inli^y "f <^'T»'r;^j||-^2L!^^j;;^^*"^''i fitatp. it oa^nQ^, ba-€tqtr6tedtha.t
— Iheir violation is a grave misdemeanor agamst public justice, nor that
— its compromise witn the onendui by u puviSXeTndividual is both
-^ppriil(;l.>iw Hhil illnpH;^, ■ ""■
Fisdemeanors are either mala in se, or penal at common law, and
such as are mala prohibita, or penal by statute. Those m,ala in se
are such as mischievously affect the person or property of another, or
outrage decency, disturb the peace, injure public morals, or are breaches
of public duty." 4 Am. & Eng. Enc. Law 654.
There being in this state no statute prohibiting the composition of
1 This short statement is substituted for that of the Reporter. — Ed.
62 STATE V. CARVER. [CHAP. 11.^
misdemeanors, and the body of the common law and the English stat-
utes in amendment of it, so far as they were applicable to our institutions
and the circumstances of the country, having been in force here upon,
the organization of the provincial government and continued in force
by the constitution, so far as they are not repugnant to that instrument,
until altered or repealed by the legislature (State v. Rollins, 8 N. H.
560; State v. Albee, 61 N. H. 427), the first inquiry is whether such
composition was an indictable offence at common law.
While decisions upon this precise point are lacking, the language of
/the books is general that the taking of money or other reward to sup-
I press a criminal prosecution, or the evidence necessary to support it,.
[was an indictable offence at common law, and although the English
leases may not all be reconcilable with this view, it-wenld seem Ihnt
\when tlifijaflence compounded was one against pnhlic jnatice and dan-
je^0ua^4»^Iaaeiety it was Indictable, whlletbose having largely the-
nature of private Injuries, or ot' Very low grade, were not indictable.
See Johnson v. Ogilby, 3 P. Wms. 277; Fallowes v. Taylor, 7 T. E>
475 ; Collins v. Blantern, 2 Wils. 341, 348, 349 ; Rex v. Stone, 4 C. &
P. 379; Keir v. Leeman, 6 Q. B. 308, 316-322, — S. C, on error.
9 Q. B. 371, 395 ; Rex v. Crisp, 1 B. & Aid. 282; Edgcombe v. Eodd,.
5 East, 294, 303 ; Rex v. Southerton, 6 East, 126 ; Beeley v. Wingfield,.
ll East, 46. 48; Baker v. Townsend, 7 Taun. 422, 426 ; Bushel v.
Barrett, Ry. & M. 434 ; Rex v. Lawley, 2 Stra. 904 ; Steph. C. R. L. 67 ;
3 Wat. Arch. Crim. Pr. & PI. 623-10, 623-11 ; 1 Russ. Cr. 136 ; 1 Ch.
Cr. L. (3d Am. ed.) 4 ; 1 Bish. Cr. L. (7th ed.), ss. 710, 711; Dest. Cr.
L. s. 10 6 ; 4 Wend. Bl. Com. 136, and note 18.
In this restricted sense we are of opinion that the taking of money^
or other reward, or promise of reward, to forbear or stifle a crim-
inal prosecution for a misdemeanor, was an indictable offence by the
common law, the same as it unquestionably was for a felony (Part-
ridge V. Hood, 129 Mass. 403, 405, 406, 407), and that it has always^
been so understood and received here, as well as in other jurisdictions.
Plumer v. Smith, 5 N. H. 553, 554 ; Hinds v. Chamberlin, 6 N. H.
229 ; Severance v. Kimball, 8 N. H. 386, 387 ; Hinesburg v. Sumner,.
9 Vt. 23, 26 ; Badger" -y. Williams, 1 D. Chip. 137, 138, 139 ; State v.
Keyes, 8 Vt. 57, 65-67 ; State v. Carpenter, 20 Vt. 9 ; Commonwealth
V. Pease, 16 Mass. 91 ; Jones v. Rice, 18 Pick. 440 ; Partridge v. Hood,.
supra ; State v. Dowd, 7 Conn. 384, 386.
Certainly, there is no ground to contend that the offence is any
less pernicious and reprehensible under our form of government than
under that of the. mother country, or that, as a part of the body of
the common law, it was inapplicable to our institutions and circum-
stances at the time of the organization of our provincial government,
or in any manner repugnant to the constitution or to our present
institutions and circumstances. Indeed, the absence of any statutfr
upon the subject of the composition of misdemeanors suflSciently shows
the general understanding in this state, for it cannot reasonably b&
SECT. II.] STATE V. CAEVEE. 63
supposed that so infamous an offence would have been permitted to go
unpunished for want of statutory enactment, unless it has been
understood generall}' that under our common law none was necessarj-.
But not only did the defendant, in consideration of a reward, com-
pound a public misdemeanor, and suppress and destroj' the material
evidence necessary to support it, he also f^f-ffgnrjor] f.hp rpvprn^p hy
depriving the public of that portion of the pecuniary penalty to which
they are entitled for a violation of the liquor laws ; ai^d this of itself
is a sufficien.ti TTvnnnrl nn Tl'hich to sustain an '"'^'"'■"'""t nt' ""n'n"n
tew^HSexlTSoutherton, 6East, 126; 1 Russ. Cr. 134.
In view of these conclusions, it is unnecessary to examine the ques-
tion argued hy counsel as to whether or not the case falls within the
statute of 18 Eliz., c. 5 (made perpetual by 27 Eliz., c. 10, and amended
as to punishment by 56 Geo. Ill, o. 138), by whicli it was enacted lliat
if any person " by colour or pretence of process, or without process j
upon colour or pretence of any matter of offence against any penal law,
make any composition, or take any mone\', reward, or promise of re-
ward," without tiie order or consent of some court, " he shall stand
two hours in the pillory, be forever disabled to sue on an^- popular or
penal statute, and shall forfeit ten pounds."
The motion to quash the indictment because it describes the offence
for Which composition was made as a " supposed offence," was prop-
erly denied. "The bargain and acceptance of the reward makes the
crime " (State v. Duhammel, 2 Harr. 532, 533) ; and in such a case,
"the party may be convicted though no offence liable to a penalty lias
been committed bj' the person from whom the rew^ard is taken."
Reg. V. Best, 9 C. & P. 368,-38 Eng. C. L. 220; Rex v. Gotley,
Russ & Ry. 84 ; People v. Buckland, 13 Wend. 502; 1 Russ. Cr. 133,
134 ; 3 Arch. Crim. Pr. & PI. 623-11.
The ruling that "if the defendant knew what he was doing and
did what he intended to do, it was immaterial what his opinion was
as to the legal effect of what he was doing, and it would be no
defence that he did not know he was violating the law," was mani-
festly correct. " A man's moral perceptions may be so perverted as to
imagine an act to be right and legal which the law justh' pronounces
fraudulent and corrupt ; but he is not therefore to escape from the
consequences of it." Bump. Fr. Conv. (3d ed.) 25. "Ignoi'ance of a
fact maj' sometimes be taken as evidence of a want of criminal intent,
but not ignorance of the law " (Reynolds v. United States, 98 D. S.
145)'; and "in no case can one enter a court of justice to which he
has been summoned in either a civil or criminal proceeding, with the
sole and naked defence that when he did the act complained of, he did
not know of the existence of the law which he violated." 1 Bish. Cr.
L. (7th ed.), s. 294.
It is elementary, as well as indispensable to the orderl}'^ administra-
tion of justice, that ever3' man is presumed to know the laws of the
country in which he dwells, and also to intend the necessary and
64 HEX V. BLAKE. [CHAP, II.
legitimate consequences of wtiat he knowingly does. If there are
cases in which the application of these presumptions might operate
harshly, the admitted facts amply demonstrate that this case is not
such an one. Exceptions overruled.
REX V. BLAKE.
King's Bench. 1765.
[Reported 3 Burrow, 1731,]
Mr. Dunning showed cause whj' an indictment should not be
quashed.
He called it an indictment for a fomble_eiitar ; and argued " that an
indictment for a forcible entry mayHbe maintained at common law."
He cited a case in Trin. 1753, 26, 27, G. 2. B. R. Rex v. Brown and
Others ; and Rex v. Bathurst, Tr. 1755, 28 G. 2. S. P.
But, N. B. This indictment at present in question was only for
(vi et armis) breaking and entering a close ("not a dwelling-house) and
unlawfully and unjustly expelling the prosecutors, and keeping them
out of possession.
Mr. Popham, on behalf of the defendants, objected " that this was
an indictment for a mere trespass, for a civil injuiy ; not a public, but
a private one ; a mere entry into his close, and keeping him out of it."
The " force and arms " is applied only to the entry, not to the expel-
ling or keeping out of possession ; they are only charged to be unlaw-
fully and unjustly. This is no other force than the law implies. No
actual breach of the peace is stated ; or any riot ; or unlawful assembly.
And he cited the cases of Rex v- Gask, Rex v. Hide, and Rex v. Hide
and Another (which, together with a note upon them, may be seen in
the text and margin of page 1768).
Rex V. Bathurst is the only case where the objection has not been
held fatal ; and that was because it was a forcible entry into a dwelling-
house.
Rex V. Jopson et al. Tr. 24, 25 G. 2 B. R. was an unlawful assembly
of a great number of people. (V. ante 3 Burr. 1702, in the margin.)
Mr. Justice Wilmot. No doubt, an indictment will lie at common
law for a forcible entry, though they are generally brought on the acts
of parliament. On the acts of parliament, it is necessary to state the
nature of the estate, because there must be restitution ; but they may
be brought at common law.
Here the words " force and arms " are not applied to the whole ; but
if they were applied to the whole, yet it ought to be such an actual
force as implies a breach of the peace, and makes an indictable offence.
And this I take to be the rule, " That it ought to appear up6n the face
of the indictment to be an indicta.ble offence."
Here indeed are sixteen defendants. But the number of the defend-
ants makes no difference, in itself; no riot, or. unlawful assembly, or
SECT. II.j COMMONWEALTH V. GIBNEY. 65
anything of that kind is charged. It ought to amount to an actual
breach of the peace indictable, in order to support an indictment. For,
otherwise, it is onlj' a matter of civil complaint. And this ought to
appear upon the face of the indictment.
Mr. Justice Yates concurred. Here is no force" or violence shown
upon the face of tlie indictment, to make it appear to be an actual
force indictable ; nor is any riot charged, or any unlawful assembly.
Therefore the mere number makes no difference.
Mr. Justice Aston concurred ; the true rule is, " That it ought to
appear upon the face of the indictment to be an indictable offence."
Per Cue. unanimously.
Rule made absolute to quash this indictment.^
COMMONWEALTH v. GIBNEY.
Supreme Judicial Court or Massachusetts. 1861.
[Reported 2 AUen, 150.]
Indictment, charging that the defendants, five in number, " together
with divers others, to the number of twelve and more, to the jurors
aforesaid unknown, being evil disposed and riotous persons, and dis-
turbers of the peace qf said commonwealth, on the thirty-first day ot
December in the year of our Lord one thousand eight hundred and
sixty, at North Andover, in the county of Essex aforesaid, with force
and artns, to wit, with clubs, staves, stones, and other dangerous and
offensive weapons, a certain building there situate, called the Union
Hall, the property of one Thomas E. Foy, in the night time, unlawfully,
Tiotouslj', and routously did attack and beset, and did then and there
unlawfully, riotously, routously, and outrageously make a great noise,
disturbance, and affray near to and about the said building, and did
unlawfully, riotouslj', and routously continue near to and about and in
■the said building, making such noise, disturbance, and affray for a long
space of time, to "wit, for the space of one hour, and the doors and
windows of the said building did then and there unlawfully, riotously,
and routously, with the dangerous and offensive weapons aforesaid,
break, destroy, and demolish, to the great damage of the said Thomas
E. Foy, to the great terror of divers good people of said commonwealth
then and there lawfully being, against the peace, " etc.
After a verdict of guilty in the superior court, Peter Gibney, one of
the defendants, moved in arrest of judgment for reasons indicated in
the opinion ; but the motion was overruled by Morton, J., and the
defendant alleged exceptions.
Dewbt, J. It was held as early as Regina v. Soley, 2 Salk. 594,
that judgment should be arrested and the indictment held bad, "be-
1 See Rex v. Storr, 3 Burr. 1698; Rex v. Wilson, 8 T. R. 357 ; Com. v. Shattuck,
4 Cush. (Mass.) 141 ; Eilpatrick v. People, 5 Denio (N. T.) 277; Com. v. Edwardi
I Ashm. (Fa.) 46. See State v. BuTioughs. 7 N. J. L. 436 Com. v. Powell, 8 Leigh
(Va.) 719.
66 COMMONWEALTH V. GIBNEY. [CHAP. II.
cause it is not said that the defendants unlawfully assembled." The
proposition thus stated seems to be held as correct in the later elemen-
tary writers. To maintain an indictment for a riot^His said in Archb.
Crim. Pr. 589, tiatHE^^piobuculor muat prpVB- : TnTl(r-8tS9«mbling ;
2. Tfte-MrtectTnamelyT " that they so assembled together with intent
to1exe^te_some enterprise of_a-pxi¥ato naturti, "'"^ H|1"" iniiiii^iHy to
assist one another against any person who should oppose them in doing
gjL— ^'he intent is proved in this, as in every otherease, by proving
facts from which tfae7ilTyjijay_ljj I Ij jii fZ The definition of a
riot includes the statement~^f three persons or more assembling to-
gether." 1 Russell on Crimes, 266. In 2 Deacon's Crim. Law, 1113,
a riot is said to be " a tumultuous meeting of three or more persons,
who actuallj- do an unlawful act of violence, either with or without a
common cause or quarrel ; " " or even do a lawful act, as removing a-
nuisance in a violent and tumultuous manner.''
The distinction in criminal treatises, in the definitions of riots, routs,
and unlawful assemblies, assumes that there must be an assembling
together, and an unlawful assembly ; although the assembly may not
have been unlawful on the first coming together of the parties, but
becomes so by their engaging in a common cause, to be accomplished
with violence and in a tumultuous manner. And the precedents for
indictments for a riot, with the exception of a single one in Davis's
Precedents, the others in that book being different, all allege an un-
lawful assembling together. This seems to be a necessary form in a
proper indictment for a riot, although the proof of such unlawful as-
sembly may be made by showing three or more persons acting in con-
cert in a riotous manner, as to using violence, exciting fear, etc.
Th° prpRfMit indiftiffvpfili vhiiii^fIi liln^i'^fuicbo sustained as a-good-Jn-
dictmenTfor a riot, for want of proper_allegationa pf the assembling
tdgcthci' of three ui unii'ti'Tiei^ns.
It cauUoL be sustained as an indictment for forcible entry, the alle-
gations not being adapted to a charge of that offence.
It cannot be sustained as an indictment for malicious mischief, for
the like reason. Nor can it be maintained as a charge at common law
for a disturbance of the peace. A man cannot be indicted for a mere
trespass. No indictment lies at common law for mere trespass com-
mitted to land or goods, unless there be a riot or forcible entry. The
King V. Wilson, 8 T. R. 357. The words "violently and routously,''
here used, have no particular pertinency, except as terms appropriate
to a formal indictment for riot, charging also an unlawful assembly.
In the present indictment there is nothing more alleged than a tres-
pass, with violence. There is no allegation that any person was in the
iDuilding, but only of a breaking of doors and windows of a building,
which might be a mere trespass.
If the case was a proper one for an indictment for a riot, as it prob-
ably was, that offence not being properly charged, the indictment is
bad, and the motion in arrest of judgment must prevail.
Judgment arrested.
SECT, n.] KESPUBLICA V. TEISCHEK. 67
EESPUBLICA V. TEISCHER.
Supreme Court of Pennsylvania. 1788.
[Reported 1 Dallas, 335.]
The defendant had been convicted in the county of Berks upon an
indictment forjaaliciously, wilfully, and wickedlyJdlliBg-ftJyjrse ; and
upon a motion m arrest ot judgrtient, it eameon to be argued whether
the offence, so laid, was indictable.
Sergeant, in support of the motion, contended that this was an in-
jury of a private nature, amounting to nothing more than a trespass ;
and that to bring the case within the general rule of indictments for
the protection of society, it was essential that the injury should be
stated to have been perpetrated secretly as well as maliciously, — which
last he said was a word of mere form, and capable of an indefinite
application to every kind of mischief. To show the leading distinction
between trespasses for which there is a private remedy and crimes
for which there is a public prosecution, he cited Hawk. PI. Cr. 210,
lib. 2, c. 22, s. 4 ; and he contended that the principle of several
cases, in which it was determined an indictment would not lie, applied
to the case before the court. 2 Stra. 793 ; 1 Stra. 679.
The Attorney- General observed, in reply, that though he had not
been able to discover any instance of an indictment at common law
for killing an animal, or, indeed, for any other species of malicious
mischief, yet that the reason of this was probably the early interfer-
ence of the statute law to punish offences of such enormity ; for that
in all the precedents, as well ancient as modern, he had found the
charge laid contra formam statuti, except in the case of an information
for killing a dog, — upon which, however, he did not mean to rely.
10 Mod. 337.
He said that the law proceeded upon principle, and not merely upon
precedent. In the ease of Wade, for embezzling the public money, no
precedent was produced ; and one Henry Shallcross was lately con-
demned in Montgomery County for maliciously burning a barn (not
having hay or corn in it) , though there was certainly no statute for
punishing an offence of that description in Pennsylvania. The prin-
ciple, therefore, is that every act of a public evil p-s-jimplp md ifTflinsfn
good mrirolla^c j^p nflFnnnr inrliotnhln Viy fho pfMTimOn laW-,f and this
prtrrctpIe'liSects the killing of a horse, as much, at least, as the burn-
ing of an empty barn.
But he contended that there were many private wrongs which were
punishable by public prosecution ; and that with respect to these a
distinction had been accurately established in 2 Burr. 1129, where it is
said that -'in such impositions .or deceits where common prudence
may guard persons against the suffering from them, the offence is not
indictable, but the party is left to his civil remedy for the redress of
the injury that has been done him ; but where false weights and meas-
ures are used, or false tokens produced, or such methods taken to
68 KESPUBLICA V. TEISCHEK. [CHAP. II.
cheat and deceive as people cannot by any ordinary care or prudence
be guarded against, there it is an offence indictable." — Accordingly,
in Crown Circ. Comp. 231; 1 Stra. 595; S. C. Crown Circ. Comp.
24, are cases of private wrongs, and yet punished by indictment ; be-
cause, as it is said in Burrow, common prudence could not have
guarded the persons against the injury and inconveniency which they
respectively sustained. The same reason must have prevailed in an
indictment at Lancaster (the draft of which remains in the precedent
book of the successive attorneys-general of this State) for poisoning
bread, and giving it to some chickens ; and it applies in full force to
the case before the court.
Independent, however, of these authorities and principles, the jury
have found the killing to be something more than a trespass ; and that
it was done maliciously forms the gist of the indictment ; which must be
proved by the prosecutor, and might have been controverted and
denied by the defendant. Being therefore charged, and found by the
verdict, it was more than form ; it was matter of substance.
The opinion of the court was delivered, on the 15th of July, by the
Chief Justice.
M'Kean, C. J. The defendant was indicted for " maliciously, wil«
fully, and wickedly killing a horse ; " and being convicted by the jury,
it has been urged, in arrest of judgment, that this offence was not of
an indictable nature.
It is true that on the examination of the cases we have not found
the line accurately drawn ; but it seenia-tn br iprrrrd that wUalevbr
-lummntiR tft a pii^ilif; wrnng may be made tb° °'i'7jp''<^ "f q,n j>i;ji^^<^"<^
"fhe poisoning of chickens, cheating with false dice, fraudulently teaP"
ing a promissory note, and many other offences of a similar description,
have heretofore been indicted in Pennsylvania ; and 12 Mod. 337,
furnishes the case of an indictment for killing a dog, — an animal of
far less value than a horse. Breaking windows by throwing stones at
them, though a sufficient number of persons were not engaged to ren-
der it a riot, and the embezzlement of public moneys, have, likewise,
in this State been deemed public wrongs, for which the private sufferer
was not alone entitled to redress ; and unless, indeed, an indictment
would lie, there are some very heinous offences which might be perpe-
trated with absolute impunity ; since the rules of evidence, in a civil
suit, exclude the testimony of the party injured, though the nature of
the transaction generally makes it impossible to produce any other
proof.
For these reasons, therefore, and for many others which it is un-
necessary to recapitulate, as we entertain no doubt upon the subject,
we think, the indictment will lie.
Let judgment be entered for the Commonwealth.*
1 See U. S. V. Gideon 1 Minn. 292; State v. Beekman, 3 Dutch. (N. J.) 124;
lioomia o. Edgerton, 19 Wend. (N. Y.) 419; State ■». Phipps, 10 Ire. (N.,C.) 17.
SECT. II.] COMMONWEALTH V. TAYLOR. 69
COMMONWEALTH v. TAYLOK.
Supreme Court op Pennsylvania. 1812.
[Reported 5 Binney 277.]
The defendant was indicted in the Quarter Sessions of Franklin
county for "that he, on the 24th of August 1809, about the hour of ten
of the cloclr in the night of the same da}', with force and arms b.1
Lurgan township, in the countj- aforesaid, the dwelling house of James
Strain there situate, unlawfully, maliciouslj', and secretly did break
and enter, with intent to disturb tiie peace of the commonwealth ; and '
so being in the said dwelling house, unlawfuU}', vehemently, and tur-
bulently did make a great noise, in disturbance of the peace of the
commonwealth and greatly misbehave himself, in the said dwelling
house ; and Elizabeth Strain, the wife of the said James, greatly did
frighten and alarm, by means of which said fright and alarm she the
said Elizabeth, being then and there pregnant, did on the 7th daj' of
September in the year aforesaid at the county aforesaid miscarry, and
other wrongs to the said Elizabeth then and there did, to the evil
example, &c." '
The jurj' having found the defendant guilty, the Quarter Sessions
arrested the judgment upon the ground that the offence charged w;is
not indictable; and the record was brought up to this Court by writ
of error.
TiLGHMAM, C. J. It is contended on the part of James Taylor, that
the matter charged in the indictment is no more than a private trespass,
and not an offence subject to a criminal prosecution. On- the other
hand it has been urged for the commonwealth that the offence is indict-
able; 1st, as a forcible entry, — 2d, as a malicious mischief
1. I incline to the opinion that tlie matter charged in the indictment
does not constitute a forcible entry, although no doubt a forcible entrj-
is indictable at common law. There nTngf^n pf.trmi fr»]-f»p jv^mnb-o an
indictable offence. The bare aflegation of its being done wT5!~f5n:e
and jii my, docs not seem to be sufficient ; for everj- trespass is said to
be with force and arms. In the King v. Storr, 3 Burr. 1698, the indict-
ment was for unlawfully entering his yard and digging the ground and
erecting a shed, and unlawfully and with force and arms putting out
and expelling one Mr. Sweet the owner from the possession, and keep-
ing him out of the possession. This indictment was quashed. The
King V. Bake and fifteen others, 3 Burr. 1731, was an indictment for
breaking and entering with force and arms a close (not a dwelling
house), and unlawfully' and unjustly expelling the prosecutors, and
keeping them out of possession. This also was quashed, and the rule
laid down by all the court was that there must be force or violence
shewn upon the face of the indictment, or some riot or unlawful assem-
bly. It appears indeed that in the King v. Bathurst, cited and re-
/
70
COMMOKWEALTH V. TAYLOR. [CHAP. II.
marked by the judges in the King ,'. Storr, the court laid considerable
stress on the circumstance of entering a dwelling house. We have no
'report of that case, but Lord Mansfield's observation on it (3 Burr.
1701) is that it does not seem to him to lay down any such rule as
that force and arms alone implies such force as will of itself support an
indictment. " Tliere," says he, "the fact itself naturally implied force;
it was turning and keeping the man out of his dwelling house, and
ilone by three people." In the case before us, there is the less reason
to suppose actual force, as the entry is charged to have been made se-
cretly. This might have been done through a door which was open,
and vet in point of law, it was a breaking and entry with force and arms,
which is the allegation in everj' action of trespass.
2. But supposing the indictment not to be good for a forcible entry,
may it not be supported on other grounds? In the case of the Com-
monwealth V. Teischer, 1 Dall. 335, judgment was given against the de-
fendant for "maliciously, wilfully and wickedly killing a horse."
These are the words of the indictment, and it seems to have been con-
ceded by Mr. Sergeant, the counsel for the defendant, that if it had
been laid to be done secretly, the indictment would have been good.
Here tlie entering of the house is laid to be done " secretly, maliciously,
and with an attempt to disturb the peace of the commonwealth. I
do not find any precise line by which indictments for malicious mischief
are separated from actions of trespass. But whether the malice, the
mischief, or the evil example is considered, the case before us seems
full as strong as Teischer's case. There is another principle, however,
upon which it appears to me that the indictment ma}' be supported.
It is not necessary that there should be actual force or violence to con-
stitute an indictable offence. Acts injurious to private persons, which
^tend to excite violent resentment, and thus produce fighting and dis-
turbance of the peace of societj', are themselves indictable. To send a
challenge to fight a duel is indictable, because it tends directly towards
a breach of the peace. Libels fall within the same reason. A libel
even of a deceased person is an offence against the public, because it
may stir up the passions of the living and produce acts of revenge.
Now what could be more likely to produce violent passion and a dis-
turbance of the peace of society, than the conduct of the defendant?
He enters secretly after night into a private dwelling house, with an
intent to disturb the family, and after entering makes such a noise as
to terrify the mistress of the house to such a degree as to cause a mis-
carriage. Was not tljis pr|nugh to produce ""mr nft nf rlr?fip"rnt" y12~
lence on the part of the master or irrnnlt'i n\ thr^^rmilj- ? It is objected
«-1,lHlL Lhu kind ul iiuiisU is not described ; no matter, it is said to have
been made vehemently and turbulently, and its effects on the pregnant
woman are described. In the case of the King v. Hood (Sayers' Eep.
in K. B. 161) the court refused to quash an indictment for disturbing
a family by violently knocking at the front door of the house for the
space of two hours. It is impossible to find precedents for all offences.
SECT. II.] COMMONWEALTH V. TAYLOR. 71
The malicious ingenuity of mankind is constantly producing new inven-
tions in the art of disturbing their neighbours. To this invention must
be opposed general principles, calculated to meet and punish them. I
am of opinion that the conduct of the defendant falls within the range
of established principles, and that the judgment of the Court below
should be reversed.
Brackenridge, J. It cannot be inferred, vi termini, that the word
" break " means more than a clausumfregit, or a breaking of the close in
contemplation of law, even though a dwelling house was the close
broken; because the trespass might be by walking into it, the door
open. But the court might refuse to quasli, because it might appear
on the evidence that the breaking amounted to more than a clausum
fregit in trespass. ^iit. t^ing tVlp nntry tn qmnnnt. f£) [^r<t.}iipg nngj-P
than a wnJlTinjT iuj IJii TTiTiTrii|irii, fiv\y init thr mntirr nf lirrrnt-i y ^n d
the use he made of it, constitute a miadpmRa.tjf>r? What ishe~alleged
to nave done, after entering the house ? " Wilfully, vehemently, and
turhulently did make a great noise." How is a noise occasioned that is
perceptible to the ear? It must be by an impulse of the air on the
organs of hearing. And what is it, whether it is by the medium of air,
or water, or earth, that an assault and battery is committed ? The im-
pulse of the air may give a great shock. Birds have fallen from the
atmosphere struck by a mighty voice. This happened at the celebra-
tion of the Isthmian games, as related by Plutarch in his life of Paulus
Emilius. Are we bound to consider the noise gentle? Are we not at
liberty to infer the mightiest effort of the human lungs? But the
power of imagination increases the effect. Armies have been put to
rout by a shout. The king of Prussia in the seven years' war won a
battle by the sound of artillery without ball. Individuals have been
thrown into convulsions by a sudden fright from a shout. The infant
in the womb of a pregnant woman has been impressed with a physical
effect upon the body, and even upon the mind, by a fright. Mary,
queen of Scots, from the assassination of Rizzio, communicated to her
offspring the impression of fear at the sight of a drawn sword. Peter
the Great of Russia had a dread of embarking on water from the same
• cause. Shall we wonder then that death is occasioned to the embryo,
in the womb of a pregnant woman, by a sudden fright? If in this
indictment it had been stated that the woman was pregnant with a liv-
ing child, it might have been homicide. But she is stated to have mis-
carried, which is the parting with a child in the course of gestation.
Will not the act of the individual maliciously occasioning this, consti-
tute a misdemeanor? A sudden fright even by an entry without noise,
presenting the appearance of a spectre, might occasion this, even though
in playful frolic ; yet after such effect, would not the law impute malice?
No person has a right to trifle in that manner to the injury of another.'
1 Part of the opinion of Brackenridge, J., and the concurring opinion of Yeates, J.,
are omitted. See State v. Huntley, 3 Ire. (N. C.) 418; State v. Tolever, 5 Ire. (N. C.J
452; Peniis v. Cribs, Add, (Pa.) 277 ; Henderson n Com., 8 Gratt. (Va ) 708.
72 KEGINA V. ADAMS. [CHAP. II.
EEGINA V. ADAMS.
Court foe Crown Oases Reserved. 1888.
{Reported 22 Q. B. D. 66.]
Case stated by the Recorder of London for the opinion of the Court
for the Consideration of Crown Cases Reserved.
At the sessions of the Central Criminal Court, held on September 17,
1888, J. C. Adams was tried on an indictment which charged him, in
xhe third count, with having, on June 19, 1888, unlawfully, wickedly,
and maliciously written and published to E. S. Y., the younger, who
was a good, peaceable, virtuous, and worthy subject of our Lady the
Queen, in the form of aJatteT^rected to her, the said E. S. Y., the
said letter rnrtjini"."; '^'-Tri f"i'^'7-"~tiflfll""''j nnglipinns, and defgjiwv.^
tory matters_attd-fetrtnga of ang'^eoiicerning the^arnlBriST-^PTTand of
and concerning the character for virtue, modesty7and TiiOI'irtrLy then
borne by the said E. S. Y. [the letter was set out], to the great damage,
scandal, infam}', and disgrace of the said E. S. Y., to the evil example,
etc., and against the peace, etc.-'
At the close of the case for the prosecution counsel for the prisoner
submitted that there was no case to go to the jury, on the grounds
(inter alia) that to write and send to a person letters in the form of
those set out in the indictment was not an indictable offence ; that the
letter set out in the third count was neither a defamatorj' libel nor an
obscene libel ; and that there had been no publication of it.
The recorder declined to stop the case upon the objections taken,
but left it to the jury, who convicted the prisoner on all the counts of
the indictment.
The recorder thereupon respited judgment and admitted the prisoner
to bail.
The question for the opinion of the Court was whether, upon the
facts stated, the prisoner could properly be convicted on all or any of
the counts of the indictment.
Lord Coleridge, C. J. It is unnecessary to discuss some of the
important questions which have been raised in this case. Upon those
questions, therefore, I, and I believe the other members of the Court,
desire to give no opinion. It appears to me that there is a very short
and plain ground upon which this conviction can be sustained. It is a
conviction upon an indictment, the third count of which charges that
the letter there set out is a defamatory libel, tending to defame and
bring into contempt the character of the person to whom it was sent.
I am ^_thsj>piTilou tha1Hhaieii£LisjiJL5UGh_a_charaeter as-tliat-rtrtorfeifc-
fovoke a breach of the pea^. At all events, the sending of such
-n lyLLer to tbe pfil'BUh Lo whom it was sent might, under the circum-
stances of her position and character, reasonably or probably tend to
provoke a breach of the peace on her part, or on the part of those con-
1 The evidence is omitted. — Ed.
SECT. II.] COMMON-WEALTH V. WING. 73
nected with her. The jury must be taken to have found that it was a
defamatory libel which was calculated to provoke a breach of the peace ;
and on that short ground I am of opinion that the conviction must be
affirmed on the third count of tLe indictment.
Manistt, Hawkins, Day, and A. L. Smith, JJ., concurred.
Conviction affirmed.^
EEX V. HATHAWAY.
King's Bench. 1701.
[Reported 12 Mod. 556.]
One Hathaway, a most notorious rogue, feigned himself bewitched
and deprived of his sight, and pretended to have fasted nine weeks
together ; and continuing, as he pretended, under this evil influence, he
was advised, in order to discover the person supposed to have be-
witched him, to boil his own water in a glass bottle till the bottle
should break, and the first that came into the house after should be
the witch ; and that if he scratched the bodj' of that person till he
fetched blood, it would cure him ; which being done, and a poor old
woman coming by chance into the house, she was seized on as the
witch and obliged to submit to be scratched till the blood came ;
whereupon the fellow pretended to find present ease. The poor woman
hereupon was indicted for witchcraft, and tried and acquitted at Surrey
assizes before Holt, C. J., a man of no great faith in these things ; and
the fellow persisting in his wicked contrivance, pretended still to be ill,
and the poor wnrrKiri^i nntwitlii); iiniin^' thr nicqnittfiil, frrrrrri by the mob
to^ jESeii herg6lt"robe-Scratoho(LbY him. And this beiJT- •^" ^
to be all imposition, an informationwas filed against him. '
COMMONWEALTH v. WING.
Supreme Judicial Court of Massachusetts. 1829,
[Reported 9 Pickering, 1.]
The defendant was indicted for maliciously discharging a gun,
whereby a woman, named M. A. Gifford, was thrown into convul-
sions and cramps. It was averred that the defendant well knew that
she was subject to such convulsions and cramps upon the firing of a
gun, and that at the time when the offence was committed, he was
warned and requested not to fire.
The case was tried before Wilde, J.
It was proved that M. A. Gifford was "severely affected with a
nervous disorder, and that she was uniformly thrown into a fit upon
hearing a gun, thunder, or any other sudden noise, or by hearing the
1 See State v. Roberts, 2 Marv. (Del.) 450; Com. v. Chapman, 13 Met. (Mass.) 68
Compare Rex v. Treake, Comb. 13 ; Reg. v. Taylor, 2 Ld. Rajm. 879 ; State v. Edens
95 N. C. 693.
74 COMMONWEALTH V. WING. [CHAP. U.
words "gun, ammunition," &c. mentioned. It was also proved that
she had been in this situation for more than sis years.
It was further proved that the defendant discharged the gun in a
highway, for the purpose of Itilling a wild goose, at a place two or
three rods from the house in which M. A. Gifford then lived ; which
house was situated on a neck of land where citizens had from time
immemorial resorted for the purpose of fowling. And it was also
proved that immediately before the defendant discharged his gun, he
was requested by M. A. Gifford's father not to fire, as it would throw
his daughter into fits ; and evidence also was introduced showing the
defendant's previous knowledge of the eflfect produced on her by the
report of a gun, especially- when discharged near to her.
The defendant contended that as he was engaged in a lawful occu-
pation, and as M. A. Gifford had for so long a time been aiflicted
with what had probably become an incurable disease, he was not
liable to punishment for the commission of the act alleged in the
indictment.
The judge instructed the jury that if they believed that the defen-
dant knew, or had good reason to believe, that the consequences
above mentioned would be produced by the firing of the gun, and had
notice to that effect immediately before the firing, they should return
a verdict of guilty ; which they did accordingly. If this instruction
was wrong, a new trial was to be granted.
Warren for the defendant. The indictment is for an alleged of-
fence, which is technically called a nuisance. It cannot be sustained,
because the act done was not to the annoyance of the citizens gener-
ally. Bac. Abr. Nuisance B ; Rex v. White, 1 Burr. 333 ; Rex v.
Combrune, 1 Wils. 301 ; Rex v. Wheatly, 2 Burr. 1126 ; Rex v. Lloyd,
4 Esp. 200 ; Arnold v. Jefferson, 3 Salk. 248. The actj in itself, was
neither malum in se nor malum proluhitum. The defendant was in
the exercise of a lawful employment, and the injury was to a single
person. Her remedy is by action ; the Commonwealth is not inter-
ested in the matter. The dictum of Sewall, C. J., in Cole v. Fisher,
11 Mass. R. 139, — that where the discharge of a gun is unnecessary,
a matter of idle sport and negligence, and still more where it is ac-
companied with purposes of wanton and deliberate mischief, the
party is liable as a public offender, — does not apply to this case ; for
the act of the defendant does not come within either of those de-
scriptions, and it was not done to the common danger of the citizens,
but on a neck of land where citizens had immemorially resorted for
the purpose of fowling.
The nature of the disease is such that a citizen was not obliged,
from regard to it, to refrain from his usual lawful pursuits. Where
a person is suffering under a complaint which is aggravated by the
transaction of the ordinary business of society, it is better that he
should suffer than that the business of the community should be sus-
pended. It is certainly better that he should be left to that remedy
SECT. II.J REX V. MAUD. 75
which the law gives every man for a violation of his private rights.
If the above doctrine is not sound as applied to temporary diseases,
it is when the affection is of so long standing as in this case. An
ftction cannot be sustained for an injury which the party might have
avoided by ordinary care. It was the duty of the woman to have
removed from a neighborhood where the citizens have immemorially
pursued an occupation which injuriously affected her health. Butter-
field V. Forrester, 11 East, 60 ; Smith v. Smith, 2 Pick. 621 ; Rex v.
Cross, 2 Carr. & Payne, 483.
Morton, Attorney-General, contra, cited 4 Bl. Com. 197 ; and Cole
V. Fisher, 11 Mass. R. 139.
Parker, C. J., delivered the opinion of the court. If the indict-
ment were for a ntiisaiice, the authorities cited by the defendant's
counsel would clearly show that it could not be sustained ; for the
most that could be made of it would be a private nuisance, for which
an action on the case only would lie. Bjit we thinlc the offence de-
scribed is a Tniadp.meannr^anrl not a nnisap^ — It wati it wanT^onant
Vf TniaHniJ^ TTmjT^jlH-innB fn t.TiP porartn ^nrnriMPirprl ^ gftt^y fjjll
-eertKe"'of the consequenpps. ar]d |iiiiTir, tn fTBwmL. The jury have
reiwd fchuL"ClTe~act was maliciously done. .
In the case of Cole v. Fisher, 11 Mass. R. 137, Chief Justice SewallA
in delivering the opinion of the court, speaking of the discharging ot-\
guns unnecessarily, says, if it is a matter of idle sport and negligence, '
and still morewhen__tha-a:efc-i5~accompanied witti purpuses-of waaton
or deliberate mischief, the guilty party is liable, not ^nly^in a civil
ae^fen, but aiS an orrender against the pnhlii pr ii i mil I i nVlt_y is
liaWe 10 be indicted, &c.
"-nMow the racts— proved in the case, namely, the defendant's previous
knowledge that the woman was so affected by the report of a gun as
to be thrown into fits, the knowledge he had that she was within
hearing, the earnest request made to him not to discharge his gun,
show such a disregard to the safety and even the life of the afflicted
party, as makes the firing a wanton and deliberate act of mischief.
Judgment on the verdict.^
REX V. MAUD.
Bedfordshire Eyre, 1202.
[Reported 1 Selden Soc. 27.]
Maud, wife rff Hugh, was taken with a. false p;a.l1nn with which she
sold beer, so that the keepers "of the m^as«xes_-t«stify that they took
her selling beer with it. And since she cannot defend this, it is
considered that she be in mercy. She made fine with two marks.
1 But see Rogers w. Elliott, 146 Mass. 349. Compare State v. Buckman, 8 N. H.
203 ; People v. Blake, 1 Wheel. (N. Y.) 490. For other kinds of personal injury, see
State ». Cooper, 2 Zab. (N. J.) 52; State v. Slagle, 82 N. C. 653 ; Reg. v. Hogan,
2 Den. C. C. 277 ; Com. o. Stoddard, 9 All, (Mass,) 280 ; Rex v. Treeve, 2 East P. C.
«21 ; State v. Smith, 3 Hawks (N. C.) 378.
76 KEGINA V. HANNON. [CHAP. It-
ANONYMOUS.
Common Bench. 1309.
[Reported Year Book, 2 & 3 £dw. II {Seld. Soc.) 120.]
A MAN was sued by the commonalty of the town of London for a tres-
pass against the statute of forestallers (made) in the Guildhall, and
(the plaintiffs) said that, whereas all the citizens of London came for
their merchandise and foreign folk came with their merchandise to
the city, to wit, with beasts, sheep, and poultry, etc., without which,
the city cannot be sustained, this man is a corariTgi<forestaller of all the-
things afgr^id, °" <^^'"'<^ whgn \\p tma hmigVit t.Vipm fV>r_g_ rf?rts>in aiim-
he will ^eil them for_jiottMer^rongruHy~a:ntt~5gaTnst the common
Ordinance, and to their damage, etc.
Passeley for the defendant : "We do not believe that you have war-
rant to try this plaint, for this is a matter which should be tried in the
eyre, like a charge that a man is a common thief, a common robber,
or a common breaker of parks, where no certain deed is laid to his
icharge. The suit cannot be maintained unless some certain fact be
'mentioned ; for, were it otherwise, every man might have this suit,
whereas it belongs to the King and to his crown, which is not to be
dismembered. Judgment, whether you can or ought to be received
to this plaint.
Therefore it was awarded that they took nothing of their plaint, etc»
(and that the commonalty of London be amerced).
EEGINA V. HANNON.
Queen's Bench. 1704.
[Reported 6 Mod. 311.]
Hannon was indicted, for that being a communis deceptor of the
Queen's people, he came to the wife of B. and made her believe that
he had sold part of a ship to her husband, and upon that account got
several sums of money from her.
Br THE Court,
First, '■^ communis deceptor" is too general, and so is "communis
Oppressor," " communis pertubator," etc. and so of all other (except
TOarretor and scold), without adding of particular instances.
Secondly, The particular instance alledged here is of a private nature f
if he had made use of any fMsv, token it woulHTiavelSeen othetwlser^
And the court ordered the indictment to be quashed.
SECT. II.] KEX V. WHEATLY. 77
REX V. WHEATLY.
King's Bench. 1761.
[Reported 2 Burrow, 1125.1]
Defendant was indicted, for that he, being a common brewer, and
intending to deceive and defraud one Richard Webb, delivered to him
sixteen gallons, and no more, of amber beer, for and as eighteen gal-
lons, which wanted two gallons of the due measure contracted to be
■delivered ; and received 15s for the same ; to the evil example, &c.,
And against the peace, &c. After conviction before Lord Mansfield,
C J., at Guildhall, Morton moved in arrest of judgment.
Mr. Morton and Mr. Yates, who were of counsel for the defendant,
.r>hjf;nt,prl that, ths fap.t. ^Iiar^red wns ftothing more than a mere breach of
-a civil contract, noFaiTuiBictable ofliaac^'"'~To~prove this, they cited
Rex V. Combrun, p. 1751, 24 G. 2 B. R., which was exactly and punc-
tually the same case as the present, only mutatis mutandis. And
Rex V. Driffield, Tr. 1754, 27, 28 G. 2 B. R. S. P. An indictment for
■& cheat, in selling coals as and for two bushels, whereas it was a peck
;short of that measure ; there the indictment was quashed on motion.
Rex V. Hannah Heath : An indictment for selling and delivering
iseventeen gallons, three quarts, and one-half pint of geneva (and the
like of brandy) as and for a greater quantity, was quashed on motion.
In 1 Salk. 151., Nehuff s Case, P. 4 Am. B. R., a certiorari was
.-granted to remove the indictment from the Old Bailey ; because it was
not a matter criminal : it was " borrowing £600 and promising to send
a pledge of fine cloth and gold dust, and sending only some coarse
■cloth, and no gold dust."
I In Tremaine, title Indictments for Cheats, all of them either lay a
Iconspiracy or show something amounting to a false token.
A mere civil wrong will not support an indictment. And here is no
•criminal charge. It is not alleged " that he used false measures."
The prosecutor should have examined and seen that it was the right
. and just quantitj'.
Mr. Norton, pro rege, offered the following reasons why the judg-
ment should not be arrested.
The defendant has been convicted of the fact. He may bring a writ
•of error, if the indictment is erroneous.
1 s. 0. 1 William Blaokstone, 273. The statement of the case is taken from the
iattei- report.
78 SEX V. WHJEATLY. [CHAF. U.
This is an indictable offence; 'tis a cheat, a public fraud in the
course of his trade, — he is stated to be a brewer. There is a distinction
between private frauds and frauds in the course of trade. The same
fact may be a ground for a private action, and for an indictment too.
None of tlie cited cases were after verdict. It might here (for aught
that appears to the contrary) have been proved " that he sold this less
quantity by false measure ; " and everything shall be presumed in
favor of a verdict. And here is a false pretence, at the least ; and it
appeared upon the trial to be a very foul case.
The counsel for the defendant, in reply, said, that nothing can be
intended or presumed in a criminal case but secundum allegata et
probata; it might happen without his own personal knowledge. And
they denied any distinction between this being done privately and its
being done in the course of trade.
Lord Mansfield. The question is, Whether the fact here alleged
be an indictable crime or not. The fact alleged is : —
[Then his Lordship stated the charge, verbatim.]
The argument that has been urged by the prosecutor's counsel, from
the present case's coming before the court after a verdict, and the cases
cited being only of quashing upon motion, before any verdict really turns
the other way ; because the Court may use a discretion, " whether it be
right to quash upon motion or put the defendant to demur ; " but after
verdict they are obliged to arrest the judgment if they see the charge to
be insufficient. And in a criminal charge there is no latitude of inten-
tion, to include an3thing more than is charged ; the charge must be
explicit enough to support itself.
Here the fact is allowed, but the consequence is denied : the objec-
tion is, that the fact is not an offence indictable, though acknowledged
to be true as charged.
And that the fact here charged should not be considered as an indic-
table offence, but left to a civil remedy b}' an action, is reasonable and
right in the nature of the thing ; because it is only an inconvenience
and injur}' to a private person, arising from that private person's own
negligence and carelessness in not measuring the liquor, upon receiving
it, to see whether it held'out the just measure or not.
The offence that is indictable must be such a one as affects the pubj
lie. As if a man uses false weights and measures, and sells by them
to all or to many of his customers, or uses them in the general course
of his dealing ; so, if a man defrauds another, under false tokens. For
these are deceptions that common care and prudence are not sufficient
to guard against. So, if there be a conspiracy to cheat ; for ordinary
care and caution is no guard against this.
Those cases are much more than mere private injuries : they are
public offences. But here, it is a mere private imposition or deception.
No false weights or measures are used, no false tokens given, no con-
spiracy ; only an imposition upon the person he was dealing with, in
delivering him a less quantity instead of a greater, which the other
SECT. 11. j EEX V, WHEATLY. 79
carelessly accepted. ' T is only a non-performance of his contract, for
which non-performance lie may bring his action.
The selling an unsound horse, as and for a sound one, is not indic-
table ; the buyer should be more upon his guard.
The several cases cited are alone sufficient to prove that the offence
here charged is not an indictable offence. But besides these, my
brother Deiiison informs me of another case, that has not been
mentioned at the bar. It was M. 6 G. 1. B. R. Rex v. Wilders, a.
brewer. He was indicted for a cheat in sending in to Mr. Hicks, an
ale-house keeper, so many vessels of ale marked as containing such a
measure, and writing a letter to Mr. Hicks, assuring him that the^' did
contain that measure, when in fact they did not contain such measure,
but so much less, &c. This indictment was quashed on argument,
upon a motion, which is a stronger case than the present.
Therefore the law is clearly established and settled ; and I think on
right grounds ; but on whatever grounds it might have been originally
established, yet it ought to be adhered to, after it is established and
settled.
Therefore (though I maj' be sorry for it in. the present case, as
circumstanced) the judgment must be arrested.
Mr. Just. DiiNisON concurred with his Lordship.
This is nothing more than an action upon the case turned into au
indictment. 'T is a private breach of contract. And if this were to be
allowed of, it would alter the course of the law, by making the injured
person a witness upon the indictment, which he could not be (for him-
self) in an action.
Here are no false weights, nor false measures, nor any false token
at all, nor any conspiracy.
In the case of the Queen v. Maccarty et al, 6 Mod. 301, 2 Ld. Raym.
1179, there were false tokens, or what was considered as such. In the
case of the Queen u. Jones, 1 Salk. 379, 2 Ld. Raym. 1013, 6 Mod.
105, the defendant had received £20, pretending to be sent by one who
did not send him. Et per Cur. . " It is notjndiftnblr nnlo^'^ h«-came_
with falsp^tftlfpriH, Wli II III iiril, la IniT'i-l.-nnn mnn fnr mnl7-injT n fnnl of
another; let him bring his action."
-tf-there be £aIs«--toEens, or a conspiracy, it is another case. The
Queen v. Maccartj' was a conspiracy, as well as false tokens. Rex v.
Wilders was a much stronger case than this, and was well considered.
That was an imposition in the course of his trade, and the man had
marked the vessels as containing more gallons than thej' did reallj-
contain, and had written a letter to Mr. Hicks, attesting that they
did so.
But the prfiapnt, oaaf- ig pruafvypHitwin n mnun hvpinh nf ,f>nntra.p.t : he
has not delivered the quantity which he undertook to deliver.
The Court use a discretion in quashing indictments on motion, but
they are obliged to arrest judgment when the matter is not indictable.
Anil this matter is not indictable, therefore the judgment ought to be
arrested.
80 BEX V. WHEATLT. [CHAP. II.
Mr. Just. Foster. We are obliged to follow settled and established
rules already fixed b}- former determinations in cases of the same kind.
The case of Rex v. Wilders was a strong case, — too strong, perhaps,
for there were false tokens ; the vessels were marked as containing a
greater quantity than they really did.
Mr. Just. WiLMOT concurred. This matter has been fully settled
and established, and upon a reasonable foot. The true distinction that
ought to be attended to in all cases of this kind, and which will solve
tliem all, is this, — That in such impositions or deceits, where common
prudence may guard persons against the suffering from them, the
offence is not indictable, but the party is left to his civil remedy for the
redress of the injury that has been done him ; but where false weights
and measures are used, or false tokens produced, or such methods
taken to cheat and deceive as people cannot, by any ordinary
care or prudence, be guarded against, there it is an offence indictable.
In the case of Rex v. Pinkney, P. 6 G. 2 B. R., upon an indictment
" for selling a sack of corn (at Rippon market) which he falsely
affirmed to contain a Winchester bushel, ubi revera et infacto plurimum
deficiebat, &c.," the indictment was quashed upon motion.
In the case now before us, the prosecutor might have measured the
liquor before he accepted it, and it was his own indolence and
negligence if he did not. Therefore common prudence might have
guarded him against suffering any inconvenience by the defendant's
offering him less than he had contracted for.
This was the case of Rex v. Pinkney ; and it was there said, That
if a shop-keeper who deals in cloth pretends to sell ten yards of cloth,
but instead of ten yards bought of him, delivers only six, yet the
bu3'er cannot indict him for delivering only six ; because he might
have measured it, and seen whether it held out as it ought to do, or
not. In this case of Rex v. Pinkney, and also in the case of Rex v.
Combrun, a case of Rex v. Nicholson, at the sittings before Lord
Raymond after Michaelmas term, 4 G. 2, was mentioned ; which was
an indictment for selling six chaldron of coals, which ought to contain
thirty-six bushels each, and delivering six bushels short. Lord Ray-
mond was so clear in it that he ordered the defendant to be acquitted.
Per Cue. unanimouslj',
The judgment must be arrested}
• See Bex v. Osbom, 3 Burr. 1697; Com. v. Warren, 6 Mass. 72. — Ed.
SECT. III.] COMMONWEALTH V. EOKERT. 81
SECTION m.
Public Torts.
COMMONWEALTH v. ECKERT.
CODKT OF QuAETEE SESSIONS, PENNSYLVANIA, 1812.
[Reported 2 Browne, 249.]
The defendant was indicted for a misdemeanor, in cutting and
deadening a black-walnut tree, on the common, or public ground,
adjoining the village of Hanover, the property of which was vested in
certain trustees, for the use of the inhabitants of said town, by deed
from the original owner of the land.
Bowie, for the defendant. It is a rule in morality, as well as in
charity, to apply an innocent motive, rather than a malicious one, to
have actuated the defendant. A crime or misdemeanor indictable,
must be a violation of some known public law. 4 Bl. Com. 5 ; 1 Hawk.
P. C. 366, 7, sect. 1. Act of Assembly against taking off or breaking
knockers on doors, spouts, &e., breaking down or destroying signs,
&c. Read Dig. 7, Act of 1772. These were offences not indictable
at common law ; and therefore the necessity of the statute. A number
of cases of a private nature are not indictable. 2 Hawk. P. C. 301.
Such as breaking closes, &c. 3 Burr. 1698. Cases that apply to indi-
viduals or to a parish are not indictable, and there is no difference in
this case from that of six, eight, or ten tenants in common of a prop-
erty ; and one of the number cutting a tree, an indictment could not be
supported against him that did the act.
Per Cueiam, Feanklin, President, to the jury : —
The defendant is charged with a misdemeanor, in cutting and dead-
ening a black-walnut tree, standing on public ground adjoining the
town of Hanover, which ground appears to be vested by deed in cer-
tain trustees, for the use and benefit of all the inhabitants of said
town. This tree was kept and appropriated, by the people of that
place, for shade and ornament.
The doctrine on subjects of this kind is well laid down by the late
Chief Justice McKean. 1 Dall. 335. Whatever amounts to a public
_jerr>ncr, gg killing a horse, poisoning clnckens, and the like, is the sub-_
ject of an indictment for a misdemeanor.
■ "m^slhx, forms Ihe guiU of the ludicttBgnt. Any evil design, proceed-
ing from a depraved or wicked heart.
If you should consider the tree was useful for public convenience,
ornament, and shade (which we think has been fully proved), you may
convict the defendant ; if not, acquit him.^ Verdict, Guilty.
1 See Resp. v. Powell, 1 Dall. (Fa.) 47.
82 REX V. KICHAKDS. [CHAP. IL
KEX V. RICHAKDS.
King's Bench. 1800.
[Reported 8 T. R. 634.]
This was an indictment against tiie defendants for not repairing
a road. Tlie indictment stated that by virtue of an act of parliament-,
-&l-€r«©- 3., intitled " an act for draining and dividing a certain moor
or tract of waste land called King's sedgmore in the county of Somer-
set" it was enacted that certain commissioners tlierein named should
before making any allotments of the said moor set out and appoint such
private roads and drove-waj's over the same as in the judgment of the
said commissioners should be necessary' and convenient ; and that all
private roads and ways so to be set out should be made and repaired
at the expense of all or any of the persons interested in the said moor
and in such manner as the said commissioners should direct; that
certain commissioners under the act in execution of the powers thereby
vested in them by their award set out and appointed a certain private
road and drove-way in over and upon the said moor to be a private
road an(i drove-way to be called Henley Drove-way (describing it) ;
that the said commissioners also awarded that the said drove-way
should be for the benefit use and enjoj'ment of the several owners
tenants and occupiers for the time being of all and singular the tene-
ments in the several parishes or hamlets of Highham Lowham Aller
Pitney Long Sutton Huish Episcopi Butleigh Ashcott and Greinton in
the said county in respect whereof and of the rights of common
severally appurtenant thereto the divisions and allotments of the said
moor were thereby assigned and allotted unto the same parishes or
hamlets respectively ; that the said commissioners thereby ordered and
directed that the said drove-way should for ever thereafter be repaired
by the several owners tenants and occupiers for the time being of all
and singular the tenements in the several parishes or hamlets of High-
ham Lowham Aller Pltnej' Long Sutton and Hnish Episcopi in respect
whereof and of the rights of common severally appurtenant thereto the
divisions and allotments of the moor were thereby assigned and allotted
unto the same parishes or hamlets respectively in equal shares and pro-
portions, when and so often as need should be &c ; by reason whereof
the said private road and drove-way became and was a private road
and- drove-way for the purposes above mentioned, and by virtue of the
said act and of the said award liable for ever hereafter to be from time
to time amended and kept in repair in the manner and by the means
aforesaid ; that on &c. the said way, called Henley Drove-Way, was
ruinous and in decay for want of needful reparation thereof; that
J. Richards late of Highham, and the five other defendants, (describ-
ing them respectively as of the parishes of Lowham, Aller, Pitney,
Long Sutton, and Huish Episcopi) being severally and respectively
owners tenants and occupiers of certain tenements in the several
SECr. III.] EEX V. KIOHAKDS, 83
parishes or hamlets of Highham Lowham AUer Pitney Long Sutton
and Huish Episcopi, in respect whereof and of the rights of common^
severally appurtenant thereto the divisions and allotments of the said
. moor were thereby assigned unto the same parishes or hamlets, and\
being persons interested in the said moor, and by virtue of the premises'
liable to keep in repair and amend the said drove-way, had not duly
repaired and amended the same &c. The defendants pleaded not
guilty; and on' the trial at the last assizes at Bridge water before
Mr. Justice Gkose the jury found a special verdict.^ When this case
was called on in the paper for argument, The Court asked the prose-
cutor's counsel on what ground it could be contended that this was an
indictable offence, the road in question being only a private road ?
Praed, for the prosecutor, answered that this frM^ffk-a. private, road
was gpwmj^ hy jdgf.iip nf ti^^gublJc act of parliament, under which the
defendants were directed to repair it ; that consequent"ly the not repair-
ing was a disobedience of a public statute, and therefore the subject
of an indictment. That this might be considered to a certain degree
as concerning the public ; that even " a private act of parliament may
oe given in evidence without comparing it with the record, if it con-
cern a whole county, as the act of Bedford Levels." 12 Mod. 216.
And that there was no other remedy than the present, because it
appeared by the special verdict that there were no less than two
hundred and fifty persons who were liable to the repair of this road,
and that the difficulty of suing so many persons together was almost
insuperable.
But the Court interposed, and said that, howeyrr mmrrnicint it
might De that the detendants should be indicted, there wasnojegal
gronfld on w-hi<}h-thi€4ndictiuei]l oould be supported. That the known
TU'te was that" those matters pnly that concerned tbe public were the
subject of an indictment. That the road in question being described
to be-a, private road did not concern tne puohc, nor was of a public"
nature, FuFmerely concerned the individuals who had a right to use it.
That the question was not varied by the circumstance that many indi-
viduals were liable to repair, or that many others were entitled to the
benefit of it ; that each party injured might bring his action against
those on whom the duty was thrown. That the circumstance of this
road having been set out under a public act of parliament did not make
the non-repair of it an indictable offence ; that many public acts are
passed which regulate private rights, but that it never was conceived
that an indictment lay on that account for an infringement of such
rights. That here the act was passed for a private purpose, that of
dividing and allotting the estates of certain individuals. That even
if it were true that there was no remedy by action the consequence
would not follow that an indictment could be supported ; but that
in truth the parties injured had another legal remedy.
Judgment for the defendants.
1 The special verdict is omitted. — Ed.
84 COMMONWEALTH V. KING. [CHAP. IL
COMMONWEALTH v. KING.
SupKEMB Judicial Court of Massachusetts. 1847.
[Reported \3 Met. 115.]
The indictment, in this case, alleged that there was a common and
public highway in the town of Sutton, called the Old Central Turnpike,
and that the defendant, on the 1st of August 1846, " did unlawfully
and injuriously put, place, lay and continue a large quantity of stones,
in and upon a part of said highway, to wit, upon a space thereof ten
rods long and one rod wide, and the said stones, so placed as aforesaid,
he the said Wm. King, from said first day of August, until the finding
of this bill, unlawfully and injuriously did keep, continue and maintain,
in and upon said highway, wherebj' the same has been, during all the
time aforesaid, and still is, greatly narrowed, obstructed and stopped
up," &c. "against the peace," &c. "and contrary to the form of the
statute in such case made and provided." ^
Dewet, J. . . . The next enquiry is, whether the facts alleged con-
I stitute an offence at common law. Upon this point we have no doubt.
I By the location of a public highway, with certain defined exterior limits.
Ithe public acquire an easement coixtensivp with thfi limits of spch
Ihiptwayr Whoever obstructs the full enjoyment of that easement, by
snaking deposits, within such limits of the located highway, of timber,
I Jstones or other things, to remain there and occupy a portion of such
public highwaj', is guilty of a nuisance at common law.
It was contended by the counsel for the defendant, that the rights of
the public are confined exclusivelj^ to the made or travelled road, or to
that 'part which might be safely and properly used for travelling; and
that a deposit of timber, stones or other articles, upon a part of the
located highway, which, from its want of adaptation to use for travel,
could not be thus enjoyed, — as a portion of the way on which there
was a high bank, or a deep ravine, — would not subject the party to an
indictment for a nuisance upon the highway. This principle is sup-
posed to be sanctioned by the decisions of this court in reference to the
rights of travellers, holding that such travellers are to use the travelled
or made road, and that if such road is of suitable width, and kept in
proper repair, the town may have fully discharged its duty, although
it has not made and kept in repair a road of the entire width of the
located highway. But there is a manifest distinction between the two
cases. In the case supposed, the traveller has all the beneflts of a
public way secured to him. He only requires a road of proper width,
and kept in good repair. But tjie town, on the other_haad,-fcQ_finahlp
itself to discharge its obligationjo "the 'public, requires the full and
1 Only so much of the case as involves the question~S~a nuisance at common law
is given. — Ed.
SECT. III.J PEOPLE V. KUGGLES. 85
entire use of the whole located highway. The space between the made
5oad-aiidTEe exterior limits of the located highway may be required
for various purposes ; as for making and keeping in repair the travelled
path ; for making sluices and water-courses ; for furnishing earth to
raise the road. And, not unfrequently, from the location of the road
and from its exposure to be obstructed by snow, the entire width of
the located road is required to be kept open, to guard against accumu-
lations of snow that might otherwise wholly obstruct the public travel
at such seasons. For these and other uses, in aid of what is the lead-
ing object, the keeping in good repair of the made or travelled road,
the general easement in the public, acquired by the location of a high-
way, is coextensive with the exterior limits of the located highwaj' ;
and the question of nuisance or no nuisance does not depend upon the
fact, whether that part of the highway, which is alleged to have been
unlawfully entered upon and obstructed by the defendant, was a portion
of the highway capable of being used by the traveller. Whether it be
so or not, an entry upon the located highway, and occupation of any
portion of it by deposits of lumber, stones, &c., would be a nuisance,
and subject the party to an indictment therefor.^
PEOPLE V. RUGGLES.
Supreme Court op New York. 1811.
[Reported 8 Johns. 290.]
Indictment for blasphemy. After conviction the record was removed
to the Supreme Court. Wendell, for the prisoner, now contended that
the offence charged in the indictment was not punishable by the law of
this state, though, he admitted, it was punishable by the common law
of England, where Christianity makes part of the law of the land, on
account of its connection with the established church.^
Kent, C. J. And why should not the language contained in the
indictment be still an offence with us ? There is nothing in our man-
ners or institutions which has prevented the application or the necessity
of this part of the common law. W^. at-.anrl pgnally in need, now^s
formerly, of ^11 thnt mftrsl di°"'"p^'i"; ""d "^ t^-^sp pripciplna of virtue,
which "Eeip to bind ancipty fogpthpr. TIia people of this state, in com-
mon with the people of this country, profess the general doctrines of
Christianity, as the rule of their faith and practice ; and to scandalize
the author of these doctrines is not only, in a religious point of view,
extremely impious, but, even in respect to the obligations due to soci-
l See Hall's Case, 1 Mod. 76 ; State v. Peckard, 5 Harr. (Del.) 500 ; State v. Use-
ful Manufactures Society, 44 N. J. Law 502 ; People v. Cnnniiigham, 1 Den. (N. Y.)
524.
' This short statement is substituted for that of the reporter. Only so much of the
opinion is giyen as discusses the argument above advanced. — Ed.
86 PEOPLE V. EUGGLES. [CHAP. II.
ety, is a gross violation of decency and good order. ^Nothingcould^be
more offensive to thevirtuous parJLQ£-the-eoTin5unity,'or moreTTij»iUQua_
'lilT.l.lii. Iiuhk .ill, nTthp Yniinp7tban to declare suckprnfanltiV laff-
^_J5l. Jl wuulJ Ho to (iOtitoUM All distinction between things sacred and
profane ; for to use the words of one of the greatest oracles of human
wisdom, " profane scofBng doth by little and little deface the reverence
for religion ; " and who adds, in another place, " two principal causes
have I ever known of atheism, — curious controversies and profane
scoffing." (Lord Bacon's Works, vol. ii, 291, 503.) TJungs-»b4«h
corrupt moral_seiiliDiiSnt, as obscene actions, prints and writings, and
even gross instances rTTnTTTm-Hnn , hivr, upon the same principle, been
held indictable ; and shall we form an exception in these particulars to ~
"TEe rest of" the civilized world? No government among any of the
polished nations of antiquity, and none of the institutions of modern
Europe (a single and monitory case excepted), ever hazarded such a
bold experiment upon the solidity of the public morals, as to permit
with impiinitj', and under the sanction of their tribunals, the general
religion of the community to be openly insulted and defamed. The
very idea of jurisprudence with the ancient lawgivers and philosophers
embraced the religion of the countiy. Jurisprudentia est divinarum
atque hvmanariim rerum notitia. (Dig. b. 1. 10. 2. Gic. De Legibus,
b. 2. passim.)
The free, equal, and undisturbed enjoyment of religious opinion,
whatever it may be, and free and decent discussions on any religious
subject, is granted and secured ; hiA t" '•"^'ilf, with mnlininm nnrl-blAa-
phemous contempt, the religion professed by almostJJTg^whoJe eommu-
nit}-, io an- abuse of that righti Nor are we boundfby~ahy expressions
-ift—tte" constitution, as some have strangely supposed, either not to
punish at all, or to punish indiscriminately the like attacks upon tho
religion of Mahomet or of the grand Lama ; and for this plain reason,
that the case assumes that we are a Christian people, and the morality
of the country is deeplj' ingrafted upon Christianity, and not upon the
doctrines or worship of those impostors. Besides, the offence is crimen
malitioB, and the imputation of malice could not be inferred from any
invectives upon superstitions equally false and unknown. We are not
to be restrained from animadversion upon offences against public de-
cency, like those committed by Sir Charles Sedley (1 Sid. 168), or by
one Rollo (Sayer, 158), merely because there may be savage tribes, and
perhaps semi-barbarous nations, whose sense of shame would not be
affected by what we should consider the most audacious outrages upon
decorum. It is sufficient that the common law checks upon words and
actions, dangerous to the public welfare, apply to our case, and are
suited to the condition of this and every other people whose manners
are refined, and whose morals have been elevated and inspired with a
more enlarged benevolence, by means of the Christian religion.^
1 Ace. Updegraph v. Com., 11 S. & R. (Pa.) 394. — Ed.
SECT, ill] state V. LINKHAW. 87
REGINA V. BRADLAUGH.
ASSIZES.
[Reported 15 Cox C. C. 217.]
Lord Coleridge, C. J.* . . . . But I have told you that, with re-
gard to these libels, they are, in my judgment, in any view of the law,
blasphemous libels. It is not merely that they asperse the doctrine of
Christianity ; it is not merely that they question particular portions of
the Hebrew Scriptures. I should suppose that there are few reasoning,
thoughtful men to whom the character of David and the acts of Jehu
may not have occasioned considerable question ; and to find them rep-
resented as approved by an all-pure and all-merciful God may and must
have raised very strong doubts. And if these things were argued
with due gravity and propriety, I for one would never be a party, unless
the law were clear, to saying to any man who put forward his views on
those most sacred things, that he should be branded as apparently
criminal because he differed from the majority of mankind in his relig-
ious views or convictions on the subject of religion. If that were so,
we should get into ages and times which, thank God, we do not live in,
when people were put to death for opinions and beliefs which now al-
most all of us believe to be true. It is not a question of that sort at all.
It is a question, first of all, whether these things are not in any point
of view blasphemous libels, fchether they are not calculated and intpnflf|(^
to insult the feelings and the deepest religious convictions of the great
ma^nrit.y of t.he pprsnns ariTj^npjt wnnm we live ; and~if so, they are not
t&"'be toieratea any more than other nuisance is tolerated. We_muat_
not Ho t.hinp;s that are ontra^eousto the general feeling of propriety
•Smong the persons amongst whom we live.
STATE V. LINKHAW.
Supreme Court of North Carolina. 1873.
[Reported 69 N. C. 214.]
Settle, J. The defendant is indicted for disturbing a congie-
gation while engaged in divine worship, and the disturbance is
alleged to consist in his singing, which is described to be so peculiar
as to excite mirth in one portion of the congregation and indigna-
tion in the other.
From the evidence reported by his honor who presided at the
1 An extract from the charge only is given. — Ed.
88
EEX V. LYNN. [chap. IL
trial, it appears that at the end of each_Yer3e his Yoicej9_hea£d
ftftPr_an^TH^'7^theriTngers have ceasearand"tfiat the disturbance is
decided and serious; that thecliurch_ members and authorities
expostulated with the defendanTaUoutTIs singing and the disturb-
ance growing out of it; to all of which he replied "that he would
worship his God, and that as a part of his worship it was his duty
to sing." It was further in evidence that the defendant is a strict
Imember of the church, and a man of most exemplary deportment.
* " It was not contended by the State upon the evidence that he
had any intention or purpose to disturb the congregation ; but on the
contrary, it was admitted that he was conscientiously taking part in
the religious services."
This admission by the State puts an end to the prosecution. It is
true, as said by his honor, that_a_maa-i3 generally prpsumed tfi jntend_
rnn-rqnrnrcii nf hifi iii I, i, liiil, heir llii- pfn-jiirnptifrniq rebutted by a fact
"Mrnitt^^i^y *^^ ^♦"^^
^iFwould seem that the defendant is a proper subject for the disci-
pline of his church, but not for the discipline of the courts.
Venire de novo.^
EEX V. LYNN.
King's Bench. 1789.
[Reported Leach {ith ed.), 497.]
Lynn had been convicted of a misdemeanor on an indictment which
charged that he, on such a day, had entered a cei'tain burying-ground,
and taken from a coffin buried in the earth a dead body for the purpose
of dissection.
In Michaelmas Term, 1789, it was moved in the Court of King's
Bench in arrest of the judgment, that this was an offence of ecclesiastical
cognizance, and not indictable in any court of criminal jurisdiction at
the common law. But by the Court, the office is cognizable in a
criminal court, as Ijighly indecent, and contra bonos mores .-and the
circumstance oi iLy byiug fur LUu pTirposes of dissection does not make
it a less indictable offence.
The defendant, on the probability of his having committed this crime
merely from ignorance, was only fined five marks. ^
1 See State v. Jasper, 4 Dev. (N. C.) 323.
« See Eeg. o. Jacobaon, 14 Cox, C. C. 522. — Ed.
SECT. III.] KANAVAN'S OASI!. 89
KANAVAN'S CASE.
Sdpeemb J0DICIAL Court of Maine. 1821.
[Reported 1 Greenleaf, 226.]
The Becond count stated that the defendant unlawfully and indecently
took the body of [a] child and threw it into the river, against common
decency, &c.^
The defendant being convicted on the second count, a motion was
made in arrest of judgment, on the ground that the offence charged was
not indictable at common law.
By the Court. We have no doubt upon this piib,jp"t,^ apH dn not
hesitate a m^mgat-tt) pronounce! the iiidicLmeut tu b«..gQod and suffl;^
'(jieiil, and Lhat there must be sentence against the prisoner.
From our childhood we all have been accustomed to pay a reveren-
tial respect to the sepulchres of our fathers, and to attach a character
of sacredness to the grounds dedicated and enclosed as the cemeteries
of the dead. Hence, before the late statute of Massachusetts was en-
acted, it was an offence at common law to dig up the bodies of those
who had been buried for the purpose of dissection. It is an outrage
upon the public feelings, and torturing to the afflicted relatives of the
deceased. Ifit be a crime thus to disturb the ashes of the deadij.t
must also be a crime todepriso thom oi a. d<iCEirn)urial, by a disgraceful
"^XpOHUl'B, Ul difepObaTof the body P.nntrary f,n_iiaaffi>g. ap Inntr sanctioned,
antl vthieh aru ju giitluful tu thu-nyounded hearts of friends and mourn-
ers. If a dead body may be thrown into a river, if may be cast into a
street ; if the body of a child, so the body of an adult, male or female.
Good morals, decency, our best feelings, the law of the land, — all for-
bid such proceedings. It is imprudent to weaKen the mllil6nce of tha*;
sentiment wnicn gives^ solemnity and intere&t to everything cofifaected
w^h thu Luml*—.^^
Our funeral rites and services are adapted to make deep impressions
and to produce the best effects. The disposition to perform with all
possible solemnity the funeral obsequies of the departed is universal in
our country ; and even on the ocean, where the usual method of sepulture
is out of the question, the occasion is marked with all the respect which
circumstances will admit. Our legislature, also, has made it an offence
in a civil officer to arrest a dead body by any process in his hands
against the party while living ; it is an affront to a virtuous and decent
public, not to be endured.
It is to be hoped that punishment in this instance will serve to
correct an}- mistaken ideas which may have been entertained as 10
the nature of sucli an offence as this of which the prisoner stands
convicted.
90 COMMONWEALTH V. SHAKPLESS. [OHAP. II.
COMMONWEALTH v. SHARPLESS.
Supreme Court op Pennsylvania. 1815.
[Reported 2 Sergeant S,- Rawle, 91.]
TiLGHMAN, C. J.' This is an indictment against Jesse Sharpless
and others for exhibiting an indecent picture to divers persons for
money. The defendants consented that a verdict should go against
them, and afterwards moved in arrest of judgment for several reasons.
1. "That the matter laid in the indictment is not an indictable
offence." It was denied, in the first place, that even a public exhibi-
tion of an indecent picture was indictable ; but supposing it to be so,
it was insisted that this indictment contained no charge of a public
exhibition. In England there are some acts of immorality, such as
adultery, of which the ecclesiastical courts have taken cognizance from
very ancient times, and in such cases, although they tended to the cor-
ruption of the public morals, the temporal courts have not assumed
jurisdiction. This occasioned some uncertainty in the law ; some dif-
ficulty in discriminating between the offences punishable in the tem-
poral and ecclesiastical courts. Although there was no ground for
this distinction in a country like ours, where there was no ecclesiastical
jurisdiction, yet the common law principle was supposed to be in
force, and to get rid of it punishments were inflicted by act of assem-
bly. There is no act punishing the offence charged against the
dpfpndflj^^ "Mil thovofrvi-p. ^he cn.ae muAl lin dHi'iilH.il \\\u\n thp. prin-
ci^es^E-Sie uumuiuu Itu^. ibat actioiiy of publi(:i indeceficy were
always indictable, as tending to corrupt the public morals, I can have
no doubt ; because, even in the profligate reign of Charles II., Sir
Charles Sedley was punished by imprisonment and a heavy fine for
standing naked in a balcony in a public part of the city of London.
It is true that, besides this shameful exhibition, it is mentioned in
some of the reports of that case that he threw down battles containing
offensive liquor among the people ; but we have the highest authority
for saying that the most criminal part of his conduct, and that which
principally drew upon him the vengeance of the law, was the exposure
of his person. For this I refer to the opinion of the judges in The
Queen v. Curl, 2 Str. 792 ; Lord Mansfield, in The King v. Sir Francis
Blake Delaval, &c., 3 Burr. 1438, and of Blackstone, in the 4th vol-
ume of his Commentaries, page 64. Neither is there any doubt that the
1 Part of this opinion only is given. Yeates, J., delivered a concurring opinion.
SECT. III.] COMMONWEALTH V. SHAEPLESS. 91
publication of an indecent book is indictable, although it was once
doubted by the Court of King's Bench, in The Queen v. Reed (in the
sixtli year of Queen Anne) . But tlie authority of that case was
destroyed, upon great consideration, in "Flip King-.i^, rim-Lfl George
II.), 2 Str. 788. The law was in- Curl's case established upon true
principles. What tended to corrupt society was jPeld to be a breach
of the peace and ^puntshablejML-umjctmenE! The courts are guardians
Tic morals, and therefore have jurisdiction in such cases.
Hence it follows that an off°"^ft r"'-'Y i"*" pn^'vlnilil" if jnitp nature
and py its example it te^g ttft ^b^ f^rrnptinn of morals, althougn it pe
'nut coinmittea in pnt^ic. In The King v. Delaval, &c., there was a
conspiracy, and for that reason alone the court had jurisdiction ; yet
Lord Mansfield expressed his opinion that they would have had juris-
diction from the nature of the offence, which was the seduction of a
young woman under the age of twenty-one, and placing her in the
situation of a kept mistress, under the pretence of binding her as an
apprentice to her keeper ; and he cited the opinion of Lord Hardwielie,
who ordered an information to be filed against a man who had made a
formal assignment of his wife to another person. In support of this
we find an indictment iij Trem. PI. 213 (The King y. Dingley), for
seducing a married woman to elope from her husband. Now, to apply
these principles to the present case. The defendants are charged
with exhibiting and showing to sundry persons, for money, a lewd,
scandalous, and obscene painting. A picture tends to excite lust as
«t,rfinp;1,Y fis a, writjnp- ; and the showing of a picture is as much a pub-
lication as the selling of a book. Curl was convicted of selling a
book. It is true, the indictment charged the act to have been in a pub-
lic shop, but that can make no difference. The mischief was no
greater than if he had taken the purchaser into a private room and
sold him the book there. The law is not to be evaded by an artifice of
that kind. If the privacy of the room was a protection, all the youth
of the city might be corrupted by taking them one by one into a
chamber, and there inflaming their passions by the exhibition of las-
civious .pictures. In the eye of the law this would be a publication,
and a most pernicious one. Then, although it is not said in the
indictment in express terms that the defendants published the paint-
ing, yet the averment is substantially the same, that is to say, that
they exhibited it to sundry persons for money ; for that in law is a
publication.
Motion in arrest of judgment overruled, and judgment on
the verdict?-
» See Eeg. v. Grey, 4 F. & F. 73 ; Reg. v. Saunders, 1 Q. B. D. 15 ; Pike v. Com,
2 Duv. (Ky.) 89. — Ed.
92 EEX V. DELAVAL. [CHAP. 11.
KEX V. DELAVAL.
King's Bench. 1763.
[Reported 3 Burrow, 1434.]
Lord Mansfield now delivered the opinion of the court*
This is a motion for an information against the defendants for a
conspiracy to put this YPnng_girl (an apprentice to_onfi_jof them) into
"If hands of a~"gentleman of ranfe=:sHfcterliiHie}--for~the"piKpose--of
arostitution"; coiUiaiy Ltrflecency and morality, and without the knowl-
edge or approbation of her father, who prosecutes them for it, and has
now cleared himself of all imputation, and appears to be an innocent
and an injured man.
A female infant, then about fifteen, was bound apprentice by her
father to the defendant Bates, a music-master ; the girl appearing to
have natural talents for music. The father became bound to the
master in the penalty' of £200 for his daughter's performance of the
covenants contained in the indenture. Slie became eminent for vocal
music ; and thereby gained a great profit to Bates, her master. During
her apprenticeship, being then about seventeen, she is debauched by
Sir Francis Delaval, whilst she resided in the house of Bates' father ;
as Bates himself was a single man and no housekeeper. In April last.
Bates, her master, indirectly assigns her to Sir Francis, as much as it
was in his power to assign her over ; and this is done, plainly and
manifestly, for bad purposes. Bates at the same time releases the
penalty to the father, but without the father's application or even
privity, and receives the £200 from Sir Francis, bj' the hands of his
tailor, who is employed to pay it to Bates, and also enters into a bond
to Bates to secure to him the profits arising from the girl's singing this
summer at Marybone. And then she is indentured to Sir Francis
Delaval to learn music of him ; and she covenants with him, both in
the usual covenants of indentures of apprenticeship, and likewise in
several others (as " pot to quit even his apartments"), etc.- These
articles between the parties are signed by all but the father, and a
bond is drawn from him, in the penalty of £200 for his daughter's per-
formance of these covenants (which he never executed) . And the girl
goes and lives and still does live with Sir Francis, notoriously, as a
kept mistress.
Thus she has been played over, by Bates, into his hands, for this
purpose. No man can avoid seeing all this ; let him wink ever so
much.
I remember a cause in the court of chancery, wherein it appeared
that a man had formerly assigned his wife over to another man, and
Lord Hardwicke directed a prosecution for that transaction, as being
1 Part of the opinion only is given.
SECT, III.j
REGINA V. BEANWORTH.
93
notoriouslx-anrl gros'Tlji.against public decency and good mane
Sols the present case.
It is true that many offences of the incontinent Itind fall properly
under the jurisdiction of the ecclesiastical court, and are appropri-
ated to it. But if you except tliose appropriated casee, this court is
the custos morum of the people, and has the superin tendency of
offences contra bonos mores ; and upon this ground both Sir Charles
Sedley and Curl, who had been guilty of offences against good manners,
were prosecuted here.
Howeyei:, VipsirlpH Hiia, tViprf; is, in the preaaiit— ea.«is. ■ar-canspiracY
aEd COnt^eracv amnngat t.hp flpfptiflants, v^\\\(^h nrp r^lparly gi)^ indis-
putably within the proper jnrifidicti"" -^f <^i^ig r>nnr%
And in the conspiracy they were all three concerned.
Therefore let the rule be absolute against all three. ^
REGINA -v. BRANWORTH.
King's Bench. 1704.
lEeported 6 Mod. 240.]
Indictment by a jury of the town of Portsmouth, " for that he,
being an idle person, did wander in the said town selling of small
wares as a petit chapman."
To maintain this indictment it was urged that a petit chapman is a
vagabond by the statute of 39 Eliz. c. 4. ; and though some petit
chapmen, that is, such as are legally qualified by the statute of 8 & 9
Will. 3, 25, may now lawfully use that occupation, yet that act excepts
boroughs and corporations, so that as to them they remain in statu quo.
Holt, Chief Justice. Is a vagabond quatenus such, indictable ? It
seems not ; for at common law a man might go where he would ; but if
he be an idle and loose person, youmax-tnkp tuin up as a vagraaJ-i,..a,nd
BTnd him to hisggod ht\iana;^c3Sf\^aoviiQaa\^ ; and by the Statute
TDf LatSourers he may oe compelled to serve. Tliere is indeed a way by
law of punishing incorrigible rogues, by burning them in the shoulder,
and sending them to the gallies ; from whence it may be urged, that
there must be a way before of convicting them of being rogues, because
they cannot otherwise be punished as incorrigible rogues ; and there-
fore that conviction must first be by indictment.
But by Holt, Chief Justice, No ; but by being judged by a justice of
peace to be a vagrant, and used by him as such ; and if he offend again,
he may hfi jr|r|irti;tfl m p """"v^^" vagrant,
lule for quashing it was
1 See Reg. v. Webb, 1 Den. C. C. 33S'; Reg. v. Elliot, L. & C. 103. —Ed.
94
BAKER V. STATE.
[chap. II.
BAKER V. STATE.
Supreme Codrt of New Jersey. 1890.
{Reported 53 N. J. Law, 45.]
Dixon, J.* The plaintiff in error was convicted in the Camden
Quarter Sessions of being a common scold.
One ground on which she seeks a reversal of the judgment is because
the indictment does not state the particular facts which make a com-
mon scold. But it is not necessary that the indictment should be so
explicit. It is enough for it to aver that the accused is a common
scold, to the common nuisance, etc. Whpi-p tlw nffpnoe consists, not
of a single act, but of a habitual course of conduct, an indictment nee'd
,jml (iharge tne aetails of that ciOuUuct, WlllcU are only evi(Jence^ the
- misdemeanor, but must charge LUti ^tiherai practice which constitutes
thfi p'''""" 'tiR°'^' Hawk., bk. 2, ch. 25, §§ 57, 59 ; Commonwealth a.
Pray, 13 Pick. 359, 362 ; Whart. Cr. PI. & Pr., § 155.
f Another reason urged for reversal is, that the court charged the jury
as follows : " The evidence on the part of the state consists of a number
of witnesses who have sworn, not that she only scolded one person at
one time, but that she did it to several persons on several occasions.
Now, if you believe she did that thing, if j'ou believe the evidence on
the part of the state, she is guilty of being a common nuisance to the
neighborhood in which she resides."
This charge did not correctly point out to the jury the facts required
to warrant a conviction, nor submit to their judgment, as it should, the
question whether such facts were proved. A womaji-d©«&.^ot neces-
[jecomea common scold by scolding several__persOns or^several
tTT iliii liiliili nf |i||i|iiii).~»M4;7iTi7
which is ^■■|minai.:! and whether the scoldings to which the State's wit-
nesses testified were so frequent as to prove the existence of the habit,
and whether the habit was indulged under such circumstances as to
distui-b the public peace, were questjcinn which Uic JUfs;.ailone could
i.iwfii]]^- Ha^.i/io and wliich were no less important than the credibility
of witnesses. Brown v. State, 20 Vroora 61.^
^ Part of the opinion is omitted. — Ed.
2 Ace. Foxby's Case, 6 Mod. 11 ; Com. v. Mohn, 52 Pa. 243. See State v. Davis,
139 N. C. 547.
SECT. III.] KING V. PEOPLE. 95
COMMONWEALTH v. SMITH.
Supreme Judicial Court op Massachusetts. 1850.
_. [Reported 6 Cush. 80.]
The defendants were tried before Mellen, J., in the court of common
pleas, and convicted, on a complaint originally made to a justice of the
peace, in which it was alleged that the defendants, on the 17th of April,
1850, at Grafton, " with force and arms, were disturbers and breakers
of the peace, and then and there contriving and intending to disturb the
peace of said commonwealth, did, in one of the public streets and other
public places of said town, utter loud exclamations and outcries, and
other loud noises, and did then and thereb3- draw together a number of
persons, ta,the ^reat distiirhinfo frf divi^rn ritiiv^ni in evil example
to aU others in like cases to offend against good morals, against the
peace of said commonwealth, and contrary to the form of the statutes
in such case made and provided."
The defendants moved in arrest of judgment, on the ground that no
offence was set forth and alleged in the complaint. The motion. was
overruled, arid the defendants excepted.
■ Dewey, J. The judgment in this case must be arrested. No offence
ja t.Pfiipi(-illy nhnrfy""^ '" *''^'° complaint. The " disturbance of divers
citizens " by noises in ilie pUbliu itfeets is not a proper setting out of
the offence here intended to be charged. If the acts done by the par-
ties constitute anj' criminal offence, it is that of a nuisance. As such
it ought to have been alleged that the noises made b}^ the defendants
were to the great damage and common nuisance"of all thfe citizfiha-of
the commonwealth Lheie iuhablLlUg, being, and residing, &c"
Judgment arrested}
KING V. PEOPLE.
Court of Appeals of New York. 1881.
[Reported 83 A^. Y. 587 ]
Andrews, J. The indictment charges the plaintiff in error with
keeping a disorderly and common bawdy and gambling house, con-
cluding ad commune nocumentum . The evidence abundanth- sus-
tained the charge, and justified the jury in finding that the defendant
kept a house to which gamblers and prostitutes resorted for the pur-
pose of gambling and prostitution.
1 See State i\ Appling, 25 Mo. 315 ; State w Powell, 70 N. C. 67 , Com. «. Linn (Pa.)
27 Atl. 843 ; Com. v. Spratt, U Phila. (Pa.) 365 ; Bell w. State, 1 Swan (Tenn.) 42.
96
KING V. PEOPLE.
[chap. II,
T^e court, in the cours&j&f^he clidigor-slated to tb" jp'-y t.^gt^- was
not neGl'Sbciij, Uj_^fli5twtg-ttrg1iff>-ijuu of IkUi'ijiiiii a ilijcu'tki'ly^use,
TTc^shonld be disturbed by nniss. and refused to charge
IhtiL, in Ol'dtJl' M convict the detendant of keeping a disorder!}' house,
the jury must find that the house was so kept as to disturb, annoy, and
disquiet the neighbors and the people passing and repassing the house.
An exception was taken to the charge in this respect and to the refusal
to charge as requested.
The exception was not well taken. The keeping of a common
bawdy or gambling house constitutes the house so kept a disorderly
house and an indictable nuisance at common law. Rex v. Dixon, 10
Mod. 335 ; 1 Hawk. P. C. 693. It is a public offence, for the reason
that its direct tendency is to debauch and corrupt the public morals, to
encourage idle and dissolute habits and to disturb the public peace. It
is not an essential element that it should be so kept that the neighbor-
hood is disturbed by the noise, or that the immoral practices should be
open to public observation. _TheJaw, it is true, gives a remedy by
indictment against those who unduIy^isJiyrb the quiet of a community
by noises which tend to impair the enjoymetTtvQf life, but it doga_nat^
q-pfiij^f* "^"g"' •"*""" "*" tihp°° for greatipr pnH'n jnjTT^^i whigh arise from
jH'art''^°s whiotLdestro}' the peace oLJimilimj and disturb and under-
jnine the foundations of g^'P'"^ nrijpr anH y'l-t'ip ~~
I The court also charged, that if prostitutes came to the defendant's
Italoon for the purpose of prostitution, and there consummated their
I Intent, to the knowledge and with the consent of the defendant, the
Hury should find him guilty. The defendant's counsel excepted, and
requested the court to charge that, in order to find the defendant
guilty of keeping a bawdy house, the jury must find that he kept his
house for the resort and unlawful commerce of lewd people of both
sexes. The court said : " I have charged the jury op that subject, and
decline to change ray charge ; I have substantially so charged ; " and
exception was taken to the refusal of the court to charge as requested.
In this there was no error. If the defendant's house was the resort of
prostitutes plying their vocation there, to the knowledge of the defend-
ant, the house was a bawdy house ; and this was what in substance the
court charged, and the court, in stating that it had charged substan-
tially as requested by the defendant's counsel, gave the defendant the
benefit of the definition contained in his request.
The defendant's counsel requested the court to charge that the play-
ing of cards in the defendant's house does not, of itself, make it a
gambling house; and the court, in reply, said: "Except that it is the
gambling for money that makes it a disorderly house." The defend-
ant's counsel excepted. The request was directed to the point that
the mere playing of cards in a house did not constitute the house a
gambling house ; and the remark of the court, in response to the
request, amounted to an assent to this proposition.
The defendant's counsel claims that the remark is to be construed
SECT. 111.] EEX V. SMITH. 97
as affirming that if the jury should find that the defendant permitted
gaming in his house on a single occasion he could be convicted. But
the remark of the court is to be construed in connection with the pre-
vious charge and the occasion on which it was made. The court had
°Tnt"d t" t>'° j'vy that if thn (^nfrin(j.^,pt kept agamJiliag-5oSeJ^3E5et
"gamblers resorted-to- play farjagn^J' an9'ThM~Srrplgy, t.r» tl^p lfnr.wlprinro
of the defendant, he was pfuiltv" The counsel requested the courE to
charge a specific proposition, which the court substantially consented
to, and added the element to which the defendant's request pointed,
viz., that the playing must be for money in order to make the house a
gambling house. If the defendant desired a specific instruction upon
the point now made, he should have requested it. The court had
properly defined the offence of keeping a gambling house, and the
remai'k of the court clearly referred to a house of this character.
These are all the exceptions relied upon b3- counsel. We think none
of them are well taken, and that the conviction should be affirmed.
All concur. Judgment affirmed.^
REX V. SMITH.
King's Bench. 1726.
[Reported 1 Strange, 704.]
The defendant was convicted on an indictment for making great
noises in the night with a speaking trumpet, to tlie disturbance of the
neighboi-liood ; which the court held to be a nuisance, and fined the
defendant £5.
1 See De Forest v. U. S., 11 App. D. C. 458 ; Smith w. Com., 6 B. Mon. (Ky.) 21 ;
State V. Haines, 30 Me. 65 ; People v. Jackson, 3 Den. (N. Y.) 101. — Ed.
98 HALL'S CASE. [CHAP. 11.
REX V. CROSS.
Westminster Sittings. 1826.
[Reported 2 C. Sj-P. 483.]
Indictment for a nuisance in keeping a house for slauglitering horses
at a place called Bell Isle, in the parish of St. Mary, Islington. There
were also counts framed on a private Act of Parliament, 59 Geo. III.
c. 39, s. 88, on which no question was raised. Plea, not guilty.
It was proved that very offensive smells proceeded from the defend-
ant's slaughtering house to the annoyance of those who lived near it,
and also of persons who passed along a turnpike road, leading from
Battle Bridge to Holloway.
The defendant put in a certificate and license under the statute 26
Geo. III. c. 71, s. 1, authorizing him to keep a house for the slaughter-
ing of horses.
Abbott, C. J. This certificate is no defence, and even if it were a
license from all the magistrates in the county to the defendant to
sJMUghter horses in this very place itwniild rjnt entjtle^the defendant to
continijg^jhgjntwness-hlUJjji^oMtLhrinT. pfterit becomes a public nuisance
tnthe npigjihnrhnnrl ■ If a certain noxious trade is already established
m a place remoE^ from habitations and public roads, and persons after-
wards come and build houses within the reach of its noxious effects, or
if a public road be made so near to it that the carrying on of the trade
l)ecomes a nuisance to the persons using the road ; in those cases tlie
i party would be entitled to continue his trade, because his trade was
\ legal before the erection of the houses in the one case and the making
of the road in the other. Verdict, Guilty.^
HALL'S CASE.
King's Bench. 1671.
[Reported 1 Ventrls, 169.]
Complaint was made to the Lord Chief Justice by divers of the
inhabitants about Charing-Cross, that Jacob Hall was erecting of a
great booth in the street there, intending to show his feats of activity,
and dancing upon the ropes there, to their great annoyance by reason
of the crowd of idle and naughty people that would be drawn thither,
and their apprentices inveigled from their shops.
Upon this the Chief Justice appointed him to be sent for into the
court, and that an indictment should be presented to the grand jury of
1 See Com. v. Perry, 139 Mass. 198.
SECT. III.] ANONYMOUS. 99
tnis matter ; and withal the court warned him, that he should proceed
no further.
But he being dismissed, thej- were presently after informed that he
caused his workmen to go on. Whereupon they commanded the mar-
shal to fetch him into court ; and being brought in and demanded,
how he durst go on in contempt of the court, he with great impudence
affirmed, that he had the King's warrant for it, and promise to bear him
harmless.
Then they required of him a recognizance of £300, that he should
cease further building ; which he obstinatel}- refused and was commit-
ted. And the court caused a record to be made of this nuisance, as
upon their own view (it being in their way to Westminster), and awarded
a writ thereupon to the Sheriff of Middlesux, commanding him to pros-
trate the building.
„Anfl the i^r,i]ft said, thinfi;s of tl-ij-, mtnvr fmjit nnt tn be placed
amongst people's habitations, ■ind__tlifit il ii'i'i 'I tiniiinpp Tn-Htn J^ng'^i
baTfginjecti'-
ANONYMOUS.
Nisi Pkius. 1699.
[Reported 12 Morfcrn, 342.]
One was indicted for a nuisance for keeping several barrels of gun-
powder in a house in Brentford town, sometimes two days, sometimes a
week, till he could convenientlj- send them to London. Wherein
Holt, C. J., resolved, 1st. That to support this indictment there must
be- apparent danger, or mischief already done.''
2dly. Though it had been done for fifty or sixty years, yet if it be a
nnisance time will not make it lawful.
3dly. If, at the time of setting up this house in which the gunpowder
is kept there had been no houses near enough to be prejudiced by it,
but some were built since, it would be at peril of builder.
4thly. Though gunpowder be a necessary thing, and for defence of
the kingdom, yet if it be kept in such a place as it is dangerous to the
inhabitants or passengers it will be a nuisance.
1 See Eex v. Bradford, Comb. 304.
« See Feo. v. Sands, 1 Johns. (N. Y.) 78.
100 REX V. BURNETT. , fCHAP. II.
EEX V. BURNETT.
King's Bench. 1815.
[Reported 4 Maule and Selwyn, 272.]
The defendant, an apothecary, was indicted by that addition at the
Middlesex Sessions that he, on, etc., in the fifty-fourth year, etc., and on
divers other days between that da}' and the 29th of July, with force and
arms at, etc., unlawfully and injuriouslj' did inoculate one A. S. an
infant of seven months, one W. M. an infant of one year, and divers
other infants of tender years, whose names are unknown, with a certain
contagious and dangerous disease called the small pox, by means of
which the said A. S., W. M., and the said other infants on the said day
and on the other days, etc., at, etc., became and were dangerouslj' ill
of the said contagious disease ; and the defendant, well knowing the
premises, after he had so inoculated them, and while they were so
dangerously ill of the said contagious disease on, etc., at, etc., did
unlawfully and injuriously cause the said A. S., W. M., and the said
other infants, to be carried into and along a certain public street and
highwa}', called, etc., in and along which divers subjects were then
passing, and near to divers dwelling-houses, etc., to the great danger
of infecting with the said contagious disease all the subjects who were
on those daj's and times in and near the said street and highway,
dwelling-houses, etc., who had not had the disease, and ad commune
nocumentum, etc.
The indictment being removed into this court, the defendant pleaded
not guilty, and was found guiltj'.
And now it was moved bj^ W. Owen, in arrest of judgment, that this
was not anj' offence. And he said that this indictment differed materially
from that in Rex v. Vantandillo, 4 M. & S. 73 ; for bj' this indictment it
appears that the defendant is bj' profession a person qualified to inoc-
ulate with this disease, provided it be lawful for any person to inoculate
with it. Therefore unless the court determine that the inoculating
with the small pox has now become of itself unlawful, there is nothing
in this indictment to show it unlawful ; for as to its being alleged that
he caused them to be carried along the street, that is no more than
this, that he directed the patients to attend him for advice instead of
visiting them, or that he prescribed what he might deem essential to
their recovery, air and exercise. And in Rex v. Sutton, which was an
indictment for keeping an inoculating house, and therefore much more
likel}' to spread infection than what has been done here, the court said
that the defendant might demur.
Lord Ellenborough, C. J. The indictment lays it to be unlawfully
and injuriousl}', and to make that out, it must be shown that what was
done was in the manner of doing it incautious, and likely to affect the
health pf others. The words unlawfully and injuriously preclude all
SEUT. III.J EEGINA V. PAEDENTON. 10]
/egal cause of excuse. -'^"'1 tll"1igh inoculatJAn for t,]^° f^nin^' p^^- "'"j
.bepractised lawfully and Innocently, j'et it must be under such guards
as not to endanger the public health by bOMBaUnicating this int^ctioiis
■jjisease.
DaSpier, J. The charge amounts to this, that the defendant, after
inoculating the children, unlawfully exposed them, while infected with
the disease, in the public street to the danger of the public health.
Le Blanc, J. in passing sentence observed that the introduction
of Yaccination did not render the practise of inoculation for the small
pox unlawful, but that in all times it was unlawful, and an indictable
offence, to expose persons infected with contagious disorders, and
therefore liable to communicate them to the public, in a public place
of resort. 1
ITie defendant was sentenced to six months' imprisonmetit.
I
Lord Ellenborough, C. J., in Williams v. East India Co., 3 East 192,
200. That the declaration in imputing to the defendants the having
wrongfully put on board a ship, without notice to those concerned in
the management of the ship, an article of an highlj' dangerous com-
bustible nature, imputes to the defendants a criminal negligence cannot
well be questioned. In order to make the putting on board wrongful
the defendants must be conusant of the dangerous quality of the article
put on board ; aiid if being so, they yet gave no notice considering the
probable danger thereby occasioned to the lives of those on board, it
amounts to a species of delinquency' in the persons concerned in .so
putting such dangerous article on board, for which they are criminally
liable, and punishable as for a misdemeanor at least.
REGINA v. PAEDENTON.
Central Criminal Court. 1853.
[Reported 6 Cox C. C. 247.]
Richard Pardenton and Joseph Woods were indicted for unlawfully
and negligently driving a certain railway engine in an incautious, care-
less, and negligent manner, and without regarding a certain signal of
danger, whereby the life and limbs of divers persons were greatly en-
dangered. Three other counts varying the manner of stating the
charge.
1 See Eeg. v. Henson, Dears. 24 ; Reg. v. Lister, Dears. & B. 209 (but see PeopJa
V. Sands, 1 Johns. 78) ; U. S. v. Hart, 1 Pet. C. C. 390. — Ed.
102 KEX V. EODEEICK. [CIIAP. II.
The indictment was founded upon the 13th, 14th, and 15th sections
of 3 & 4 Vict. c. 97. A difficulty occurred on the first three counts,
founded on the 13th section, as to the jurisdiction of this Court ; it
being directed that upon the magistrate declining to act summarily, the
complaint should be removed to the Quarter Sessions.''
Chambers [for the prosecution] admitted that there was no act
which placed the Central Criminal Court in the same position as a Court
of Quarter Sessions. But still the question would arise whether,
although the oflFence was alleged to be against the form of the statute,
the indictment did not disclose an offence at common law, where it
charged acts endangering, the lives of Her Majesty's subjects.
Cresswell, J. Do you mean to argue that if a man were to gallop
a horse furiously through the public streets without hurting any person,
that he would be guilty of a misdemeanor because he might be convicted
of manslaughter if any one were knocked down by him and killed?
Without hearing the evidence, I think this case is now ripe for de-
cision. Whatever construction may be put upon the 13th and 14th
sections of the act referred to as regards the first three counts, I have
no difficulty in saying that these counts_dojiQtjdiaclfi§eanyoffence at
common law.
SECTION IV.
Incomplete Offences.
REX V. RODERICK.
Stafford Assizes. 1837.
[Reported 1 C.Sf P. 795.]
Misdemeanor. The first count of the indictment charged the pris-
oner with unlawfully knowing a child under the age of twelve years.
Second count, for attempting so to do. Third count, for a common
assault.
F. V. Lee, for the prisoner, objected that an attempt to commit a
statutory misdemeanor was not a misdemeanor.
Godson, for the prosecution, cited the case of Rex ■;;. Butler, 6 C. & P.
368.
Parke, B. If this offence is made a misdemeanor by statute, it is
made so for all purposes. There are many cases in which an attempt
to commit a misdemeanor has been held to be a misdemeanor ; and an
attemt)t to commit a. "-'iRrlPiP'""iOV '° "i mir'1"m"ninnr irhr-TTTrr thr nttrnrr '
'Iscreated by statute or was an oflfence atcomjjijm^iEJs::;— — — _
""^ ' ' ~ ' Verdict, guilty.
1 This short statement is taken from the report in 38 Cent. Crim, Ct. Eep. 691.
Only so much of the case as discusses the offence at common law is given. Ed.
SECT. IV.] REGINA V. COLLINS. 103
REGINA V. COLLINS.
Chown Case Reserved. 1864.
[Reported 9 Cox C. C. 497.]
Case reserved for the opinion of this court by the Deputy-Assistant
Judge at the Middlesex Sessions.
The prisoners were tried before me at the Middlesex Sessions on an
indictment which stated that they unlawfully did attempt to commit a
certain felony ; that is to say, that thej' did then put and place one or
the hands of each of them into the gown pocket of a certain woman,
whose name is to the jurors unknown, with intent the property of the
said woman, in the said gown pocket then being, from the person of
the said woman to steal, &c.
The evidence showed clearlj' that one of the prisoners put his hand
into the gown pocket of a lady, and that the others were all concerned
in the transaction.
The witness who proved the case said on cross-examination that he
asked the lady if she had lost anything, and she said " No."
Forthe defence it was contended that to put a hand into an empty
pocket was not an nrromjtt to commit felony, and that as it was not
proved attirmativelj' that there was any jlropert}- in the pocket at the
time, it must be taken that there was not, and as larceny was the steal-
ing of some chattel, if there was not any chattel to be stolen, putting
the hand in the pocket could not be considered as a step towards the
completion of the offence.
I declined to stop the case upon this objection ; but as such cases
are of frequent occurrence, I thought it right that the point should be
determined b}' the authority of the Court of Criminal Appeal.
The jury found all the prisoners guilt}', and the question upon which
the opinion of j-our Lordships is respectfully requested is, whether
under the circumstances the verdict is sustainable in point of law ?
The prisoners are in custody awaiting sentence.
Joseph Payne, Deputy-Assistant Judge.
Poland, for the prisoners, The conviction is bad. It is not an
indictable offence to put a hand into an empty pocket with intent to
steal, but an offence*pnnishable only under the Vagrant Act. It is not
alleged in the indictment that there was anj- propertj' in the pocket.
This is very like the case of Reg. v. M'Pherson (1 Dears. & B. 197 ;
7 Cox Crim. Cas. 281), where it was held that a man who was charged
with breaking and entering a dwelling-house and stealing certain spe-
cified goods, could not be convicted unless the specified goods were
in the house, notw'ithstanding other goods were there. [Cockburn,
C. J. That case proceeds on the ground that you must prove the
property as laid.] In the course of the argument Bramweli., B.. put
this verj' case, and said : "The argument that a man putting his hand
104 RKGINA V. COLLINS. [cHAP. II.
into an empty pocket might be convicted of attempting to steal,
appeared to me at first plausible ; but supposing a man, believing a
block of wood to be a man wlio was his deadly enemy, struck it a blow
intending to murder, could he be convicted of attempting to murder the
man he took it to be? " So in E. v. Scudder (3 C. & P. 605) it was
held that there could not be a conviction for administering a drug to a
woman to procure abortion, if it appeared that the woman was not
with child at all. That case was before the Consolidation Act (24 &
25 Vict. c. 96). [Bramwell, B. You may put this case: Suppose a
man takes away an umbrella from a stand with intent to steal it, believ-
ing it not to be his own, but it turns out to be his own, could he be
convicted of attempting to steal ?] It is submitted that he could not.
Metcalfe, for the prosecution. The fallac}' in the argument on the
other side consists in assuming that it is necessarj' to prove anything
more than an attempt to steal. The intent to steal, it is conceded, is
not sufficient ; but any act done to carry out the intent, as putting a
hand into the pocket, will do. [Crompton, J. Suppose a man were
to go down a lane armed with a pistol, with the intention to rob a
particular person, whom he expected would pass that wa}', and the per-
son does not happen to come, would that be an attempt to rob the
person ?]
CocKBURN, C. J. We are all of opinion that this conviction cannot
be sustained, and in so holding it is necessary' to observe that the judg-
ment proceeds on the assumption that the question, whether there was
anything in the pocket of the prosecutrix which might have been the
subject of larceny, does not appear to have been left to the jurj-. The
case was reserved for the opinion of this court on the question, whether,
supposing a person to put his hand into the pocket of another for the
purpose of larceny , there being at the time nothing in the pocket, that
is an attempt to commit larcenj-? We are far from saying that if the
question whether there was anything in the pocket of the prosecutrix
had been left to the jur^', there was not evidence on which they might
have found that there was, in which case the conviction would have
been affirmed. BuL-Rssuming that there was nothinp; in the pocket of
tjipprr)aprait,riv,^tlip^p.hHJgp of yitgrnpting to commit larceny cannot "be"
sustaine";t: TTiis case is governed by that of Eeg. v. MThefson ;"""ang
we think that an attempt tn-comm.i.L-a- fplnny can onl}' be made'ouj'
when, if no interruption had taken place, the attempt could have been-
^carned oufbLicccijLjfullTr'and the felonv_completed of the attempt to
commit which the partyJa-chargecT TrTthis case, if there was nothing
imtie pocKet ot tne prosecutrix, in our opinion the attempt to commit
larceny cannot be established. It may be illustrated by the case of a
person going into a room, the door of which he finds open, for the pur-
pose of stealing whatever property he may find there, and finding
nothing in the room, in that case no larceny could be committed, and
therefore no attempt to commit larceny could be committed. In the
absence, therefore, of any finding by the jury in this case, either di-
SECT. IV.] COMMONWEALTH V. GREEN. 105
rectly, or inferentially by their verdict, that there waa any property in
the pocket of the prosecutrix, we think that this conviction must be
quashed.^ Conviction quashed.
COMMONWEALTH v. GEEEN.
SuPKEME Judicial Court of Massachusetts. 1824.
[Reported 2 Pickering, 380.]
At May term, 1823, in the count3' of Hampden, the prisoner, an
infant under the age of fourteen years, was convicted of an assault with
intent to commit a rape.
And now, upon a motion in arrest of judgment, M H. Mills and
Q. Bliss, junior, for the prisoner, contended that it was clear from
all the authorities that an infant under that age is presumed by
law to be unable to commit a rape (1 Haile's P. C. 630 ; 4 Bl.
Com. 212; 1 East's P. C. 446, § 8) ; and in 3 Chit. Cr. L. 811, it
is said that no evidence will be admitted to implicate him as the
actual ravisher, though he may be guilty as an abettor. It would be
absurd then to saj' that he may be indicted for an attempt to do what
the law presumes him incapable of doing. Suppose an assault by a
man upon another man dressed in woman's apparel ; an indictment
charging Mm with an assault with intent to commit a rape could not be
sustained. So a female could not be indicted fpr an assault with such
an intent. An indictment for throwing oil of vitriol with intent to
burn a person's clothes might be good ; but not so of an indictment for
throwing water with such an intent. If a woman were indicted for
petty treason, and it should appear that she had not been married, she
could not be convicted. A man cannot be convicted of a rape on his
own wife, nor of attempting to commit one, because the matrimonial
consent cannot be retracted. In like manner the prisoner cannot be
convicted of a rape, nor of an attempt to commit one, because the law
presumes him to be incapable. To constitute an offence there must be
an intent coupled with an act, and likewise a legal ability to do the
thing attempted. In regard to the ph^-sical powers of the prisoner the
court cannot go into the inquiry whether here is a particular exception
1 This decision was orerrnled by Keg. i;. Ring, 17 Cox, C. C. 491.
• " If a statute simply made it a felony to attempt to kill any human being, or to
conspire to do so, an attempt by means of witchcraft, or a conspiracy to kill by means
of charms and incantations, would not be an offense within such a statute. The poT-
erty of language compels one to say, ' an attempt to kill by way of witchcraft,' but
such an attempt is really no attempt at all to kill. It is true the sin or wickedness
may be as great as an attempt or conspiracy by competent means ; but human laws are
made, not to punish sin, but to prevent crime and mischief." — Pollock, C. B., in
Att'y-Gen'l v. Sillem, 2 H. & C. 431, 525.— Ed.
106 COMMONWEALTH V. GilEEN. [CHAP. IL
eoiitraiy to the general rule of law. "We do not contend that the pris-
oner may not be punished for the assault, but onl}- that he is not indict-
able for an assault with the intent alleged in this indictment.
Davis, Solicitor-General, for the Commonwealth. The maxim that
an infant under the age of fourteen years is presumed unable to com-
mit a rape, is indeed found in the books. It originated in ancient
times, and it requires to be subjected to the examination of a modern
judicial tribunal. That no evidence shall be admitted to impeach this
presumption is the dictum of one writer only, and it cannot hold uni-
versally. In some cases an infant under fourteen j-ears is physicallj'
able, and there was evidence of it in the present case ; it would be
absurd then by such presumption to shut out the fact itself. The
maxim is founded on the principle that there must be both penetration
and emission ; but this idea is now exploded. 1 Hale's P. C. 628 ;
3 Inst. 59, 60 ; 1 East's P. C. 436, § 3 ; 1 Russell on Crimes, 805. In
Pennsylvania v. Sullivan, Addis. 143, it i° °gjd tln^t *^'^ ^'SPni?? ^^ th°
crime is the vinlon^p tr» |,|^p pprann ^TnTTeeHngg nf thp wmTTan An
, flijuij Lo thy ISelingsinay be inflicted by a person under fourteen years
jas much as by one over tliat age ; and where there is a guiltj- inten-
Ition in the perpetrator of the injur}', there seems to be no good rea-
. son for exonerating him from punishment on account of his phj'sical
incapacitj-.
Mills, in replj', said the law was not clear as to what facts are
necessary to constitute the crime of rape, and in addition to the author-
ties before cited to this point, he referred to 12 Co. 37 ; 1 Hawk.
P. C. c. 41, § 3.
By the Court (Paeker, C. J., dissenting). The court are of opin-
ion that the verdict must stand and judgment be rendered on it. The
law which regards infants under fourteen as incapable of committing
rape was established in favorem vitce, and ought not to be applied by
analogy to an inferior offence, the commission of which is not punished
with death. A minor of fourteen j'ears of age, or just under, is capable
of that kind of force which constitutes an essential ingredient in the
crime of rape, and he may make an assault with an intent to commit that
crime, although by an artificial rule he is not punishable for the crime
itself. An intention to do an act does not necessarilj' imply an ability
to do it ; as a man who is emasculated may use force with intent to
ravish, although possibl}', if a certain effect should be now, as it was
formerl\-, held essential to the crime, he could not be convicted of a,
rape. Females might be in as much danger from precocious boys as
from men, if such boys are to escape with impunity from felonious
assaults, as well as from the felony itself'' Motion overruled.
1 Contra, State v. Sam, Winston, 300 (attempt) ; Eex v. Elder.shaw, 3 C. & P. 396 ;
Eeg. V. Philips, 8 C. & P. 736 ; State v. Handy, 4 Harr. 566 (assaults with intent).
SECT. IV.J COMMONWEALTH V. MCDONALD. 107
COMMONWEALTH v. McDONALD.
Supreme Judicial Court of Massachusetts. 1850.
^Reported 5 Gushing, 365.]
The defendant was indicted in the municipal couit, and there tried
before Mellen, J., for an attempt to commit a larceny from the
person.
At the trial, there being no evidence, on the part of the prosecution,
that the individual from whom the defendant was charged with an
attempt to steal, had any property upon his person at the time of the
alleged attempt, the defendant asked the judge to rule that the indict-
ment could not be sustained.^
But the presiding judge ruled otherwise ; and, the jury thereupon
returning a verdict of guilty, the defendant excepted.
T. Willey, for the defendant.
Clifford, Attorney-General, for the Commonwealth.
Fletcher, J. It was said, in argument for the defendant, that he
could not be said to have attempted to steal the property of the un-
known person, if there was no property to be stolen ; and that therefore
the indictment should have set out the property and shown the exist-
ence and nature of it by the proof. But it will appear at once, by a
simple reference to the import of the term " attempt," that this propo-
sition cannot be maintained. Tg attempt is to make an effort to effect
8omfi_nhjact) to make a trial or experiment, to endeavor, to use exer-
'"tion for some purpose. A man may make an attempt, an effort, a trial,
to steal, by breaking open a trunk, and be disappointed in not finding
the object of pursuit, and so not steal in fact. Still he remains never-
theless chargeable with the attempt, and with the act done towards the
commission of the theft. So a man may make an attempt, an experi-
ment, to pick a pocket, by thrusting his hand into it, and not succeed,
because there happens to be nothing in the pocket. Still he has clearly
made the attempt, and done the act towards the commission of the
offence. So in the present case it is not probable that the defendant
had in view any particular article, or had any knowledge whether or not
there was anything in the pocket of the unknown person ; but he
attempted to pick the pocket of whatever he might find in it, if haply
he should find anything ; and the attempt, with the act done of thrust-
ing his hand into the pocket, made the offence complete. It was an
experiment, and an experiment which, in the language of the statute,
failed ; and it is as much within the terms anH mpgning- nf thp st.ntnfr
if it failed by reason of there Deing notbinp; i" t.hp pppkpt, as if it liad
TtLlLud fiuin du_y ulhei cansg: I'he following cases fully support tlie
""vinw laken m this case, and I am not aware of an}' opposing authori-
^ Ouly so much of the case as relates to this point is printed.
108 PEOPLE V> LEE KONG. [CIIAP. II.
ties : King v. Higgins, 2 East, 5 ; People v. Bush, 4 Hill, 133 ; Josslya
V. Commonwealth, 6 Met. 236 ; Rogers v. Commonwealth, 5 S. & R.
463.
This decision is confined to the particular case under consideration,,
of an attempt to steal from the person ; as there may perhaps be cases
of attempts to steal where it would be necessary to set out the par-
ticular property attempted to be stolen, and the value. It not being
necessary, in the present case, to set out in the indictment the property
attempted to be stolen, the defendant's exception to the ruling of the
judge, that there need be no evidence of anj- property in the pocket of
the unknown person, cannot, of course, be sustained, unless such evi-
dence was made necessary bj' the allegations in the indictment.
The indictment alleges that the defendant attempted to steal from the-
unknown person his personal property then in his pocket and in his-
possession, neither the name nor the value of the property being known
to the jurors. But this allegation is wholly unnecessary and imma-
terial, and may be stricken out ; and the indictment will still remain
sufficient, and contain all the allegations necessary to make out the
offence against the defendant, and to warrant the conviction.
It not being necessary to allege that there was anything in the
pocket of the unknown person, and as all that part of the indictment
may be stricken out, tlie ruling of the onnrt. that, there need be no evi-
dence of any property in the pocket of the_£)erson. was correct, and i&
"Tully supported by authority. Roscoe, CrimTE^T-Wtrr''''^
JExeeptions overruled.^
PEOPLE V. LEE KONG.
Supreme Court of California. 1892,
[Reported 9.5 California, 666.]
Garoutte, J. Appellant was convicted of the crime of an as-
sault with intent to commit murder, and now prosecutes this appeal,,
insisting that the evidence is insufficient to support the verdict.
The facts of the case are novel in the extreme, and when applied;
to principles of criminal law, a question arises for determination upoa
which counsel have cited no precedent.
A policeman secretly bored a hole in the roof of appellant's build-
ing, for the purpose of determining, by a view from that point of
observation, whether or not he was conducting therein a gambling or
lottery game. This fact came to the knowledge of appellant, and
upon a certain night, believing that the policeman was upon the roof
1 Accord State v. "Wilson, 30 Conu. 505 ; People v. Jones, 46 Mich. 441 ; People v.
Moran, 123 N. Y. 254. And see Harvick v. State, 49 Ark. 514; Clark v. State, 86
Tenn. 511.
SECT. IV.] PEOPLE V. LEE KONG. 109
at the contemplated point of observation, he fired his pistol at the
spot. He shot in no fright, and his aim was good, for the bullet
passed through the roof at the point intended ; but very fortunately
for the ofBcer of the law, at the moment of attack he was upon the
roof at a different spot, viewing the scene of action, and thus no
substantial results followed from appellant's fire.
The intent to kill is quite apparent from the evidence, and the
single question is presented, Do the facts stated constitute an assault?
Our criminal code defines an assault to be " an nnlawfi^l att^pmpi^
coupled with a present , ability, to commit a violent injury upon the
person of another:*' iTwill thus be seen_that to constitute an assault
two elements are necessary, and the ahsenc^^nf" eir.her" is fatal to^the
charge? There "must be an unlawful attempt, and there must be a
present ability, to inflict the injury. In this case it is plain that the
appellant made an attempt to kill the officer. It is equally plain that
this attempt was an unlawful one. For the intent to kill was present
in his mind at the time he fired the shot, and if death had been the
result, under the facts as disclosed, there was no legal justification to
avail him. The fact that the officer was not at the spot where the
attacking party imagined he was, and where the bullet pierced the
I'oof, renders it no less an attempt to kill. It is a well-settled prin-1
■ciple of criminal law in this country, that where the criminal result
of an attempt is not accomplished simply because of an obstruction
in the way of the thing to be operated upon, and these facts are un-
known to the aggressor at the time, the criminal attempt is committed.
Thus an attempt to pick one's pocket or to steal from his person,
when he has nothing in his pocket or on his person, completes the
■offence to the same degree as if he had money or other personal prop-
erty which could be the subject of larceny. State v. Wilson, 30
Conn. 500 ; Commonwealth v. McDonald, 5 Cush. 365 ; People v.
Jones, 46 Mich. 441 ; People v. Moran, 123 N. Y. 254.
Jo kill, was such attempt coupled with the present ability to noonm,
^Ijgb—tho deed? — irct the case of People v. Yslas, 27 Cal. 633, this
•court said : ' ' The common-law definition of an assault is substan-
tially the same as that found in our statute." Conceding such to be
the fact, we cannot indorse those authorities, principally English,
which hold that an assault may be committed by a person pointing
in a threatening manner an unloaded gun at another ; and this, too,
regardless of the fact whether the party holding the gun thought it
was loaded, or whether the party at whom it was menacingly pointed
was thereby placed in great fear. Under our statute it cannot be
said that a person with an unloaded gun would have the present
ability to inflict an injury upon another many yards distant, however
apparent and unlawful his attempt to do so might be. It was held,
in the case of State v. Swails, 8 Ind. 524, that there was no assault
to commit murder where A fires a gun at B at a distance of forty
110 PEOPLE V. LEE KONG. [CHAP. IL
feet, with intent to murder him, if the gun is in fact loaded with
powder and a slight cotton wad, although A believes it to be loaded
with powder and ball. The later Indiana cases support this rule,
although in Kunkle v. State, 32 Ind. 220, the court, in speaking of
the Swails case, said : " But if the case is to be understood as laying
down the broad proposition that to constitute an assault . . . with
intent to commit felony, the intent and the present ability to execute
must necessarily be conjoined, it does not command our assent or
approval." In the face of the fact that the statute of this State in
terms requires that in order to constitute an assault the unlawful
attempt and present ability must be conjoined, Kunkle v. State, 32
Ind. 220, can have no weight here. In State v. Napper, 6 Nev. 115,
the court reversed the judgment upon the ground that the people
failed to prove that the pistol with which the assault was alleged
to have been made was loaded, and that consequently there was no
proof that the defendant had the present ability to inflict the
injury.
It is not the purpose of the court to draw nice distinctions between
an attempt to commit an offence and an assault with intent to commit
the offence, for such distinctions could only have the effect to favor
the escape of criminals from their just deservings. And in view of
the fact that all assaults to commit felonies can be prosecuted as
attempts, we can see no object in carrying the discussion of the sub-
ject to any greater lengths.
Tn t.hia caae the a]Tpe11ant had the present ability toinfliftt tho in.^
_Jiiry He knew the orticer Wai3 upon the roof, ana Knowing that fact
he fired through the roof with the full determination of killing him.
The fact that he was mistaken in judgment as to the exact spot where
his intended victim was located is immaterial. That the shot did
not fulfil the mission intended was not attributable to forbearance or
kindness of heart upon defendant's part ; neither did the officer es-
cape by reason of the fact of his being so far distant that the deadly
missile could do him no harm. He was sufficiently near to be killed
from a bullet from the pistol, and his antagonist fired with the intent
of killing him. Appellant's mistake as to the policeman's exact loca-
tion upon the roof affords no excuse for his act, and causes the act
to be no less an assault. These acts disclose an assault to murder as
fully as though a person should fire into a house with the intention
of killing the occupant, who fortunately escaped the range of the
bullet. See Cowley v. State, 10 Lea, 282. The fact that the shots
were directed indiscriminately into the house rather than that the
intended murderer calculated that the occupant was located at a par-
ticular spot, and then trained his fire to that point, could not affect
the question. The assault would be complete and entire in either
case. If a man intending murder, being in darkness and guided by
sound only, should fire, and the bullet should pierce the spot where
the party was supposed to be, but by a mistake in hearing the in-
SECT. IV.] BESPUBLICA V. MALIN. Ill
tended victim was not at the point of danger, but some distance
tiierefrom, and yet witliin reach of the pistol-ball, the crime of assault
to commit murder would be made out ; for the unlawful attempt and
the present ability are found coupled together. If appellant's aim
had not been good, or if through fright or accident when pointing
the weapon or pulling the trigger, or if the ball had been deflected in
its course from the intended point of attack, and by reason of the
occurrence of any one of these contingencies the party had been shot
and killed, a murder would have been committed. Such being the
fact, the assault is established.
The fact of itself that the policeman was two feet or ten feet from
the spot where the fire was directed, or that he was at the right hand
or at the left hand or behind the defendant at the time the shot was
fired, is immaterial upon this question. That element of the case
does not go to the question of present ability, but pertains to the
unlawful attempt.
Let the judgment and order be affirmed.
Pattekson, J., concurred.
Harbison, J., concurring. I concur in the judgment, upon the
ground that upon the evidence before them the jury have determined,
that the unlawful attempt of the defendant was coupled with a present
ability — that is, an ability by the means then employed by him in
furtherance of such attempt — to commit murder upon the policeman.^
EESPUBLICA V. MALIN.
Oter and Terminer, Philadelphia. 1778.
[Reported 1 Dallas, 33.]
Indictment for high treason.'' The prisoner, mistaking a corps of
American troops for British, went over to them. And now the Attor-
ney-General offered evidence of words spoken by the defendant, to
prove this mistake, and his real intention of joining and adhering to
the enemy.
Br THE Court. No evidence of words relative to the mistake of
the American troops can be admitted ; for any adherence to them, <
though contrary to the design of the party, cannot possibly come
within the idea of treason. \
1 Ace. State v. Mitchell (Mo.), 71 S. W. 175. In that case Gantt, J., said : " The
intent eyidenced by the firing into the bedroom with a deadly weapon, accompanied
by a present capacity in defendant to murder Warren if he were in the room, and the
failure to do so only because Warren happily retired npstairs instead of in the bed
into which defendant flred, made out a perfect case of an attempt."
* The statement of the case is abridged, and part only of the opinion is given.
112 PEOPLE V. JAFFE. [CHAP. IL
PEOPLE V. JAFFE.
Court of Appeals of New York. 1908.
{Reported 185 N. Y. 497.]
WiLLAED Bartlett, J. The indictment charged that the defendant-
on the 6th day of October, 1902, in the county of New York, feloni-
ously received twenty yards of cloth of the value of twenty-five cents a
yard belonging to the copartnership of J. W. Goddard & Son, k)jow-
ingthaf; t.hp s-'fl prfrpn-fiV tiifi been feloniously stolen, taken and carnea"
away from the owners. It was found under section 550 of the Penal
Code, which provides that a person who buys or receives any stolen
property, knowing the same to have been stolen, is guilty of criminally
receiving such property. The defendant was convicted of an attempt
to commit the crime charged in the indictment. The proof clearly
showed, and the district attorney conceded upon the trial, that the
goods which the defendant attempted to purchase on October 6th, 1902,
had lost their character as stolen goods at the time when they were
offered to the defendant, and when he sought to buy them. In fact
the property had been restored to the owners and was wholly within
their control, and was offered to the defendant by their authority and
through their agency. The question presented by this appeal, there-
fore, is whether upon an indictment for receiving goods knowing them
to have been stolen the defendant may be convicted of an attempt to
commit the crime where it appears without dispute that the property
which he sought to receive was not in fact stolen property.
The conviction was sustained by the Appellate Division chiefly upon
the authority of the numerpus cases in which it has been held that one
may be convicted of an attempt to corumit a crime notwithstanding the
existence of facts unknown to him which would have rendered the com-
plete perpetration of the crime itself impossible. Notably among
these are what may be called the pickpocket cases, where in prosecu-
tions for attempts to commit larceny from the person by pocket picking
it is held not to be necessary to allege or prove that there was any-
thing in the pocket which could be the subject of larceny. (Common-
wealth V. McDonald, 5 Cush. 365 ; Rogers v. Commonwealth, 5 S. & .
E. 463 ; State v. Wilson, 30 Conn. 500; People v. Moran, 123 N. Y.
254.) Much reliance was also placed in the opinion of the learned
Appellate Division upon the case of People v. Gardner (144 N. Y. 119),
where a conviction of an attempt to commit the crime of extortion was
upheld, although the woman from whom the defendant sought to obtain
money by a threat to accuse her of a crime was not induced to pay the
money by fear, but was acting at the time as a decoy for the police,
and hence could not have been subjected to the influence of fear.
In passing upon the question here presented for our determhiation,
it is important to bear in mind precisely what it was that the defend-
SECT. IV.] PEOPLE V. JAFFE. 113
ant attempted to do. He simply made an effort to purchase certain
specific pieces of cloth. He believed the cloth to be stolen property,
but it was not such in fact. The purchase, therefore, if it had been
completely effected, could not constitute the crime of receiving stolen
property, knowing it to be stolen, since there could be no such thing as
knowledge on the part of the defendant of a non-existent fact, although
there might be a belief on his part that the fact existed. As Mr.
Bishop well says, it is a mere truism that there can be no receiving of
stolen goods which have not been stolen. (2 Bishop's New Crim. Law,
§ 1140.) It is equally difficult to perceive how there can be an attempt
to receive stolen goods, knowing them to have been stolen, when they
have not been stolen in fact.
The crucial distinction^ between the case before us and the pickpocket
cases, and others involving the same principle, lies not in the poasi-
fellily Oi' impossibility of the commission of the_crlme. but In the fact
'that m the present__casa,lh£-Jiclv-jriiich-^it-.TCairrrnTibtlitiiii Mir^ntent
-flf-tEe" defendant to commit, would not have been a crime if it had
Been consumm.atfidir~If^he had actually paid for the goods which he
desirea to Duy, and received them into his possession, he would have
committed no offence under section 550 of the Penal Code, because the
very definition in that section of the offence of criminally receiving prop-
erty makes it an essential element of the crime that the accused shall
have known the property to haVe been stolen or wrongfully appropriated
in such manner as to constitute larceny. This knowledge being a ma-
terial ingredient to the offence it is manifest that it cannot exist unless
the property has in fact been stolen or larcenously appropriated. No
man can know that to be so which is not so in truth and in fact. He
may believe it to be so, but belief is not enough under this statute. In
the present case it appeared not only by the proof but by the express
concession of the prosecuting officer that the goods which the defendant
intended to purchase had lost their character as stolen goods at the
time of the proposed transaction. Hence, no matter what was the
motive of the defendant, and no matter what he supposed, he could do
no act which was intrinsically adapted to the then present successful
perpetration of the crime denounced b}' this section of the Penal Code,
because neither he nor any one in the world could know that the
property was stolen property, inasmuch as it was not in fact stolen
property.
In the pickpocket cases the immediate act which the defendant had
in contemplation was an act whicli if it could have been carried out
would have been criminal, whereas in the present case the immediate
act which the defendant had in contemplation (to wit, the purchase of
the goods which were brought to his place for sale) could not have been
criminal under the statute even if the purchase had been completed,
because the goods had not in fact been stolen, but were at the time
when they were offered to him in the custody and under the contr<d
of the true owners.
114 PEOPLE V. JAFFB. [CHAP. II.
If all which an accused person intends to do would, if done, consti-
tute no crime it cannot be a crime to attempt to do with the same pur-
pose a part of the thing intended. (1 Bishop's Crim. Law [7th ed.],
sec. 747.) Tl;Lecrime_QL-fflhieh-the Jnfei>d«bBt-waa_convieted necessa-
rily consis^of thxca-filements : first, the act; second, the intent; ami
1feTrdrTEe"""knowledge of an existing mnditinn. 'mere was prqpf
t^n'l'rg <^" ^otoKiigij tw/. nf thpca plpryiPnts. the first and second, but
nobe to estiMsirthe existence of the third. This was knowledge of
tBe stolen character of the property sougnt to be acquired. There
could be no such knowledge. The defendant could not know that the
property possessed the character of stolen property when it had not in
fact been acquired by theft.
The language used by Rcgek, C. J., in People v. Moran (123 N. Y.
254), quoted with approval by Earl, J., in People v. Gardner (144
N. Y. 119), to the effect that " the question whether an attempt to com-
mit a crime has been made is determinable solely by the condition of
the actorJs mind and his conduct in the attempted consummation of
his design," although accurate in those cases has no application to a
case like this, where, if the accused had completed the act which he
attempted to do, he would not be guilty of a criminal offence, A partic-
i^)aT beliqf t^annnt. m^lro that ti firimf wjvHi i^ not SO in the absence of
such belief. Take, for example, the caseoTS^uuiig mau vvljuaCtempts
10 VoteTand succeeds in casting his vote under the belief that he is but
twenty j-ears of age, when he is in fact over twenty-one and a qualified
voter. His intent to commit a crime, and his belief that he was com-
mitting a crime, would not make him guilty of any offence under these
circumstances, although the moral turpitude of the transaction on his
part would be just as great as it would if he were in fact under age. So,
also, in the case of a prosecution under the statute of this state, which
makes it rape in the second degree for a man to perpetrate an act of
sexual intercourse with a female not his wife under the age of eighteen
3-ears. There could be no conviction if it was established upon the
trial that the female was in fact over the age of eighteen years, although
the defendant believed her to be younger and intended to commit the
crime. No matter how reprehensible would be his act in morals, it would
not be the act forbidden by this particular statute. " If what a man
contemplates doing would not be in law a crime, he could not be said
in point of law to intend to commit the crime. If he thinks his act
will be a crime, this is a mere mistake of his understanding where the
law holds it not to be such, his real intent being to do a particular
thing. If the thing is not a crime he does not intend to commit one,
whatever he may erroneously suppose." (1 Bishop's Crim. Law [7th
ed.,J sec. 742.)
The judgment of the Appellate Division of the Court of General
Sessions must be reversed and the defendant discharged upon this in-
dictment, as it is manifest that no conviction can be had thereunder.
This discharge, however, in no wise affects the right to prosecute the
SECT. IV.J UNITED STATES V. STEPHENS. 115
defendant for other offences of a like character, concerning which
there is some proof in the record, but which were not charged in the
present indictment.
Chase, J. (dissenting). I dissent. Defendant having with knowl-
edge repeatedly received goods stolen from a dry goods firm by one of
its employees, suggested to the employee that a certain specified
kind of cloth be taken, he was told by the employee that that particular
kind of cloth was not kept on his floor, and he then said that he would
take a roll of a certain Italian cloth. The employee then stole a roll
of the Italian cloth and carried it away, but left it iji another store where
he could subsequently get it for delivery to the defendant. Before it
was actually delivered to the defendant the employers discovered that
the employee had been stealing from them, and they accused him of
the thefts. The employee then confessed his guilt, and told them of
the piece of cloth that had been stolen for the defendant, but had not
actually been delivered to him. The roll of cloth so stolen was then
taken by another employee of the firm, and it was arranged at the police
headquarters that the employee who had taken the cloth should deliver
it to the defendant, which he did, and the defendant paid the employee
about one-half the value thereof. The defendant was then arrested and
this indictment was thereafter found against him. That the defendant
intended to commit a crime is undisputed. I think the record shows an
attempt to commit the crime of criminally receiving property as defined
in sections 550 and 34 of the Penal Code, within the decisions of this
court in People v. Moran (123 N. Y. 254) and People v. Gardner (144
N. Y. 119).
CuLLEN, C. J., Gray, Edward T. Baetlett, Vann and Werner,
JJ., concur with Willaed Bartlett, J, ; Chase, J., dissents in
memorandum.
Judgment of conviction reversed, etc.^
UNITED STATES v. STEPHENS.
Circuit Court of United States, District of Oregon. 1882.
[Reported 8 Sawi/er, 116.1
Deady, J." On March 30, 1882, an information was filed by the
district attorney, accusing the defendant, b}' the first count, of the
crime of introducing spirituous liquors into the district of Alaska, con-
trary to law ; and, by the second count, of the crime of " attempting "
1 See Marley v. State, 58 N. J. L. 207. — Ed.
* Part of the opinion only is printed. — Ed.
116 UNITED STATES V. STEPHENS, [CHAP. II.
to SO introduce such liquors into said district.^ The defendant de-
murs to the information because it does not state facts sufficient to
constitute a crime.
Upon the argument of the demurrer it was abandoned as to the first
count, and insisted upon as to the second. This count alleges that on
July 14, 1879, the defendant, being in the district of Alaska, wrote and
transmitted a letter to a certain firm in San Francisco, California,
wherein and whereby he requested said firm to ship and send to him at
Fort Wrangel, in said district, one hundred gallons of whiskey ; the
defendant then welLknowing that said firm were then wholesale dealers
in spirituous liquors, and owned and possessed said one hundred gallons
of whiskey ; " and he thereby contriving and intending to introduce the
said one hundred gallons of whiskey into the said district of Alaska."
There are a class of acts which may be fairly said to be done in pur-
suance of or in combination with an intent to commit a crime, but are
not, in a legal sense, a part of it, and therefore do not with such intent
constitute an indictable attempt ; for instance, the purchase of a gun
with a design to commit murder, or the purchase of poison with the
same intent. These are considered in the nature of preliminary prepara-
tions, — conditions, not causes, — and although coexistent with a guilty
intent, are indifferent in their character, and do not advance the con.
duct of the party beyond the sphere of mere intent. They are, it is
true, the necessary conditions without which the shooting or poisoning
could not take place, but they are not, in tlie eye of the law, the cause
of either. 1 Whart. C. L., sees. 178, 181 ; 1 Bish. C. L., sec. 668 et
seq.; The People v. Murraj-, 14 Cal. 160.
Dr. Wharton says (supra, sec. 181) : "To make the act an indict-
able attempt, it must be a cause as distinguished from a condition ;
and it must go bo far that it would result in the crime unless frustrated
by extraneous circumstances." Bishop says (supra, sec. 669) : "It is
plain that if a man who has a wicked purpose in his heart does some-
thing entirely foreign in its nature from that purpose, he does not com-
mit a criminal attempt to do the thing -proposed. On the other hand,
if he does what is exactly adapted to accomplish the evil meant, yet
proceeds not far enough in the doing for the cognizance of the law, he
still escapes punishment. Again, if he does a thing not completelj', as
the result discloses, adapted to accomplish the wrong, he may under
some circumstances be punishable, while under other circumstances he
may escape. And the difficulty is not a small one, to lay down rules
readily applied, which shall guide the practitioner in respect to the cir-
cumstances in which the criminal attempt is sufficient."
In The People v. Murray, supra, the defendant was indicted for an
attempt to contract an incestuous marriage, and was found guilt}'.
From the evidence it appeared that he intended to contract such mar-
riage, that he eloped with his niece for that purpose, and requested a
1 This was made criminal by Act of March 3, 1873 (17 Stat, at L. 530). — Ed.
SECT. IV.] UNITED STATES V. STEPHENS. 117
third person to get a magistrate to perform the ceremonj'. Upon an
appeal the judgment was reversed. Chief Justice Field, delivering tlie
opinion of the court, said: " It (the evidence) shows very clearlj- the
intention of the defendant ; but something more than mere intention is
Tiecessary to constitute the offence charged. Between preparation for
the attempt and the attempt itself, there is a wide difference. The
preparation consists in devising or arranging the means or measures
necessary for the commission of the offence ; the attempt is the direct
movement towards the commission after the preparations are made
. . . ; but until the ofHcer was engaged, and the parties stood before
him, ready to take the vows appropriate to the contract of marriage, it
cannot be said, in strictness, that the attempt was made. The attempt
contemplated by the statute must be manifested by acts which would
end in the consummation of the particular offence, but for the interven-
tion of circumstances independent of the will of the party."
In the case under consideration, to constitute the attempt charged in i
the information there must have been an intent to commit the crime of j
introducing spirituous liquors into Alaska, combined with an act done ,
in pursuance of such intention that apparently-, in the usual course of ,
events, would have resulted in such introduction, unless interrupted bj' J
extraneous circumstances, but which actually fell short of such result. 1
But it does not appear that anything was done by the defendant
towards the commission of the intended crime of introducing spirituous
liquors into Alaska, but to offer or attempt to purchase the same in
San Francisco. The written order sent there by the defendant was, in
effect, nothing more or less than an offer by him to purchase the one
hundred gallons of whiskey ; and it will simplify the case, to regard
him as being present at the house of the San Francisco firm, at the
time his order reached them, seeking to purchase the liquor with the
intent of committing the crime of introducing the same into Alaska.
But the case made by the information stops here. It does not show
that he bought any liquor. "Whether he changed his mind, and coun-
termanded the order before the delivery of the goods, or whethet' the
firm refused to deal with him, does not appear.
Now, an offer to purchase whiskey, with the intent to ship it to
Alaska, is, in any view of the matter, a mere act ot preparation, of
'-which_the law takes no""c0^uizauuu. — lArsTHe" matter then stood, it was
impossible for the defendaW>4;Q^ attempt to introduce this liquor into
Alaska, because he did not own or control it. It was simply an attempt
to purchase, — an act harmless and indifferent in itself, whatever the
purpose with which it was done.
But suppose the defendant had gone further, and actually succeeded
in purchasing the liquor, wherein would the case differ from that of the
person who bought the gun or poison with intent to commit murder,
but did no subsequent act in execution of such purpose? In all essen-
tials they are the same.
A purchase of spirituous liquor at San Francisco or Portland, either
118 GLOVER V. COMMONWEALTH. [CHAP. II,
in person or by written order or application, with intent to commit a
crime witii ttie same, — as to dispose of it at retail without a license, or
to a minor, or to introduce it into Alasl;a, — is merely a orenajatorv
> act,-TTTri4ffnrnntin-4ts--T;tIaracter. ofvVluch thti TawT-tecking the omni-
science of J^fitVi "^"""fft take coa;nizance.
At what period of the transaction tlie shipper of liquor to Alaska is
guilty of an attempt to introduce the same there, is not very easily
determined. Certainly the liquor must first be purchased — obtained
in some way — and started for its illegal destination. But it is doubt-
ful whethe) the attempt, or the act necessary to constitute it, can be
commiti.ed until the liquor is taken so near to some point or place of
" the mainland, islands, or waters" of Alaska as to render it conven-
ient to introduce it from there, or to make it manifest that such was the
present purpose of the parties concerned. But this is a mere sug-
gestion ; and each case must be determined upon its own circumstances.
The demurrer is sustained to the second count, and overruled as to
the first.
GLOVER V. COMMONWEALTH.
SUPBEME CODBT OF APPEALS OF VIRGINIA. 1889.
[Reported 86 Virginia, 382.]
Lewis, P., delivered the opinion of the court.
Among the exceptions taken by the prisoner at the trial was one to
the refusal of the court to instruct the jurj' as follows: "If the jury
believe from the evidence that the prisoner at the bar intended to com-
mit a rape on the prosecutrix, Berta Wright, but before the act was
finally executed, he voluntarily and freely abandoned it, they are to
find a verdict of not guilty." ^
This exception is not well taken. To have given the instruction
would have been equivalent to telling the jury that upon an indictment
for rape, the accused cannot be legally convicted of an attempt to com-
mit a rape, which is not the law. The court, therefore, did not err in
refusing to give it, nor did it err in subsequently instructing the jury,
as in effect it did, that upon an indictment for rape, the accused may
be found guilty of an attempt to commit a rape, which is in accordance
with the law in this State. Givens v. Commonwealth, 29 Gratt. 830 ;
Mings V. Same, 85 Va. 638. Indeed, the statute, now brought into
section 4044 of the Code, expressly enacts that " on an indictment for
felony, the jury may find the accused not guilty of the felony, but guilty
of an attempt to commit such felony ; and a general verdict of not
guilty upon such indictment shall be a bar to a subsequent prosecution
for an attempt to commit such felony."
» Only so much of the opinion as refers to this exception Is printed.
SECT. IV.] COMMONWEALTH V. KENNEDY. 119
Au attempt in criminal law is an apparent unfinished crime, and
heutie is compounded of two elements, tiz. : (1) The intent to commit a
crime ; and (2) a direct act done towards its commission, but falling
short of the execution of the ultimate design. It need not, therefore,
be the last proximate act to the consummation of the crime in contem-
plation, but is sufficient if it be an act apparently adapted to produce
the result intended. It must be something more than mere prepara-
tion. Uhl's Case, 6 Gratt. 706 ; Hicks' Case, 86 Va. 223.
Hence, when the prisoner took the prosecutrix into the stable, and
there did the acts above mentioned, the attempt to commit a rape was
complete ; for there was the unlawful intent accompanied by acts done
towards the commission of the intended crime, but falling short of its
commission. Indeed, it is not denied that there was such attempt, but
it is contended — and such was the main defence at the trial — that the
subsequent voluntary abandonment of the criminal purpose cleansed
the prisoner of all crime, so far as the attempt was concerned. But
this is a mistaken view. For, on the contrary, itJS-iL-Cttlerftninded ih
reason and supported by authority, that if n mnin rcoolvoo oa..a criminal
— ■^Snterprise, and proceeds so far in it that his ac^tarnnwiits <i imlinti-
"a^lti alLbtlipL, iL does not cease to pe sucn, tnough he voluntarily aban-
dons the evil purpose.
Ill Lywia v. The State, 35 Ala. 380, which was an indictment for an
attempt to commit a rape, it was ruled by the Supreme Court of Alabama
that if the attempt was in fact made, and had progressed far enough to
put the prosecutrix in terror and render it necessary- for her to save
herself from the consummation of the attempted outrage by flight, then
the attempt was complete, though the prisoner had not in fact touched
her ; and that an after-abandonment by the prisoner of his wicked pur-
pose could not purge the crime. And there are man^' other authorities
to the same effect. See 1 Bish. Grim. Law (6th ed.), sec. 732, and
cases cited.
\
COMMONWEALTH v. KENNEDY.
Sdpreme Judicial Court of Massachusetts. 1897.
[Reported 170 Mass 18.]
Holmes, J.^ The first count is for mingling poison with tea, with
intent to kill one Albert F. Learoyd. Pub. Sts. c. 202, § 32. The
second count is for an attempt to commit murder by poisoning. Pub.
Sts. c. 202, § 21. Whether the first count includes the matter of the
second, with, the eflfect that, even if the motion to quash the second
count should have been granted, the verdict as rendered would stand
on the first count (Commonwealth v. Nichols, 134 Mass. 531, 536,
537), need not be decided, as we are of opinion that the motion to
quash properly was overruled.
1 Only so much of the opinion as discusses the law of attempt is given. — Ed.
120 COMMONWEALTH V. KENNEDY. [cHAP. II.
The second count alleges in substance that the defendant feloniously,
wilfully, and maliciously attempted to murder Learoyd by placing a
quantity of deadly poison known as "rough on rats," known to the
defendant to be a deadly poison, upon, and causing it to adhere to the
under side of the crossbar of a cup of Learoyd's known as a mustache
cup, the cup being then empty, with the intent that Learoyd should
thereafter use the cup for drinking while the poison was there, and
should swallow the poison. The motion to quash was argued largely
on the strength of some cases as to what constitutes an " administer-
ing" of poison, which have no apphcation, but the argument also
touched another question, which alwajs is present in cases of attempts,
and which requires a few words, namel3', how nearly the overt acts
alleged approached to the achievement of the substantive crime
attempted.
Notwithstanding Pub. Sts. c. 210, § 8, we assume that an act may
be done which is expected and intended to accomplish a crime, which is
not near enough to the result to constitute an attempt to commit it, as
in the classic instance of shooting at a post supposed to be a man. As
the aim of the liw ia nnt t-t punif'' °''"S, but is to prevent ppi tain fytprT*
nal results, the act done must come prettj' near to accomplishing that
"vTeSult before the law wiirrn^t^w^ ^t, P"t, rm t,h.e-Mllii i li.iiiilj ii K'lypptivp
of the statute, it is not necessary that the act should be such as inevit-
ably to accomplish the crime bj' the operation of natural forces, but for
some casual and unexpected interference. It is none the less an
attempt to shoot a man that the pistol which is fired at his head is not
aimed straight, and therefore in the course of nature cannot hit him.
Usually acts which are expected to bring about the end without further
interference on the part of the criminal are near enough, unless the
expectation is very absurd. In this case the acts are alleged to have
been done with intent that Learoyd should swallow the poison, and, by
implication, with intent to kill him. See Commonwealth v. Adams,
127 Mass, 15, 17. Intent imports contemplation, and more or less
expectation, of the intended end as the result of the act alleged. If it
appeared in the count, as it did in the evidence, that the habits of
Learoyd and the other circumstances were such that the defendant's
expectation that he would use the cup and swallow the poison was well
grounded, there could be no doubt that the defendant's acts were near
enough to the intended swallowing of the poison, and, if the dose was
large enough to kill, that they were near enough to the accomplishment
of the murder. But the grounds of the defendant's expectation are
not alleged, and the strongest argument for the defence, as it seems to
us, would be that, so far as this count goes, his expectation may have
been unfounded and unreasonable. But in view of the nature of the
crime and the ordinary course of events, we are of opinion tliat enough
is alleged when the defendant's intent is shown. The cup belonged to
Learoyd, and the defendant expected that he would use it. To allow
him immunity, on the ground that this part of his expectation was ill
SECT. IV.] COMMONWEALTH V. KENNEDY. 121
grounded, ■would be as unreasonable as to let a culprit off because he
was not warranted in thinking that his pistol was pointed at the man
he tried to shoot. A more important point is that it is not alleged in
terms that the dose was large enough to kill, unless we take judicial
notice of the probable effect of a teaspoonf ul of " rough on rats " ; and
this may be likened to the case of firing a pistol supposed to be loaded
with ball, but in fact not so, or to administering an innocent substance
supposing it to be poison. State v. S wails, 8 Ind. 524, and note.
State V. Clarissa, 11 Ala. 57. There is a difference between the case
of an attempt and a murder. In the latter case the event shows the
dose to have been sufficient, without an express allegation. But we
are of opinion that this objection cannot be maintained. Every ques-
tion of proximity must be determined by its own circumstances, and
analogy is too imperfect to give much help. Any unlawful application
of poison is an evil which threatens death, according to common appre-
hension, and the gravity of the crime, the uncertainty of the result,
and the seriousness of the apprehension, coupled with the great harm
likely to result from poison even if not enough to kill,.would warrant
holding the liability for an attempt to begin at a point more remofe
Pi'ArnjiiKpnssihilii^^ whatjs ej:wul.ed tAiiiii uimht'bel
•the case with ligEtercrimes. But analogy does not require this con-V.
sideration. The ease citen~9,s to firing a pistol not loaded with ball has
been qualified at least by a later decision, Kunkle v. State 32 Ind.
220, 229, a case of shooting with shot too small to kill. And even in
less serious crimes (especially in view of Pub. Sts. c. 210, § 8), im-
possibility of achievement is not necessarily a defence, for instance, in
an attempt to procure an abortion upon a woman not pregnant.
Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Tibbetts,
157 Mass. 519. So in an attempt to pick a pocket which is empt}'.
Commonwealth v. McDonald, 5 Cush. 365. See also Commonwealth
V. Jacobs, 9 Allen, 274. In the case of crimes exceptionally dealt with
or greatly feared, acts have been punished which were not even ex-
pected to effect the substantive evil unless followed by other criminal ,
acts ; e. g., in the case of treason, Foster, 196 ; King v. Cowper, 5 Mod.
206 ; or in that of pursuit by a negro, with intent to commit rape.
Lewis V. State, 35 Ala. 380. Compare Regina v. Eagleton, Dears.
C. C. 515, 538 ; S. C. a Cox, C. C. 559, 571. A familiar statutory
illustration of this class is to be found in the enactments with regard to
having counterfeit bills in one's possession with intent to pass them.
Pub. Sts. c. 204, § 8 (see Regina v. Roberts, Dears. C. C. 639, 550,
551), and one which is interesting historicall}' in the English statutes
intended to keep secret the machinery used in modern manufacture.
Sts. 14 Geo. III. c. 71, § 5 ; 21 Geo. III. c. 37, § 6. The general pro-
vision of Pub. Sts. c. 210, § 8, already referred to, long has been on
the books. A case having some bearing on the present is State v.
Glover, 27 S. C. 602. For these reasons, we are of opinion that the
motion to quash the second count properly- was overruled.
122 COMMONWEALTH V. PEASLEE. [CHAP. IL
COMMONWEALTH v. PEASLEE.
Supreme Judicial Court of Massachusetts. 1901.
[Reported 177 Mass. 267.]
Holmes, C. J. This is an indictment for an attepapt to burn a building
and certain goods tiierein, with intent to injure the insurers of the same.
Pub. Sts. c. 210, § 8. The substantive offence alleged to have been
attempted is punished by Pub. Sts. c. 203, § 7. The defence is that
the overt acts alleged and proved do not amount to an offence. It
was raised by a motion to quash and also by a request to the judge to
direct a verdict for the defendant. We will consider the case in the
first place upon the evidence, apart from any question of pleading, and
afterwards will take it up in connection with the indictment as actually
drawn.
The evidence was that the defendant had constructed and arranged
combustibles in the building in such a way that they were xeady to be
lighted, and if lighted would have set fire to the building and its con-
tents. To be exact, the plan would have required a candle which was
standing on a shelf six feet away to be placed on a piece of wood in a
pan of turpentine, and lighted. The defendant offered to pay a young
man in his employment if he would go to the building, seemingl3' some
miles from the place of the dialogue, and carry out the plan. This was
refused. Later the defendant and the j'oung man drove toward the
buifding, but when within a^quaxtef-tcf a iiiile-tlie__defendaPt-6aid thafr^
he had changed hlb mind "and drove_away. This is as near as he ever
came to accomplishing what ne had^in contemplation.
The question on the evidence, more precisely stated, is whether the
defendant's acts come near enough to the accomplishment of the sub-
stantive offence to be punishable. The statute does not punish every
(act done toward the commission of a crime, but only such acts done in
an attempt to commit it. The most common types of an attempt are
either an act which is intended to bring about the substantive crime
and which sets in motion natural forces that would bring it about in
the expected course of events but for an unforeseen interruption, as in
this case if the candle had been set in its place and lighted but had
been put out by the police, or an act which is intended to bring about
the substantive crime and would bring it about but for a mistake of
judgment in a matter of nice estimate or experiment, as when a pistol
is fired at a man but misses him, or when one tries to pick a pocket
which turns out to be empty. In either ease the would-be criminal has
done his last act.
Obviously new considerations come in when further acts on the pan
of the person who has taken the first steps are necessary before the
substantive crime can come to pass. In this class of cases there is
still a chance that the would-be criminal may change his mind. In
■SECT. IV.J COMMONWEALTH V. PEASLEE. 123
strictness, such first, atpps fnnnnt. hp flpsnrihed as an aUfimpt., hsfiaiisp
tferword SUggepta an ant gppminfrly anffifipnt. irf fl/'nompHgh thfi^ find.
<arid has been supposed to have no other meaning. People v. Murray,
T4 "(jai. io9, ibu. ^That an overt act, although coupled with an
intent to commit the crime, commonly is not punishable if further acts
are contemplated as needful, is expressed in the familiar rule that
preparation is not an attempt. But some preparation ma}' amount to
an attempt. It is a question of degree. If the preparation_CQm£s-¥«'ry
near to t.hp afimmplishmpni. nf t.hp no±. the intent to complete it renders
the crime so probable that the act will be a misdemeanor, although
there is still a locus penitp.n.Um in t.hp nppH nf a further exertion of tlie
will to complete thp "'•''"'? As was observed in a recent case, the
degree of proximity held sufficient may vary with circumstances, includ-
ing among other things the apprehension which the particular crime is
calculated to excite. Commonwealth u. Kennedy, 170 Mass. 18, 22.
(See also Commonwealth v. Willard, 22 Pick. 476.) A few instances
of liability of this sort are mentioned on the page cited.
As a further illustration, when the servant of a contractor had de-
livered short rations of meat by the help of a false weight which he had
substituted for the true one, intending to steal the meat left over, it was
held hj four judges, two of whom were Chief Justice Erie and Mr.
Justice Blackburn, that he could be convicted of an attempt to steal.
Regina v. Cheeseman, L. & C. 140 ; S. C. 10 W. R. 225. So lighting
a match with intent to set flre to a haystack, although the prisoner
desisted on discovering that he was watched. Regina v. Taylor, 1
F. & F. 511. So getting into a stall with a poisoned potato, intending
to give it to a horse there, which the prisoner was prevented from doing
by his arrest. Commonwealth v. McLaughlin, 105 Mass. 460. See
Clark V. State, 86 Tenn. 511. So in this Commonwealth it was held
criminal to let a house to a woman of ill fame with intent that it should.,
be used for purposes of prostitution, although it would seem that the
finding of intent meant only knowledge of the intent of the lessee.
Commonwealth v. Harrington, 3 Pick. 26. See Commonwealth v,
Willard, 22 Pick. 476, 478. Compare Broekway v. People, 2 Hill,
558, 562. The same has been held as to paying a man to burn a barn,
-whether well laid as an attempt or more properly as soliciting to com-
mit a felony. Commonwealth v. Flagg, 135 Mass. 545, 549. State v.
Bowers, 35 So. Car. 262. Compare Regina v. "Williams, 1 C. & K.
589 -,8.0.1 Denison, 39. McDade v. People, 29 Mich. 50, 56.
Stabler v. Commonwealth, 95 Penn. St. 318. Hicks v. Commonwealth,
86 Va. 223.
On the other hand, making up a false invoice at the place of expor-
tation with intent to defraud the revenue is not an offence if not followed
up by using it or attempting to use it. United States v. Twenty-eight
Packages, Gilpin, 306, 324. United States v. Riddle, 5 Cranch, 311.
So in People v. Murray, 14 Cal. 159, the defendant's elopement with
his niece and his requesting a third person to bring a magistrate to
124 COMMONWEALTH V. PEASLEB. [CHAP. II.
perform the marriage ceremony, was held not to amount to an attempt
to contract the marriage. But the ground on which this last decision
was put clearly was too broad. And however it may be at common
law, under a statute like ours punishing one who attempts to commit a
crime ' ' and in such attempt does any act towards the commission of
such offence" (Pub. Sts. c. 210, § 8), it seems to be settled elsewhere
that the defendant could be convicted on evidence like the present.
People V. Bush, 4 Hill, 133, 134. McDermott v. People, 5 Parker Cr.
Rep. 102. Griffin v. State, 26 Ga. 493. State v. Hayes, 78 Mo. 307,
316. See Commonwealth v. Willard, 22 Pick. 476. People v. Bush is
distinguished in Stabler v. Commonwealth as a decision upon the
words quoted. 95 Penn. St. 322.
Under the cases last cited we assume that there was evidence of a
crime and perhaps of an attempt, — the latter question we do not
decide. Nevertheless, on the pleadings a majority of the court is of
opinion that the exceptions must be sustained. A mere collection and
preparation of materials in a room for the purpose of setting fire to
them, unaccompanied by any present intent to set the fire, would be
too remote. If the accused intended to rely upon his own hands to the
yud, BSmust be shown to have had a present intent to accomplish the
crime without much delay, and to have had this intent at a time and place
where he was able to carry it out. "We are not aware of any carefully
considered case that has gone further than this. We assume without
deciding that that is the meaning of the indictment, and it would have
been proved if for instance the evidence had been that the defendant
had been frightened by the police as he was about to light the candle.
On the other hand, if the offence is to be made' out by showing a pre-
paration of the room and a solicitation of some one else to set the fire,
which solicitation if successful would have been the defendant's last
^t, the-iiinlinitfitiinn must he Hillpged as ""» "f ^^^^ rnrnt-|; on^^cj jt ^^s
admissible in evidence on the pleadings as they stood to show the
defendant's intent, but it could not be relied on as an overt act unless
set out. The necessity that the overt acts should be alleged has been
taken for granted in our practice and decisions (see e. g., Common-
wealth V. Sherman, 105 Mass. 169; Commonwealth v. McLaughlin,
105 Mass. 460, 463 ; Commonwealth v. Shedd, 140 Mass. 451, 453),
and is expressed in the forms and directions for charging attempts
appended to St. 1899, c. 409, § 28 and § 2. Commonwealth v. Clark,
6 Gratt. 675. State v. Colvin, 90 No. Car. 717. The solicitations
were alleged in McDermott v. People. In New York it was not neces-
sary to lay the overt acts relied upon. Mackesey v. People, 6 Parker
Cr. Rep. 114, 117, and New York cases supra. See 3 Encyc. PI. &
Pr., " Attempts," 98. A valuable collection of authorities concerning
the crime will be found under the same title in 3 Am. & Eng. Encyc.
of Law (2d ed.). If the indictment had been properly drawn we have
no question that the defendant might have been convicted.
Eaxeptions sustained.
SECT. IV. ] WALSH V. PEOPLE. 125
WALSH V. PEOPLE.
Sdpeeme Court of Illinois. 1872.
[Reported 65 Illinois, 58.]
Mr. Justice Thornton delivered the opinion of the court : —
The defendant below was an alderaiaii of the Common Council of
the city of Chicago. As such, he was indicted for a proposal, made
by himself, to_receive a Jmb^ to influence his action in the discharge
of his duties.
The indictment is, in form, an indictment at cornrnoTi law ; and it is
conceded that the statute has not created such an offence against an
alderman. Our criminal code has made it an offence to propose, or
agree to receive, a bribe, on the part of certain officers ; but an alder-
man is not, either in terms or by construction, included amongst them.
Eev. Stat. 1845, p. 167, s. 87.
It is contended that the act charged does not fall within any of the
common law definitions of bribery ; that"ho precedent can be found
for such an offence, and that, as propositions to receive bribes have
probably often been made, and as no case can be found in which they
were regarded as criminal, the conclusion must follow that the offence
charged is no offence.
The weakness of the conclusion is in the assumption of a premise
which may or may not be true. This particular phase of depravity
may never before have been exhibited ; and if it had been, a change
might be so suddenly made, by an acceptance of the offer and a con-
currence of the parties, as to constitute the offence of bribery, which
consists in the receiving any undue reward to incline the party to act
contrary to the known rules of honesty and integrity.
But the character of a particular offence cannot fairly be determined
from the fact that an offence exactly analogous has not been described
in the books. We must test the criminality of the act by known prp-
ciples of law. -
At common law, bribery is a grave and serious offence against public
justice ; and the attempt or offer to bribe is likewise criminal.
A promise of money to a corporator, to vote for a mayor of a cor-
poration, was punishable at common law. Kex v. Plympton, 2 Lord
Raym'. 1377.
The attempt to bribe a privy councillor, to procure an office, was an
offence at common law. Res v. Vaughah, 4 Burr. 2494. In that case.
Lord Mansfield said: "Wherever it is a crime to talce, it is a crime
to give. They are reciprocal. And in many cases, especially in bribery
at elections to parliament, the attempt is a crime. It is complete on
his side who offers it."
Why is the mere unsuccessful attempt to bribe criminal? The offi-
cer refuses to take the offered reward, and his integrity is untouched,
126 WALSH V. PEOPLE. [CIIAP. II.
his conduct uninfluenced by it. The reason for the law is plain. The
! offer is a sore temptation to the weak or the depraved. It tends to-
' corrupt ; and as the law abhors the least tendency to corruption, it
punishes the act which is calculated to debase, and which may affect-
' prejudicially the morals of the community.
The attempt to bribe is, then, at common law a misdemeanor ; and
the person making the offer is liable to indictment and punishment.
What are misdemeanors at common law? Wharton, in his work on
criminal law, p. 74, says : " Misdemeanors comprise all offences, lower
than felonies, which may be the subject of jndictment. They are divided,
into two classes : first, such as are mala in se, or penal at common
law ; and second!}', such as are mala proJiibita, or penal by statute.
Whatever, under the first class, mischievously affects the person or
property of another, or openly outrages decency, or disturbs public
order, or is injurious to public morals, or is a breach of oflBcial duty,,
when done corruptly, is the subject of indictment."
In the case of The King v. Higgins, 2 East, 5, the defendant was-
indicted for soliciting and inciting a servant to steal his master's chat-
tels. There was no proof of any overt act towards carrying the intent
into execution, and it was argued, in behalf of the prisoner, that the
solicitation was a mere fruitless, ineffectual temptation, — a mere wish
or desire.
It was held, by all the judges, that the soliciting was a misdemeanor,
though the indictment contained no charge that the servant stole the
goods, nor that any other act was done except the soliciting.
Separate opinions were delivered by all the judges.
Lord Kenton said the solicitation was an act, and it would be a slan-
der upon the law to suppose that such an offence was not indictable.
Gross, J., said an attempt to commit a misdemeanor was, in itself,,
a misdemeanor. The gist of the offence is the incitement.
Lawrence, J., said: "All offences of a public nature, that is, all
such acts or attempts as tend to the prejudice of the community, are
indictable ; " and that the mere soliciting the servant to steal was an
attempt or endeavor to commit a crime.
Le Blanc, J., said that the inciting of another, by whatever means
it is attempted, is an act done ; and if the act is done with a criminal
intent, it is punishable by indictment.
An attempt to commit an offence or to solicit its commission is at
Jcommon law -punishable by indictment. 1 Hawk. P. C. 66 ; Whar. Cr.
'Law, 78 and 872 ; 1 Russ. on Cr. 49.
While we are not disposed to concur with Wharton, to the full extent,
m the language quoted, that every act which might be supposed, accord-
ing to the stern ethics of some persons, to be injurious to the public
morals, to be a misdemeanor, yet we are of opinion that it is a mis-
demeanor to propose to reteive a bribe. It must be regarded as an
inciting to offer one, and a solicitation to commit an offence. This, at
common law, is a misdemeanor. Inciting another to the commission
SECT. IV.] COMMONWEALTH V. KANDOLPH. 127
of any indictable offrnftfli tlioiifrh without success, is a misdemeanor.
3 (Jhitty (Jr. Law, 994 ; 1 Russ. on Cr. 49, Gartwright's case ; Euss.
and R. C. C. 107, note b ; Rex v. Iliggius, 2 East, supra.
As we liave seen, the mere offer to bribe, though it may be rejected,
is an offence ; and the party who makes the offer is amenable to indict-
ment and punishment. The offer amounts to no more than a proposal
to give a bribe ; it is but a solicitation to a person to take one. The
distinction between an offer to bribe and a proposal to receive one, is
exceedingly nice. The difference is wholly ideal. If one man attempt
to bribe an officer, and influence him, to his own degradation and to
the detriment of the public, and fail in his purpose, is he more guilty
than the officer, who is willing to make sale of his integrity, debase
himself, and who solicits to be purchased, to induce a discharge of his
duties? The prejudicial effects upon society are, at least, as great in
the one case as in the other ; the tendency to corruption is as potent ;
and when the officer makes the proposal, he is not only degraded, but
the public service suffers thereby.
According to the well-established principles of the common lawj^th
proposal to receive' the bribe was an act which tended to the prejii-
"gice of the nnmmnni't.y, greatly outraged public decency, was in the
highest degree injurious to the public morals, was a gross breach of
official duty, and must therefore be regarded as a misdemeanor, for
which the party is liable to indictment.
It is an offence more serious and corrupting in its tendencies than
an ineffectual attempt to bribe. In the one case the officer spurns the
temptation, and maintains his purity and integrity ; in the other, he
manifests a depravity and dishonesty existing in himself, which, when
developed by the proposal to take a bribe, if done with a corrupt intent,
should be punished ; and it would be a slander upon the law to suppose
that such conduct cannot be checked by appropriate punishment.
In holding that the act charged is indictable, we are not drifting
"into judicial legislation, but are merely applying old and well-settled
principles to a new state of facts.
COMMONWEALTH v. RANDOLPH.
Supreme Court of Pennsylvania. 1892.
[Reported 146 Pennsylmnia, 83.] v/^'' *"' * ^
Per Curiam. The appellant was convicted in the court below upon
an indictment in the first count of which it was charged that she,
" Sarah A. McGinty, alias Sarah A. Randolph, . . . unlawfully, wick-
edly, and maliciously did solicit and invite one Samuel Kissinger,;
then and there being, and by the offer and promise of payment to said
Samuel Kissinger of a large sum of money, to wit, one thousand dol-
lars, which to him, the said Samuel Kissinger, she, the said Sarah A.
McGinty, alias Sarah A. Randolph, then and there did propose, offer,
/
128 COMMONWEALTH V. KANDOLPH. [CHAP. II.
promise, and agree to pa}-, did incite and encourage Iiini, the said
Samuel Kissinger, one William S. Foltz, a citizen of said countj-, in
the peace of said commonwealth, feloniousl}' to kill, murder, and slaj-,
contrary to the form of the act of general assembly in such case made
and provided, and against the peace and dignity of the commonwealth
of Pennsylvania." Upon the trial below the defendant moYcd to quash
the indiefement upon the groun^ that J ' the sai^inrlictment d«esL_not
charge in any count thereof anj' offence, either at coramonjjlff or by
statetev^ The court below refused to quash the indictment ; an3 this
"njling7 with the refusal of the court to arrest the judgment, is assigned
as error.
It may be conceded that there is no statute which meets this case,
and, if the crime charged is not an offence at common law, the judgment
must be reversed. What is a common-law offence? We endeavored
to answer this question in Com. v. McHale, 97 Pa. 397, 410, in which
we held that offences against the purity and fairness of elections were
crimes at common law, and indictable as such. We there said : ' ' We
are of opinion that all such crimes as especially affect public society
are indictable at common law. Thejest is i^nt whether precedentajign
be found in Jhe_ books, but whether they inj^urJQUsIy affect the public"
_^licy__and__er!ftn"my-" Tested by this rule, we have no doubt that
the solicitation to commit murder, accompanied by the offer of money
for that purpose, is an offence at common law.
It may be conceded that the mere intent to commit a crime, where
such intent is undisclosed, and nothing done in pursuance of it, is not
the subject of an indictment. But there was something more than an
undisclosed intent in this case. There was the direct solicitation to
commit a murder, and an offer of money as a reward for its commission.
This was an act done, — a step in the direction of the_criiBe, — and
ii;id the act been perpetrated the defendant would have been liable to
punishment as an accessory to the murder. It needs no argument to
show that such an act affects the public policy and economy in a serious
manner. ^
Authorities in this State are very meagre. Smith v. Com., 54 Pa.
209, decided that solicitation to commit fornication grid adnltpry iff-n^t
indictable. But fornicationand a.dultp.ry are mere misdemeanors by
our law, whereas murder isacapitaLfelOT,yI Stabler"*. Com., 94) Pa.
818, decided lihuL the mere delivery of poison to a person, and solicit-
ing him to place it in the spring of a certain party, is not " an attempt
to administer poison," within the meaning of the eighty-second section
of the Act of March 31, 1860, P. L. 403. In that case, however, the
sixth count of the indictment charged that the defendant did "falsely
and wickedly solicit and invite one John Neyer, a servant of the said
Richard S. Waring, to administer a certain poison and noxious and
dangerous substance, commonly called Paris green, to the said Richard
F. Waring, and divers other persons, whose names are to the said
inquest unknown, of the family of the said Richard F. Waiinu." etc.
SECT. IV.] COMMONWEALTH V. RANDOLPH. 129
The defendant was convicted upon this count, and while the judgment
was reversed upon the first count charging " an attempt to administer
poison," we sustained the conviction upon the sixth count ; Mekcur, J.,
saying: "The conduct of the plaintiff" in error, as testified to bj- the
witness, undoubtedly shows an oflJ'ence for which an indictment will lie
without any further act having been committed. He was rightly con-
victed, therefore, on the sixth count."
The authorities in England are very full upon this point. The lead-
ing case is Rex v. Higgias, 2 East, 5. It is verj' similar to the case
at bar, and it was squarelj- held that solicitation to commit a felony is
a misdemeanor and indictable at common law. In that case it was said
by Lord Kenton, C. J. : " But it is argued that a mere intent to com-
mit evil is not indictable without an act done ; but is there not an act
done, where it is charged that the defendant solicited another to commit
a felony ? Xhe^solLcitation Js-an act, and the answer given at the bar
is decisive that iFwould be sufficient to^onstitule an^vert act of high
treason." We are not unmindful of the criticism of this case hy Chief
Justice WooDWAKD in Smith v. Com., supra, but we do not think it
affects the authority of that case. The point involved in Rex v. Hig-
gins was not before the court in Smiths. Com., and could not have
been and was not decided. It is true, this is made a statutory offence
by St. 24 & 25 Vict. ; but, as is said by Mr. Russell in his work on
Crimes (volume 1, p. 967), in commenting on this act: "As all the
■crimes specified in this clause appear to be misdemeanors at common
law, the effect of this clause is merely to alter the punishment of them."
In other words, that statute is merely declaratory of the common law.
Our best text-books sustain the doctrine of Rex v. Higgins. i^f
the crime solicited, to be committed be not perpetrated, then the adviser
"can^oLc-Jbe— iadicted for a misdemeanor." 1 Chit. Urim. Law, p.
"554. See, also, 1 Archb. Crim. Pr. & PI. 19, and 1 Bish. Crim. Law,
§ 768, where the learned author saj'S : "The law as adjudged holds,
and has held from the beginning in all this class of cases, an indict-
ment suflScient which simply charges that the defendant, at the time
and place mentioned, falsely, wickedly, and unlawfully did solicit and
incite a person named to commit the substantive offence, without any
further specification of overt acts. It is vain, then, to say that mere
solicitation, the mere entire thing which need be averred against a
"defendant as the ground for his conviction, is no offence." We are of
opinion the appellant was properly convicted, and the judgment is
affirmed.^
1 See State v. Avery, 1 Conn. 266 ; Com. v. Flagg, 135 Ma,9s. 545. Cf. Coi v.
People, 82 111. 191; Smith i». Com., 54 Pa. 209. —Ed.
1'6Q STATE V. HUKLET. [CHA?, U
STATE V. HURLEY.
Supreme Court of Vermont. 1906.
[Reported 79 Vt. 000.]
MuNSONjJ. The respondent is informed against for attempting to
>^roflhwj^vo;l_fho jpW in whif'h hp wfl" ""nf'""'^ -^y procuring to be de-
■^livered intohis hands 12 steel hack saws, with an intent to break open
the jail therewith. The state's evidence tended to show that, in pursu-
atice of an arrangement between the respondent and one Tracy, a
former inmate, Tracy attempted to get a bundle of hack saws to the
respondent bj' throwing it to him as he sat behind the bars at an open
window, and that the respondent reached through the bars and got the
bundle into his hands, but was ordered at that moment by the jailer to
drop it, and did so. 'Tht^Q]-\rt I'hargpA in. substance thatif the respon-
dent arranged fnrjvmciiring the saws and got them into his possession,
with ail hitenTtolareak open the jail for the purpose of escaping, he
was guilty ot the ottenc!e_aILe§ed. The respondent demurred to "the in-
formation, and excepted to the charge. Bishop defines a criminal at-
tempt to be " an intent to do a particular criminal thing, with an act
toward it falling short of the thing intended." 2 Cr. Law, § 728.
The main difficulty in applying this definition lies in determining the
relation which the act done must sustain to the completed oflence.
That relation is more fully indicated in the following definition given
by Stephen : " An attempt to commit a crime is an act done with intent
to commit that crime, and forming part of a series of acts which would
constitute its actual commission if it were not interrupted." Dig. Cr.
Law, 33. All acts done in preparation are, in a sense, acts done toward
the accomplishment of the thing contemplated. But most authorities
certainly hold, and many of them state specifically, that the act must
be something more than mere preparation. Acts of preparation, how-
ever, may have such proximitj' to the place where the intended crime
is to be committed, and such connection with a purpose of present ac-
complishment, that they will amount to an attempt. See note to People
V. Moran (N. Y.) 20 Am. St. Rep. 741 ; People v. Stiles, 75 Col. 570,
17 Pac. 963 ; People v. Lawton, 56 Barb. (N. Y.) 126.
Various rules have been formulated in elucidating this subject.
Some acts tovi^ard the commission of the crime are too remote for the
law to notice. The act need not be the one next preceding that needed
to complete the crime. Preparations made at a distance from the
place where the offence is to be committed are ordinarily too remote to
satisfy the requirement. 1 Bish. Cr. Law, §§ 769, 762 (4) 763. The
preparation must be such as would be likely to end, if not extraneously
interrupted, in the consummation of the crime intended. 3 Am. &
Ency. Law (2d ed.) 266, note 7. The act must be^of such a character
asto advance the conduct of the actor beyond the sphere of mere intent.
SECT. IV.J STATE V. HURLEY. 131
It must reac]i_far Bnnugh tow4ird8-<^Ti'> "fpafflBligh^^Pt of the desired
result to amount to the covc\mp.r\o.pmpnt. nf fhg fv^pgnmrngHnn Hicks
V. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Eep. 891. But after all
that has been said, the application is difficult. One of the best known
cases where acts of preparation were held insufficient is People v.
Murray, 14 Cal. 159, which was an indictment for an attempt to con-
tract an incestuous marriage. There the defendant had eloped with his
niece with the avowed purpose of marrying her, and had taken measures
to procure the attendance of a magistrate to perform tlie ceremonj'.
In disposing of the case, Judge Field said: "Between preparations
for the attempt and the attempt itself, there is a wide difference. The
preparation consists in devising or arranging the means or measures
necessary for the commission of the offence ; the attempt is the direct
movement toward the commission after the preparations are made."
Mr. Bishop thinks this case is near the dividing line, and doubts if it
will be followed by all courts. 1 Cr. Law, § 763 (3.) Mr. Wharton
considers the holding an undue extension of the doctrine that prelimi-
nary preparations are insufficient. Cr. Law, 181, note. But the case
has been cited with approval by courts of high standing. The exact
in(jniry presented by the f-nqp bpfnyp na jg yybether the procurement of
the means of committing the offence is to he treated as a preparation
Jor the attempt. or_aS-iihn nttompt itnolf iln considering this question, it
must be remembered that there are some acts, preparatory in their char-
acter, which the law treats as substantive offences ; for instance, the
procuring of tools for the purpose of counterfeiting, and of indecent
prints with intent to publish them. Comments upon cases of this char-
acter may lead to confusion if not correctly apprehended. Wharton,
Cr. Law, § 180, and note 1.
The case of Griffin v. The State, 26 Ga. 493, cited by the respon-
dent, cannot be accepted as an authority in his favor. There the de-
fendant was charged with attempting to break into a storehouse with
intent to steal, by procuring an impression of the key to the lock and
preparing from this impression a false key to fit the lock. The section
of the Penal Code upon which the indictment was based provides for
the indictment of any one who " shall attempt to commit an offence
prohibited by law, and in such an attempt shall do any act toward the
commission of such offence." The court considered that the General
Assembly used the word "attempt" as synonymous with "intend,"
and that the object of the enactment was to punish " intents," if dem-
onstrated by an act. The court cited Rex v. Sutton, 2 Str. 1074, as a
strong authority in support of the indictment. There the prisoner was
convicted for having in his possession iron stamps, with intent to im-
press the sceptre on sixpences. This was not an indictment for any
attempt, but for the offence of possessing tools for counterfeiting with
intent to use them. The Georgia court, by its construction of the
statute, relieved itself from the distinction between " attempts " and
crimes of procuring or possessing with unlawful intent.
132 , STATB V. HUELET. [CHAP.'II.
The act in question here is the procuring by a prisoner of tools
adapted to jail breaking. ^That act stands entirely unconnected with
any further act looking. Jo^tbeir-juseg It is true that the respondent
■pr5cure3~them with the design of breaking jail. But he had not put
that design into execution, and might never have done so. He had
procured the means of making the attempt, but the attempt itself was
still in abeyance. Its inauguration depended upon the choice of an
occasion and a further resolve. That stage was never reached, and the
procuring of the tools remained an isolated act. To constitute an
attempt, a preparatory act of this nature must be connected with the
accomplishment of the intended crime by something more than a
general design.
Exceptions sustained, judgment and verdict set aside, demurrer sus-
tained, information held insufficient and quashed, and respondent
discharged.
SECT, v.] DOBBS'S CASE. 133
SECTION V.
A Specific Intent as Part of an Offence,.
1 Hale P. C. 569. • [Arson] must be a wilful and malicious burning,
otherwise it is not felony, but only a trespass ; and therefore if A.
shoot unlawfully in a hand-gun, suppose it to be at the cattle or poul-
try of B. and the fire thereof sets another's house on fire, this is not
felony, for though the act he was doing were unlawful, yet he had no
intention to burn the house thereby, against the opinion of Dalt. Cap.
105 p. 270.
But if A. have a malicious intent to burn the house of B., and in
setting Are to it burns the house of B. and C. or the house of B.
escapes bj' some accident, and the fire takes in the house of C. and
burneth it, though A. did not intend to burn the house of C, yet in
law it shall be said the malicious and wilful burning of the house of
C. and he may be indicted for the malicious and wilful burning of the
house of C. Co. P. C. p. 67.
DOBBS'S CASE.
Buckingham Assizes. 1770.
[Reported 2 East, P. C. 513.]
Joseph Dobbs was indicted for burglary in breaking and entering
the stable of James Bayley, part of his dwelling-house, in the night,
with a felonious intent to kill and destroy' a gelding of one A..B., there
being. It appeared that the gelding wa's to have run for forty guineas,
and that the prisoner cut the sinews of his fore-leg to prevent his run-
ning, in consequence of which he died.
Parker, C. B., ordered him to be acquitted ; for his intention was
not to commit the felony, by killing and destroying the horse, but a
trespass only to prevent his running ; and therefore no burglary.
But the prisoner was again indicted for killing the horse, and
capitally convicted.
134 REX V. KELLY. [CHAP. II.
REX V. BOYCE.
Ceown Case Reserved. 1824.
[Reported 1 Moody, 29.]
The prisoner was tried before Thomas Denman, Esq., Common
Serjeant at the Old Bailey Sessions, June, 1824, upon an indictment for
feloniously cutting and maiming John Fishburn, with intent to murder,
maim, and disable.' There was no count which charged an intent to
prevent his lawful apprehension.
The facts were these :
The prisoner had, in the night time, broken into a shop in Fleet
Market, and was there discovered by the prosecutor, who was a watch-
man, at a quarter before five in the morning of the 11th of April, 1820.
On the prosecutor entering the shop for the purpose of apprehending
him, the prisoner struck him witli his fist, which blow the prosecutor
returned. The prisoner then said, " I will serve you out — I will do
for you ; '' and, taking up a crow-bar, struck the prosecutor with it
two severe blows, one on the head, the other on the arm ; he then
ran away, ordering the prosecutor to sit on a block in the shop, and
threatening that it would be worse for him if he moved.
The crow-bar was a sharp insti'ument, and the prosecutor was cut
and maimed by the blows so given with it hy the prisoner.
The prisoner was found guilty; and, on an answer to a question from
the Common Serjeant, the jur}' said, "We find that he was there with
intent to commit a robber}-, and that he cut and maimed the watchman
with intent to disable him till he-CQuld eflfect his own escape."
The Coftmon Serjeant reserved the above case for the consideration
of the judges.
In Trinity Term, 1824, all the judges (except Graham, B. and
Garrow, B.) met, and considered this case, and held the conviction
wrong, for, by the finding of the jury, the prisoner intended only to
produce a temporary disability, till he could escape, not a permanent
REX V. KELLY.
MoNAGHAN Assizes, Ireland. 1832.
[Reported 1 Crawford Sr Dix, 186 ]
Indictment for maliciously killing a horse. The evidence was that
the prisoner had fired at the prosecutor, and killed his horse.
1 See 43 Geo. II!. o. 58, § 1.
^ Jcc. Rox V. niiffin, Euss. & Ry. 365. — Ed.
SBOT. V,J EEGINA V. SMITH. 135
BusHE, C. J. Under this Act * the offence must be proved to have
been done maliciously, and malice implies intention. Here the proof
negatives the intention of killing the horse. The prisoner must there-
fore be acquitted.*
EEGINA V. SMITH.
Ckown Case Reserved. 1856.
[Reported Dears. C. C. 559.]
The following case was stated for the opinion of the Court of Crim-
inal Appeal by Mr. Justice Ceompton.
The prisoner was convicted before me at the "Winchester Summer
Assizes, 1855, on an Indictment charging him with wounding "William
Taylor with intent to murder^im.
On the night in question the prisoner was posted as a sentry at Park-
hurst, and the prosecutor, Taylor, was posted as a sentry at a neigh-
bouring post.
The prisoner intended to murder one Maloney, and supposing Taylor .^'j
to be Maloney, shot at and wounded Taj'lor.
The jury found that the prisoner intended to murder Maloney, not
knowing that the party he shot at was Taylor, but supposing him to be
Maloney, and the jury found that he intended to murder the individual
he shot atsu£po§ingJiim-to-Jje-Mal©Bei'.
' 1 directed sentence of death to be recorded, reserving the question,
whether the prisoner could be properly convicted on this state of facts
of wounding Taylor with intent to murder him ? See Eex v. Holt, 7
Car. & P. 518. See alro Rex i;. Ryan, 2 Moo. & Rob. 213.
Chakles Crompton.
This case was considered on 24th of November, 1855, by Jervis,
C. J., Pakke, B., "Wightman, J., Crompton, J., and "Willes, J.
No counsel appeared either for the Crown or for the prisoner.
Jervis, C. J. There is nothing in the objection. The conviction is
good.
Parke, B. The prisoner did not intend to kill the particular person,
t^^it ha mfifi"t. tr. mn^f^ffi- t.hf; manlil whom hti shot.
The other learned Judges concurred.
Conviction affirmed.
1 9 Geo. IV. c. 56, § 17.
s Ace. Com. V. Walden, 3 Cnsh. 558. — Ed.
136 EEX V. WILLIAMS. [CHAP. II.
REX V. WILLIAMS.
Crown Case Kevbrsed. 1790.
[Reported 1 Leach C. C. {4th Ed.) 529.]
AsHHURST, J.* Ehenwick Williams, the prisoner at the bar, was tried
in last Jul}' Session on the statute of 6 Geo. I, c. 23, and the indict-
ment charged, that he, on the 18th Januar}' 1790, at the parish of St.
James, in a certain public street called St. James's-street, wilfully,
maliciously, and feloniously did make an assault on Anne Porter,
spinster, with intent wilfully «.nd maliciously to tear, spoil, cut, and
deface her garments-;- and that he, on that said 18th of January 1790,
"in the parisTaforesaid, &c. did wilfuUj', maliciouslj-, and feloniously
tear, spoil, cut, and deface her silk gown, petticoat, and shift, being
part of the wearing apparel which she then had and wore on her
person. The Jury found the prisoner guilty/ but the judgment was
respited, and the case submitted to the consideration of the Judges
upon three questions. A majority of the Judges are of opinion, upon
all the questions, that this indictment is not well founded. . . . The
Jiid^ri_jrr nf npininn. thrit tlir rnnn. as proved, is r\qt snhatan tially
wfthinthe meaning of the Act_of_Earliament- This statute was passed
upon a piiftlCUlar and extraordinary occasion. Upon the introduc-
tion of Indian fashions into this country, the silk weavers, conceiving
that it would be detrimental to their manufacture, made it a practice to
tear and destroj' the clothes and garments which were of a different
commodity from that which thej' wove, and to prevent this practice
the statute of 6 Geo. I, c. 23, was made. To bring a case therefore
within this statute, the primary intention must be the tearing, spoiling,
cutting, or defacing of the clothes ; whereas, in the present case, the
primary intention of the prisoner appears to have been the wounding
of the person of the prosecutrix. The Legislature, at the time they
passed this Act, did not look forward to the possibility of a crime
of so diabolical a nature as that of wounding an unoffending person
merely for the sake of wounding the person, without having received
any provocation whatever from the party wounded. But even upon the
supposition that it was possible for the Legislature to entertain an idea
of such an offence, it is clear they did not intend to include it within
the penalties of this statute, because, if they had entertained such an
idea, it is probable they would have annexed to it a higher punishment
than this statute inflicts. As the Legislature therefore could not have
framed this statute to meet this offence, it does not . fall within the
province of those who are to expound the laws to usurp the office of the
1 Part of the opinion only is given. — Ed.
SECT, v.] STATE V. TAYLOR. 137
Legislature, and to bring an offence within the meaning of an Act,
merely because it is enormous, and deserving of the highest punish-
ment. But although the lash of the Legislature does not reach this
offence so as to inflict the consequences of felony on the offender, yet
the wisdom of the Common Law opens a means of prosecution by
indictmsnt for the— i&tsd<»mettti^:tt^ and, on conviction of the offuiiffer,
arms the Court with a power to punish the offence in a way that may
force him to repent the temerity of so flagrant a violation of the rules
of law, the precepts of social duty, and the feelings of humanity.*
STATE V. TAYLOR.
Supreme Court of Vermont. 1896.
[Reported 70 Vt. I.]
Indictment for an assault with intent to kill and murder. Trial by
jury at the May Term, 1895, Windsor County, Taft, J., presiding.
Verdict and judgment of guilty, and sentence imposed at the respond;
ent's request. The respondents excepted.
MuNSON, J.'^ The alleged assault was committed upon Paul Tink-
ham, constable of Rochester, and three persons acting under him, while
they were effecting an arrest of the respondents and two others, with-
out a warrant on suspicion of felonj\ . . .
It is also objected that the respondents could not be convicted of
more than a common assault without the finding of an actual intent to
take life, and that the charge permitted the jury to return their verdict
without finding this. It has been repeatedly held in cases not involving
the matter of arrest that proof of a specific intent to kill is requisite.
The intent is the body of the aggravated offence. If death results from
an unlawful act, the offender may be guilty of murder, even though he
^ It seems that Boller, J., retained the opinion he had given the Jury, viz. that
the case came within the statute, because the Jury, whose sole prorince it was to find
the intent, had expressly found that the intent of the prisoner was to wound the
party by cutting through her clothes, and therefore that he must haye intended to cut
her clothes ; and for this opinion he *elied upon the case of Cook and Woodburn, upon
the statute 22 and 23 Car. II, c. 1, commonly called the Coventry Act, charging them
in the words of the Act with an intention to maim a Mr. Crisp. The fact of maiming
was clearly proved, but the defendants insisted tliat their intention was to murder
him, and not to maim him, and therefore that they were not within the statute. But
Lord King said that the intention was » matter of fact to be collected from the cir-
cumstances of the case, and as such was proper to be left to the Jury ; and that if it
was the intent of the prisoners to murder, it was to be considered whether the means
made use of to accomplish that end and the consequences of those means were not
likewise in their intention and design ; and the Jury found them guilty and they were
executed. — But it seems that upon a subsequent occasion Willes, J., and £yke, B.,
expressed some dissatisfaction with this determination, and thought, at least, that the
construction ought not to be carried further. 1 East, 400 and 424.
2 Only so much of the case as discusses the question of intent to kill is given. —
Ed.
138 STATE V. TAYLOR. [OHAP. II.
did not intend to take life ; but if the assaiilt,JioweYer dangerougiJa
not ^wijjTg_»gqti^'''- ^-"""*^ ^-^ mnvicted of an assault withintent to
-^nninTesslheTntenLfixials^. An intent to take life may sometimes be
-prssumedlVom"the~fect of killing, but when that fact does not exist the
intent must be otherwise established. Any inference that may be drawn
from the nature of the weapon and the manner of its use is an inference
of fact to be drawn by the jury upon a consideration of these with the
other circumstances of the case. 2 Bish. Crim. Law, § 741 ; Koberts
V. People, 19 Mich. 401 ; Patterson v. State, 85 Ga. 131 ; 21 Am. St.
152.
Nor do we find any ground for holding otherwise when the assault
is made in resistin^g arrest. Under an indictment framed like this, a
respondent may be convicted of an assault with intent to kill, or an
assault with intent to murder. State v. Reed, 40 Vt. 603. The grade
of the assault will depend upon whether the crime would have been
manslaughter or murder if death had ensued. But if the death had_
rpgnltPfj^frnni rpsifitingr an fl.ntihnrized arrest properly made, the CLJaie
woind have been murder, regardless of the question of malice. So if
the assault charged was committed in resisting such an arrest, afld was
found to have been made with intent to kill, it would have been an
assault with intent to murder. But in the case of either assault there
must have been the intent to take life. The elimination from the in-
quiry of malice as the distinguishing test between murder and man-
slaughter, and so between the two grades of assaults, does not eliminate
the question of specific intent, which is an essential element even of the
lower offence. The malice which the law infers from resistance to law-
ful arrest does not cover the intent to do a particular injury, and the
question of intent must stand the same as in other cases.
So it becomes necessary to consider whether the matter of intent was
properly submitted to the jury. The question was not entirelj' ignored
by the court, but it was omitted from the general propositions sub-
mitted, and we think the charge as a whole could not fail to leave upon
the minds of the jury an impression that if the circumstances of the
arrest were such that the killing of the officer would have been murder,
the assault was an assault with intent to murder. The attention of the
jury was directed almost exclusively to the question of guilt as depend-
ing upon the legality of the arrest. They were nowhere distinctly told
that unless the respondents were found to have made the assault with
an intent to take life, they could be convicted of nothing but a common
assault.
SECT. V:] EEX V. SHEPPAED. 139
REX V. SHEPPARD.
Ceown Case Reserved. 1810.
[Reported Russell ^ Ri/an, 169.]
The prisoner was tried before Mr. Justice Heath, at tlie Old Bailey
September sessions, in the year 1809, on an indictment consisting of
four counts.
The first count charged the prisoner with forging a receipt for
£19 16s. M., purposing to be signed by W. S. West, for certain stock
therein mentioned, with intentlO-defraud the gpij^rnors and com{)anv
of the^ank-of England. The second count was for uttering the same
knowing it to be forged, with the like intent. The third and fourth
■counts varied from the first and second in charging the intent to have
been to defraud Richard Mordey.
It appeared in evidence at the trial that Richard IVfordey gave £20
to his brother, Thomas Mordey, in the month of January, 1809, to
buy stock in the five per cent Navy.
In February following Thomas Mordey gave the £20 to the prisoner
for the purchase of the said stock, on the prisoner's delivering to him
the receipt stated in the indictment.
The prisoner being examined at the bank, confessed that the receipt
was a forgery, that there was no such person as W. S. West, whose
signature appeared subscribed to the receipt, and that he, being-
pressed for money, forged that name, but had no intention of defraud-
ing Richard Mordey.
Richard Mordey and Thomas Mordey swore they believed that the
prisoner had no such intent.
On examining the bank books, no transaction corresponding with
this could be found.
The learnpd jndgp tnld the ^ury that th£ prisoner was entitled to an
acquittal on the first and seconoScounts, because the receipt in ques-
tion could not operate in fraud of iSt^e governor and company of the
bank. \
That as to the third and fourth counts, although the Mordeys
swore that they did not believe the forgery to have been committed
with an intent to defraud Richard Morde^ yet, as it was the neces-
sary effect and consequence of the forgery, \f the prisoner could not
repay the money, it was sufficient evidence ofthe intent for them to
rTf>nvict the nrianner. ' ^^^ '
The jui-y^cquitted the prisoner on the first and second counts, and
found him guilty on the third and fourth counts ; and the learned
judge reserved this case for the opinion of the judges, to determine
whether this direction to the jury was right and proper.
In Easter terra, 31st of May, 1810, all the judges were present, and
they were all of opinion that the conviction was right, that the imme-
diate effect of the act was the defrauding of Richard Mordey of his
money.
140 gore's case. [chap. ii.
GOKE'S CASE.
Ckown Case Keserved. 1611.
[Reported 9 Coke, 81 a.]
Before Fleming, Chief Justice, aud Tanfield, Chief Baron, Justices
of Assize, this case happened in their western circuit. Agnes, the
daughter of Koper, married one Gore ; Gore' fell sick ; Roper, the
father, in good-will to the said Gore his son-in-law went to one Dr.
Gray, a ph3-sician, for his advice, who made a receipt directed to one
Martin, his apothecarj^ for an electuarj' to be made, which the said
Martin did and sent it to the said Gore ; Agnes, the wife of Gore^
secTfiUy-HirsBd-sigi^bane with the electuarj', to the intent therewith to
poison her husbandj^nd afterward, 18 Mail, she gave part of it to her
husband, who eat thereof and immediately became grievously sick ;
the same daj' Roper the father eat of it, and immediately also became
sick ; 19 Maii C. eat part of it, and he likewise fell sick ; but they all
recovered, and j'et are alive. The said Roper, observing the operation
of the said electuary, carried the said box with the said electuary 21
Mail to the said Graj' the physician and informed bira of the said
accidents, who sent for the said Martin the apothecary and asked him
if he had made the said electuarj' according to his direction, who
answered that he had in all things but in one, which he had not in his
shop, but put in another thing of the same operation, which the said
Dr. Gray well approved of; whereupon Martin the apothecary said, " To
the end you may know that I haye^jiofput anything in it which I
myself will not eat, I will here--belore you eat part of it," and there-
upon Martin took thebosr^nd with his knife mingled and stirred to-
gether the said,^el:ectuary, and took and eat part of it, of which he
died the 2^draa.y of May following. The question was, if upon all
tKismatter Agnes had committed murder. And this case was deliv-
ered in writing to all the judges of England to have their opinions in
the case ; and the doubt was, because Martin himself of his own head,
without incitation or procurement of an}', not only eat of the said
electuary, but he himself mingled and stirred it together, which mix-
ing and stirring had so incorporated the poison with the electuary,
that it made the operation more forcible than the mixture which the
said Agnes had made ; for notwithstanding the mixture which
Agnes had made, those who eat of it were sick, but j-et alive, but the
mixture which Martm has made In* mingling and stirring of it with
his knife, made the operation of the poison more forcible and was the
occasion of his death. And if this circumstance would make a differ-
ence between this case and Saunders's case in Plow. Com. 474 was
the question.
And it _was_jesolved by alltbe_judgesj]ha,t-4hi! iij,id Agn£a_jHea3
ppiiilfy'nf^o T^n^^^rqp^;__of tEe"salaJW°^'^^^^T^^'• the law conjoins the mur-
SECT, v.] EEGIKA V. PEMBLITON. 141
derous intention of Agnes in putting the poison into the electuary to
kill her husband with the event which thence ensued, — sc. the
death of the said Martin ; for the putting of the poison into the elec-
tuary is the occasion and cause, and the poisoning and death of the
said Martin is the event, quia eventus est qui ex causa sequitur, et
dicuntur eventus quia ex causis eveniunt, and the stirring of the
electuary hy Martin with his knife without the putting in of the poison
by Agnes could not have been the cause of his death.
And it was also resolved that if A. puts poison into a pot of wine,
&c., to the intent to poison B., and sets it in a place where he sup-
poses B. will come and drink of it, and by accident C. (to whom A .
has no malice) comes and of his own head takes the pot and drinks of
it, of which poison he dies, it is murder in A., fnr thp ]aw r-nnplpg thi»
event with the intention, and the_en£| wit.h thp p^nsa ; and in the same
'^as^TfCTthinking that sugar is in the wine, stirs it with a knife and
drinks of it, it will not alter the case ; for the King by reason of the
putting in of the poison with a murderous intent has lost a subject ;
and therefore in law he who so put in the poison with an ill and felo-
nious intent shall answer for it. But if one prepares ratsbane to kill
rats and mice, or other vermin, and leaves it in certain places to that
purpose, and with no ill intent, and one finding it eats of it, it is not
felony, because he who prepares the poison has no ill or felonious in-
tent ; but when one prepares poison with a felonious intent to kill any
reasonable "creature ; whataonvpr rrnrnnnblr prrfitnrn if; thrrrhy Irillffl ,
'hp. who ha,a the fll nnH fp1r»Tiiniig intent shall be punished for it, for
"^he ii""as great an offender as if his intent against, t.hp nthpr parann
"Hwid taken -eflect; Alnd" if the law should not be such, this horrible
and heinous offence would be unpunished ; which would be mischievous
and a great defect in the law.
EEGINA *. PEMBLITON.
Crown Case Reserved. 1874.
[Reported 12 Cox 0. C. 607.]
Case stated for the opinion of this court by the Recorder of
Wolverhampton.
At the Quarter Sessions of the Peace held at Wolverhampton on the
8th day of January instant Henry Pembliton was indicted for that he
" unlawfully and maliciously did commit damage, injury, and spoil upon
a window in the house of Henry Kirkliam " contrary to the provision
of the stat. 24 & 25 Vict. c. 97, s. 61. This section of the statute
enacts : —
" Whosoever shall unlawfully and maliciously commit any damage,
Injury, or spoil to or upon any real or personal property whatsoever,
142 EEGINA V. PBMBLITON. [CHAP. II.
either of a public or a private nature, for which no punishment is
hereinbefore provided, the damage, injury, or spoil being to an amount
exceeding £5, shall be gull 13- of a misdemeanor, and being convicted
thereof shall be liable, at the discretion of the court, to be imprisoned
for any term not exceeding two years, with or without hard labor ; and
in case any such offence shall be committed between the hours of nine
of the clock in the evening and six of the clock in the next morning, he
shall be liable at the discretion of the court to be kept in penal servi-
tude for any term not exceeding five years, and not less than three, or
to be imprisoned for any term not exceeding two years, with or without
hard labor." .
On the night of the 6th day of December, 1873, the prisoner was
drinking with others at a public-house called " The Grand Turk " kept
by the prosecutor. About eleven o'clock p. m. the whole party were
turned out of the house for being disorderly, and they then began to
fight in the street and near the prosecutor's window, where a crowd
of from forty to fifty persons collected. The prisoner, after fighting
some time with persons in the crowd, separated himself from them, and
removed to the other side of the street, where he picked up a large
stone and threw it at the persons he had been fighting with. The stone
passed over the heads of those persons, and struck a large plate-glass
window in the prosecutor's house, and broke it, thereby doing damage
to the extent of £7 12s. dd.
The jury, after hearing evidence on both sides, found that the pris-
oner threw the stone which broke the window, but that he threw it at
the people^he had been fighting with, intendino; to strike one or more of
■them with it, but not intending to break the window ; and they returned
a verdict of "guilty," whereupon I respited the sentence, and admitted
the prisoner to bail, and pray the judgment of the Court for Crown
Cases Eeserved, whether upon the facts stated and the finding of the
jury, the prisoner was rightly convicted or not.
(Signed) John J. Powell,
Recorder of Wolverhampton.
No counsel appeared to argue for the prisoner.
X Underhill, for the prosecution.^
Lord Coleridge, C. J. I am of opinion that this conviction must
be quashed. The facts of the case are these. The prisoner and some
other persons who had been drinking in a public-house were turned out
of it at about eleven p. m. for being disorderly, and they then began to
fight in the street near the prosecutor's window. The prisoner sepa-
rated himself from the others, and went to the other side of the street,
and picked up a stone, and threw it at the persons he had been fighting
with. The stone passed over their heads, and broke a large plate-glass
window in the prosecutor's house, doing damage to an amount exceed-
ing £5. The jury found that the prisoner threw the stone at the people
^ The argument is omitted.
SECT, v.] REGINA. V. PEMBLITON. 143
he had been fighting with, intending to strike one or more of them with it,
but not intending to brealc the window, The question is whetlier under
an . indictment for unlawfully- and maliciously committing an injury to
the window in the house of the prosecutor, the proof of these facts alone,
coupled with tlie finding of the jury, will do. Now I think that is not
enough. The indictment is framed under the 24 & 25 Vict. c. 97, s. 51.
The Act is an Act relating to malicious injuries to property, and section
51 enacts that whosoever shall unlawfully and maliciously commit anj'
damage, &c., to or upon any real or personal property whatsoever of a
public or a private nature, for which no punishment is hereinbefore
provided, to an amount exceeding £5, shall be guilty of a misdemeanor.
There is also the 58th section which deserves attention. " Every pun-
ishment and forfeiture bj' this Act imposed on any person maliciously
committing any offence, whether the same be punishable upon indict-
ment or upon summar3' conviction, shall equally applj^ and be enforced,
whether the offence shall be committed from malice conceived against J
the owner of the property in respect of which it shall be committed,/
or otherwise." It seems to me on both these sections that what was
intended to be provided against by the Act is the wilfully doing an
unlawful act, and that the act must be wilfully and intentionally done
on the part of the person doing it, to render him liable to be convicted.
Without saying that, upon these facts, if the jury had found tliat the
prisoner had been guilty of throwing the stone recklessly, knowing that
there was a window near which it might probably hit, I should have
been disposed to interfere with the conviction, yet as thej' have found
that he threw the stone at the people he had been fighting with, intend-
ing to strike them and not intending to break the window, I think the
conviction must be quashed. I do not intend to throw any doubt on
the cases which have been cited, and which show what is sufficient to
constitute malice in the case of murder. They rest upon the princi-
ples of the common law, and have no application to a statntor3- offence
created by an Act in which the words are carefully studied.
Blackburn, J. I am of the same opinion, and I quite agree that it
is not necessary to consider what constitutes wilful malice aforethought
to bring a case within the common law crime of murder, when we are
construing this statute, which says that whosoever shall unlawfully and
maliciously commit any damage to or upon any real or personal prop-
erty to an amount exceeding £5, shall be guilty of a misdemeanor.
A person may be said to act maliciously when he wilfully does an
unlawful act without lawful excuse. The question here is. Can the
prisoner be said, when he not only threw the stone unlawfully, but
broke the window unintentionally, to have unlawfully and maliciously
broken the window? I think that there was evidence on which the jury
might have found that he unlawfully and maliciously broke the window,
if they had found that the prisoner was aware that the natural and
probable consequence of his throwing the stone was that it might break
the glass window, on the principle that a man must be taken to intend
144 EEGINA V. FAULKNER. [CHAP. II.
what is the natural and probable consequence of his acts. But the jury
have not found that the prisoner threw the stone, knowing that, ou the
other side of the men he was throwing at, there was a glass window,
and that he was recliless as to whether he did or did not break the
window. On the contrary, they have found that he did not intend to
break the window. I think therefore that the conviction must be
quashed.
PiGOTT, B. I am of the same opinion.
Lush, J. I also think tliat on this finding of the jury we have no
alternative but to hold that the conviction must be quashed. The word t
" maliciously "rnpans nry a.fiti done either actually or constructively witli
-nraticToiisTntention. The jury might have found tnat he did intend
actually to break the window, or constructively to do so, as that he
knew that the stone might probably break it when he threw it. But
they have not so found.
Cleasbt, B., concurred. Conviction quashed.
REGINA V. FAULKNER.
Crown Case Reserved, Ireland. 1877.
[Reported 13 Cox C. 0. 550.]
Case reserved by Lawson, J., at the Cork Summer Assizes, 1876.
The prisoner was indicted for setting fire to the ship " Zemindar," on
the high seas, on the 26th day of June, 1876. The indictment was as
follows: "T.Hat Robert Faulkner, on the 26th day of June, 1876, on
board a certain ship called the ' Zemindar,' tlie property of Sandback,
Tenne, and Co., on a certain vo3'age on the high seas, then being on
the high seas, feloniously, unlawfully, and maliciouslj', did set fire to the
said ship ' with intent thereby to prejudice the said ' (these words were
struck out at the trial by the learned judge, and the following words
inserted, ' called the " Zemindar," the property of) Sandback, Tenne,
and Co., and that the said Robert Faulkner, on the day and year afore-
said, on board a certain ship called the ' Zemindar,' being the property
of Sandback, Parker, and other, on a certain voyage on the high seas,
then being upon the high seas, feloniously, unlawfully, and maliciously,
did set fire to the said ship, with intent thereby to prejudice the said
Sandback, Parker, and other, the owners of certain goods and chattels
then laden, and being on board said ship." It was proved that the
" Zemindar" was on her voyage home with a cargo of rum, sugar, and
cotton, worth £50,000. That the prisoner was a seaman on board, that
he went into the forecastle hold, opened the sliding door in the bulk-
head, and so got into the hold where the rum was stored ; he had no
business there, and no authority to go there, and went for the purpose
of stealing some rum ; that he bored a hole in the cask with a gimlet ;
that the rum ran out ; that when trying to put a spile in the hole out of
SECT, v.] REGINA V. FAULKNER. 145
which the rum was running he had a lighted match in his hand ; that
the rum caught fire ; that the prisoner himself was buraed on the arms
and neck ; and that the ship caught fire and was completely destroyed.
At the close of the case for the Crown, counsel for the prisoner aslied
for a direction of an acquittal on the ground that on the facts proved
the indictment was not sustained, nor the allegation that the prisoner
had unlawfully and maliciously set fire to the ship proved. The Crown
contended that inasmuch as the prisoner was at the time engaged in
the commission of a felony, the indictment was sustained, and the
allegation of the intent was immaterial.
At the second hearing of the case, before the Court for Crown Cases
Reserved, the learned judge made the addition of the following para-
graph to the case stated by him for the court.
' ' It was conceded that the prisoner had no actual intention of burn-
ing the vessel, and I was not asked to leave any question to the jury
as to the prisoner's knowing the probable consequences of his act, or
as to his reckless conduct."
The learned judge told the jury that although the prisoner had no
actual intention of burning the vessel, still if they found he was en-
gaged in stealing the rum, and that the fire took place in the manner
above stated, they ought to find him guilty. The jury found the pris-
oner guilty on both counts, and he was sentenced to seven years' penal
servitude. The question for the court was whether the direction of th»
learned judge was right ; if not, the conviction should be quashed.'
I'eter O'Brien, for the prisoner.
The Attorney General (May), with him Green, Q. C, for the Crown."
O'Brien, J.^ I am also of opinion that the conviction should be
quashed, and I was of that opinion before the case for our consideration
was amended by my brother Lawson. I had inferred from the original
case that his direction to the jurj' was to the effect now expressly stated
by amendment, and that, at the trial, the Crown's counsel conceded
that the prisoner had no intention of burning the vessel, or of ignit-
ing the rum ; and raised no questions as to prisoner's imagining or
having any ground fqr supposing that the fire would be the result or
consequence of his act in stealing the rum. With respect to Reg. v.
Pembliton, 12 Cox C. C. 607, it appears to me there were much stronger
grounds in that case for upliolding the conviction than exist In the case
before us. In that case the breaking of the window was the act of the
prisoner. He threw the stone that broke it ; he threw it with the un-
lawful intent of striking some one of the crowd about, and the breaking
of the window was the direct and immediate result of his act. And yet
^ 24 & 25 Vict. c. 97, s. 42, "Whoever shall unlawfully and maliciously set fire to,
cast away, or in anywise destroy any ship or vessel . . . shall be guilty of felony."
^ Arguments of counsel are omitted.
' Concurring opinions of Barry and Fitzgerald, JJ., and Fitzgerald, B., and
the dissenting opinion of Keogh, J. are omitted. Dowse and Deasy, BB., and
Lawson, J. also concurred. — Ed.
146 KEGINA V. FAULKNER. [CHAP. II.
the court unanimously quashed the conviction upon the ground that,
although the prisoner threw the stone intending to strike some one or
more persons, he did not intend to break the window. The courts
above have intimated their opinion that if the jury, upon a question to
that effect being left to them, had found that the prisoner, knowing the
window was there, might have reasonably expected that the result of
his act would be the breaking of the window, that then the conviction
should be upheld. During the argument of this case the Crown counsel
required us to assume that the jury found their verdict upon the ground
that in their opinion the prisoner may have expected that the fire would
be the consequence of his act in stealing the rum, but nevertheless did
the act recklessly, not caring whether the fire took place or not. But
at the trial there was not even a suggestion of any such ground, and
J we cannot assume that the jury formed an opinion which there was no
evidence to sustain, and which would be altogether inconsistent with
the circumstances under which the fire took place. The reasonable
inference from the evidence is that the prisoner lighted the match for
the purpose of putting the spile in the hole to stop the further running
of the rum, and that while he was attempting to do so, the rum came in
contact with the lighted match and took fire. The recent case of Reg.
V. Welch, 13 Cox C. C. 121, has been also referred to, and has been
relied on by the Crown counsel on the ground that, though the jury
found that the prisoner did not, in fact, intend to kill, maim, or wound
the mare that had died from the injury inflicted by the prisoner, the
prisoner was, nevertheless, convicted on an indictment charging him
with having unlawfullj' and maliciously killed, maimed, or wounded the
mare, and such conviction was upheld by the court. But on referring
to the circumstances of that case it will be seen that the decision in it
does not in any way conflict with that in the previous case of Reg. v.
Pembliton, and furnishes no ground for sustaining the present convic-
tion. Mr. Justice Lindley, who tried that subsequent case, appears to
have acted in accordance with the opinion expressed by the judges in
Reg. V. Pembliton. Besides leaving to the jurj' the question of prisoner's
intent, he also left them a second question, namel}-, whether the pris-
oner, when he did the act complained of, knew that what he was doing
would or might kill, maim, or wound the mare, and nevertheless did the
act recklessly, and not caring whether the mare was injured or not.
The jury answered that second question in the affirmative. Their
finding was clearly warranted by the evidence, and the conviction was
properly aflflrmed. ' By those two questions a distinction was taken
between the case of an act done by a part)- with the actual intent to
cause the injury inflicted, and the case of an act done bj- a party know-
ing or believing that it would or might cause such injury, but reckless
of the result whether it did or did not. In the case now before ns there
was no ground whatever for submitting to the jury any question as to
the prisoner believing or supposing that the stealing of the rum would
be attended with a result so accidental and so dangerous to himself
SECT, v.] EEGINA V. FAULKNER. 147
During the argument doubts were suggested as to the soundness of the
decision in Reg. v. Pembliton ; but in my opinion that case was rightly
decided, and should be followed. Its authority was not questioned in
Eeg. V. Welch, in which the judges who constituted the court were
different from those who had decided Reg. v.- Pembliton, with the excep-
tion of Lord Coleridge, who delivered the judgments of the court on
both occasions.
Palles, C. B. 1 concur in the opinion of the majority of the court,
and I do so for the reasons already stated by my brother Fitzgerald.
I agree with my brother Keogh that from the facts proved the inference
might have been legitimately drawn that the setting fire to the ship
was malicious within the meaning of the 24 & 25 Vict. c. 97. I am of
opinion that that inference was one of fact for the jury, and not a con-
clusion of law at which we can arrive upon the case before us. There
is one fact from which, if found, that inference would, in my opinion,
have arisen as matter of law, as that the setting fire to the ship was the
probable result of the prisoner's act in having a lighted match in the
place in question ; and if that had been found I should have concurred
in the conclusion at which Mr. Justice Keogh has arrived. In my
judgment the law imputes to a person who wilfully commits a criminal
act an intention to do everything which is the probable consequence of
the act constituting the corpus delicti which actually ensues. In mj-
opinion this inference ' arises irrespective of the particular consequence
which ensued being or not being foreseen by the criminal, and whether
his conduct is reckless or the reverse. This much I have deemed it
right to saj' to prevent misconception as the grounds upon which mj'
opinion is based. I wish to add one word as to Reg. v. Pembliton, 12
Cox C. C. 607. In mj' opinion the learned judges who were parties to
that decision never intended to decide, and did not decide, anything
contrary to the views I have expressed. That they did not deem actual
intention, as distinguished from implied intention, essential is shown
by the subsequent case of Reg. v. Welch, in which an indictment under
the 40th section of the same Act was upheld, although actual intention
was negatived by the jury. The facts found in answer to the second
question in that case cannot have been relied upon as evidence of
actual intention. As evidence thej- would have been valueless in face
of the finding negativing the fact which in this view thej' would have
but tended to prove. Their value was to indicate a state of facts in
which intention was imputed b}- an irrefutable inference of law. It was
not germane to the actual decisions in Reg. v. Pembliton and Reg. 'v.
Welch to determine whether the state of facts from which this inference
of law arises is that suggested in the first case and acted upon by the
second, or the circumstance of one act being the natural consequence
of the other. Some of the learned judges, no doubt, during the argu-
ments and in their judgments in the first case indicate a state of facts
from which this inference would arise. They do not decide that the
same inference might not arise in the other state of facts to which 1
148 EEGINA V. LATIMER. [CHAP. II.
have alluded. If, contrary to my own view of that case, it shall be held
to involve that intention to do that which is a necessary consequence
of a wrongful act wilfully committed is not an inference irrefutable as
matter of law, I must say, with unfeigned deference, that I shall hold
myself free hereafter to decline to follow it. The Lord Chief Justice
of the Common Pleas, who, in consequence of illness, has been unable
to preside to-day, has authorized me to state that he considers that the
case before us is concluded by Reg. v. Pembliton.
Gonviction quashed.
REGINA V. LATIMER.
Ceown Case Reserved. 1886.
[Reported 16 Cox C. C. 70.]
Case stated by the learned Recorder for the borough of Devonport
as follows : —
The prisoner was tried at the April Quarter Sessions for the borough
of Devonport on the 10th day of April, 1886.
The prisoner was indicted for unlawfully and maliffloiisly wnnriding
Ellen Rolston. There was a second count charging him with a com-
mon assault."
The evidence showed that the prosecutrix, Ellen Rolston, kept a
public-house in Devonport ; that on Sunday, the 14th day of February,
1886, the prisoner, who was a soldier, and a man named Horace
Chappie were in the public-house, and a quarrel took place, and event-
ually the prisoner was knocked down by the man Horace Chappie.
The prisoner subsequently went out into a yard at the back of the
house. In about five minutes the prisoner came back hastily through
the room in which Chappie was still sitting, having in his hand his
belt which lie had taken off. As the prisoner passed he aimed a blow
with his belt at the said Horace Chappie, and struck him slightly ;
f the belt bounded off and struck the prosecutrix, who was standing
talking to the said Horace Chappie, in the face, cutting her face open
and wounding her severel}'.
At the close of the case the learned Recorder left these questions to
the jury : 1. Was the blow struck at Chappie in self-defence to get
through the room, or unlawfully and maliciously? 2. Did the blow so
struck in fact wound Ellen Rolston? 3. Was the striking Ellen
Rolston purely accidental, or was it such a eonsequence as the pris-
oner should have expected to follow from the blow he aimed at
Chappie ? .
The jury found : 1. That the blow was unlawful and malicious.
2. That the blow did in fact wound Ellen Rolston. 3. That the strik-
ing Ellen Rolston was purely accidental, and not such a consequence
of the blow as the prisoner ought to have expected.
SECT, v.] REGINA V. LATIMER. 149
Upon these findings the learned Recorder directed a verdict of
guilty to be entered to the first count, but respited judgment, and
admitted the prisoner to bail, to come up for judgment at tlie next
sessions.
The question for the consideration of the court was, whether upon
the facts and the findings of the jury the prisoner was rightly con-
victed of the ofience for which he was indicted.
By sect. 20 of 24 & 25 Vict. c. 100, it is enacted that, " Whosoever
shall unlawfully and maliciousl}' wound or inflict any grievous bodily
harm upon any other person, either with or without any weapon or
instrument, shall be guilty of misdemeanor."
Croft for the prisoner.''
„ Helpmati, for the prosecution, was not called upon.
Lord Coleridge, C. J. I am of opinion that this conviction must
be sustained. In the first place, it is common knowledge that, if a
person has a malicious intent towards one person, and in carrying into)
effect that malicious intent he injures another man, he is guilty ofj
what, the law considers malice against the person so injured, becausel
he is guilty of general njalice ; and is guilty if the result of his unlaw-
ful act be to injure a particular person. That would be the law if the
case were res Integra; but it is not res integra because, in Reg. v.
Hunt, a man in attempting to injure A. stabbed the wrong man.
There, in point of fact, he had no more intention of injuring B. than
a man has an intent to injure a particular person who fires down a
street where a number of persons are collected, and injures a person
he never heard of before. But he had an intent to do an unlawful act,
and in canying out that intent he did injure a person ; and the law
says that, under such circumstances, a man is guilty of maliciously
wounding the person actually wounded. That would be the ordinary
state of the law if it had not been for the case of Reg. v. Pembliton.
But I observe that, in such an indictment, as in that case, the words
of the statute carry the case against the prisoner more clearly still,
because, by sect. 18 of the statute 24 & 25 Vict. c. 100, it is enacted
that : '' Whosoever shall unlawfully and maliciously by any means
whatsoever wound . . . anj' person . . . with intent ... to maim,
disfigure, or disable any person . . . shall be guilty of felony ; " and
then sect. 20 enacts that " whosoever shall unlawfully and maliciously
wound . . . any other person . . . shall be guilty of a misdemeanor ; "
and be liable to certain punishments. Therefore, the language of the
18th and 20th sections are perfectly different; and it must be remem-
bered that this is a conviction for an offence under the 20th section.
Now, the Master of the Rolls has pointed out that these very sections
are in substitution for and correction of the earlier statute of 9 Geo. 4,
c. 31, where it was necessary that the act should have been done with
intent to maim, disfigure, or disable such person, showing that the
1 The argument is omitted.
150 REGINA V. LATIMER. [CHAP. II.
inteut must have been to injure the person actually injured. Tbos*.
words are left out in the later statute, and the words are " wound any
other person." I cannot see that there could be any question, but lot
the case of Reg. v Pembliton. Now, I think that that case was prop-
erly decided ; but upon a ground which renders it clearly distinguish-
able from the present case. That is to say, the statute which was
under discussion in Reg. v. Pembliton makes an unlawful injury to
property punishable in a certain way. In that case the jury and the
facts expressly negatived that there was any intent to injure any prop-
erty at all ; and the court held that, in a statute which created it an
offence to injure property, there must be au intention to injure property
in order to support an indictment under that statute. But for that
case Mr. Croft is out of court, and I therefore think that this convic-
tion should be sustained.
LoKD EsHEK, M. R. I am of the same opinion. It seems to me
that the case of Reg. v. Pembliton is the only case which could be
cited against a well-known principle of law. But that case shows that
xliere was no intention to injure any property at all ; therefore there
was no intent to commit the crime mentioned in the Act.
BowEN, L. J. I am also of opinion that this conviction should be
affirmed. It is quite clear that this offence was committed without any
malice in the mind of the prisoner, and that he had no intention of
wounding Ellen Rolston. The only difficulty that arises is from Reg.
V. Pembliton, which was a case under an Act of Parliament which
does not deal with all malice in general, but with malice towards prop-
ertj' ; and all that case holds is, that though the prisoner would have
been guilty of acting maliciously within the common law meaning of
the term, still he was not guilty of acting maliciously' within the mean-
ing of a statute which requires a maliciousintent to injure property.
Had the prisoner meant to strike a pane of glass, and without any
reasonable expectation of doing so injured a person, it might be said
that the malicious intent to injure property was not enough to sustain
a prosecution under this statute. But, as the jury found that the
prisoner intended to wound Chappie, I am of opinion that he acted
maliciously within the meaning of this statute.
Field, J. I am also of opinion that this conviction must be af-
firmed. I think this a verj' important case and one of verj' wide
application, and am very glad that it has come before this court, and
has been carefully considered and decided so that there may be no
doubt about the matter.
Manistt, J. I do not propose to add more than a few words. The
facts in this case raise an exceedingly important question, because the
man Chappie, who was intended to be struck, was standing close by
the woman who vras wounded, and who was talking to him ; and the
prisoner mtending to strike Chappie with the belt did strike him, but
the belt bounded off and struck Ellen Rolston. It seems to me that
the first and second findings of the jury justify the conviction, because
SECT, v.] EEX V. KNIGHT. 151
they are in these terms : " The jur^' found that the blow was unlawful
and malicious, and that it did in faot wound Ellen Rolston ; " and that
being so, I think that the third finding does not entitle the prisoner to
an acquittal. It is true he did not intend to strike Ellen Rolston, but
he did intend to strike Chappie, and in doing so wounded Ellen Rols-
ton ; therefore I think that the third finding is quite immaterial, and
this conviction should be aflBrmed.*
Conviction affirmed.
REX V. KNIGHT.
Crown Case Reserved. 1783.
[Reported 2 East, Pleas of the Crown, 510.]
The prisoners were indicted for feloniously and burglariously break-
ing and entering the dwelling-house of Mary Snelling at East Grin-
stead, in the night of November 14, 1781, with intent to steal the goods
of Leonard Hawkins, then and there being in the said dwelling-house.
It appeared that L. Hawkins, being an excise officer, had seized seven-
teen bags of tea on the same month at a Mrs. Tilt's, in a shop entered
in the name of Smith, as being there without a legal permit, and had
removed the same to Mrs. Snelling's at East Grinstead, where Hawkins
lodged. The tea, the witnesses said, they supposed to belong to Smith ;
and that on the night of November 14 the prisoners and divers other
persons broke open the house of Marj' Snelling with intent to take this
tea. It was not proved that Smith was in company with them ; but
the witnesses swore that they supposed the fact was committed either
in companj' with or by the procurement of Smith. The jurj' were di-
rected to find the prisoners guilty, on the point being reserved; and
being also directed to find as a fact with what intent the prisoners broke
and entered the house, they found that they intended to take the
goods on the behalf of Smith. In Easter term following all the judges
held that the indictment was not supported, there being no intention to
steal, however outrageous the behavior of the prisoners was in thus
endeavoring to get back the goods for Smith.^
^ See ace. (wounding with intent to do bodily harm) Reg. v. Lynch, 1 Cox C. C.
361 ; Beg. a Stofford, 1 1 Cox C. C. 643 ; (with intent to kill) Reg. v. Smith, 7 Cox
C. C. 51. — Ed.
2 Ace. Com. V. Newell, 7 Mass. 245. — Ed.
152 UNITED STATES V. UAVIS. [CHAP. II.
SECTION VI.
Jurisdiction over an Offence.
UNITED STATES v. DAVIS.
U. S. Circuit Court, District of Massachusetts. 1837.
[Reported 2 Summer, 482.]
Indictment for manslaughter. It appeared that the defendant,
master of an American whale ship, shot and killed a man on the declt
of another vessel which lay alongside ; both vessels lay at the time in
a harbor of one of the Society Islands.'
Story, J. We are of opinion that, under the circumstances estab-
lished in evidence, there is no jurisdiction in this cause.
What we found ourselves upon in this case is, that the offence, if
any, was committed, not on board of the American ship "Rose," but
on board of a foreign schooner belonging to inhabitants of the So-
ciety Islands, and, of course, under the territorial government of the
king of the Society Islands, with which kingdom we have trade -and
friendly mtercourse, and which our government may be presumed
(since we, have a consul there) to recognize as entitled to the rights and
sovereignty of an independent nation, and of course entitled to try
offences committed within its territorial jurisdiction. I say the offence
was committed on board of the schooner ; for although the gun was
fired from the ship " Rose," the shot took effect and the death hap-
I pened on board of the schooner ; and the act was, in contemplation of
/ law, done where the shot took effect. So the law was settled in the
case of Rex v. Coombs, 1 Leach Cr Cas. 432, where a person on the high
seas was killed by a shot fired by a person on shore, and the offence
was held to be committed on the higli seas, and to be within the Admi-
ralty jurisdiction. OLoffences committed on *^'^ 1117;'^ °°"° "1 i'""'ri .-.f
fo^ign vessels (not being a piratical vessel), but belonging to persons
under the dBEnowledged government of a foreign country, this_cS2urt
has no jurisdiction under the Act of 1790, ch. 36, § 12. That was the
1 This short statement of facts has been substituted for that contained in the
report.
SECT. VI.] STATE V. GESSERT. 153
doctrine of the Supreme Court in United States v. Palmer, 3 Wlieat. E.
610, and United States v. Kliutock, 5 Wiieat. R. 144, and United
States V. Holmes, 5 Wheat. R. 412 ; applied, it is true, to another class
of cases, but in its scope embracing the present. We lay no stress on
the fact that tlie deceased was a foreigner. Our judgment would be
the same if he had been an American citizen. We decide the case
wholly on the ground that the schooner was a foreign vessel belonging
to foreigners, and at the time under the acknowledged jurisdiction of
a foreign government. We think that under such circumstances the
jurisdiction over the offence belonged to the foreign government, and
not to the courts of the United States under the Act of Congress.
The jury immediately returned a verdict of not guilty.
STATE V. GESSERT.
Supreme Court of Minnesota. 1875.
[Reported 21 Minnesota, 369.]
Berry, J. The indictment in this case was found by a grand jury
of Washington County, and charges the defendant with committing the
crime of murder, by feloniously, &c. , inflicting upon David Savazyo,
on Aug. 28, 1874, in said county, a stab and wound, of which, upon
the same day, Savazyo died in the county of Pierce, and State of Wis-
consin. The question in the ra.eip is whet.her t.hr indirtmrnt ph^''Z^''
the commission ot an offence in the co'int.y nf Wqfahincrt.nn It is for
h4s-a:ct^tbat defendant is responsible. They constitute his offence.
The place wbPiP t.hpy are fiommitte.d mngt hp t.hp pl^ir-P lylioro ^ifj pffonf^o
is coTnmitted^and therefore the pigpp whprp hp ahrnil^^ be indicted and
.Jristiii^^ir-th is instance the acts with which defendant is charged,
to wit, the stabbing and wounding, were committed in Washington
County. The death which ensued in Pierce County, though it went to
characterize the acts committed in Washington County, was not an act
of defendant committed in Wisconsin, but the consequence of his acts
committed in Washington County, against the peace and dignity of the
State of Minnesota. We are therefore of opinion that the indictment
charges the commission of the crime of murder in Washington County,
and, upon the questions certified to this court by the court below, that
the demurrer to the indictment should be overruled. Riley v. State,
9 Humph. 646 ; Com. v. Parker, 2 Pick. 550, 559 ; 1 East, P. C. c. 5,
§ 128 ; Rex y. Burdett, 4 B. & Aid. 95, 173 ; Grosvenor v. Inhabitants,
&c., 12 East, 244 ; People v. Gill, 6 Cal. 637 ; State v. Carter, 3 Dutch.
499; 1 Hale P. C. c 33 ; 1 Bish. Cr. Law, § 83 ; 1 Bish. Cr. Proc.
S 67 ; 2 Wharton Cr. Law, § 1052.'
1 Ace. Green v. State, 66 Ala. 40 ; U. S. o. Guiteau, 1 Mack. 498. See also the
following c:^ses for decision upon the locality of crime : Allison v. Com., 83 Ky. 2.')4
(rc(.ei\iii.' stolen goods); People u. Arnold, 46 Mich. 268 (conspiracy); Lovelace «
S:lltl^ \i Lea, 721 (embezzlement). — Ed.
154 REGINA V. ARMSTRONG. [CHAP. II.
REGINA V. ARMSTRONG.
Liverpool Assizes. 1875.
[Reported 13 Cox C. C. 184.]
John Akmstrong was charged with the wilful murder of Lawrence
Harrington, on board the hulk Sent, in the Bonny River, Africa, on
the 4th of May, 1875.^ . . .
It was proved in evidence that the ^ent had been a three-masted
sailing ship, of 1324 tons register, and was registered as a British ship,
though not British built. That she had for eighteen months at least
been dismasted, and employed as a floating depot or receiving ship on
the Bonny Station for a line of commercial steamers trading between
Liverpool and that port ; that she swung with the tide and floated in
the tideway of the river, and that -she hoisted the Rrit.iah pnsjgngt. the
peak. The general appointments as a ship, boats, etc., remained ;
the masts had been cut down to form a support for an awning or house
on deck, but the rigging bad been taken away. The prisoner was mate
of the Kent, and in the evening of the 4tli day of May he stealthily
approached the captain as he was standing near the stern and leaning
over the tafErail of the ship, and took hold of him by the collar of his
coat and the seat of his trousers and flung him overboard. The body
of the captain in falling struck the quarter rail or gallery of the Kent,
and bounded off ; and the back of his head, as was deposed by one
witness, then struck the gunwale of a boat that was lying moored on
the port side, leaving marks of blood. The body then fell into the
water, and was never seen again, though five or six boats were imme-
diately put out in search. The river was running out very rapidly, at
the rate of four to five knots an hour. It was at this p^fint fiJTnr sftvpn
tpilea broad, and the nearest ship was probably a thousand yards dis-
tant. The station of the ship was at about seven miles from the bar,
one and a half miles from the easterlj' or southern shore, and more than
five from the northern shore. One of the witnesses said the river was
infested with sharks, and that bathing was forbidden on that account,
but admitted in cross-examination he had never seen any.
Cottingham, for the prisoner, submitted . . . that the murder, if
murder it were, was not committed on board the Kent, and was not a
completed criminal act on board that ship. That at the utmost there
had only been an assault on board the ship, and that the ultimate con-
sequence of the act, where it was only a possible consequence, could
not be assumed to have occurred on board the ship. . . .
His Lordship [Archibald, J.] overruled all the objections, and
pointed out that there was abundant ^nwa/aae evidence that the ship
was a British ship, and that this had not been rebutted ; that the crime
1 Only so much of the case as discusses the question of jurisdiction is given. — Ed
•SECT. VI.J JACKSON V. COMMONWEALTH. 155
had been committed on board a British ship, and on the high seas, and
that it was not necessary that the act should have been completed on
board, as it was a direct consequence of the felonious assault.
The jury found the prisoner guilty of manslaughter, and he was
sentenced to twenty years penal servitude.
JACKSON V. COMMONWEALTH.
Court of Appeals op Kentucky. 1897.
IReported 100 Ki/. 239.]
The defendant and one Walling were indicted for the murder of
Pearl Bryan in Campbell County, Kentucky. The evidence indicated
that the two p.ersons accused had attempted to kill the deceased by
giving her poison in Ohio ; that she became unconscious, and was
believed by them to be dead ; that they brought her across the Ohio
River into Kentucky, and there cut off her head, and thus caused her
-death. The court at the trial charged: "If the jury believe from
all the evidence beyond a reasonable doubt that the defendant, Scott
Jackson, wilfully, feloniously, and with malice aforethought, himself
attempted or aided or abetted or procured another to attempt to kill
Pearl Bryan, but she was not thereby killed, and that said Scott Jack-
son, in this county and State, before the 14th day of February, 1896,
though believing said Pearl Brj-an was then dead, for whatever purpose,
cut her throat with a knife or other sharp instrument so that she did
then and there, and because thereof die, they will find said Scott
Jackson guilty of murder."
On appeal this charge was held, to be correct. The defendant moved
for a rehearing.^
Du Eelle, J. With great earnestness, force and plausibility two
contentions are made by the petitions for rehearing in this case and in
the case of Walling v. Commonwealth :
1st. That no facts which occurred in the foreign jurisdiction of Ohio
can be tacked on to facts which occurred in Kentucky for the purpose
of supplying the elements necessary to constitute the crime of murder
in Kentucky.
2d. (And this appears to be the point chiefly relied on) That in
giving its instructions to the jnrj' the trial court is not authorized to
refer to any fact which occurred in the foreign jurisdiction. Other
suggestions are made in the petitions, but in our judgment do not
require specific response.
These two contentions may be considered together, as the first is
1 This shgrt statement of the facts uponwhich the petition for a rehearing is based
is abridged from the opinion given after the first argument. — Ed.
156 JA.CKSON V. COMMONWEALTH. [CHAP. II.
necessarily raised and considered in the decision of the second, and
so treated in the petition.
Eednced to its lowest terms, the claim of counsel is that an attempt
to commit a murder in another State, supposed by the guilty party to
have been there successful, but in reality completed in this State,
though by an act not by him believed to be the consummation of his
purpose, is not in this State punishable.
^iiich is nnt n"r rhonli it '^" *^'^ '"'" By the law of this State a
crime is punishable in the jurisdiction in which it has effect. Statutes
in numbers have been passed by the general assembly of this Common-
wealth providing that jurisdiction shgulri b° had '>^"ritn°'L2'^ ^^^ county
JnTvliKJ] the ^rinrn' hfctiimf'-'^fl^i^nib (Chapter 36, article 2/KentucEy
""Statutes.) Such we believe to have been the common law before such
enactments.
Assuming that what the jury found was true, in what State or district
could the crime be punished ? If not here, where ? If we concede the
claims of counsel for appellants no serious crime was committed in
Ohio. Nothing was there done but an ineffective attempt to murder.
None was committed there. What was done in this jurisdiction was
only the mutilation of a supposed corpse, and yet the fact, established
by overwhelming testimony, remains that the crime has been com-
mitted. Not all the refinements of counsel can lead us from the con-
clusion that, when a crime has been completed the result of which is a
death in this Commonwealth, we can take jurisdiction of the oflTence.
Not for a moment can we admit as law the logical conclusion of
counsel's argument, namely, tliat there is a variety of murder, which,
by reason of error in its commission, is not anywhere in any jurisdic-
tion punishable ; not in Ohio, for the reason that the attempt there
made was not successful ; not in Kentucky, for the reason that the act
there done, and which accomplished and completed the actual killing,
was done upon the supposition that the murder had already been
accomplished.
One reliance of the defence upon petition for rehearing is that the
indictment charges murder by cutting the throat or decapitation, and
that the instructions permit and require the jury to consider a previous
attempt to kill in a foreign State and by different means. But in our
opinion it was not error in the instructions to present to the jurj' evi-
dential facts which, if found to be true, showed the criminal nature of
the act by which the offence was completed.
We see no good reason why we should not consider the motive which
inspired an attempted crime in another sovereigntj', and the circum-
stances of the attempt, with tlie view to determine the character,
ciiminal or not, of the ultimate fact whicli took place in this sov-
ereignty ; nor is such a determination an invasion of the constitutional
right of the accused to a speedy " public trial by an impartial jury of
tiie vicinage." For the accused himself selected the vicinage in which
the final act occurred, and thus himself gave jurisdiction to the court
SECT. VI.] STATE V. WYCKOFF. 157
which determined the criminal character of that act. Nor can we con-
sider as serious the contention that the ruling of the trial court, approved
bj- the opinion in this case, is punishment in Kentucky of an oifence
committed in another jurisdiction, and there again punishable, so as to
come within the constitutional inhibition against a citizen being twice
put in jeopardj'. On counsel's own contention no completed crime
existed in Ohio, and the crime committed, if punishable under this
State's law, can not further or again be punished there. . . .
We have carefully examined the immense mass of testimony in the
case, and see no error to the prejudice of any substantial right of the
appellant.
The petition for rehearing is overruled.
STATE V. WYCKOFF.
Supreme Court of New Jersey. 1864.
[Reported 2 Vroom, 65.]
Beasley, C, J. The defendant was convicted before the Court of
Oyer and Terminer, on an indictment containing two counts, the first
of which charges him with the larceny of certain goods of a value ex-
ceeding twenty dollars, and the other with receiving goods knowing
them to be stolen.
It appeared that the defendant was in New York at the time of the
theft, and while in that state he made an arrangement with one Kelly
to come into this state and steal the articles in question and to bring
and deliver them to him in New York. This arrangement was carried
into effect, — the articles being stolen by Kelly and delivered to the
defendant in New York. The defendant was not in this state at any
time, from the inception to the conclusion of the transaction. The
Court of Oyer and Terminer have asked the advisory opinion of this
court upon two points : —
First. Whether proof of the above stated facts will support the
indictment.
Second. Has the defendant committed any offence indictable by the
laws of this state ?
In regard to the first point, the cir'cumstances proved on the trial
established the fact that Kelly was guilty of the crime of grand larceny
in this state. Kelly therefore committed a felony, and consequently,
as the defendant was not present, either actually or constructively, at
the commission of the offence, he could not be a principal therein, but
was an accessory before tbe_fapt ^ Kelly did the act, and the defend-
l.'lS STATE V. WYCKOFF. [CHAP. II.
ant's will contributed to it ; but it was committed while he was too far
from the act to constitute him a principal. The distinction in felonies
between the principal and accessories before and after the fact is cer-
tainly technical, and has been sometimes regarded as untenable ; but
it is too firmly established to be exploded by judicial authority. It
has always been regarded, in its essential features, as a part of the
criminal law of this state, and its existence is recognized both in our
statutes and in a number of the reported decisions. State v. Cooper,
1 Green, 373 ; Johnson v. State, 2 Dutcher, 324 ; Cook y. State, 4
Zab. 845.
The first count, therefore, charging the defendant as a principal ini,
the larceny, is not sustained by the evidence. The crime of the acces-
SOry, being rJiHaifnilar-frnm thfit nf thp pri n fV[Ta1_ i n^ i t.a fundamentaT"
Q^aracteristics, must br dirvtjnrtly rlmrgrd in thr plrjidlflrr-, It has
never been SUpposedThata count containing a statement of facts
evincive of the fault of the party accused as a principal in a felony,
was sufficient to warrant the conviction of such party as an accessory..
1 Chit. Crim. Law, 271, 2 id. 4 ; Wharton's Prec. of Indict. 97 ; State
V. Seran, 4 Dutcher, 519. In the case of Rex v. Plant, 7 C. & P. 675,.
it was expressly held that one indicted as principal in a felony could
not be convicted of being an accessory before the fact. See also
Whart. C. L. 115.
Neither will the second count Of the indictment sustain the convic-
tion. The evidence shows that the stolen goods were received by the-
defendant, with guilty knowledge, in the state of New York. But
this was no offence against the laws of this State. The defendant
therefore cannot be legally sentenced upon the conviction founded ort
the present indictment.
The remaining question is, has the defendant committed any offence'
indictable by the laws of this State ?
His act was to incite and procure his agent or accomplice to enter
this state and commit the felony. If the defendant, h;irl hnnn iu this-
state at the time of such procurempnt rand Jjicitement. hewould have
TIetih auiltv as an accessory before tbeJajCt-t-tnTtr-wbat ho did"wayTfefteL^
out ot tne state! Did he thereby become amenable to our criminal
jurisdiction?
As the defendant did not act within this state in his own person, th&
point to be decided is, did he do such act in this state by construction
or in contemplation of law?
It IS undoubtedly true that personal presence within the jurisdiction
in which the crime is committed, is not in all cases requisite to confer
cognizance over the person of the offender, in the tribunals of the gov-
ernment whose laws are violated. In some cases the maxim applies.
Crimen trahit personam. Thus, where a person being within one
jurisdiction, maliciously fires a shot which kills a man in another juris-
diction, it is murder in the latter jurisdiction, the illegal act being there
consummated. So, iu the case of The United States v. Davis, 4 Sumner,
SECT. VI.] STATE V. WYCKOrF. 159
485, the defendant was accused of shooting from an American ship
and killing a man on board a foreign schooner. Chief Justice Story
said: "The act was, in contemplation of law, done where the shot
took effect. He would be liable to be punished by the foreign govern-
ment." The same principle was recognized by this court in the case
of The State v. Carter, 3 Dutcher, 499. So, when a crime is com-
mitted by an innocent living agent, the projector of such crime being
absent from the country whose laws are infringed. Such was the case
of The People v. Adams, 3 Denio, 190. In this latter case the facts
were these : The defendant was indicted in the city of New York for
obtaining money from a firm of commission merchants in that city by
the exhibition of fictitious receipts. The defendant pleaded that he
had never been in the State of New York ; that the receipts were
drawn and signed in Ohio, and that the offence was committed by
their being presented to the firm in New York by innocent agents em-
ployed by the defendant in Ohio. It was held that such plea was bad
and disclosed no defence. A number of authorities maintaining the
same view will be found collected in the opinion of the judge who
delivered the decision of the court in the case last cited.
- The rule, therefore, appears to be firmly established, and upon very
satisfactory grounds, that where the crime is committed by a person
absent from the country in which the act is done, through the means
of a merely material agency or by a sentient agent who is innocent, in
such cases the offender is punishable wliere the act is done. The law
implies a constructive presence from the necessity of the case ;
otherwise the anomaly would exist of a crime, but no responsible
criminal.
But the more difficult question remains to be considered, which is,
— in case of a felony committed here by a responsible agent, who is
therefore the principal felon, and punishable by our laws, — can the
procurer, who is an accessory before the fact, and whose acts of pro-
curement have been done in a foreign jurisdiction, be indicted and
punished for such procurement in this state?
The general rule of the law has always been that a crime is to be tried
in the place in which the criminal act has been committed. It is not
sufficient that part of such act shall have been done in such place, but
it is the completed act alone whicli gives jurisdiction. So far has this
strictness been pushed that it has been uniformly held that if a felony
was committed in one county, the accessory having incited the prin-
cipal in another county, such accessory could not be indicted in either.
This technicality, which, when applied to the several counties of the
same kingdom or state, appears to have little to recommend it, was
nevertheless so firmly established that it required the statute of 2 and
3 Ed. VI. c. 24,^ to abolish it, and this statute has been re-enacted in
' " Where any murder or felony hereafter shall be committed and done in one
county, and another person or mo shall be accessory or accessories in any manner ot
wise to any such murder or felony in any other county, that then an indictment found
160 STATE V. WYCKOFF. [CHAP. 11.
this state. Nix. Dig. 199 (Rev. p. 282, § 78). And so in like manner
tlie same rigor existed in cases in which death ensued out of the Idng-
dom from a felonious stroke inflicted within it, it being decided that
neither the principal nor accessory was, under such circumstances, in-
dictable. This imperfection in the criminal system was removed by
the statute of 2 Geo. II. c. 21, and which has been substantially copied
in the third section of the act of this State before referred to in Nix.
Dig. 200 (Rev. p. 282, § 78). For the rules of law which were thus
modified by statute, see 3 Inst. 48 ; Lacye's Case, 1 Leo. 270 ; 2 Rep. 93.
If, then, the accessory by the common law was answerable only in
the county in which he enticed the principal, and that, too, when the
criminal act was consummated in the same county, it would seem to
follow necessarily, in the absence of all statutory provision, that he is
wholly dispunishable when the enticement to the commission of the
offence has taken place out of the state in which the felony has been
perpetrated. Under such a condition of affairs it is not easy to see
how the accessory has brought himself within the reach of the laws of
I the offended state. His offence consists in the enticement to commit
' the crime ; and that enticement, and all parts of it, took place in a
foreign jurisdiction. As the inptrnm^ntwl'ty '^"'pl^yed wsf « fftris';^'"""
ff^'^^Y "ff""*' ™''*''^ ^''°° ^'" ^" P*^^ '^'' *" '•"^'■'lin from acting, there is no
room for the doctrine of a constructive pi-pspnop jp thp procurer. Ap-
plying to the facts of this case the general and recognized principles
of law, it would seem to be clear that the offence of which the defend-
ant has been guilty is not such as the laws of this state can take cog-
nizance of. We must be satisfied to redress the wrong which has been
done to one of our citizens, and to vindicate the dignity of our laws
by the punishment of the wrong-doer who came within our territorial
limits. As for the defendant, who has never been, either in fact or by
legal intendment, within our jurisdiction, he can be only punished by
the .luthority of the State of New York, to whose sovereignty alone he
was subject at the time he perpetrated the crime in question.
The principal involved in this case has not often been the subject of
judicial consideration, nor has it received much attention from the text-
writers. But in the few cases to be found in the reports upon the
point a view similar to the above has been expressed. The case of The
State V. Moore, 6 Foster, 448, was, in all its features, identical with
that now before this court, and the result was a discharge of the pris-
oner, on the ground that the crime of the accessory had not been
committed within the jurisdiction of New Hampshire.
The case Mc parte Smith, 6 Law Reporter, 57, was to the same
or taken against such accessory and accessories upon the circumstance of such matter
before the justices of the peace, or other justices or commissioners to enquire of felonies
in the county where such offence.s of accessory or accessories in any manner of wise shall
be committed or done, shall be as good and effectual in the law as if the said principal
offence had been committed or do^e within the same county where the same indictment
against such accessory shall be found." 2 & 3 'Ed. 6, c. 24, § 4. — Ed.
SECT. VI.] STATE V. WYCKOFF. 161
effect. The same principle was again considered, though in a some-
what different aspect, in the case of The State v. Knight, 1 Taylor's
Rep. (N. C.) 65, and the opinion intimated by the court entirely ac-
corded'with those expressed in the two cases first above cited. These
are the only judicial examinations of the matter now in hand which I
have met with in the course of my research.
Upon authority, then, as well as upon principle, I think the present
indictment cannot be sustained, and that the defendant has not coni-
mitted any offence which is indictable by force of tlie laws of this
istate.
Let the Court of Oyer and Terminer be advised accordingly.'
Penal Code of New York, § 32. An accessory to a felony may
be indicted, tried, and convicted, either in the county where he be-
came an accessory, or in the county where the principal felon}' was
■committed.
Mass. R. L. ch. 215, § 43. [An accessory before the fact] may be
indicted, tried, and punished in the same county in which the princi-
pal felon might be indicted and tried, although the counselling, hiring,
or procuring the commission of such felony was committed within or
without this commonwealth, or on the high seas.^
1 Ace. State v. Chapin, 17 Ark. 561 ; State v. Moore, 26 N. H. 448. But see State
V. Grady, 34 Conn. 118 ; State b. Ayres, 8 Baxter, 96. — Ed.
' See Com. v. Pettes, 114 Mass. 307. — Ed.
162 LINDSBY V. STATE. [CHAP. II.
LINDSEY V. STATE.
Supreme Court op Ohio. 1882.
[Reported 38 Ohio State, 507.]
The plaintiff in error, and one John T. Morris, were jointly indicted
in Jefferson County. Tlie charge is that they did unlawfully and
telouiously utter and |ii,ihliah in "inid noiintij as true and genuine, a
certain false, forged, and counterfeit deed of real estate, purporting to
1)6 executed and acknowledged by Maurice F. Thornton and wife, be-
tore Herman E. Shuster, a notary public of the State of Missouri, and
lo convey certain lands in that State to James TurnbuU, of Jefferson
County, Ohio.
The plaintiff in error had a separate trial, and was convicted and
sentenced.
The evidence tended to show that the deed was a forgery, executed
lu St. Louis by the notary public by the procurement of Lindsey, who
then and thereafter, until forcibly brought to Ohio, was never in this
State ; that this deed was delivered by Lindsey or his agent to his co-
defendant Morris (who is awaiting his trial), and by him was sent by
mail to T. & D. Hall, real estate agents in Steubenville, through whom it
was uttered and published by a sale of the land to TurnbuU. T. & D.
Hall were the innocent agents in the transaction, and received and
accounted for the purchase-money, less commissions.^
Johnson, J. Two questions are presented on the foregoing state-
ment ; —
First. Had the court jurisdiction over the plaintiff in error? and,
Second. Were the conveyances of other lands admissible for the
purpose of showing guilty knowledge?^
First. As to the jurisdiction of the court ; Is the crime charged an
extra-territorial crime? Was it committed by the accused in Missouri,
or in Ohio?
If hf; vyere indicted for-tha-JQigery of this deed, he could not be
punished in Ohio, as it is conceded that all his acts that constitute
ihat crime were committed in Missouri. When he procured the notary
in St. Louis to forge the signatures, and the acknowledgment of the
grantors, with the criminal intentj the crime of forgery was consum-
mated in the State of Missouri. Rid;.t.hia "ja nnt. tho phtnigo in tli^ r-i^e.
^t-tiar. It is for knowingly uttering and publishing as true and genu-'
ine a false and forged deed. It is wholly immaterial where the forgery
was committed.
' Part of the evidence and the arguments of counsel are omitted.
, " That portion of the opinion which relates to the second question is omitted.
SECT. VI.] , LINDSEY V. STATE. 163
The question therefore is, was this deed uttered and published in
Jefferson County, Ohio, and was Lindsey guilty of this crime?
That this forged deed was uttered and published in Ohio by T. & D.
Hall, who supposed it was genuine, is clear from the evidence.
Now, it is assumed that the jury had evidence to warrant them in
finding that T. & D. Hall did so utter and publish this deed by the
procurement of Lindsey.
The crime was therefore completed or consummated in Ohio, through
the instrumentality of an innocent ag^nt. it is wtiolly immaterial
wUetUer his co-defendant Morris was his confederate or his dupe, as in
either case the acts of Morris by correspondence mailed in St. Louis
to T. & D. Hall were simply the means used to consummate a crime
in Ohio. The crime had its inception in Missouri, but it was com-
mitted in Ohio by innocent agents. If a letter containing a forged
instrument is mailed at one place to be sent to another, the venue must
be laid where the letter is received. 3 Greenl. § 112.
The crime of uttering and publishing is not complete until the paper
comes to the hands of some one other than the accused, and if it be
sent by maU for the purpose of being there used, the crime is not
consummated until it is received by the person to whom it is to be
delivered. It is a fundamental principle that a person is responsible
criminally for acts committed by bis procurement as well as for those
done in person. The inherent power of the state to punish the utter-
ing and publication of forged instruments within its territorial limits,
without regard to the place where the forgery was committed, or pur-
pose was formed, is essential to the protection of her people. It is_^
now a generally a^oep^^^p^ pHnpipIp that one who in one county or state
employs an innoG"n*^^ ggonf in Qi^f^ther to commit a cn'mp, ^'p jjablp tn
QieTSter countyOT_statfi. Bobbins v. The State, 8 Ohio St. 131 ;
TTorris v. The StateTlSOhio St. 217 ; 1 Whart. Grim. Law (7th ed.),
§§ 210, 278 ; see also Commonwealth v. Macloon, 101 Mass. 1 ; Com-
monwealth V Smith, 11 Allen (Mass.), 243 ; Commonwealth v. Bland-
ing, 3 Pick. 304 ; Rex v. Johnson, 7 East, 6.5 ; Wh. Con. of L. §§ 877-
921 ; People o. Adams, 3 Denio, 190, affirmed 1 N. Y. 173 ; United
States V. Davis, 2 Sumn. 482 : State ». Wyckoflf, 2 Vroom (N. J.) 68 ;
Commonwealth u. Gillespie, 7 Serg. & R. 469 ; Stillman v. White Rock
Co., 3 Woodb. & M. 538 ; Rex v. Garrett, 6 Cox C. C. 260 ; Rex v.
Jones, 4 Cox C. C. 198 ; State ». Grady, 34 Com. 118.^
' Ace. Reg. V. Taylor, 4 F, & F. 511 ; People v. Adams, 3 Den. 190 j 1 N. Y. 173.
See Reg. «. Finkeletein, 16 Cox C. C. 107. — Ed.
164 STATE V. CARTER. [CHAP. II.
STATE V. CARTER.
Supreme Court of New Jersei 1859.
[Reported 3 Butcher, 499.]
Vredenburgh, J. The indictment charges that the defendant, on
the 29th of December, 1858, in the city of New York, gave one Brusli-
ingham several mortal bruises, of which, until the 31st of December,
1858, as well in New York as in Hudson County, in this state, he lan-
guished, and of which, in said Hudson County, he then died. To this
indictment the defendant pleaded that the court had not jurisdiction
of the cause. The defendant, we must assume, was a citizen of the
State of New York. Nothing was dowe byjhe Hpfpnrlgnt in t,||ifi pjt.gt.p
When the blow irfn givrUj ^'"^I'l imi'tirn wppp frit nf itfi jurisdiction, and
within the jurisdiction oj^the State of New York. The only fact con-
hected with the offence alleged to have taken place within our juris-
diction is, that after the injury, the deceased came into, and died in
this state. This is not the case where a man stands on the New York
side of the line, and shooting across the border, kills one in New Jer-
sey. "When that is so, the blow is in fact struck in New Jersey. It is
the defendant's act in this state. The passage of the ball, after it
crosses the boundary, and its actual striking, is the continuous act of
the defendant. In all cases the criminal act is the impinging of the
weapon, whatever it may be, on the person of the party injured, and
that must necessarily be where the impingement happens. And whether
the sword, the ball, or any other missile, passes over a boundary in the
act of striking, is a matter of no consequence. The act is where it
strikes, as much where the party who strikes stands out of the state,
as where he stands in it.
Here no act is done in this state by the defendant. He sent no mis-
sile, or letter, or message, that operated as an act within this state.
The coming_oLlhe paxtyinjuredinto-tbis-state-af ter w ards^tfas-liis-OffB
^^^untaryact, and in no way t.tiP a,pt. cf t.iLa-AHTm?T^?rf if the defend-
auL is liable here at all, it must be solely because the deceased came
and died here after he was injured. Can that, in the nature of things,
make the defendant guilty of murder or manslaughter here ? If it can,
then for a year after an injury is inflicted, murder, as to its jurisdic-
tion, is ambulatory at the option of the party injured, and becomes
punishable as such wherever he may see lit to die. It may be man-
slaughter, in its various degrees, in one place, murder, in its various
degrees, in another. Its punishment may be fine in one country, im-
prisonment, whipping, beheading, strangling, quartering, hanging, OJ
torture in another, and all for no act done by the defendant in any oJ
these jurisdictions, but only because the party injured found it con-
venient to travel.
SECT. VI.] STATE V. CAETER. 165
This is not like the case of stolen goods, carried from one stute to
another, or of leaving the state for any purpose whatever, like that
for fighting a duel, or of sending a letter or messenger, or message,
for any purpose, into another state ; for in all these cases the cogni-
zance is taken for an act done within the jurisdiction.
If the acts charged in this indictment be criminal in New Jersey, it
must "be either by force of some statute or upon general principles.
There is no statute, unless it be the act to be found in Nix. Dig. 184,
B. 3. But this evidently relates to murder only, and not to man-
slaughter.
But I cannot make myself believe that the legislature, in that act,
intended to embrace cases where the injury was inflicted within a for-
eign jurisdiction without any act done by the defendant within our
own. Such an enactment, upon general principles, would necessarily
be void ; it would give the courts of this state jurisdiction over all the
subjects of all the governments of the earth, with power to try and
punish them, if they could by force or fraud get possession of their
persons in all cases where personal injuries are followed by death.
AjTjw^f,, in hp piMTni'rmlj mnai-. ho aiion-pf^ to be an offeucc agalust the
sovereignty of the government. This is of the very essence of crime
ptrai^able by human law. H^wcan an act done in onr jnrisflintinn
be an offence against the soverei|°;nty pf innth^r' All the cases turn
upon the question where the act was done. The person who does it
may, when he does it, be within or without the jurisdiction, as by
shooting or sending a letter across the border ; but the act is not the
less done within the jurisdiction because the person who does it stands
without. This case is not at all like those where the defendant is tried
in England for a crime committed in one of the dependencies of the
British empire. There the act is done, and the crime is in fact com-
mitted against the sovereignty of the British crown, and only the place •
of trial is changed.
If, our government takes jurisdiction of this case, it must be not by
virtue of any statute, but because it asSUmeB g<ihferal power to i^unish
acts maia in se wherever perpetrated in the world. The fact of the
party mjured can give no additional jurisdiction.
Such crimes may be committed on tlie high seas, in lands where
there are, or where there are not regular governments established.
When done upon the high seas, they may be either upon our vessels
or upon vessels belonging to other governments. When done upon
our vessels, in whatever solitary corner of the ocean, from the necess- ,
ity of the ease, and by universal acceptance, the vessel and all it con-
tains is still within our jurisdiction, and when the vessel comes to port
the criminal is still tried for an act done within onr jurisdiction. But
we have never treated acts done upon the vessels of other governments
as within our jurisdiction, nor has such ever been done by any civilized
government.
When an act malum in se is done in solitudes, upon land where there
166 COMMONWEALTH V. MACLOON. £CHAP. II.
has not yet been formerly extended any supreme human power, it may
be that any regular government may feel, as it were, a divine commis-
sion to try and punish. It may, as in cases of crime committed in the
solitudes of the ocean, upon and by vessels belonging to no govern-
ment, pro hac vice arrogate to itself the prerogative of omnipotence,
and hang the pirate of the land as well as of the water. Further than
this it could not have been intended that our statute should apply.
But here the act was done in the State of New York, a regularly organ-
ized and acknowledged supreme government. The act was a crime
against their sovereignty. That was supreme within its territorial
limits and in its very nature, and in fact is exclusive. There cannot
be two sovereignties supreme over the same place at the same time
over the same subject-matter. The existence of theirs is exclusive of
ours. We may exercise acts of sovereignty over the wastes of ocean
or of land, but we must necessarily stop at the boundary of another.
The allegation of an act done in another sovereignty, to be a violation
of our own, is simply alleging an impossibility, and all laws to punish
such acts are necessarily void.
It is said that if we do not take jurisdiction, the defendant will go
unpunished, inasmuch as, the party injured not dying in New York, he
could not be guilty of murder there. But New York may provide by
law for such cases, and if she does not, it is their fault, and not ours.
The act done is against their sovereignty, and if she does not choose
to avenge it, it is not for us to step in and do it for them.
I think that the Oyer and Terminer should be advised that no crime
against this state is charged in the indictment.'
COMMONWEALTH v. MACLOON.
Supreme Judicial Couet of Massachusetts. 1869.
[Reported 101 Massachusetts, l.J
GrEAT, J." The defendants, the one a citizen of Maine, and the
other a British subject, have been convicted in the Superior Court in
Suffolk of manslaughter of a man who died within the county in
consequence of injuries inflicted by them upon him in a British mer-
chant ship on the high seas.
The principal question in the case is that of jurisdiction, which
touches the sovereign power of the Commonwealth to bring to justice
the murderers of those who die within its borders. This question has
been ably and thoroughly argued, and has received the consideration
which its importance demands.
1 Ace. State v. Kelly, 76 Me. 331. — Ed.
'' Part ot the opinion only is given.
SECT. VI.] COMMONWEALTH V. MACLOON. 167
The statute on which the defendants were indicted, after prescribing
the punishment for murder and manslaughter, provides that " if a mor-
tal wound is given, or other violence or injury inflicted, or poison is
administered, on the high seas, or on land, either within or without the
limits of this state, by means whereof death ensues in any county
thereof, such offence may be prosecuted and punished in the county
where the death happens." Gen. Sts. c. 171, § 19.
This statute is founded upon the general power of the legislature,
except so far as restrained by the constitutions of the Commonwealth
and of the United States, to declare any wilful or negligent act which
causes an injury to person or property within its territory to be a
crime, and to provide for the punishment of the offender upon being
apprehended within its jurisdiction.
Whenever any act, which, if committed wholly within one jurisdiction
would be criminal, is committed partlj' in and partly out of that juris-
diction, the question is whether so much of the act as operates in the
county or state in which the offender is indicted and tried has been de-
clared to be punishable by the law of that jurisdiction.
A good illustration of this is afforded by the cases of bringing stolen
goods from one jurisdiction to another. It has been held from the
earliest times that if a thief steals goods in one county, and brings
them into another, he maj' be indicted in either county, because his
unlawful carrying in the second is deemed a continuance of the unlaw-
ful taking, and so all the essential elements of larceny exist in the
second ; but if he takes the goods by force, although this is robbery in
the county in which he first takes them, it is but larceny in any county
into which he afterwards carries them, because no violence to the per-
son has been used in the latter. 1 Hale P. C. 507, 508, 536 ; 2 Hale
P. C. 163 ; 4 Bl. Com. 305. If he steals goods on the high seas or in
a foreign country, and brings them into this state, it is not a common
law larceny, because there has been no taking against the law which is
invoked to punish him. Butler's Case, 13 Co. 53; s. c. 3 Inst. 113;
Commonwealth v. Uprichard, 3 Gray, 434. Yet if the legislature see
fit to provide that the bringing into the state of goods taken without
right from the owner in a foreign country, shall be punished here as
larceny, it is within their constitutional authority to do so. People v.
Burke, 11 Wend. 129 ; State v. Seay, 3 Stew. 123 ; Hemmaker v. State,
12 Missouri, 453. By a series of decisions, beginning while the states
of this Union were colonies of Great Britain, it has been held that a
bringing into Massa(3husetts of goods stolen in another colony or state
subject to the same national sovereignty might be indicted here as a
larceny at common law. Commonwealth v. Andrews, 2 Mass. 14, and
cases cited ; Commonwealth v. Holder, 9 Gray, 7. And in other states,
in which the common law has been held not to reach such a case, a
statute declaring such bringing to be larceny in the state into which the
goods are brought has been acknowledged to lie valid and binding upon
tlie courts. Simmons v. Commonwealth, 5 Binn. 619; Simpson v
State, 4 Hnmpii. 461 : Beal v. State, 15 Ind. 378.
168 COMMONWEALTH V. MACLOON. [CH IP. II.
The general principle, that a man who does a criminal act in one
county or state maj- be held liable for its continuous operation in
another, has been affirmed in various other cases. Thus a man who
erects a nuisance in a river or stream in one county or state is liable,
criminally as well as civijly, in any county or state in which it injures
the land of another. ^Iwer's Case, 7 Co. 2 b, 3 b ; 2 Hawk. c. 25,
§ 37 ; Com. Dig. Action, N. 3, 11 ; Abbott, C. J., in The King v. Bur-
dett, 4 B. & Aid. 175, 176 ; Thompson v. Crocker, 9 Pick. 59 ; Stillman
V. White Eock Manufacturing Co. 3 Woodb. & Min. 538. And one
who publishes a libel in another state, in a newspaper which circulates
in this commonwealth also, is liable to indictment here. Common-
wealth V. Blanding, 3 Pick. 304. There is no more reagou—against
holding the vvrong-doer criminally liable in the county and state where
Jiis victim diesfrom the continuous operation _of his mortal blow, than
m those to which the flowing water carries the injurious effect of his
^uisance to property, or the circuIatiorToniTi libel extends the injury
to reputation.
Criminal homicide consists in the unlawful taking by one human
being of the life of another in such a manner that he dies within a year
and a daj- from the time of the giving of the mortal wound. If com-
mitted with malice, express or implied by law, it is murder ; if without
malice, it is manslaughter. No personal injuiy, however grave, which
does not destroy life, will constitute either of these crimes. The injury
must continue to affect the body of the victim until his death. If it
ceases to operate, and death ensues from another cause, no murder or
manslaughter has been committed. But if the bullet remains in the
body so as to press upon or disturb the vital organs and ultimately pro-
duce death, or the wound or the poison causes a gradual decline of
health, ending in death, the injur3- and death are as much the continu-
ous operation and efl'ect of the unlawful act as if the shot, the stab, or
the poison proves instantly fatal. The unlawful intent with which the
wound is made or the poison administered attends and qualifies the act
until its final result. No repentance or change of purpose, after inflict-
ing the injury or setting in motion the force by means of which it
is inflicted, will excuse the criminal. If his unlawful act is the
efficient cause of the mortal injury, his personal presence at the time of
its beginning, its continuance, or its result, is not essential. He may
be held guilty of homicide by shooting, even if he stands afar off, out
of sight, or in another jurisdiction. 1 Hale P. C. 475 ; People v.
Adams, 3 Denio, 207; s. c. 1 Comst. 176, 179. If he knowingly lets
loose a dangerous beast, which runs any distance and then kills a man ;
or incites a madman or a child not of years of discretion to commit
murder in his absence, whereby any one is killed ; or, with intent to
murder, leaves poison with another person to be administered to a
tliird, and the poison is administered by the same or another innocent
agent, and causes the death of th^ person intended, or any other ; he is
responsible as principal, to the same extent as if personally present at
SECT. VI.] COMMONWEALTH V JIACLOON". 169
the actual killing. 1 Hale P. C. 430, 431 , 015 , G17 ; Regina v. Micliael,
9 C. & P. 356 ; s. c. 2 Moody, 120 ; People v. Adams, siqva. And if
he wilfully inflicts a wound which results fatally, he is not excused by
the fact that the negligence of the wounded man or the unskilful treat-
ment of surgeons hastens or contributes to the death. 1 Hale P. C.
428 ; Commonwealth v. Hackett, 2 Allen, 136. The person who un-
lawfully sets the means of death in motion, whether through an irre-
sponsible instrument or agent, or in the body of the victim, is the
guilty cause of the death at the time and place at which his unlawful
act produces its fatal result; and, according to the great weight of
authority, may be then and there tried and punished, under an express
statute, if not by the common law.
\ Tbg_crime not b.ping mm-rlflr nv iTiTnglnnghter befni-fi thft, d^f^'l^i ""
indictment alleging the strokeat_one^dav and place, and the death at
aftother day and'ptace, is goodlfit alleoes the murder ormanslausljter
tobave been at-the-time-arftd— ptftfta-of the, death, but bad if it alleges
{llaTTlhe defendant killed and murdere3~the deceased at the day and
place at which the stroke was given, " for," in the words of Lord Coke,
• " though to some purpose the death hath relation to the blow, yet this
relation, being a fiction in law, roaketh not the felony to be then com-
mitted." 2 Inst. 318 ; 1 Hale P. C. 427 ; 2 Hale P. C. 188. So the
year and day " after the deed, — apres le fait," within which by the
Statute of Gloucester an appeal of murder must be brought, was held
to run not from the blow, but from the death, " for before that tniie no
felony was committed." 2 Inst. 320 ; 1 Hale P. C. 427. And man-
slaughter arising out of a blow struck in one county, followed by death
in another, was held by Mr. Justice Littledale to be a felony " begun in"
one county and completed in another," within the meaning of a modern
Enghsh statute authorizing such a felony to be indicted in either
countj'. Rex v. Jones, 1 Russell on Crimes (3d Eng. ed.), 549, 550.
Whenever at common law murder escaped punishment at the place
of the death, it was not from a want of authoi'ity in the government,
but from a defect in the laws regulating the mode of prosecution and
trial.
In the beginning of the reign of Edward III., according to Chief
Justice Scrope, if a man died in one county of a wound received in an-
other, the murderer might be indicted and arraigned in the county
where the death happened, " and yet the cause of his death began in
the other county." Fitz. Ab. Corone, 373. At a later period, it was
held that where a man was feloniously stricken or poisoned in one
county, and died in another county, no indictment could be found in
either county, because both the stroke and the death were necessary to
constitute the crime, and the jurors of one county could not inquire of
that which was done in another, " unless," as Lord Hale says, " speci-
ally enabled b3- act of parliament ; " and for this reason the custom at
one time prevailed of taking the dead body into the county where the
mortal stroke was given, and having an indictment found and tried
170 COMMONWEALTH V. MAOLOON. [CHAP. II.
there ; and, In earning out the same principle, it was held that an
appeal of murder, which required no indictment, but was sued out by
the nearest relation, and prosecuted by the king only in case of the with-
drawal of the appellant, might be brought in the county of the death,
although the mortal stroke was given in another county, provided there
were legal means of summoning a jury for the trial out of both counties,
but not otherwise. 6 Hen. VII. 10, pi. 7 ; 3 Inst. 48, 49 ; 2 Hale P. C.
163 ; 1 Stark. Crim. PI. 3, and notes.
/ The St. of 2 & 3 Edw. VI. c. 24, begins with declaring, " Forasmuch
as the most necessary office and dutj- of law is to preserve and save
the life of man, and condignly to punish such persons that unlawfully
and wilfully murder, slay, or destroy men," and, after- reciting the de-
fects in the previous laws, enacts, "for redress and punishment of
which offences and safeguard of man's life," that " where any person
or persons hereafter shall be feloniously stricken or poisoned in one
county, and die of the same stroke or poisoning in another county, then
an indictment thereof founden by jurors of the county where the death
shall happen, whether it shall be founden before the coroner upon the
sight of such dead bodj', or before the justices of peace or other justices
or commissioners which shall have authority to inquire of such offences,
shall be as good and effectual in the law, as if the stroke or poisoning
had been committed and done in the same county where the party shall
die, or where such indictment shall be so founden ; anj' law or usage to
the contrarj' notwithstanding." That statute, passed within a centurj-
t before the settlement of Massachusetts, and manifestly suitable to our
condition, would seem to have been part of our common law. Com-
monwealth V. Knowlton, 2 Mass. 534 ; Report of the Judges, 3 Binn.
595, 620 ; State v. Moore, 26 N. H. 448.
In the most ancient times of which we have any considerable records,
the English courts of common law took jurisdiction of crimes com-
mitted at sea, both by English subjects and by foreigners. Beufo v.
Holtham, 25 Edw. I., in Selden's Notes to Fortescue, c. 32; Case of
the Norman Master and Enghsh Seamen, 40 Assis. 25 ; s. c. Fitz. Ab.
Corone, 216 ; 13 Co. 53, 54 ; 2 Hale P. C. 12, 13, and notes, and cases
cited. But after the admiralty jurisdiction had been settled by the Sts.
of 13 and 15 Ric. II., if a mortal stroke was given on the high sea, and
the person stricken came to land in England and died there, then,
according to the rule established before the St. of Edw. VI. in the case
of two counties, the courts of common law could not try the murderer,
because no jury could inquire of the stroke at sea, and the admiral
could not try him, for want of authority to inquire of the death on land.
3 Inst. 48.
Both Lord Coke and Lord Hale, however, were of opinion that such a
murderer could not wholly escape punishment, although they differed
as to the mode of bringing him to justice Co. Lit. 74 b ; 3 Inst. 48 ;
2 Hale P. C. 12-20.
Neither Lord Coke nor Lord Hale suggests any doubt of the rightful
SECT. VI.] COMMONWEALTH V. MACLOON. 171
power of the legislature to pass a statute to punish whoever should
cause death within the retilm by an injury on the high seas. And in
1729 the parliament of Great Britain passed a statute, declared to be
" for preventing an}' failure of justice and taking away all doubts
touching the trial of murders in the cases hereinafter mentioned," by
which it was enacted that, where any person should be feloniously stricken
or poisoned upon the sea or at any place out of England, and should
die of the same stroke or poisoning in England; or where any peison
should be feloniously stricken or poisoned at any place in England, and
siiould die of the same stroke or poisoning upon the sea or at any place
out of England ; in either of said cases the offenders, both principals
and accessories, might be indicted, tried, convicted and sentenced in
the countj' in England in which such death-stroke or poisoning should
happen respectively, with the same effect as if the felonious stroke and
ileath thereby ensuing, or poisoning and death thereby ensuing, had
happened in the same county. St. 2 Geo. II. c. 21. That statute did
not extend to the colonies, and was repealed by St. 9 Geo. IV. c. 31,
§ 1 ; and no suggestion appears to have been made, while it was lu
force, of its being limited in its application to British subjects. 4 Bl
<3om. 303 ; 1 East P. C. 366. The only published exposition of it is in
an opinion given by Sir James Marriott as advocate-general, who,
looking upon the subject in the view of the law of nations, wrote :
" With respect to murders, when persons die in a foreign country of a
wound received within this realm, or die in this realm of a wound re
€eived in a foreign country, in either alternative the party giving the
wound, and his accessor}' or accessories, by St, 2 Geo. II. c 21, must
be tried in England, the statute considering the cause and effect as one
continuity of action without interval, in order, to found a domestic juris-
diction and to reach the crime." Forsyth's Opinions on Constitutional
Law, 218. In The King v. Farrel, 1 W. Bl. 459, Lord Mansfield
treated the question whether a murder by a mortal stroke on the high
seas, from which death ensued in Ireland, was triable in Ireland, as de-
pending upon the question whether there was any Irish statute upon
the subject. In fact, the Irish St. of 10 Car. I. contained provisions
similar to the English Sts. of Edw. VI. and Geo. II. 1 Gabbett's
Crim. Law, 501. Thus stood the law of the mother country at the
time of the American Revolution.
The courts of the United States have held that a mortal stroke on
the high seas, from which death ensues on land, either in a foreign
country or within the United States, cannot be indicted under an act ol
Congress providing for the punishment of murder or manslaughter on
the high seas. The reason was thus stated by Mr. Justice Washington,
in the leading case : " The deatli, as well as the mortal stroke, must
happen on the high seas, to constitute a murder there." '• The present
is a case omitted in the law ; and the indictment cannot be sustained."
" It would be inconsistent with common law notions to call it murder;
but Congress, exercising the coiiPtitutional power to define felonies on
172 COMMONWEALTH V. MACLOON. [CHAP. II.
the bigh seas, maj' certainly provide that a mortal stroke on the high
sea, wherever the death may happen, shall be adjudged to be a felony."
United States v. M'Gill, 4 Ball. 427 ; s. c. 1 Wash. C. C. 463. United
States V. Armstrong, 2 Curtis C. C. 446. Congress has accordingly
passed statutes providing for the punishment, at first of murder only,
and afterwards of manslaughter, by a blow, wound or poison on the
high seas, or in any river or baj-, within the admiralty and maritime
jurisdiction of the United States, and out of the jurisdiction of any
particular state, followed by death on land. U. S. Sts. 1825, c. 65, § 4 ;
1857, c. 116, § 1.
The legislature of the Commonwealth, from an earlier period, has
asserted th^ rip;ht "^ p""i«hipg~sucB'inTmca__in_^''^ ]ii||,^^r"wtrprp they
take final eftect by destroying life. At February term, 1795, of this
court in SutioiK, a conviction of manslaughter at common law was had
upon an indictment charging that Joseph Hood on the high seas mor-
tally injured John Antony, hy assaulting and beating him with a rope
and a stave and his hands and feet, and exposing him without suflBcient
covering to the cold, winds, and storms, and depriving him of necessary
food, of all which injuries he languished on the high seas and at Boston
in said countj', and died at Boston. At August term, 1795, judgment
was arrested, upon the ground that the indictment charged that the
cause of death arose on the high seas and not within the jurisdiction of
this court. Hood's Case, Rec. 1795, fol. 216, and papers on file. It
was to cure the defect thus declared to exist in our law, that the legis-
lature at its next session, on the 15th of February, 1796, passed the
St. of 1795, c. 45, § 2, by which it was enacted that " where any per-
son hereafter shall be feloniously stricken, poisoned, or injured, on the
high seas, and without the limits of this Commonwealth, and die of the
same stroke, poisoning or injury in any county thereof, that then an in-
dictment thereof, found by the grand jurors of the county where the
death shall happen, before the justices of the Supreme Judicial Court
there held, shall be as good and effectual in law as if the stroke had
been given or the poisoning or injury done in the same county where
the party shall die," By later statutes, all indictments are returned
into the lower court. Webster v. Commonwealth, 5 Cush. 386 ; Gen.
Sts. c. 171, §§ 1 & seq., 21 & seq. But the substance of this provision,
omitting the word" feloniously" (which might be somewhat difficult of
application to an act not done under laws of which our courts have
judicial knowledge) and extended to cases in which the mortal wound
or injury is given on land without the limits of the Commonwealth, has
been embodied in the Rev. Sts. c. 133, § 9, and thence, with merely
verbal changes, in the Gen. Sts. c. 171, § 19, on which this indictment
is founded. Neither of these statutes appears to have been made the
subject of judicial exposition. But a law which has been kept on the
statute book for such a length of time by repeated enactments is not to
be lightly declared invalid for exceeding the legislative power. And it
comes within the principle by which the preceding section, relating to
SECT. VI.] COMMONWEALTH V. MACLOON. 173
death resulting in one countj' from an unlawful act in another, was held
valid in Commonwealth v. Parker, 2 Pick. 550, before cited.
A similar enactment, adding, after " high seas," " or on any other
navigable waters, " has been sustained upon full argument and consider
ation by the Supreme Court of Michigan. Tyler v. People, 8 Mich. 320.
The most plausible form of the argument against the jurisdiction is,
that the coming into the state is the act not of the wrong-doer, but of
the injured person, and therefore should not subject the former to the
jurisdiction, merely because the latter happens to die there. But it is
the nature and the right of every man to move about at his pleasure,
except so far as restrained by law ; and whoever gives him a mortal
blow_assumes the risk of this, and in the view of the law, as in that of
morals, takes his life wherever he happens to die of that wound ; and
may be there punished if the laws of the country have been so framed
as to cover such a case.
In State ?;. Carter, 3 Butcher, 499, the supreme court of New Jersey
held that a man could not be indicted in that state for manslaughter by
mortal bruises given in New York, of which the person injured died in
New Jersey. But the only statute of that state upon the subject, as
was observed by Mr. Justice Vredenburgh in delivering the judgment
of the court, evidently relates to murder onlj-, and not to manslaughter.
His remarks upon the power of the legislature of New Jersey to provide
for the punishment of such a case are therefore purely' obiter dicta ;
and they are unsupported by any reference to authorities, and present
no considerations which require further discussion.
Grosvenor v. St. Augustine, 12 East, 244, was not a criminal case,
but in the nature of an action against the hundred on the St. of 19
Geo. II. c. 34, § 6, which provided that if any officer of the revenue
should be beaten, wounded, maimed or killed hy a smuggler, the inhabi-
tants of the lath in such counties as were divided into laths, and in
other counties the inhabitants of the hundred, " where such fact shall
be committed," should pay all damages suffered by such beating,
wounding or maiming, and one hundred pounds to the executor or
administrator of each person so killed. It was indeed held that this pen-
alty might be recovered by the executor of a revenue officer who re-
ceived a mortal wound in a boat between high and low water mark, of
which he afterwards died on the high sea, by a shot fired from the shore
within the lath. But that was upon the construction of the particular
statute, as appears from Lord Ellenborough's judgment. "The shot
which produced the death, having been fired from the shore within the
lath, brings the case within the fair meaning of the act, the object of
■which was to make the inhabitants of that place where the act was
done which caused the death answerable for it, in order to interest them
in repressing the offences against which the act was levelled." All the
authorities agree that the mere fact of the shot being fired from the
shore would not give the courts of common law jurisdiction of an in-
dictment for homicide. Rex v. Cobmbes, 2 Leach (4th ed.), 388 ; 2
Chalmers Opinions, 217; United States v. Davis, 2 Sumner, 485.
174 COMMONWEALTH V. MACLOON. [CHAP. II.
The learned counsel for the defendants much relied on the case of
Regina v. Lewis, Dearsly & Bell, 182 ; S C. 7 Cox Crim. Cas, 277.
Tha,t was an indictment on the St. of 9 Geo. IV. c. 31, § 8, which was
held not to cover the case of a foreigner dying in England from injuries
inflicted by another foreigner in a foreign vessel upon the high seas.
But, although at the argument two of the judges, Mr. Justice Coleridge
and Mr. Baron Martin, expressed doubts whether parhament could
legislate for the punishment of such a crime, none of the judges except
Mr. Justice Crompton denied the power ; Lord Chief Justice Coekburn
suggested that the section under which the indictment was found, taken
in connection with the next preceding section, relating to murder or
manslaughter in a foreign country, which was in terms limited to
British subjects, must be equally limited ; and after advisement the
opinion of the court was put upon that ground only. The case of Nga
Hoong V. The Queen, 7 Cox Crim. Cas. 489, was decided upon like
(Sonsiderations. Both of those cases, therefore, merely held that the
whole tenor of the statute in question showed that it was not intended
to cover cases of foreigners sailing on the high seas under a foreign
flag , applying the same rule of construction as the Supreme Court of
the United States in United States v. Palmer, 3 Wheat. 631-6-34, and
United States v. Pirates, 6 "Wheat. 195-197. Whether an explicit
statute of the state where a murdered man dies will warrant the in-
dictment and trial of his murderer if found within the jurisdiction is
quite a different question.
Neither of the statutes of the Commonwealth upon this subject has
ever contained anj- yrords limiting the description of the persons by
whom the offence might be committed : and the existing statute clearly
manifests the intention of the legislature to punish all who without
legal justification cause the death of any person within the Common
wealth, wherever the first wrongful act is done, or of whatever country
the wrong-doer is a citizen. The power of the Commonwealth to punish
the causing of death within its jurisdiction is .wholly independent of the
power of the United States, or of the nation to which the vessel be-
longs, to punish the inflicting of the injury on the high seas. And upon
full consideration the court is unanimously of opinion that there is
nothing in the Constitution or laws of the United States, the law of
nations, or the Constitution of the Commonwealth, to restrain the legis-
lature from enacting such a statute.
Mxceptions overruled.
SJBOT. VI.J PEOPLE V. BOTKIN. 175
PEOPLE V. BOTKIN.
StrPBBME COTIKT OP CALIFORNIA. 1901.
[Eeporied 132 Cal. 231.]
Gaeottttb, J. Defendant has been convicted of the crime of mur-
der, and prosecutes this appeal. The charge of the court given to the
jury upon the law contained declarations which were held to be unsound
in People v. Verneseneckockockhoff, 129 Cal. 497. In view of the
decision in that case, the attorney-general concedes that the judgment
should be reversed and the cause remanded to the trial court for
further proceedings. ButdefendanLdaiins-JMt--sIie-js--4iot-4riable--a|
all b£_tli&je©»»'lj» uf Lhly Hlliti?>and this contention should now be passed
upon. For if maintainable a second trial becomes a useless expenditure
of money, time, and labor, and necessarily should not be had.
For the purposes of testing the claim of lack of jurisdiction in the
courts of California to try defendant, the facts of this case may be
deemed as follows : Defendant, in the city and county of San Francisco,
state of California, sent by the TTniffe'^ Sf-.gtpg mail tg TT.H^abeth Dun-
ning, of Dover, Delawarff, a ^"^ "f pninr.iiiirl nmirly, with intent that
said" Elizabeth Dunning should eat of the candy and her death be
caused thereby. The candy was received by the party to whom ad-
dressed, she partook thereof, and her death was the result. Upon
these fact§ may the defendant be charged and tried for the crime of
murder in the courts of the state of California? We do unt find it
necessary to declare what the true rule may be at common IfiT vp^n
ihis state of facts, fpr, in onr npip'on , tll(^ ntntutn nt thn itatr is broad
enough to cover a case of the kind here disclosed. There can be no
question but that the legislature of this state had the power to declare
that the acts here pictured constitute the crime of murder in this state,
and we now hold that the legislative body has made that declaration.
Section 27 of the Penal Code reads as follows : —
"The following persons are liable to punishment under the laws of
this state : —
"1. All persons who commit, in whole or in part, any crimewithiii
this sta,te ;
"'^^ All who commit larceny or robbery out of this state, and bring
to, or are found with the property stolen, in this state ;
"3. All who, being out of this state, cause or aid, advise or en-
courage, another person to commit a crime within this state,, and are
afterwards found therein." *
Subdivision 1 covers the facts of this case. The acts of defendant
constituted murder, and a part of those acts were done by her in this
state. Preparing and sending the poisoned candy to Elizabeth Dun-
ning, coupled with a murderous intent, constituted an attempt to
176 PEOPLE V. BOTKIN. [CHAP. II.
commit murder, and defendant could have been prosecuted in this state
for that crime, if, for any reason, the candy had failed to fulfill its
deadly mission. That being so, — those acts being sufficient, standing
alone, to constitute a crime, and those acts resulting in the death of
the person sought to be killed, — nothing is plainer than that the
crime of murder was in part committed within this state. The murder
being committed in part in this state, the section of the law quoted de-
clares that persons committing murder under those circumstances "are
liable to punishment under the laws of this state.'' The language
quoted can have but one meaning, and that is : a person committing
a murder in part in this state is punishable under the laws of this state,
the same as though the murder was wholly committed in this state.-
Counsel for defendant insist that this section contemplates only
offences committed by persons who, at the time, are without the state.
This construction is not sound. For as to subdivision 1, it is not at
all plain that a person without the state could commit, in whole, a
crime within the state. Again, if the crime in whole is committed
within the state by a person without the state, such a person could
not be punished under the laws of this state, for the state has not pos-
session of his body, and there appears to be no law by which it may
secure that possession. Indeed, all of the subdivisions of the section
necessarily contemplate a case where the person is, or comes, within the
state. If the framers of the section had intended by subdivision 1 to
cover the case of persons only who were without the state when the
acts were committed which constitute the crime, they would have in-
serted in the section the contingency f&und in the remaining sub-
divisions, which subdivisions contemplate a return to the state of the
person committing the crime. It is plain that the section by its
various provisions was intended to embrace all persons punishable
under the laws of the state of California. The defendant, having
committed a murder in part in the state of California, is punishable
under the laws of the state, exactly in the same way, in the same
courts, and under the same procedure, as if the crime was committed
entirely' within the state.
For the foregoing reasons the judgment and orders are reversed and
the cause remanded.
^^'^l- !•] KEX V. MARTIN. 177
CHAPTER III.
THE OFFENCE: MODIFYING CIRCUMSTANCES.
SECTION I,
Participation of a PMic Officer.
REX V. MARTIN.
Crown Case Reserved. 1811.
[Reported Russell ^ Ryan, 196.]
The defendant was tried before Mr. Baron Wood, at the Lent
assizes, for Northamptonshire, in the year 1811, upon an indictment for
a misdemeanor in unlawfully aiding and assisting Antoine Mallet, a
prisoner at war detained within certain limits at Northampton, to
escape and go at large out of the said limits, and conducting him
and bringing him to Preston Turnpike Gate, at Northampton, with
intent to enable and assist him to escape and go at large out of this
kingdom to parts bej'ond the seas.
The case appeared to be this.
The defendant lived at "Wantage, in Berkshire ; she came to Newport
Pagnell, and there hired a post-chaise to take her to Northampton, and
back. The post-boy drove her to Northampton, where she got out, and
the post-boy went to his usual inn, with orders to return to the place
where he set her down, after he had baited and rested his horses. The
post-boy in abbut an hour returned, took the defendant up again in
Northampton, and proceeded towards Newport, and when they had just
got without the town (and within the limits allowed to the prisoners of
war, being one mile from the extremity of the town), she called to the
post-boy to stop and take up a friend of hers that was walking along
the road. The post-boj' stopped, and Mallet got in, and they pro-
ceeded together to Preston Turnpike Gate (which is without the afore-
said limits), in the road to Newport, when they were both stopped and
apprehended by the commissary, or agent for French prisoners and his
assistant who had watched them.
It appeared in evidence that there was no real escape on the part of
Mallet, but that he was employed by the agent for French prisoners,
under the direction of the Transport Board to detect the defendant, who
was supposed to have been instrumental in the escape of many French
prisoners from Northampton, and that all the acts done b}' Mallet, the
contract for the money to be paid to the defendant, and the place to
which they were to go, before they would be stopped, were previoiish'
concerted between the agent for the prisoners and Mallet, and Mallet
had no intention to go away or escape.
178 GEIMM V. UNITED STATES. [CHAP. in.
It was objected to by the counsel foi- the defendant that the commis-
sarj-, having given license to Mallet to go to the place he did go to, had
enlarged the limits of his parole to that place, and therefore Mallet
could not be said to have escaped, nor could the defendant be said to
have assisted him in escaping out of the limits of his parole.
The learned judge proceeded in the trial, and the defendant was
convicted, but he respited the judgment and reserved the point for the
consideration of the judges.
In Trinity term, 15th June, 1811, all the judges met (except Law-
rence, J.,) when they held the conviction wrong, inasmuch as the
prisoner never escaped or intended to escape.
GRIMM V. UNITED STATES.
Supreme Court op the United States. 1895.
\^Reported 156 U. S. 604.]
Indictment under Rev. St. § 3893 for mailing obscene pictures.^
Brewer, J. . . . A final matter complained of grows out of these facts :
It appears that the letters to defendant — the one .signed " Herman
Huntress," described in the second count, and one signed "William W.
AVaters," described in the fourth count — were written by Robert W.
McAfee; that there wprp r^n such persons as Huntress and-WrrCfers;
that McAfee was and had been for years a postofflce inspector in the
employ of the United States, and at the same time an agent of the
Western Society for the Suppression of Vice ; that for some reasons
not disclosed by the evidence McAfee suspected that defendant was
engaged in the business of dealing in obscene pictures, and took this
method of securing evidence thereof; that after receiving the letters
written by defendant, he, in the name of Huntress and Waters, wrote
for a su]2p]£of t.hp nint^Drpa, gnr| rf;f;pJvprl from dcfendajili p;iclfngp'^ lOf
Jres which werejeoaeeded to be obscene. Upon^hese facts it is
"insisted that the conviction cannot be sustained because the letters of de-
fendant were deposited in the mails at the instance of the govern-
ment, and thi'ough the solicitation of one of its officers ; that thej' were
directed and mailed to fictitious persons ; that no intent can be imputed
to defendant to convey information to other than the persons named
in the letters sent bj' him, and that as they were fiotitious persons
there could in law be no intent to give information to any one. TM»--
objection was properly nvprnilpij^ by the trial court. There has been
anxuli dlHi;u«ylUli as tu tllfe lelations of detecETves to crime, and counsel
for defendant relies upon the cases of United States v. Whittier, 5
Dillon, 35 ; United States v. Matthews, 35 Fed. Rep. 890 ; United
States V. Adams, 59 Fed. Rep. 674 ; Saunders v. People, 38 Michigan,
1 The statement of facta and part of the opinion, dealing with the sufficiency of
tlie indictment, are omitted. — Ed.
BfiCT. I.] GRIMM V. UNITED STATES. 179
218, in support of the contention that no conviction can be sustained
under the facts in this case.
It is unnecessary to review these eases, and it is enough to say that
we do not think they warrant the contention of counsel. It does not
^pear that it was the purpose of the po.'jt-offifp inspector to -kidm^HjM'
solicit the commission of a crime, but it was to ascertain whether the
'defeBdanit wiiij_feijg3gg^^ an unlawlurTnisiness" The merefacts that
the letters were written under an assumed name, and that he was a
government ofHcial — a detective, he may be called — do not of them-
selves ■ constitute a defence to the crime actually committed. The
ofHcial, suspecting that the defendant was engaged in a business offen-
sive to good morals, sought information directly from him, and the
defendant responding thereto, violated a law of the United States bo-
using the mails to convey such information, and he cannot plead in
defence that he would not have violated the law if^inquiry had not
been made of him by such government official. The authorities in
support of this proposition are many and well considered. Among
others reference maj' be made to the cases of Bates v. United States,
10 Fed. Rep. 92, and the authorities collected in a note of Mr. Whar-
ton, on page 97 ; United States v. Moore, 19 Fed. Rep. 30, United
States V. Wight, 38 Fed. Rep. 106, in which the opinion was delivered
by Mr. Justice Brown, then District Judge, and concurred in by
Mr. Justice Jackson, then Circuit Judge ; United States v. Dorsey,
40 Fed. Rep. 752; Commonwealth v. Baker, 155 Mass. 287, in which
the court held that one who goes to a house alleged to be kept for
illegal gaming, and engages in such gaming himself for the express
purpose of appearing as a witness for the government against the pro-
prietor, is not an accomplice, and the case is not subject to the rule
that no conviction should be had on the uncorroborated testimony
of an accomplice ; People v. Noelke, 94 N. Y. 137, in which tlie same
doctrine was laid down as to the purchaser of a lottery ticket, who
purchased for the purpose of detecting and punishing the vendor ;
State V. Jansen, 22 Kansas, 498, in which the court, citing several au-
thorities, discusses at oome length the question as to the extent to which
participation by a detective affects the liability of a defendant for
a crime committed by the two jointly ; State v. Stickney, 53 Kansas,
308. But it is unnecessary to multiply authorities. The law was
actually violated by the defendant ; he placed letters in the post-
ofBce which conveyed information as to where obscene matter could
be obtained, and he placed them there with a view of giving such infor-
mation to the person who should actually receive those letters, no
matter what his name ; and the fact that the person who wrote under
these assumed names and received his letters was a government
detective in no manner detracts from his guilt.
These are all the questions presented by counsel. We see no error
in the rulings of the trial court, and the judgment is, therefore.
Affirmed.
i
180 PEOPLE V. MILLS. [CHAP. III.
PEOPLE V. MILLS.
Court of Appeals of New York. 1904.
[Reported 178 A^.T. 274.]
Indictment for theft of public records. The defendant was con-
victed of an attempt to comrait larceny of the records. The defendant,
desiring to have a certain indictment removed from the records, offered
an assistant district attorney a bribe to remove and give it np.
The district attorney being informed of the scheme directed his assist-
ant seemingly to comply with it ; the assistant thereupon, for the pur-
pose of apprehending the defendant, removed the indictment and handed
it to the defendant, who was thereupon arrested by police officers in
waiting. , A judgment of conviction was affirmed by the Appellate Divi-
sion, and an appeal was taken.^
Vann, J. The indictments against Dr. Flower were records or doc-
uments iiled in a public office, under the authority of law. (Code Grim.
Pro. § 272, Code Civ. Pro. § 866.) They were the property of the
state and gjyilfnl nnrl unlawful rpmnval nf them constituted a crime
iinHfii- aeotiinn Qij nf tlinJ?eiin.1 Code. Any one who unlawfhlTy obtainea*
or appropriated them was guilty of grand larcen}' in the second degree,
according to the provisions of another section of the same statute.
(Penal Code, § 631.) Whoever is guilty of violating either section may
be convicted of an attempt to commit the offence specified therein,
even if it appears on the trial that the crime was fully consummated,
unless the court in its discretion discharges the jury and directs the
defendant to be tried for the crime itself, which was not done in the
case before us. (Code Grim. Pro. §§ 35 and 685). The jury found
the defendant guilty of an attempt both to remove and to steal the indict-
ments, and after affirmance by the Appellate Division we are confined
in our review to such questions as were raised by exceptions taken
during the trial.
In view of the able and exhaustive opinion of the Appellate Division,
the only question we feel called upon to consider is that raised by the
challenge of the learned counsel for the appellant in the nature of
a demurrer to the evidence. He claims that even on the assumption
that all the evidence for the prosecution is true, still the facts thus
proved do not constitute the crime charged in either count of the
indictment. His argument is that the_a.bj°"ti "f thfi '^'°t.'-i<ij^ttorncy
was not to dete^tTbut to create a crime, and that no crime was com-
"mitted by the defendant in taking the indictments into his possession,
because he topk them with the consent nf the state, yr. rrprnnrnt-pfl hy
thedistrict attorney.
" The flaw in this argument is found in the fact that the records were
the propertj' of the state, not of the district attorne}', and that the latter
" r
1 This ^ort statement is substituted for the longer statement of facts by the Repor-
ter. Part^f the opinion is omitted. — Ed.
SECT. I.j PEOPLE V. MILLS. 181
could not lawful!}' give them awa}' or permit them to be taken by the
defendant. Purit>' of intention only could prevent the action of the
district attorney from being a crime on his part. This is true also as
to the detective, for if either had in fact intended that the defendant
should permanently remove the indictments, and steal, appropriate or
destroy them, he would have come within the statute. Neither of those
officers represented the state in placing the records where the defendant
could take them, but each was acting as an individual only. Neither
had the right or power, as a public officer, to deliver them to the de-
fendant, and if either had acted with an evil purpose, his act would
have been criminal in character. . . .
We shall not review the authorities cited on either side, for that dutj'
has been so thoroughly discharged by the Appellate Division that we
can throw no further light upon the subject. We merely state that an
important distinction between this case and those relied upon by the
appellant is found in the difference between public and private owner-
ship of the property taken bj' the accused. In most cases some third
person is Injured by the crime and is directly or indirectly the com-
plainant, but in this case the state was, as it must be in all criminal
cases, the prosecutor and it was also the injured part}', for its propertj'
was the subject of the attempt at larceny. Tf ax^ jpdividual owner v-ol—
untarily delivers his property to one who wishes to steal it there is no
trespass, but wBBti the property ot th£__srnte is delivered by aay one,
under any ciicuuisLaijiTfrT^n finy po>^»" f"v t.ho pnrpns^ r»f having him
steal it and he takes it iiv(v2j2i.° pftggQgg''-'" "g'Mi intf"'' *n °^°''' ^^i timi-o
is a. trespass and TIIP fllt"^*^ J'l f1 "P"^ The state did not solicit or
persuade or tempt the defendant, any more than it took his money
when he handed it over to the detective. Neither did the district attor-
ney, as such, but Mr. Jerome did, acting as an individual, with the best
of motives, but without authority of law and, hence, his action did not
bind the state. White the courts neither adopt nor approve the action
of the officers, which they hold was unauthorized, still they should not
hesitate to punish the crime actually committed by the defendant. It
is their dut}' to protect the innocent and punish the guilty. We are
asked to protect the defendant, not because he is innocent, but because
a zealous public officer exceeded his powers and held out a bait. _lChe
courts dp ""t ^""*^ ^ft '"^'' '^^'^ ^'^^'^ out the V'qit^"*' t,*^ spp wh" t^-ilijt
When it was found that the aerendant tooKinto his possession tlie
property of the state with intent to steal it, an oiTence against public
justice was established and he could not insist as a defence that he
would not have committed the crime if he had not been tempted by a
public oflicer whom he thought he had corrupted. He supposed he had
bought the assistant dintrirt nttnilliX-S't'P" ^" hnnrlorl nKp.r the money,
but he knew~Ee~Ead not bought the state of Nfivr Yoi'k and , hence, that
the assistant had no right to give him its property for tlie purpose of
enabling him to steal it. The judgment of conviction should be affirmed.'
1 O'Beien and Baktlett, JJ., delivered disaenting opinions. — Ed.
182 McDANIEL'S case. [chap. III.
SECTION 11.
Aoquiescence of the Injured Party.
McDANIEL'S CASE.
Crown Case Reskrved. 1755.
[Reported Foster C. L. 121.]
At the Old Bailey session in December, 1 755, Justice Foster pro-
nounced the judgment of the court in the case between the King and
Macdaniel and others, to the effect following : —
The indictment chargeth, that at the general gaol-delivery holden at
Maidstone in the county of Kent, on the 13th of August in the twenty-
eighth year of the King, Peter Kellj' and John Ellis were bj' due course
of law convicted of a felony and robberj' committed by them in the
King's highway in the parish of Saint Paul Deptford in the countj' of
Kent, upon the person of James Salmon one of the prisoners at the bar,
and that the prisoners Stephen Macdaniel, John Berry, James Eagen,
and James Salmon, before the said robbery, did in the parish of Saint
Andrew Holbourn in this city, feloniouslj' and maliciously comfort, aid,
assist, abet, counsel, hire, and command the said Peter Kelly and John
Ellis to commit the said felony and robber^'.
On this indictment the prisoners have been tried, and the jury have
found a special verdict to this effect.
That Kelly and Ellis were by due course of law convicted of the said
felony and robbery.
That before the robbery all the prisoners and one Thomas Blee, in
order to procure to themselves the rewards given by act of Parliameijit
for apprehending robbers on the highway, did maliciously and feloni"
ously meet at the Bell Inn in Holbourn in this city ; and did then and
there agree that the said Thomas Blee should procure two persons to
commit a robbery on the highway in the parish of Saint Paul Deptford,
upon the person of the prisoner Salmon.
That for that purpose they did all maliciouslj' and feloniously con-
trive and agree that the said Blee should inform the persons so to be
procured that he would assist them in stealing linen in the parish of
Saint Paul Deptford.
That in pursuance of this agreement, and with the pri-vity of all the
prisoners, the said Blee did engage and procure the said Ellis and Kelly
to go with him to Deptford in order to steal linen ; but did not at any
time before the robbery inform them or either of them of the intended
robbery.
That in consequence of the said agreement at the Bell, and with the
privity of all the prisoners, the said Ellis and Kelly went with the said
Blee to Deptford.
SECT, ii.j mcdaniel's case. 183
That the said Blee, Ellis, and Kelly being there, and the prisoner
Salmon being likewise there waiting in the highway in pursuance of the
said agreement, the said Blee, Ellis, and Kelly feloniouslj' assaulted
him, and took from his person the money and goods mentioned in the
indictment.
They farther find that none of the prisoners had any conversation
with the said Ellis and Kelly or either of them previous to the robbery ;
but they find, that before the robbery the prisoners Macdaniel, Eagen,
and Berry saw the said Ellis and Kelly, and approved of them as per-
sons proper for the purpose of robbing the said Salmon.
But whether the prisoners are guilty in manner as charged in the
ip/H/^fry^Ppt, thi^Y pray the advice of the court. ' "
This special verdict hath been~'ai^ued before all the judges of
England.^
It is expressly found that Salmon was party to the original agree-
ment at the Bell ; that he consented to part with his money and goods
under color and pretence of a robbery ; and that for that purpose, and
in pursuance of this consent and agreement, he went to Deptford, and
waited there till this colorable^ robbery was effected.
This being the state of the case with regard to Salmon, the judges
are of opinion that in consideration of law no robbery was committed
on him. His property was not taken from him against his wiU.
I come now to the case which I promised at the beginning to consider
and to distinguish from the present case. One Norden, having been
informed that one of the early stage-coaches had been frequently robbed
near the town by a single highwayman, resolved to use his endeavors to
apprehend the robber. For this purpose he put a little money and a
pistol into his ppcket, and attended the coach in a post-chaise, till the
highwayman came up to the company in the coach and to him, and pre-
senting a weapon demanded their money. Norden gave him the little
money he had about him, and then jumped out of the chaise with his
pistol in his hand ; and with the assistance of some others took the
highwayman.
The robber was indicted about a year ago in this court for a robbery
on Norden, and convicted. And very properly, in my opinion, was he
convicted.
But that case dlffereth widely from the present. In that case Norden
set out with a laudable intention to use his endeavors for apprehending
the highwayman, in case he should that morning come to rob the coach,
which at that time was totally uncertain ; and it was equally uncertain
whether he would come alone or not. In the case now under considera^
tirmthrrr wftn a inniti drli lilili rnnipirnpy hrtwrrn htilmnn nnn the
restof the prisoners, that his propfMJj ihniild hv tikfn fr^m him 'iH°r
thf\JrsTict\e(\ nnd i\\ii\W ill ii inliliilry^ and time, place, and every other
circumstance were known to Salmon beforehand, and agreed to by him,
1 Part of the case is omitted.
184 eggington's case. [chap. hi.
In Norden's case there was no concert, no sort of connection between
him and the highwayman ; nothing to remove or lessen the difficult}- or
danger Norden might be exposed to in the adventure. In the present
case there was a combination between Salmon and one at least of tne
supposed robbers. I mean Blee. And though Salmon might not know
the persons of Ellis and Kelly ; yet he well knew that they were brought
to the place b}' his friend Blee, and were wholly under his direction.
So widely do these cases differ !
TcLConclude. all the pri«'''"p^™-ha.Ye been guilty of a most wicked and
detestable conspjxacy-to rend^i^a. very salutary law subservient to their
-vrteT'corrupt vipwg_ R^it, grpgt; MS tihpir offence is, it doth not amount to
Jeiony,__^nct "therefore the judgment of the court isTESt Uie^ be all
discharged of this indictment.-'
EGGINGTON'S CASE.
Ckown Case Eesbev-ed. 1801.
[Reported 2 East, Pleas of the Crown, 666.]
It appeared that the prisoners, intending to rob Mr. Boulton's manu-
factory at Soho, had applied to one Phillips his servant, who was em-
ployed there as a watchman, to assist them in the robber^'. Phillips
assented to the proposal of the prisoners in the first instance ; but
immediately afterwards gave information to Mr. Boulton, the principal
proprietor, and in whom the propertj' of the goods taken (together
with other persons his partners) was laid ; telling him what was in-
tended, and the manner and time the prisoners were to come ; that
they were to go into the counting-house, and that he was to open the
door into the front yard for them. In return, Mr. Boulton told him to
carrj' on the business ; that he (Boulton) would bear him harmless ;
and Mr. Boulton also consented to his opening the door leading to the
front yard, and to his being with the prisoners the whole time. In con-
sequence of this information, Mr. Boulton removed from the counting-
house everjthing but 150 guineas and some silver ingots, which he
marked to furnish evidence against the prisoners ; and la}- in wait to
take them, when they should have accomplished their purpose. On the
23d of December, about one o'clock in tlie morning, the prisoners came,
and Phillips opened the door into the front yard, through which they
went along the front of the building, and round into another yard
behind it, called the middle yard, and from thence they and Phillips
went through a door which was left open, up a staircase in the centre
building leading to the counting-house and rooms where the plated busi-
ness was carried on ; this door the prisoners bolted, and then broke open
1 See State v. Anoue, 2 N. & McC. 27; Alexander v. State, 12 Tex. 541. —Ed.
SECT. II.] EGGINGTON'S CASE. 185
the couuting-house which was locked, and the desks, which were also
locked ; and took from thence the ingots of silver and guineas. They
then went to the story above into a room, where the plated business
was carried on, and broke the door open and took from thence a quan-
tity of silver, and returned downstairs ; when one of them unbolted
the door at the bottom of the stairs which had been bolted on their
going in, and went into the middle yard ; where all (except one who
escaped) were taken by the persons placed to watch them. OiL-this-
rjiiir twn pnintri Trrrr^Made for tl'fi-prinnnr.m . V^'wnt., ihnt nft_felony was
proved, as the whole vya.a flnnp yjth the knowledge and assent of Mr.
Boulton, and that the acts, of Phillip° ™o'-o hjf ?,"''° Secondly, that if ^
the facts proved amounted to a felony, it was but a simple larceny, as
the building broke into was not the dwelling-house of any of the per-
sons whose house it was charged to be ; and that there was no break-
ing, the door being left open. After conviction, the case was argued
before all the judges in the Exchequer Chamber ; and, for the reasons |
before stated, all the judges agreed that the prisoners were not guilty
of the burglarj'.^
^]^ ^itih '•ggpP'^t tr» tVin Iniinpny thp jpajn^Mfy fVinnnrht. thcrC WaS nO
assent in Bonltnn ; that his object being to detect tue prisoners, ne
only gave them a greater facility to commit the larcenj' than they other-
wise might have had ; and tliat this could no more be considered as an
assent, than if a man, knowing of the intent of thieves to break into
his house, were not to secure it with the usual number of bolts. That
there was no distinguishing between the degrees of facility a thief might
have given to him. ThaJLJl_cflul4-T3iiiy~be<.£onsidered as an apggjient
- assent. That Boultoifnever meant that the prisoneTS tihuuldTaEe away
his property. And the circumstance of the design originating with the
prisoners, and Boulton's taking no step to facilitate or induce the offence
until after it had been thought of and resolved on by them, formed with
some of the judges a very considerable ingredient in the case ; and dif-
fered it much from what it might have been if Boulton had employed
his servant to suggest it originally to the prisoners. Lawkence, J.,
doubted whether it could be said to be done invito domino, where the
owner had directed his servant to carry on the business, to open
the door, and meant that the prisoners should be encouraged by the
presence of that servant ; and that by his assistance they should take
the goods, so as to make a complete felon}* ; though he did not mean
that thej' should carry them away. Finally, the prisoners were recom-
mended to mercy on condition of being transported for seven years,
the punishment they would have been liable to for the larceny. The
decision in the above case is consonant to the rule laid down in the
civil law under similar circumstances."
1 See State c. Hayes, lO.'J Mo. 76, 16 S. W. 514; State v. Douglass, 44 Kan. 618. — Ed.
2 Vide Just. Iiisf. lil> i. tit. 1, s. 8.
186 TOPOLEWSKI V, HTATB, [C!IIAP. m.
TOPOLEWSKI V. STATE.
Supreme Court op Wisconsin. 1906.
[Reported 109 N. W. 1037.]
The accused was charged with having stolen three barrels of meat,
the property of the Plankinton Packing Company, of the value of
$55.20, and was found guilty.
The evidence was to tliis effect : The Plankinton Packing Company
suspected the accused of having by criminal means possessed himself
of some of its property, and of having a purpose to make further efforts
to that end. A short time before the 14th day of October, 1905, one
Mat Dolan, who was indebted to the accused in the sum of upwards of
$100, was discharged from the company's employ. Shortly theretofore
the accused pressed Dolan for payment of the aforesaid indebtedness,
and tlie latter being unable to respond, the former conceived the idea
of solving the difficulty by obtaining some of the company's meat pro-
ducts through Dolan's aid and b}^ criminal means, Dolan to participate
in the benefits of the transaction by having the value of the property
credited upon his indebtedness. A plan was accordingly laid by the
two to that end, which Dolan disclosed to the company. Such plan
was abandoned. Thereafter various methods were discussed of carrj--
ing out the idea of the accused, Dolan participating with the knowledge
and sanction of the company. Finalh' a meeting was arranged between
Dolan and the accused to consider the subject, the packing company
requesting the former to bring it about, and with knowledge of Dolan
causing one of its employes to be in hiding where he could overhear
whatever might be said, the arrangement being made on the part of the
company by Mr. Layer, the person in charge of its wholesale depart-
ment. At such interview the accused proposed that Dolan should pro-
cure some packages of the company's meat to be placed on their loading
platform, as was customary in delivering meat to customers, and that
he should drive to such platform, ostensibly as a customer, and remove
such packages. Dolan agreed to the proposition, and it was decided
that the same should be consummated early the next morning, all of
which was reported to Mr. Layer. He thereupon caused four barrels
of meat to be packed and put in the accustomed condition for delivery
to customers, and placed on the platform in readiness for the accused
to take them. He set a watch over the property, and notified the per-
son in charge of the platform, who was ignorant of the reason for so
placing the barrels, upon his inquiring what they were placed there for,
to let them go ; that they were for a man who would call for them.
About the time appointed for the accused to appear, he drove to the
platform and commenced putting the barrels in his wagon. The plat-
form boss supposing, as the fact was, that the accused was the man
SECT. II.J TOPOLEWSKI V. STATE. 187
Mr. Layer said was to come for the property, assumed the attitude of
consenting to the taking. He did not actually help load the barrels on
to the wagon, but he was by, consented by his manner, and when the
accused was ready to go, helped him arrange his wagon, and inquired
what was to be done with the fourth barrel. The accused replied that
he wanted it marked and sent up to him with a bill. He told the plat-
form boss that he ordered the stuff the night before through Dolan.
He took full possession of the three barrels of. meat with intent to
deprive the owner permanently thereof, and without compensating it
therefor, wholly in ignorance, however, of the fact that Dolan had
acted in the matter on behalf of such owner, and that it had knowinglj'
aided in carrying out the plan for obtaining the meat.
Marshall, J.^ . . . It was frankly conceded on the oral argument by
the learned attorney general that if the plaintiff in error committed the
orime of larceny, Dolan, the decoy of the packing company, was a
guilty participant in the matter, unless the element of guilt on his part
was absent, because, while in the transaction he acted ostensibly as an
accomplice of the accused, his acts were in fact those of the packing
company. So in the circumstances characterizing the taking of the
barrels of meat from the loading platform the case comes down to this:
If a person procures another to arrange with a third person for the lat-
ter to consummate, as he supposes, larceny of the goods of such person
and such third person in the course of negotiations so sanctioned by
such person suggests the plan to be followed, which is agi'eed upon
between the two, each to be an actor in the matter, and subsequently
that is sanctioned secretly bj' such person, the purpose on the part of
the latter being to entrap and bring to justice one thought to -be dis'
posed to commit the offence of larceny, and such person carries out a
part of such plan necessary to its consummation assigned to such other
in the agreement aforesaid, such third person not knowing that such
person is advised of the impending offence, and at the finality causeii
one of its employes to, tacitly at least, consent to the taking of thu
goods, not knowing of the real nature of the transaction, is such thirol
person guilty of the crime of larceny, or does the conduct of such' per
son take from the transaction the element of trespass or nonconsent
essential to such crime?
It will be noted that the plan for depriving the packing company ol
its property originated with the accused, but that it was wholly im-
practicable of accomplishment without the property being placed on the
loading platform, and the accused not being interfered with when he
attempted to take it. When Dolan agreed to procure such placing the
packing company in legal effect agreed thereto. Dolan did not ex-
pressly consent, nor did the agreement he had with the packing com-
pany authorize him to do so, to the misappropriation of the property.
Did the agreement in legal effect, with the accused to place the prop-
^ Tart of the opinion is omitted. — Ed.
188 TOPOLEWSKI V. STATE. [CHAP. III.
erty of the packing compan}- on the loading platform, where it could bo
appropriated by the accused, if he was so disposed and was not inter-
fared with in so doing, though his movements in that regard were
known to the packing company, and his taking of the property, his
efforts to that end being facilitated as suggested, constitute consent to
such appropriation?
The case is very near the border line, if not across it, between con-
sent and nonconsent to the taking of the property. Reg. v. Lawrence,
4 Cox C. C. 438, it was held that if the property was delivered by a
servant to the defendant by the master's direction the offence cannot
be larceny, regardless of the purpose of the defendant. In this case
the property was not only placed on the loading platform, as was usual
in delivering such goods to customers, with knowledge that the -accused
would soon arrive, having a formed design to take it^but the packing
company's employe in charge of the platform, Ernst Klotz, was in-
structed that the property was placed there for a man who would call
for it. Klotz, from such statement, had every reason to infer, when the
accused arrived and claimed the right to take the property, that he was
the one referred to, and that it was proper to make deliver3' to him,
and he acted accordingl}-. While he did not physically place the prop-
erty, or assist in doing so, in the wagon, his standing by, witnessing
such placing by the accused, and then assisting him in arranging the
wagon, as the evidence shows he did, and taking the order, in the usual
way, from tlig accused as to the disposition of the fourth barrel, and
his conduct in respect thereto, amounted practically to a deliver}- of the
three barrels to the accused.
In Eex V. Egginton, 2 P. & P. 508, we have a very instructive case
on the subject under discussion here. A servant informed his mastel
that he had been solicited to aid in robbing the latter's house. By the
master's direction the servant opened the house, gave the would-be
thieves access thereto, and took them to the place where the intended
subject of the larceny had been laid in order that they might take it.
All this was done with a view to the apprehension of the guilty parties
after the accomplishment of their purpose.- The servant, bj' direction
of the master, not only gave access to the house, but afforded the
would-be thieves every facility for taking the property, and yet the
court held that the crime of larceny was complete, because there was
no direction to the servant to deliver the property to the intruders or
consent to their taking it. They were left free to commit the larceny,
as they had purposed doing, and the way was made easy for them to
do so, but they were neither induced to commit the crime, nor was any
act essential to the offence done by any one but themselves.
In harmony with the case last discussed in Williams v. State of
Georgia, 55 Ga. 391, cited by counsel for the plaintiff in error, it was
held that the owner of property may make everything ready and easy
for a larceny thereof by one purposing to steal the same, and then
bECT. Il.J TOPOLEWSKI V. STATE. 189
remain passive, allowing the would-be criminal to perpetrate the offence
of larcenj- as to every essential part of such offence, witiiout. sacrificing
the element of trespass or nonconsent ; but if one ostensiblj' acting as
an accomplice, but reallj' for the owner of the property, for the pur-
pose of entrapping the would-be criminal, does acts amounting to the
constituents of the crime of larcenj*, although the accused concurred in
and supposed he prompted the act, he is not guilty of larceny. The
circumstances of that case were these : The would-be criminal when he
took the property supposed he was committing the offence of larceny,
and that his associate was criminally participating therein ; but because,
as a fact, such person was acting by direction of the owner, and actually
placed the property in the hands of the taker, the element of nonconsent
essential to larceny did not characterize the transaction. A distinction
was drawn between one person inducing another to commit the crime
of lareenj' of the former's goods, or such person aiding in the commis-
sion of the offence, so far as the mental attitude of such other is con-
cerned, bj' doing some act essential to such an offence, and merely
setting a trap to catch a would-be criminal by affording him the freest
opportunity to commit the offence. The latter does not sacrifice the
element of nonconsent. State v. Jansen, 22 Kan. 498 ; Varner v. State
of Georgia, 72 Ga. 745 ; State v. Duncan, 8 Rob. (La.) 562 ; Reg. v.
Williams, 1 Car. & K. 195 ; Rex v. Egginton, 2 B. & P. 508. .
In the case before us, the owner of the property, through its agent,
Dolan, did not suggest the plan for committing the offence of larceny,
which was finally adopted, but the evidence shows conclusivelj' that,
by the consent or direction of the packing company, through words or
otherwise, he suggested the commission of such an offence, and invited
from the accused plans to that end. The fair construction of the evi-
dence is that in the finality the plan was a joint creation of the two,
and that it required each to be an active participant in its consumma-
tion. It seems that there is good reason for holding that the situation
in thatrespect falls within the condemnatory language in the opinion of
the court in Love v. People, 160 111. 501, 43 N. E. 710, 32 L. R. A.
139, cited to our attention by counsel for the plaintiff in error. That
will be apparent from the closing words of the opinion, which are as
follows :
" A contemplated crime may never be developed into a consummated
act. To stimulate unlawful intentions for the purpose and with the
motive of bringing them to maturity, so the consequent crime maj- be
punished, is a dangerous practice. It is safer law and sounder morals
to hold, where one arranges to have a crime committed against his
property' or himself, and knows that an attempt is to be made to en-
courage others to commit the act by one acting in concert with such
owner, that no crime is thus committed. The owner and liis agent may
wait passively for the would-be criminal to perpetrate the offence, and
each and every part of it, for himself, but they must not aid, encourage,
or solicit him that thej' may seek to punish."
190 TOPOLEWSKI V. STATE. [CHAP. III..
We cannot well escape the conclusion that this case falls under the-
condemnation of the rule that where the owner of property b}- himself
or his agent, actually or constructively, aids in the commission of the
offence, as intended by the wrongdoer, by performing or rendering
unnecessary some act in the transaction essential to the offence, the
would-be criminal is not guilty of all the elements of the offence. Here
Mr. Layer, acting for the owner- of the property, packed or superin-
tended the packing of the four barrels of meat, as suggested by the
owner's agent in -the matter, Dolan, and caused the same to be placed
on the platform, knowing that the accused would soon arrive to take
them, under an arrangement between him and its agent, and directed
its platform boss, when he inquired as to the purpose of so placing the
barrels, " Let them go ; they are for some man, and he will call for
them." He, from the standpoint of such employe, directed the latter
to deliver the barrels to the man when he called, the same in all re-
Bpects as was done in Williams v. State, supra. He substantially made
iBuch deliver^', by treating the accused when he arrived upon the scene
as having a right to take the property. In that the design to trap a
criminal went a little too far, at least, in that it included the doing of
an act, in effect preventing the taking of the property from being char-
acterized by any element of trespass.
The. logical basis for the doctrine above discussed is that there can
be no larceny without a trespass. So if one procures his property ta
be taken by another intending to commit larceny, or delivers his prop-
ert3' to such other, the latter purposing to commit such crime, the
element of trespass is wanting, and the crime not fully consummated,
however plain may be the guilty purpose of the one possessing himself
of such property. That does not militate against a person's being free
to set a trap to catch one whom he suspects of an intention to commit
the crime of larceny, but the setting of such trap must not go further
than to afford the would-be thief the amplest opportunity to carry out
his purpose, formed without such inducement on the part of the owner
of the property, as to put him in the position of having consented to
the taking. If I induce one to come and take my property, and then
place it before him to be taken, and he takes it with criminal intent, or
if knowing that one intends to take my property, I deliver it to him,
and he takes it with such intent, the essential element of trespass in.
volving nonconsent requisite to a completed offence of larcenj' does not
characterize tht transaction, regardless of the fact that the moral turpi-
tude involved is no less than it would be if such essential were present.
Some writers in treating this subject give so much attention to con-
demning the deception practiced to facilitate and encourage the com-
mission of a crime bj- one supposed to have such a purpose in vicw^
that the condemnation is liable to be viewed as if the deception were
suflScient to excuse the would-be criminal, or to preclude his being
prosecuted ; that there is a question of good morals involved as to both
SECT. II.] TOPOLEWSKI V. STATE. 191
parties to the transaction, and tliat the wrongful participation of the
owner of the property renders him and the public incapable of being
heard to charge the person he has entrapped with the offence of larceny.
That is wrong. It is the removal from the completed transaction, wliich
from the mental attitude of the would-be criminal may have all the in-
gredients of larcenj', from the standpoint of the owner of the property
of the element of trespass or nonconsent. When such element does
not characterize a transaction involving the full offence of larceny, so
far as concerns the mental purpose of such would-be criminal is con-
cerned, is often not free from difficulty, and courts of review should
incline quite strongly to support the decision of the trial judge in re-
spect to the matter, and not disturb it except in a clear case. It seems
that there is such a case before us.
If the accused had merely disclosed to Dolan, his ostensible accom-
plice, a purpose to improve the opportunity when one should present
itself to steal barrels of meat from the packing company's loading plat-
form, and that had been communicated by Dolan to the company, and
it had then merely furnished the accused the opportunity he was look-
ing for to carry out such purpose, and he had improved it, the situation
would be quite different. The mere fact that the plan for obtaining
the property was that of the accused, under the circumstances of this
case, is not controlling. Dolan, as an emissary of the packing company,
as we have seen, was sent to the accused to arrange, if the latter were
so disposed, some sort of a plan for taking some of the company's prop-
erty with the intention of stealing it. Though the accused proposed the
plan, Dolan agreed to it, which involved a promise to assist in carrying"
it out, ostensibly as an accomplice, but actually as an instrument of the
packing company. That came very near, if it did not involve, solicita-
tion by the company, in a secret way, for the accused to take its prop-
erty as proposed. With the other element added of placing such
propert3' on the loading platform for the accused to take pursuant to
the agreement, with directions, in effect, to the person in charge of- the
platform, to let the accused take it when he came for that purpose, we
are unable to see any element of trespass in the taking which followed.
The packing company went very significantly further than the owner
of the property did in Eex v. Egginton, supra, which is regarded as
quite an extreme case. It solicited the opportunity to be an ostensible
accomplice in committing the offence of larceny instead of being solic-
ited in that regard, and the property was in practical effect delivered
to the would-be thief instead of its being merely placed where he could
readily trespass upon the rights of the packing company by taking it.
When one keeps in mind the plain distinction between merely furnisii-
ing opportunity for the execution of a formed design to commit larceny
and negotiations for the purpose of developing a scheme to commit the
offence, regardless of who finally proposes the plan jointlj' adopted, and
not facilitating the execution of the plan by placing the property pur-
192 EEGINA V. CASE. [CHAP. IIL
suant to the arrangement where it can readily be taken, but in practical
effect, at least, delivering the same into the possession of the would-be
thief, one can readily see that the element of trespass, involving consent,
is present in the first situation mentioned, and not in the last, and that
the latter pretty clearly fits the circumstances of this case.
The judgment is reversed, and the cause remanded for a new trial.
SECTION III.
Consent of the Injured Party.
EEGINA V. CASE.
Crown Case Reserved. 1850.
[RepoHed i Cox C. C. 220.]
The following case was reserved by the Eecorder of Dover :
William Case was tried before me at the last April Quarter Sessions
for the borough of Dover, for an assault upon Mary Impitt.
The defendant was a medical practitioner. Marj' Impitt, who was
fourteen years old, was placed under his professional care by her
parents, in consequence of illness, arising from suppressed menstrua-
tion ; and on the occasion of her going to his house, and informing him
she was no better, he observed, " Then I must try further means with
you." He then took hold of her, and laid her down in his surgery,
lifted up her clothes, and had carnal connection with her, she making
no resistance, believing (as she stated) that she was submitting to
medical treatment for the ailment under which she labored. The de-
fendant's counsel, in his address to the jurj', contended that the girl
was a consenting party ; therefore, that the charge of assault could not
be sustained.
I told the jury that the girl was of an age to consent to a man having
carnal connection with her, and that if they thought she consented to
such connection with the defendant he ought to be acquitted ; but that
if they were satisfied she was ignorant of the nature of the defendant's
act, and made no resistance, solely from a bond fide belief that the
defendant was (as he represented) treating her medically, with a view
to her cure, his conduct, in point of law, amounted to an assault.
The jury found the defendant guilty, and he was sentenced to be
imprisoned for eighteen calendar months in the borough gaol, where he
now remains. I have to pray the judgment of my lords, justices, and
SECT. HI.] EEGINA V. CASE. 193
othcis, sitting in a court of appeal, whether my direction to the jury
was correct in point of law.
Horn, for the prisoner. The consent of the girl is found ; for con-
senting and not resisting are synonymous. [Coleridge, J. — They are
clearly used in a different sense here. Wilde, C. J. — I£^a medical
mnn ngfia yniinjni-innq rii'nfrnent the patjcnt dogg^ot re^jiit jts applJ-Ba-
tion : but it cannot he said that be consentsT Alderson, B. — How
does this differ fiom the easy of tl man pretending to be the husband of
the woman ?] Fraud is not expressly found in this case. It ought to
have been left to the jury expressly to say whether the act done was
necessary or proper. It is consistent with the verdict that he may have
treated her medically. [Alderson, B. — He pretended that that was
medicine which was not ; hereby that is fraud.] In the notes to E.
V. Bead (1 Den. C. C. 379), it' is said, "It seems from R. v. Martin
(2 Moo. C. C. 123 ; 9 Car. & P. 213) ; R. v. Banks (8 Car. & P. 674) ;
R. V. Meredith (8 Car. & P. 589), first, that the stat. 9 Geo. 4, c. 31,
s. 17, does not deprive a girl under ten years of age of the power to
consent which she had at common law ; secondlj', that consequently if
she consents to the mere incomplete attempt, such an attempt is not
punishable as an assault ; thirdlj', that it is punishable as an attempt
to commit a felony, viz., .as a misdemeanor ; " and further, " an assault
seems to be an}"- sort of personal ill-usage, short of a batterj^ done to
another against his consent. Therefore, such act, done with consent,
is no breach of the peace or crime." Children of tender age are, there-
fore, capable of consenting; so is an idiot (R. v. Ryan, 2 Cox C. C.
115). [Patteson, J. — What do you say the jury found?] It is con-
sistent with the verdict that he may have treated her medically.
[Coleridge, J. — Suppose even that he did the act bond fide for the
purpose which he pretended, would that justify him? Had he a right
to pollute the child's body ?] Certainly not, morally ; but the question
is, was it an assault in the eye of the law, there being consent in fact.
[Platt, B. — The girl did not consent to that which was done. She
did not know the nature of the act.] In Read's case (1 Den.' C. C. 377),
the jury found that, from her tender years, the child did not know
what she was about. Yet, as they found that she assented, the prison-
ers were held entitled to an acquittal upon the indictment, which
charged them with an assault. [Alderson, B. — It must be taken that
there was actual consent in that case.] Even if fraud was established,
still there was no assault. The doctrine of rape per fraudem stands
Upon the decision of two judges, Alderson, B. and Gurney, B., in R. w.
Williams (8 Car. & P. 286), and R. v. Saunders (ih. 265). In those cases
the defendants were indicted for rape, and it appearing that the con-
sent of the woman in each case had been obtained under the belief that
the man was her husband, the learned judges directed that the prison-
ers should be acquitted of the charge of rape, but convicted of an
assault. [Alderson, B. — In the case before me I followed several
previous decisions, although I doubted them.] If they were guilty of
194 REGINA V. CASE. ' [CHAP. Ill,
an assault, and penetration was proved, why were they not guiltj' of
rape ? [Alderson, B. — Suppose a woman is ravished whilst under the
influence of laudanum. I recollect a case before me on the Home Cir-
cuit, where, at the time when the offence was committed, the woman
was completely insensible from drunkenness. I doubted whether the
prisoner ought to be convicted of rape ; but upon consultation with Lord
Denman I held that he might.] E. v. Camplin (1 Den. C. C. 89 ; 1
Cox C. C. 220), was a somewhat similar case, but diflferent in this, —
that the prisoner gave the woman the liquor which made her drunk.
He therefore contributed to the production of the state of insensibility
during which the offence was committed ; and if the woman does not
consent as long as she has the power of consenting or resisting, a
reasonable inference that she did not consent may be drawn from her
previous conduct ; the act would be done against " her permanent will,"
as Lord Denman expressed it in R. v, Camplin ; but if fraud dispenses
with the necessitj' of resistance, any deceit will have that effect ; and it
would be an assault if the woman consented, upon a false representa-
tion that the man would marry her, or that medicallj' it would be bene-
ficial to her. If a surgeon cuts off a leg or draws a tooth, and the
patient consents because he believes that he is being medicallj' treated,
jould he afterwards indict him for an assault? Again, the charge of
I'ape includes an assault ; and is there to be one kind of consent for an
assault and another kind of consent to get rid of the charge of rape ?
The cases, therefore, it is submitted, deserve to be reconsidered.
[Wilde, C. J. — there are two cases which clearly show that this de-
fendant was guilty of an assault, and you say that the court ought to
have held him guiltj' of rape ; but it would not be less an assault if it
should be held to be rape.] If upon an indictment for assault a rape is
proved, the misdemeanor merges in the felony ; but it is held that if
the connection takes place by consent obtained by fraud it is not rape.
If not, neither is it an assault.
Harrow, contra, was not called upon.
Wilde, C. J. I have no doubt in. this ease-that the Hirpntinn of the
learned recorder- wag^ perfectly correct. The objection is to the latter
■"part of "the charge ; for he first of all tells the jurj"^ that the girl was of
an age to consent, and that, if she consented, the prisoner must be
acquitted. Therefore, he treats her as competent to consent, and her
consent as a ground of acquittal ; but then, that direction is qualified
by what he adds afterwards, — that if they were satisfied that she was
ignorant of the nature of the act, and made no resistance solely from a
bona fide belief that the defendant was, as he represented, treating her
medically with a view to her cure, his conduct amounted to an assault.
That is the part which is objected to. The jury found the prisoner
guiltj'. The girl was of an age at_which she might be totally ignorant
of the naturejiLthe act, morally or religiously, and of the e^ct \yhich
it might have upon her character and statiort in- life ; aneUahe was sent
by her parents to thedefendant in be medically treated by him. Jt is
SECT. III.] EEGINA V. CASE. 195
said that he may have treated her medically ; if so, can it be said that
he did not commit both a legal and ecclesiastical offence ? But, the jury
must, I think, be taken to have found that it was not medical treatment.
I admit that the question was not put to them ; nor was it necessaiy,
because, whether the defendant thought it would be beneficial or not,
his act was altogether improper and unjustifiable. He was guilty of a
great offence. He in truth disarms the girl ; and she submits under
a misrepresentation that it was some act necessary and proper for her
cure ; - she made no resistance to an act which she supposed to be quite
different from what it was ; wlja.t she r^onspnted to was snmp.thin(af \
wholly different from that whirh unit dnnoy nrLJi therefore, that which
;y2°_;i^n"i Tvtvi dnnr urithnut her corisent. I am not prepared" to say
that the two cases referred to might nar*t)e cases of rape ; for every
rape includes an assault ; but it is not necessary to decide that ques-
tion now.
Aldekson, B. This is quite undistinguishable from the two cases
decided by myself and my brother Gurnej', which were only the sequel
of many others previously decided. When a man obtains possession of
the person of a woman by fraud, it is against her will ; and if the
question were res nova, I should be disposed to say that this was a
rape, but that is not necessary in this case. This is an indictment for
an assault, and the prisoner obtains the consent of the child by
representing the act as something different from what it was.
Patteson, J. Mr. Horn confounds active consent and passive non-
resistance, which, I think, the learned recorder has very accurately
distinguished. Here the girl did not resist ; but^gtill there wa^ no
consent. '
tJftEERiDGE, J. The girl was under medical treatment, and she
makes no resistance only in consequence of the confidence which she
reposed in the defendant as her medical adviser. If there had been no
consent the defendant's act would have been indisputably an assault ;
and under the circumstance, therefore, his conduct amounted to an
assault according to cases which I should be sorrj' to see infringed. '
Platt, B. I think my brother Patteson has pointed out the fallacy
of Mr. Horn's argument as to consent. The girl consents to one thing,
and the defendant does another ; that other involving an assault.^
Conviction affirmed.
1 Ace. Eex v. Nichols, lluss. & Ry. 130; Rex v. Rosinski, 1 Moody, 19; Beg. d.
Woodhurst, 12 Cox C. C. 443 ; Reg. ■;. Lock, L. R. 2 C. C. R. 10. — Ed.
196 EEGINA V. CLAKENCE. [CHAP. III.
EEGINA V. CLARENCE.
Cbown Case Eeseeved. 1888.
[Reported 16 Cox C. C. 511, 22 Q. B. D. 23.]
Wills, J.,^ read the following judgment: The prisoner in this
case has been convicted (1) of " an assault" upon his wife, "occasion-
ing actual bodily harm," under sect. 24 & 25 Vict. c. 100, s. 47 ; and
(2) of "unlawfully and maliciously inflicting" upon her "grievous
bodily harm " under sect. 20 of the same statute. The facts are that
he was, to his knowledge, suffering from gonorrhoea ; that he had
marital intercourse with his wife without informing her of the fact ;
that he infected her, and that from such infection she suffered grievous
bodily harm. The question is, whether he was rightly convicted upon
either count. First, was he guilty of an assault? In support of a
conviction it is urged that even a married woman is under no obliga-
tion to consent to intercourse with a diseased husband ; that had the
wife known that her husband was diseased she would not have con-
sented ; that the husband vf&s guilty of a fraud in concealing the fact
of his illness ; that her consent was therefore obtained hy fraud, and
was therefore no consent at all, and, as the act of coition would implj'
an assault if done without consent, he can be convicted. This reason-
ing seems to me eminently unsatisfactory. That consent obtained by
fraud is no consent at all is not true as a general proposition either in
fact or in law. If a man meets a woman in the street and knowingly
gives her bad money in order to procure her consent to intercourse
with him, he obtains her consent by fraud, but it would be childish to
say that she did not consent. In respect of a contract, fraud does not
destroy the consent ; it onl^' makes it revocable. Money or goods
obtained by false pretences still become the property of the fraudulent
obtainer unless and until the contract is revoked by the person de-
frauded, and it has never been held that, as far as regards the applica-
tion of the criminal law, the repudiation of the contract had a
retrospective effect, or there would have been no distinction between
obtaining money under false pretences and theft. A second and far
more effective way of stating the argument, however, is that connection
with a diseased man and connection with a sound man are things so
essentially different that the wife's submission without knowledge of
the facts is no consent at all. It is said that such a case rests upon
the same footing with the consent to a supposed surgical operation or
to connection with a man erroneousl}' supposed to be the woman's
husband. In the latter case there has been great difference of judicial
1 Part of each opinion, not involving the question of assault, is omitted.
SECT. III.] EEGINA. V. CLAEENCE. 197
opinion as to whether it did or did not amount to the crime of rape ;
but as it certainly would now be rape by virtue of the Criminal Law
Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 4, I treat it as so set-
tled. A third way of putting the case is, that inasmuch as the act
done amounts to legal cruelty according to the doctrines formerly of
the Ecclesiastical Courts, and now of the Divorce Court, it cannot be
said to be within the consent implied by the marital relation. These
different ways of putting the argument in favor of a conviction have
some important differences. According to each the consent of the
marital relation does not apply to the thing done, — a fact as to which
there does not seem to be room for doubt, and according to each the
want of it makes the transaction an assault. According to the first, it
is the fraudulent suppression of the truth which destroys the consent
de facto given, a proposition involving as a necessary element in the
offence the knowledge of his condition on the part of the offender.
According to the second, it is the difference between the thing sup-
posed to be done and the thing actually done that negatives the idea
of consent at all, and in that view it must be immaterial whether the
offender knew that he was ill or not. Accovdiiig to the third, his
knowledge is material, not on the ground of fraudulent misrepresenta-
tion, but because it is an element in legal cruelty as that term is under-
stood in the Divorce Court. It makes a great difference upon which
of these grounds a conviction is supported. Each of them covers an j
area vastlj- greater than the ground occupied by the circumstances of
the present case. If the first view be correct, every man, as has been
jiointed out, who knowingly gives a piece of bad money to a prostitute
to procure her consent to intercourse, or who seduces a woman by
representing himself to be what he is not, is guiltj' of assault, and, as
it seems to me, therefore, of rape. If the second view be correct, it
applies in similar events just as much to unmarried as to married
people, unless the circumstances should establish that the parties were
content to take their chances as to their respective states of health ;
and the allegation that a man had given an assurance to a prostitute
before having intercourse with her that he was sound when he was not
so in fact, might be a ground for putting him upon a trial for rape. If
the third view be correct, it places the married man, in the eye of the
criminal law, in a much worse position than the unmarried, and makes
him guilty of an assault, and possibly of rape, when an unmarried man
would not be liable to the same consequences. It may be said that,
from the moral point of view, his case is the worse : but there are two
sides to this as to most other questions. The man who goes out of his
way to seek intercourse under such circumstances — and, be it remem-
bered that the hypothesis I am now dealing with assumes knowledge of
his condition on the part of the man — is without excuse. There may
be many excuses for the married man suggested bj' the modes of life
with which poverty and overcrowding have to do. We are thus intro-
duced, as it seems to me, to a set of very subtle metaphysical qLuestions.
198 EEGINA V. CLAEENCE. [CHAP. III.
If we are invited to apply the analog}' of the cases in which a man lias
procured intercourse by personating a husband, or by representing that
he was performing a surgical operation, we have to ask ourselves
whether the procurement of intercourse by suppressing the fact that
the man is' diseased is more nearly allied to the procurement of inter-
course bj' misrepresentation as to who the man is, or as to what is
being done, or to misrepresentations of a thousand kinds in respect of
which it has never yet occurred to any one to suggest that intercourse
so procured was an assault or a rape. There are plenty of such in-
stances in which the knowledge of the truth would have made the
victim as ready to accept the embraces of a man stricken with small-
pox or leprosy. Take, for example, the case of a man without a
single good qualitj', a gaol-bird, heartless, mean, and cruel, without
the smallest intention of doing anj-thing but possessing himself of the
person of his victim, but successfully representing himself as a man ot
good family and connections prevented by some temporary obstacle
from contracting an immediate marriage, and with conscious hypocrisy
acting the part of a devoted lover, and in this fashion, or perhaps under
the guise of affected religious fervor, effecting the ruin of his victim.
In all that induces consent there is not less difference between the man
to whom the woman supposes she is yielding herself and the man bj'
whom she is really betrayed, than there is between the man bodily
[sound and the man afflicted with a contagious disease. Is there to be
a distinction in this respect between an act of intercourse with a wife
who on this special occasion would have had a right to refuse her con-
sent, and certainlj- would have refused it had she known the truth, and
the intercourse taking place under the general consent inferred from
a bigamous marriage obtained bj' the false representation that the man
was capable of contracting a legal marriage ? In such a case the man
can give no title of wife to the woman whose person he obtains hy the
false representation that he is unmarried, and \>y a ceremony which,
under the circumstances, is absolutely void. Where is the difference
between consent obtained by the suppression of the fact that the act of
intercourse may produce a foul disease, and consent obtained by the
suppression of the fact that it will certainly make the woman a concu-
bine, and while destroj'ing her status as a virgin withhold from her the
title and rights of a wife ? Where is the distinction between the mis-
take of fact which induces the woman to consent to intercourse with a
man supposed to be sound in body, but not really so, and the mistake
of fact which induces her to consent to intercourse with a man whom
she believes to be her lawful husband, but who is none ? Man}"^ women
would think that, of two cruel wrongs, the bigamist had committed the
worse. These are but specimens of the questions which must be faced
before the circumstances of the present case can be pronounced to
constitute an assault ; and such considerations lead one to pause on
SECT. III.] EEGINA V. CLARENCE. 199
the threshold and inquire whether the enactment under consideration
could really have been intended to apply to circumstances so com-
pletely removed from those which are usuallj' understood when an
assault is spoken of, or to deal with matters of any kind involving the
sexual relation or act. The description of the oflfence constituted by
sect. 47 is as follows: "Whoever shall be convicted of an assault
occasioning actual bodily harm." The section is the last of a group of
twelve headed "Assaults." None of them except sect. 43 implies
that any distinction between males and females is thought of, and that
section points to nothing of a sexual character. It merel}' provides
that in cases of assault upon males under fourteen and upon females
generally, if the assault or battery is of such an aggravated character
that it cannot in the opinion of the justices be sufficiently punished as a
common assault or battery, it shall be lawful for them to inflict a heavier
punishment. Indecent assaults, as such, upon females are dealt with
by sect. 52, and upon males by sect. 62, and there is therefore no
ground for supposing that anything specially between the sexes is
pointed at either by this section, or by anj- of those in the group to
which it belongs. The next group of eight sections (48-55) is headed
"Rape, abduction, or defilement of women," and deals specialh- with
sexual crimes. Surely this was the place in which to find an enact-
ment dealing with the very peculiar circumstances now before us, and
it cannot really have been intended that they should be embraced b^- a
section whose terms are applicable to, and as it seems to me satisfied
by, the class of cases which would naturall}- occur to one's mind, those
of direct violence. The worst of the contagious diseases of this class
has, I believe, been known in this country' for close upon four centuries.
The circumstances which have happened in this case cannot have been
of infrequent occurrence during that interval, and cannot have failed
justly to give rise to the bitterest resentment. It seems to my mind a I
.verj' cogent argument against the conviction that, if the view of the
law upon which it is founded be correct, thousands of offending hus-
bands, and as I, think also of offending wives, must liave rendered |
themselves amenable to the criminal law ; and yet it was reserved for \
the year 1866, when Reg. v. Bennett (4 F. & F. 1105) was decided, to
discover that such transgressors might have been indicted and crimi- I
nally dealt with during all that long period. It is true that women take '
a different place in social position, and have by Act of Parliament
many rights and bj' common usage much social liberty which no one
would have claimed for them centuries ago. This fact, however, seems
to me a strangely insufficient reason for a new reading of the criminal
law fraught with consequences which no one can deny to be of a very
serious and widespread character. The principle upon which a convic-
tion in this case must be upheld will or will not apply to the intercourse
of unmarried, as well as of married, men and women, according to the
ground or grounds selected upon which to justify it. If it is based
200 EEGINA V. CLARRNCE. [CHAI'. III.
upon the notion of^^flixislty as understood in the Divorce Court, the
case of the unmarried man and woman falls without its purview. If
S^2jDrsssi«i-Q£_thetr^th be a material element in the inquiry, actual
misrepresentation on the subject of health^ would put an unmarried
man or woman in the same position as the married man or woman
who conceals that fact against which the married state ought to be a
sufHcient guarantee. I intentionally refer to women as well as men,
for it is a great mistake to look at questions of this kind as if sexual
faults and transgressions were all on the side of one sex. The unmar-
ried woman who solicits and tempts a perhaps reluctant man to inter-
course which he would avoid like death itself if he knew the truth as to
her health, must surely, under some circumstances at least, come under
the same criminal liability as the same man. If, again, the conviction
be upheld on the ground of the diffrrnrrr hrtTrrrn thr tihing_oennested~
to and the t,hinf>- dnne. the principle will extend to many, perhaps most,
cases of seduction and to other forms of illicit intercourse, including at
least theoretically the case of prostitution ; and if such difference be
the true ground upon which to base a confirmation of the conviction,
knowledge of his or her condition on the part of the person affected
is immaterial. It is the knowledge or want of knowledge on the part
of the person who suffers from contagion alone that is the material
element. Surelv these considerations point to the conclusion that a
wide door will be opened to inquiries not of a wholesome kind, in
which the difficulties in the wa}' of arriving at truth are often enor-
mous, and in which the danger of going wrong is as great as it is by
people in general inadequately appreciated. A new field of extortion
may be developed, and very possibl}' a fresh illustration afforded of
the futilitj- of trying to teach morals b3- the application of the criminal
law to cases occupying the doubtful ground between immorality and
crime, and of the dangers which always beset such attempts. Of
course, if by legislation such cases should be brought within the crim-
inal law, all we shall have to do will be to face the difficulties and do
our best to administer the law. Tt seems f.n me^-hossLeverjthat such
iriM^tiPn'=!i"n of t.he criminal law to a vast class r>f p.asps wTtjT^hti^h it.
Eas never 3et professed to deal is a matter for the Lep-islat.nvp gnH tho
__Iiegi*i«*«;e3jOnTjr-~I- understand the process of expansion by which
the doctrines of the common law are properly made by judicial con-
struction to apply to altered modes of life and to new circumstances
and results thus brought about which would have startled our ancestors
could they have foreseen them. I do not understand such a process,
and I do not think it legitimate, when every fact and every circum-
stance which goes to constitute the alleged offence is identical with
what it has been for many hundreds of years past. Whether further
legislation in this direction is desirable is a question for legislators rather
than lawyers, and the only remark that I desire to make upon this sub-
ject is that, apart from cases of actual violence, and of children so
SECT. III.] KEGINA V. CLAEENCE. 201
young that the very fact of touching them in the way of sexual rela-
tion may fairly be treated as a crime, the mysteries of sexual impulses
and intercourse are well nigh insoluble, and the difficulty of arriving at
the truth in the case of imputed misconduct enormous ; and I doubt
whether they can be thoroughly appreciated without the experience
gained by trying cases of intercourse with girls near the age of six-
teen, and they certainly suggest the necessity of the utmost care in
dealing by way of legislation with the subject under discussion. If
intercourse under the circumstances now in question constitute an
assault on the part of the man, it must constitute rape, unless, indeed,
as between married persons rape is impossible, — a proposition to which
I certainly am not prepared to assent, and for which there seems to me
to be no sufficient authority. As between unmarried people this quali-
fication will not appl}'. I cannot understand whj-, as a general rule, if
Intercourse be an assault, it should not be a rape. To separate the
act into two portions, as was suggested in one of the Irish cases, and
to say that there was consent to so much of it as did not consist in the
administration of an animal poison, seems to me a subtlety of an ex-
treme kind. There is, under the circumstances, just as much and just
as little consent to one part of the transaction as to the rest of it. No
one can doubt that in this case, had the truth been known, there would
have been no consent or even a distant approach to it. I greatly prefer
the reasoning of those who say that, because the consent was not to
the act done, the thing done is an assault. If an assault, a rape also,
as it appears to me. I am well aware of the respect due to the opinion
of the very learned judges from whom I differ ; but I cannot help say-
ing that to me it seems a strange misapplication of language to call
such a deed as that under consideration either a rape or an assault. In
other words, it is, roughlj' speaking, where the woman does not intend^
that the sexual act shall be done upon her either at all, or, what is
pretty much the same thing, by the particular individual doing it ; and
an assault which includes penetration does not seem to me, under such
circumstances, to be anything but rape. Of course, the thing done in
the present case is wicked and cruel enough. No one wishes to say a
word in palliation of it. But that seems to me to be no reason for
describing it as something else than it is, in order to bring within the
criminal law an act which, up to a very recent time, no one ever
thought was within it. If coition, under the circumstances in question,
be an assault, and if the reason whj- it is an assault depends in any
degree upon the fact that consent would have been withheld if the
truth had been known, it cannot the less be an assault because no mis-
chief ensues to the woman, nor, indeed, where it is mereh^ uncertain
whether the man be infected or not. For had he disclosed to the
woman that there might be the peril in question, she would, in most
cases other than that of mere prostitution, have refused her consent,
and it is, I should hope, equally true that a married woman, no less
202 EEGINA V. CLA.EENOE. [CHAP. III.
than an unmarried woman, would be justified in such a refusal. In all
such cases, therefore, apart from the suggested impossibility of rape
upon a wife, rape must be committed, and a great many rapes must be
constantly taking place without either of the parties having the least
idea of the fact. The question raised is of very wide application. It
does not end with the particular contagion under consideration, but
embraces contagion communicated by persons having small-pox or
scarlet fever, or other like diseases quite free from the sexual element,
and whilst so afflicted coming into a personal contact with others which
would certainly have been against the will of those touched had they
known the truth. This species of assault, if assault it be, must have
been of much longer standing than the four centuries I have alluded
to, and it involves no considerations depending upon the social status
of women, yet no one has ever been prosecuted for an assault so con-
stituted. But upon this point I desire only to express my concurrence
in the observations of my brother Stephen, which I have had the
opportunity of reading. I wish to observe that, if an assault can be
committed by coition to which consent has been procured by suppres-
sion of the truth or misrepresentation as to the state of health of one
of the parties, questions of the kind I have indicated will be triable,
may be tried now at petty sessions. The observation is not, of course,
conclusive ; but it is well to appreciate whither a conviction in the
present ease must lead us, not only as regards the subject-matter of
the criminal law, but as to the tribunals which will have to administer
it "When the Act of 1861 (24 & 25 Vict. c. 100) was passed, it had
never occurred to any human being, so far as our legal history affords
any clue, that the circumstances now under consideration constituted
an assault. The term is as old as any in our law, but it had never
been so applied. The doctrine owes its origin to the remarks of
Willes, J., at the Taunton Assizes, held in 1866, and reported in Reg.
V. Bennett (4 F. & F. 1105). It was pointed out in the Irish case of
Hegarty v. Shine (Ir. L. Rep. 2 C. L. 273 ; C. A. Ir. L. Rep. 4 C. L.
288) that the conviction might be upheld, on the ground that the girl
was, as she alleged, asleep when intercourse took place, and therefore
gave no consent. In spite of all my respect for everything that fell
from the lips of that ver^- great lawyer, I am compelled to think that
it was a case in which he strained the law for the purpose of punishing
a great wrong, and I confess myself unable to follow his view, that
the thing done in that case might be an assault and yet not a rape.
Were it, however, possible that the mere words of the section would
applj' to the transaction in question, and that it were capable of being
described as an assault, I am still of opinion that the context shows
that sexual crimes were intended to be dealt with as a class by them-
selves, the only rational way of legislating upon such a subject ; and if
the letter of the section could be satisfied b}- the present circumstances,
there never was a case to which the maxim Qui hceret in literd hceret
in cortice more emphaticallj- applied.
SECT. III.] KBGINA V. CLARENCE. 203
Hawkins, J., read the following judgment : I am of opinion that
the prisoner was rightly convicted upon both counts of the indictment.
The first count was framed under sect. 20 of 24 & 25 Vict. c. 100, and
charged the prisoner with " unlawfully and maliciously inflicting griev-
ous bodily harm " upon Selina Clarence. The second count was framed
under sect. 47 of the same Act, and charged him with an "assault"
upon the said Selina Clarence, "occasioning" her "actual bodily
harm." At the time of the committing of the offences charged Selina
Clarence was and still is the wife of the prisoner. At that time the
prisoner was suffering from gonorrhoea, as he knew, but his wife was
ignorant of the fact. In this condition of things the prisoner had
sexual intercourse with his wife, and in so doing communicated to her
his disease, and thereby caused her grievous bodily harm. It must
also be taken as a fact that, had the prisoner's wife known that he was
so suffering she would have refused to submit to such intercourse. On
the prisoner's behalf it was contended that the conviction was wrong
upon several grounds : first, that the injury caused to the wife was the
result of a lawful act, viz., the sexual communion of a husband with
his wife ; secondly, that the charge in the first count involved, and that
in the second count was based on, an assault, and that no assault
could be committed by a husband in merelj' exercising his marital
right upon the person of his wife ; and, thirdly, that the sections of the
statute under which the indictment was framed had no application to
such circumstances as those above mentioned. About the unlawfulness
and malicioasness^nf thn priinnni''" f nnr|iirt it irnmrrTil iiiii iliifin—ilTIr
to raise a doubt. It has long been established by authority that, if a
husband knoWl'liglj- communicates to his wife a venereal disease, such
misconduct amounts to legal cruelty, and is ground for judicial separa-
tion ; and, in tlie absence of evidence to the contrary, it may be pre-
-iimed that a man suffering under venereal disease knows it, and knows
-il.'^o that, if he has communion with his wife, he will in all human
probability communicate his malady to her (see Brown v. Brown, L.
Kep. 1 P. & D. 46). It is equally clear that wilfully to do an unlawful
act to the prejudice of another is to do it maliciously. We have, then,
these elements established, grievous bodily harm unlawfully and
maliciously caused. ... I proceed now to consider the question
whether there was in fact an assault by the prisoner on his wife occa-
sioning her either grievous or actual bodily harm. I answer this
question also in the affirmative. By the marriage contract a wife no
doubt confers upon her husband an irrevocable privilege to have sexual
intercourse with her during such time as the ordinary relations created
by such contract subsist between them. For this reason it is that a
husband cannot be convicted of a rape committed by him upon the
person of his wife. Rut this marital priyjjpprp ilnim iiipI Jiflir) it lij^'i
band in endangering his wife's health and causing her grievous bodily
harul ]}]■ exercising his marital privilege when he is suffering from
venereal disorder of such a character that the natural consequence of
204 EEGINA V. CLAEENCE. [CHAP. III.
such communion will be to communicate the disease to her. Lord
Stowell, in Popkin v. Popkin, cited in Durant v. Durant (1 Hagg. Eccl.
Rep. 767), said: " The Whajiirl has a. rioht t.n the^rnon nf hisa wifn.-
Cl)ut not if her health is endangered." So, to endanger her health,
and cause her to sufferfi^omTtJatireoTrre-ffis'ease contracted through his
own infidelity cannot, by the most liberal construction of his matri-
monial privilege, be said to fall within it ; and, although I can cite no
direct authority upon the subject, I cannot conceive it possible seri-
ously to doubt that a wife would be justified in resisting by all means
in her power — nay, even to the death, if necessary — the sexual em-
braces of a husband suffering from such contagious disorder. In my
judgment, wilfully to place his diseased person in contact with hers
without her express consent amounts to an assault. It has been
argued that, to hold this, would be to hold that a man who, suffering
from gonorrhoea, has communion with his wife might be guilty of the
crime of rape. I do not think this would be so. Eape consists in a
man having sexual intercourse with a woman without her consent, and
the marital privilege being equivalent to consent given once for all at
the time of marriage, it follows that the mere act of sexual communion
is lawful ; but there is a wide difference between a simple act of com-
mi]pjf^n whinh is lawful and an"aT'<»-a£^ '^fliB-mnninn (inmbinrir] gith Jrjfrr
tjous contagion endangering; health and causing harm which is unlamuT;
It may be said that, assuming a mun lu bu tJt5easecl, still, as"ise cannot
have communion with his wife without contact, the communication of
the disease is the result of a lawful act, and therefore cannot be crim-
\ inal. My reply to this argument is that if a person, having a privilege
jof which he ma^' avail himself or not at his will and pleasure, cannot
/exercise it without at the same time doing something not included in
/this privilege, and which is unlawful and dangerous to another, he
I must either forego his privilege or take the consequences of his unlaw-
/ ful conduct. I may further illustrate my view upon this part of the
case by applying, bj' way of test, to an indictment for assault the old
form of civil pleadings. Thus : Indictment for an assault ; plea of
justification, that the alleged assault was the having sexual communion
with the prosecutrix, she being the prisoner's wife ; new assignment,
that the assault charged was not that charged in the plea, but the un-
lawful and malicious contact of her person with dangerous and contagious
disease. What possible justification could be pleaded or answer given
to such new assignment? I ought perhaps to state that, even if to hold
a husband liable for an assault under such circumstances would be to
subject him also to a charge of rape, the opinion I have above expressed
would not be changed. No jury would be found to convict a husband
of rape on his wife except under very exceptional circumstances, any
more than they would convict of larceny a servant who stealthily
appropriated to her own use a pin from her mistress's pincushion. I
can, however, readily imagine a state of circumstances under which a
husband might deservedly be punished with the penalty attached to
SECT. III.] EEGINA V. CLARENCE. 205
rape, and a person committing a theft even of a pin to the penalty
attached to larcenj'. The cases put of a person suffering from small-
pox, diphtheria or any other infectious disorder, thoughtlessly giving a
wife or child a mere affectionate kiss or shake of the hand from which
serious consequences never contemplated ensued, seem to me cases in
which it is impossible to suppose any criminal prosecution would be
tolerated, or could, if tolerated, result in a conviction ; but I can
picture to myself a state of things in which a kiss or shake of the
hand given by a diseased person, maliciously with a view to communi-
cate his disorder, might well form the subject of criminal proceedings.
I will not, however, stop to discuss such imaginary cases further. The
case of Reg. v. Bennett (4 F. & F. 1105), decided in 1866, is an
authority directly in support of the view I have taken. The indictment
was for an indecent assault on a girl who had consented to sleep with
the prisoner, who had connection with her, and communicated to her a
foul disease. Willes, J., before whom the case was tried, in summing-
up, told the jury that, though it would have been impossible to have
established rape, yet if the girl did not consent to the aggravated cir-
cumstances— i. e., to connection with a diseased man — his act would
be an assault. Willes, J., no doubt, according to the report, based his
observations upon the tule that fraud vitiates consent ; but it is clear
his mind was alive to the point I have been considering, viz., that,
though there might be such consent to sexual intercourse as to make
the connection no rape, nevertheless, the infectious contact might
amount to an assault. See also Hegarty v. Shine, 14 Cox C. C. 124;
s. c. C. A. ib. 145 ; and Reg. v. Sinclair, 13 Cox C. C. 28. In dealing
with this case my judgment is not based upon the doctrine that fraud
vitiates consent, because I do not think that doctrine applies in the
case of sexual communion between husband and wife. The sexual
communion between them is by virtue of the irrevocable privilege con-
ferred once for all on the husband at the time of the marriage, and
not at all by virtue of a consent given upon each act of communion, as
is the case between unmarried persons. My judgment is based on the
fact that thft yrrtnorfnl aY^f, ohar^ed against tX]" pn'g"""'' '"''g "'•'<^ invrilyp^^
in or sp"'^ti0"'''^ ^y ^IH Piarital privLkfce-. and mxf, diih fdi-which no
rnnaent wt^p pvpt giyo" nt 0]^ For this reason it is unnecessary to
discuss or express any opinion upon the various cases cited during the
argument relating to connection obtained by fraud, and I accordingly
abstain from doing so. Another argument used for the prisoner was
that such cases as the present were not contemplated by the statute
under which he was indicted, and it was also said that, if it had been
intended that the communication of a venereal disease to a woman
during an act of sexual intercourse, consented to by her, should be
punishable as a crime, some special enactment to that effect would
have been introduced into one or other of the Acts of Pailiament relat-
ing to women and offences against them. This is an argument to
which I attach no weight, assuming the facts bring the case within the
206 EEGINA V. CLAEENCE. [CHAP. III.
fair interpretation of the sections to wliicli I have referred. Moreover,
I may point out that Reg. v. Bennett (4 F. & F. 1105), to which I
have referred, was tried in the year 1866, and it is strange, if the
law as there laid down was thought to be contrary to the law of
the land or to the intention of the Legislature, that in no subse-
quent legislation during the twenty-two years which have since elapsed
has any enactment been introduced in which any expression is to
be found indicative of a disapproval of that decision or that the
intention of the statute was at variance with it. I think the Legisla-
ture contemplated the punishment of all grievous bodily harm, however
caused, if caused unlawfully and maliciously ; and I cannot bring my
mind for an instant to believe that, even had the circumstances before
us been present to the minds of the framers of the Act, thej' would
have excluded from its operation an offence as cruel and as contrary to
the obligation a man owes to his wife to protect her from harm as can
well be conceived. It has been urged that the case of husband and
wife does not diffet from that of unmarried persons, and that to affirm
this conviction would tend to encourage undesirable prosecutions where
disease has been communicated during illicit communion. I do not by
any means assent to these propositions. I think the two cases are
substantially different. The wife submits to her husband's embraces
because at the time of marriage she gave him an irrevocable right to
her person. The intercourse which takes place between husband arid
wife after marriage is not by virtue of any special consent on her part,
but in mere submission to an obligation imposed upon her by law. Con-
sent is immaterial. In the case of unmarried persons, however, consent
is necessary previous to ever}' act of communion, and if a common
prostitute were to charge with a criminal offence a man who, in having
had connection with her had infected her with disease, few juries would
under ordinary circumstances hesitate to find that each party entered
into the immoral communion tacitly consenting to take all risks. In
the case of women other than prostitutes, the circumstances of each
particular case would have to be considered, and the question how far
fraud vitiates consent to such communion would also have to be dealt
with. In such cases, too, shame would deter most decent women from
appealing to the law ; and, if a man were the sufferer, seldom would he
incur the ridicule and exposure which would be brought upon him.
Considering how few prosecutions have been instituted for such causes
since the decision in Reg. v. Bennett (4 F. & F. 1105), and enter-
taining moreover, as I do, a doubt whether any person, man or
woman, could, as against the public interests, consent to the inflic-
tion of grievous bodily harm, so as to give a legal defence to a crim-
inal prosecution, although such consent might afford a good defence
to a civil action, I do not see any reason for such fears on the subject
as have been entertained. Anyhow they cannot aflfect the law. Forti-
fied in my opinion, as I believe myself to be, hy the plain words of the
statute, and by the authority of Willes, J., one of the greatest and most
SECT. III.] REGINA. V. BAllROW. 207
accurate lawj-ers of modern times, 1 have arrived at the conclusion
that this conviction is right and in accordance with the law, and I can-
not therefore be a party to a judgment which in effect would proclaim
to the world that by the law of England in this year 1888 a man may
deliberately, knowingly, and maliciously perpetrate upon the body of
his wife the abominable outrage charged against the prisoner, and yet
not be punishable criminally for such atrocious barbarity. I maj' state
that this judgment has been read by my brother Day, who requests me
to say that he thoroughlj- concurs in it.''
REGINA V. BARROW.
Crown Casb Reserved. 1868.
[Reported L. R. \ Crown Cases Reserved, 156.]
The following case was stated by Kelly, C. B. : — ■
This was an indictment for a rape. The question is whether the
offence as proved amounted in point of law to a rape. This question
depended entirely upon the evidence of the prosecutrix, Harriet Gel-
dart, which was as follows : —
' ' I and my husband lodge together at William Garner's. We sleep
upstairs on the first floor, and were in bed together on the night
of Saturday, the 21st of June. I went to bed about 12 o'clock, and
about 2 o'clock on Sunday morning I was lying in bed, and my
husband beside me. I had my baby in my arms, and was between
waking and sleeping. I was completely awakened by a man having
connection with me, and pushing the baby aside out of my arms. He '
was having connection with me at the moment when I completely
awoke. I thought it was my husband, and it was while I could count
live after I completely awoke before I found it was not my husband.
A part of my dress was over my face, and I got it off, and he was
moving away. As soon as I found it was not my husband, I pulled
my husband's hair to wake him. The prisoner jumped off the bed."
On cross-examination she added, " Till I got my dress off my face I
thought it was my husband. After he had finished I pulled the dress
off my face. I was completely awakened by the man having connec-
tion with me and the baby being moved." On re-examination she said,
" The baby was pushed on further into the bed."
The jury found this evidence, as I have stated it, to be true.
Upon these facts the prisoner's counsel, Mr. Cottingham, submitted
that the indictment was not sustained, and quoted 1 Russell on Crimes,
ed. of 1843, p. 677; Rex v. Jackson, Russ. & Ry. 487; Reg. v. Saun-
ders, 8 C. <Sb P. 265 ; Rex v. Williams, 8 C. & P. 286 ; Reg. v. Camp-
1 Smith, Stephen, and Manisty, JJ., Pollock, B., and Colekidge, C. J., also
delivered opinions against the conviction. Mathew and Grantham, JJ., and
HuDDLESTON, B., agreed. Field, J., also delivered an opinion supporting the con-
viction, and Day and Charles, JJ., agreed. See, contra. Keg. v. Bennett, 4 F. & F.
1105 ; Reg. u. Sinclair, 13 Cox C. C. 28. — Ed.
208 EEGINA V. BAKROW. [CHAP. III.
lin, 1 Den. C. C. 89. Reg. v. Fletcher, 8 Cox C. C. 131, was also
referred to.
I thought, especially on. the authority of the judgment delivered by
Lord Campbell in Reg. v. Fletcher, 8 Cox C. C. 131, that the case
was made out, inasmuch as it was sufficient that the act was done by
force and without consent before or afterwards ; that the act itself,
coupled with the pushing aside the child, amounted to force ; and there
was certainly no consent before, and the reverse immediately after-
wards ; but I reserved the point for the Court of Criminal Appeal.
No counsel appeared on either side.
BoviLL, C. J. We have carefully considered the facts as stated in
this case. It does not appear that the wQcaan, upoiLwhom the offence
was alleg;"fl tfl hflv^ }^"rr\ nnmmittp'^i 'Yas asleep or unconscious^t th
time when the act of connection commenced! li musi
fore, that the acL w<i=l dOllB vwth—the-eorrsBTrt of the prosecutrix, though
that consent was obtained by fraud. It falls, therefore, within the
class of cases which decide that, where consent is obtained bj' fraud,
the act done does not amounLjtQjape.^
Channell, a., IBtles, Blackburn, and Lush, JJ., concurred.^
Conviction quashed.
1 Now, rape being defined to be sexual connection with a woman without her
consent, or without and therefore against her will, it is essential to consider what is
meant and intended by consent. Does it mean an intelligent, positive concurrence of
the will of the woman, or is the negative absence of dissent sufficient ■? In these sur-
gical cases it is held that the submission to an act believed to be a surgical operation
does not constitute consent to a sexual connection, being of a wholly different charac-
ter ; there is no consensus quoad hoc. In the case of personation there is no consensus
quoad hanc personam. Can it be considered that there is a consent to the sexual con-
nection, it being manifest that, had it not been for the deceit or fraud, the woman
would not have submitted to the act ? In the cases of idiocy, of stupor, or of infancy, it
is held that there is no legal consent, from the want of an intelligent and discerning will.
Can a woman, in the case of personation, be regarded as consenting to the act in the
exercise of an intelligent will 1 Does she consent, not Itnowing the real nature of the
act ? As observed by Mr. Curtis, she intends to consent to a lawful and marital act,
to which it is her duty to submit. But did she consent to an act of adultery ■? Are
not the acts themselves wholly different in their moral nature ? The act she per-
mitted cannot properly be regarded as the real act which took place. Therefore the
connection was done, in my opinion, without her consent, and the crime of rape was
constituted. I therefore am of opinion that the conviction should stand confirmed. —
May, C. J., in Reg v. Dee, 15 Cox C. C. 379, 587.
In accordance with the principal case, see Reg. e. Fletcher, 10 Cox C. C. 248 ; Don
Moran «. People, 25 Mich. 356 ; Wyatt v. State, 2 Swan, 394. — Ed.
SECT. III.] COMMONWEALTH V. STRATTOK. 209
WRIGHT'S CASE.
Leicester Assizes. 1604.
[Reported Co. Lit. 127 a.]
In my circuit in anno 1 Jacobi regis, in the county of Leicester, one
Wriglit, a young, strong, and lustie rogue, to make himselfe impotent, ,
thereby to have the more colour to begge or to be relieved without put-
ting himselfe to any labour, caused his companion to strike off his left!
hand ; and both of them were indicted, fined, and ransomed there-
fore, and that by the opinion of the rest of the justices for the cause ^
aforesaid.
COMMONWEALTH v. STRATTON.
Supreme Judicial Court of Massachusetts. 1873.
[Reported 114 Massachusetts, 303.]
Indictments, each charging that the defendant, upon a certain young
woman in the indictment named, made an assault and administered to
her a large quantit}' of cantharides, " the same being ... a deleterious
and destructive drug," with intent to injure her health, whereby she
became sick, and her life was despaired of. Both cases were tried
together.
It appeared at the trial in the Superior Court, before Devens, J.,
that the defendant, in company with another young man, called upon
the young women in the indictments named, and during the call offered
them some figs, which they ate, they having no reason to suppose that
the figs contained any foreign substance ; that a few hours after, both
j'oung women were taken sick, and suffered pain for some hours ; that
the defendant and his companion had put into the figs something they
had procured by the name of "love powders," which was represented
by the person of whom they got it to be perfectly harmless.
There was evidence that one of the ingredients of tliese powders was
cantharides, and that this would tend to produce sickness like that
which the j'Oung women suffered.
The Court instructed the jury that if it was shown beyond a reason-
able doubt " that the defendant delivered to the women a harmless arti-
cle of food, as figs, to be eaten bj- them, he well knowing that a foreign
substance or drug was contained therein, and concealing the fact, of
which he knew the women to be ignorant, that such foreign substance
or drug was contained therein, and the women eating thereof by the in-
vitation of the defendant were injured in health by the deleterious char-
acter of the foreign substance or drug therein contained, the defendant
should be found guilty of an assault upon them, and this, although he
did not know the foreign substance or drug was deleterious to health,
had been assured that it was not, and intended only to try its effect
upon them, it having been procured by him under the name of a ' love
210 COMMONWEALTH V. STEATTON. [CHAP. III.
powder,' and he being ignorant of its qualities or of the effects to be
expected from it."
The jury found the defendant guilty of a simple assault in each case,
and he alleged exceptions.
W. Colburn, for the defendant.
G. R. Train, Attorney-General, for the Commonwealth.
Wells, J. All the judges concur that the evidence introduced at
the trial would warrant a conviction of assault and battery or for a sim-
ple assault, which it includes ; and in the opinion of a majority of the
court, the instructions given required the jury to find all that was es-
sential to constitute the offence of assault and battery.
The jury must have found a physical injury inflicted upon another
person by a voluntary act of the defendant directed toward her, which
•was without justification and unlawful. Although the defendant was
ignorant of the qualities of the drug he administered and of the effects
to be expected from it,_and had been assured and believed that it was
not deleterious to health, yet he knew it was not ordinary food, that
the girl was deceived into taking it, and he intended that she should
be induced to take it without her conscious consent, by the deceit
which he practised upon her. It is to be inferred from the statement
of the case that he expected that it would produce some effect. In the
most favorable aspect of the facts for the defendant he administered
to the girl, without her consent and by deceit, a drug or " foreign sub-
stance," of the probable effect of which he was ignorant, with the ex-
press intent and purpose " to try the effect of it upon " her. This in
itself was unlawful, and he must be held responsible for whatever effect
it produced. Being an unlawful interference with the personal rights
of another, calculated to result and in fact resulting in physical injury,
the criminal intent is to be inferred from the nature of the act and its
actual results. 3 Bl. Com. 120; Rex v. Long, 4 C. & P. 398, 407,
note. The deceit, by means of whif.h the ^r\ wgrs induced to take the
drug, wRS_a. TraTuf npnn her will, pqiiivp.lent toTorcein nTBrf>«M»eri ng
it: — Commonwealth v. Burke, 105 Mass. 376 ; Reglna v. Louk, 12'
Cox C. C. 244; Regina v. Sinclair, 13 Cox C. C. 28.
Although force and violence are included in all definitions of assault,
or assault and battery, yet where there is physical injury to another
person, it is sufficient that the cause is set in motion by the defendant,
or that the person is subjected to its operation by means of anj' act or
control which the defendant exerts. In 3 Chit. Grim. Law, 799, is a
count, at comtnon law, for an assault with drugs. For other instances
of assault and batter^^ without actual violence directed against the per-
son assaulted, see 1 Gabbett's Grim. Law, 82 ; Rose. Crim. Ev. (8th
ed.) 296 ; 3 Bl. Com. 120 and notes ; 2 Greenl. Ev. § 84.
If one should hand an explosive substance to another and induce
him to take it bj' misrepresenting or concealing its dangerous qualities,
and the other, ignorant of its character, should receive it and cause it
SECT. III.] KEGINA V. MAETIN. 211
to explode in his pocket or baud, and should be injured by it, the offend-
ing party would be guilty of a battery, and that would necessarily in-
clude an assault ; although he might not be guilty even of an assault,
if the substance failed to explode or failed to cause any injury. It
would be the same if it exploded in his mouth or stomach. Tf t.hi^j
which_rn,iinr^ tho injuiy It) bet In iiiollou by -the wrongful act of tho da-
tfeiidant, it cannot be material whether it acts upon the person injured
externally or internally, by mecnanical or ehfemical forced ' —
In Kegina v. Button, 8 C. & P. 660, one who put Spanish flies into
coffee to be drunk by another was convicted of an assault upon the per-
son who took it, although it was done " only for a lark." This decision
is said to have been overruled in England. Regina v. Dil worth, 2
Mood. & Rob. 531 ; The Queen v. Walkden, 1 Cox C. C. 282 ; Re-
gina V. Hanson, 2 C. & K. 912. In the view of the majority of the
court, the last onl^"^ of these three cases was a direct adjudication, and
that entirely upon the authority of mere dicta in the other two and
without any satisfactory reasoning or statement of grounds ; and the
earlier decision in Regina v. Button is more consistent with general
principles, and the better law.* deceptions overruled.
REGINA V. MARTIN.
Ckown Case Reserved. 1840.
[Reported 2 Moodij, 123.]
The prisoner was tried before Mr. Baron Alderson upon an indict- ■,
ment, the first count of which charged him with carnallj' knowing and
abusing Esther Ricketts, a girl abo\e ten and under twelve years of age.
The second count was for an assault on Esther Ricketts with intent
carnally to know and abuse her. The third count was for a common
assault.
Godson, for the prisoner, contended that, supposing the fact to have
been done by the consent of the prosecutrix, no conviction could take
place on the second and third counts.
The learned judge left the question to the jury, who found the fact
that the prosecutrix had consented ; and he then directed a verdict of y
guilty on the ground that the prosecutrix was by law incapable of giving |
her consent to what would be a misdemeanor by statute.
But as Godson stated that the point was doubtful and had been
otherwise decided before, tbe learned judge respited the judgment.
1 Ace. Carr v. State (Ind.), 34 N. E. 533. —Ed.
212 EEGINA V. BRADSHAW. [CHAP. III.
It appeared to the learned judge clear that if the indictment had
charged an attempt to commit the statutable misdemeanor, the pris-
oner would clearly have been liable to conviction ; but tlie learned judge
was not free from doubt as to the present case, in which an assault was
charged.
This case was considered at a meeting of the judges in Hilarj' term,
1840, and they all thought that the proper charge was of a misdemeanor
in attempting to commit a statutable offence, and that the convictiou
was wrong.*
REGINA V. BRADSHAW.
Leicester Assizes. 1878.
[Reported 14 Cox C. C. 83.]
William Bradshaw was indicted for the manslaughter of Herbert
Dockerty, at Ashb5^-de-la-Zouch, on the 28th day of February.
The deceased met with the injury which caused his death on the
occasion of a football match played between the football clubs of Ashby-
de-la-Zouch and Coalville, in which the deceased was a player on the
Ashb^' side, and the prisoner was a player on the Coalville side. The
game was played according to certain rules known as the " Association
Rules." ^ After the game had proceeded about a quarter of an hour,
the deceased was " dribbling" the ball along the side of the ground in
the direction of the Coalville goal, when he was met by the prisoner,
who was running towards him to get the ball from him or prevent its
farther progress ; both players were running at considerable speed ; on
approaching each other, the deceased kicked the ball beyond the pris-
^oner, and the prisoner, by way of "charging" the deceased, jumped in
• the air and struck him with his knee in the stomach. The two met,
' not directl}'' but at an angle, and both fell. The prisoner got up un-
hurt, but the deceased rose with difficulty and was led from the ground.
He died next day after considerable suffering, the cause of death being
a rupture of the intestines.
^ "It is a presumption of law that a girl under ten years of age is incapable of con-
senting to the offence of rape (Pen. Code, sec. 261); and as such an offence includes an
attempt to commit it, accompanied by such force and violence upon the person as con-
stitutes an assault, a girl under ten years of age is incapable in law of consenting to
the assault in connection with the attempt to commit the offence. Whether the girl
in fact consented or resisted is therefore immaterial. Being incapable of consenting to
an act of carnal intercourse, it was criminal for the defendant to make an assault upon
her to commit such an act." McKee, J., in People v. Gordon, 70 Cal. 467, 468. Ed.
2 Etherington Smith, in opening the case for the prosecution, was proceeding to ex-
plain the "Association Eules " to the jury, and to comm«nt upon the fact of whether
the prisoner was or was not acting within those rules, when Bramwell, L. J., inter-
posed, saying, "Whether within the rules or not the prisoner would be guilty of man-
slaughter if while committing an unlawful act he caused the death of the deceased."
SECT. III.] EEGINA V. BEADSHAW. 213
Witnesses were called from both teams whose evidence differed as to
some particulars, those most unfavorable to the prisoner alleging that
the ball had been kicked b}- the deceased and had passed the prisoner
before he charged ; that the prisoner had therefore no right to charge
at the time he did ; that the charge was contrary to the rules and prac-
tice of the game and made in an unfair manner, with the knees protrud-
ing ; while those who were more favorable to the prisoner stated that
the kick by the deceased and the charge by the prisoner were simultan-
eous, and that the prisoner had therefore, according to the rules and
practice of the game, a right to make the charge, though these wit-
nesses admitted that to charge by jumping with the knee protruding
was unfair. One of the umpires of the game stated that in his opinion
nothing unfair had been done.-'
J3RAMWELL, L. J., in summing up the case to the jury, said : ILThg—
question fnr ypn^tr^ Hpi^jde is whetJier the Hpath nf the deceased was
oftHSgd b^'the mila.wfnl act of the prisoner. There is no doubt that the
-prisoiXer's act caused the death, and the question is whether that act
was unlawful. No rules or practinp. of any game whatever can make
that lawful which is unlawful by the law of the_land ; and the law of "
the-tenf sa3-s you shall not do that which is likelytcT^ause the death of
another. For instance, no persons can by agreement go out to fight
with deadly weapons, doing by agreement what the law saj's shall not
be done, and thus shelter themselves from the consequences of their
acts. Therefore, in one way you need not concern j'ours(ilves with the
rules of football. But, on the other hand, if a man is playing accord-
ing to the rules and practice of the game and not going beyond it, it
may be reasonable to infer that he is not actuated by any malicious
motive or intention, and that he is not acting in a manner which he
knows will be likely to be productive of death or injury. But, inde-
pendent of the rules, if the prisoner intended to cause serious hurt to
the deceased, or if he knew that in charging as he did he might produce
serious injury, and was indiflferent and reckless as to whether he would
produce serious injury or not, then the act would be unlawful. In
either case he would be guilty of a criminal act, and you mus^ find him '
guilty ; if you are of a contrarj' opinion you will acquit him." His
lordship carefully reviewed the evidence, stating that no doubt the
game was, in any circumstances, a rough one ; but he was unwilling to
decry the manly sports of this country, all of which were no doubt
attended with more or less danger. Verdict, Not guilty.
1 Arguments of counsel are omitted.
214 COMMONWEALTH V. COLLBERG. [CHAP. III.
COMMONWEALTH v. COLLBERG.
Supreme Judicial Coukt of Massachusetts. 1875.
[Reported 119 Mass. 350.]
Two indictments : one for an assault and battery by Benjamin F.
CoUberg upon Charles E. Phenix ; and the other for an assault and bat-
tery by Phenix upon CoUberg. Both indictments were founded upon
and supported by the same evidence.
At the trial of the two indictments in the Superior Court before
Lord, J., there was evidence for the Commonwealth tending to show
that about six o'clock on the evening of Sunday, August 22, 1875,
CoUberg and Phenix met near the station of the Boston and Maine
Railroad in Maiden and had a slight altercation, as a result of which
Collberg bantered Phenix to fight him ; that Phenix declined on the
ground that he did not want to fight with his best clothes on, but said
that if Collberg would wait until he could go home and change his
clothes, they would go to some place outside of the town and settle it ;
that thereupon Phenix did go home and change his clothes, and he and
Collberg met at a retired place, remote from habitations and thorough-
fares, and fought with each other in the presence of some flftj- or seventj'-
five persons who had gathered there, and that the fight continued until
Collberg said that he had enough, when it ceased and the parties went
home ; that the next day Collberg and Phenix were a good deal bruised
and looked as if they had been fighting.
The defendants testified that the3' had been acquainted with each
other for a period of five or six years, during which time thej- had
always been on the most friendly terms, and were so at the time of the
act complained of, and subsequently ; that during the period of their
acquaintance they had engaged at various times in wrestling-matches
with each other, all of which had been carried on in a friendly spirit
and without engendering any ill feeling between them ; that on the day
mentioned in the indictment thej' met towards evening near the station
of the Boston and Maine Railroad in Maiden, where they had some talk
about a recent wrestling-match that had taken place in New York, and
growing out of this, as to previous contests of this character which had
taken place between them ; that after some talk about their matches,
the}' agreed to go then to some place where they should not disturb &ny
one and have another trial of their agility and strength in this direction ;
that they shortly afterwards went to such a place and engaged in a
" run and catch " wrestle with each other, without any anger or malice,
or any intention to do each other bodily harm ; that anj- injuries which
they inflicted upon each other were inflicted accidentally and b^' mutual
consent while voluntarily continuing in such contest.
There was no evidence of any uproar or outcries when the contest
SECT. III.] COMMONWEALTH V. COLLBEEG. 215
took place, or tliat any one was disturbed thereb}-, except that the par-
ties were fighting in presence of a crowd of from fifty to one hundred
persons who had collected together. After the evidence was all in, the
defendants asked the judge to instruct the jury as follows : —
" If the jurj' are satisfied that whatever acts and things the defend-
ants did to each other they did by mutual consent, and that the struggle
between them was an amicable contest voluntarily continued on both
sides without anger or malice, and simply for the purpose of testing
their relative agilitj- and strength, then there is no assault and battery,
and the defendants must be acquitted."
The judge declined to give this instruction, but instructed the jury
upon this branch of the case in substance as follows : " That if the de-
fendants were simply engaged in a wrestling match, that being a lawful
sport, they could not be convicted of an assault and battery ; but if by
mutual agreement between themselves, previously made, they went to
a retired spot for the purpose of fighting with each other and for the
purpose of doing each other physical injury by fighting, with a view to
ascertain by a trial of their skill in fighting which was the best man,
and there engaged in a fight, each endeavoring to do and actually doing
all the physical injury in his power to the other, and if, in such contest,
each did strike the other with his fist for the purpose of injuring him,
each may properly be convicted of assault and battery upon the other,
although the whole was done by mutual arrangement, agreement, and
consent, and without anger on the part of either against the other."
To this instruction, and to the refusal of the judge to give the in-
struction prayed for, the defendants alleged exceptions.
Gf^. /S. Scammon, for the defendants.
W. C. Loring (<7. B,. Train., Attorney- General, with him), for the
Commonwealth.
Endicott, J. It appears by the bill of exceptions that the parties
by mutual agreement went out to fight one another in a retired placet
and did fight in the presence of from fifty to one hundred persons.
Both were bruised in the encounter, and the fight continued until one
said that he was satisfied. There was also evidence that the parties
went out to engage in and did engage in a " run and catch" wrestling
match. We are of opinion that the instructions given by the presiding
judge contained a full and accurate statement of the law.
The common law recognizes as not necessarilj' unlawful certain
manlj' sports calculated to give bodily strength, skill, and activity, and
" to fit people for defence, public as well as personal, in time of need."
Playing at cudgels or foils, or wrestling by consent, there being no
motive to do bodily harm on either side, are said to be exercises ot
this description. Fost. C. L. 259, 260; Com. Dig. Plead. 3 m. 18.
But prize-fighting, boxing-matches, and encounters of that kind serve
no useful purpose, tend to breaches of the peace, and are unlawful
even when entered into by agreement and without anger or mutual ill-
will. Fost. C. L. 260 ; 2 Greenl. on Ev. § 85 ; 1 Stephens N. P. 211.
216
EEX V. STKATTON. [CHAP. III.
If one party license another to beat him, such license is void, because
it is against the law. Matthew v. Ollerton, Comb. 218. In an action
for assault the defendant attempted to put in evidence that the plain-
tiff and he had boxed bj- consent, but it was held no bar to the action,
for boxing was unlawful, and the consent of the parties to fight could
not excuse the injur}-. Boulter v. Clark, Bull. N. P. 16. The same
rule was laid down in Stout v. Wren, 1 Hawks (N. C), 420, and in
Bell V. Hanslej', 3 Jones (N. C), 131. In Adams v. Waggoner. 33
Ind. 531, the authorities are reviewed, and it was held that it was no
bar to an action for assault that the parties fought with each other by
mutual consent, but that such consent msiy be shown in mitigation of
damages. See Logan v. Austin, 1 Stew. (Ala.) 476. It was said bj'
Coleridge, J., in Regina v. Lewis, 1 C. & K. 419, that " no one is justi-
fied in striking another except it be in self-defence, and it ought to be
known that whenever two persons go out to strike each other, and do
so, each is guilty of an assault ; " and that it was immaterial who
strikes the first blow. See Rex v. Perkins, 4 C. & P. 537.
Two cases only have been called to our attention where a difl'erent
rule has been declared. In Champer v. State, 14 Ohio St. 437, it was
held that an indictment against A. for an assault and batter}' on B. was
not sustained by evidence that A. assaulted and beat B. in a fight at
fisticuffs, by agreement between them. This is the substance of the
report, and the facts are not disclosed. No reasons are given or cases
cited in support of the proposition, and we cannot but regard it as
opposed to the weight of authority. In State v. Beck, 1 Hill (S. C),
363, the opinion contains statements of law in which we cannot concur.
Exceptions overruled. ■
SECTION IV.
Fault of the Injured Party.
(d) CONTRIBUTOKY CriMB.
REX V. STRATTON.
Nisi Prius. 1809.
[Reported 1 Campbell, 549.]
Indictment for a conspiracy to deprive one Thompson of the oflRce
of secretary to the Philanthropic Annuity Society, and to prosecute
SECT. IV.] EEGINA V. . 217
him, without any reasonable or probable cause, for obtaining money
upon false pretences. It appeared that this society is an unincorpor-
ated company, with transferable shares ; that there was a violent dis-
pute among the subscribers as to the choice of secretary ; that one
party, headed by the defendants, cashiered the prosecutor ; that he
still went on collecting subscriptions, and that they indicted him for
obtaining money upon false pretences, of which he was acquitted.
Lord Ellenborough. This society was certainly illegal. There-
fore, to deprive an individual of an office in it, cannot be treated as an
injury. When the prosecutor was secretary to the society, instead of
having an interest which the law would protect, he was guilty of a
crime. In Dodd's case, all the judges of this court were agreed upon
the illegality of these associations ; and I understand there has since
been a nonsuit in the Common Pleas upon the same ground. Nor can
I say that the prosecutor was indicted without reasonable or probable
cause. I thought he was not guilty of the offence imputed to him ; be-
cause it di(tTif>Tr"appRaT tha.t he acted wit,h a. Trandnlpnt, purpose. But
-money up»ft-arjalse-43retence. He pretended that
there~TfasT;hen a real, legal society, to which he was secretary ; whereas
no such society existed. The defendants must all be acquitted.^
REGINA V.
Central Criminal Court. 1845.
[Reported 1 Cox C. C. 250.]
The defendant was indicted for uttering counterfeit coin. Evidence
was adduced to show that he had given a counterfeit sovereign to a
girl with whom he had had intercourse.
£odkin, in opening the case for the prosecution, referred to E. v.
Page, 8 C. & P. 122, in which Lord Abinger ruled that the giving a
piece of counterfeit money away in charity was not an uttering within the
2 Wm. IV. c. 34, § 7, although the person giving knew it to be coun-
terfeit, as there must be some intention to defraud. The learned
counsel contended that the present case was clearly distinguishable,
even supposing that to be the law, and he apprehended that the ques-
tion for the jury would be, whether the coin had been passed with a
knowledge of its being counterfeit and with the intention of putting it
into circulation.
Lord Denman, C. J. (in summing up). As to the law of this case,
my learned brother (Coltman, J.) apd myself are clearly of opinion
that if the deXeJldantgave tliecoin_to tite wnmin under thp_i:ircum-
stances stated, knowing it to be counterfeit, he is guilty of the offence
1 See Rex v Heacall, 5 C. & P. 454; Reg. v. Hunt, 8 C. & P. 642; Com. v. Smith.
129 Mass). 1U4. — Jil).
218 EEGINA V. HUDSON. [CHAP. III.
charged. We do not consider the decision of Lord Abinger to be in
point ; that was a case of charity ; at the same time we have great
doubts as to the correctness of that ruling, and if a similar case were to
arise we should reserve the point. ^
KEGINA V. HUDSON.
Crown Case Eesehved. 1860.
[Reported S Cox C. C. 305 ]
Case reserved for the opinion of this court, b)- J. B. Maule, Esq.,
barrister-at^law, sitting as Deputj- for the Recorder of York.
At the Epiphany Sessions, 1860, held for the city of Yorlc, the pris-
oners were jointly indicted and tried before me upon an indictment, the
two first counts of which charged them with an oflFence under the 8 &
9 Vict. c. 109.
Third count. The prisoners were charged with a conspiracy to cheat
in the following form : —
" That they unlawfully and fraudulentl}- did combine, confederate,
and conspire together with divers other persons to the jurors unknown,
by divers unlawful and fraudulent devices and contrivances, and by
divers false pretences, unlawfully to obtain from the said A. Ehodes
the sum of £2 10s. of the money of the said A. Rhodes, and unlaw-
fully to cheat and defraud the said A. Rhodes of the same, against the
peace, etc.'"'
The evidence disclosed that the three prisoners were in a public house
together with the prosecutor, Abraham Rhodes, and that in concert
with the other two prisoners, the prisoner John Dewhirst placed a peu-
case on the table in the room where they were assembled and left the
room to get writing-paper. Whilst he was absent the other two pris-
oners, Samuel Hudson and John Smith, were the only persons left
drinking with the prosecutor ; and Hudson then took up the pen-case
and took out the pen from it, placing a pin in the place of it, and put
the pen that he had taken out under the bottom of the prosecutor's
drinking-glass ; and Hudson then proposed to the prosecutor to bet the
prisoner Dewhirst when he returned that there was no pen in the pen-
case. The prosecutor was induced bj' Hudson and Smith to stake 50s.
in a bet with Dewhirst upon his returning into the room, that there was
no pen in the pen-case ; which money the prosecutor placed on the
table, and Hudson snatched up to hold. The pen-case was then turned
1 Ace. Com. V. Woodbury, Thach. (Mass.) 47.
2 Contra, People v. Wilson, 6 Johns. 320. — Ed.
SECT. IV.J EEGINA V. HUDSON. 219
lup into thQ prosecutor's hand, and another pen with the pin fell into
his hand, and then the prisoners took his money.
Upon this evidence it was objected, on behalf of the prisoners, that
no offence within the meaning of the 8 & 9 Vict. c. 109, was proved b}'
it, and that the facts proved in evidence did not amount to the offence
charged in the third count.
I thought the objection well founded as to the offence under the 8 &
9 Vict. c. 109, but held that the facts in evidence amounted to the
offence charged in the third count, and directed the jury to return a
separate verdict on each count, a case having been asked for by the
prisoners' counsel, for the consideration of the Court for Crown Cases
Reserved.
The jury returned. a verdict of guilty on each of the three counts.
The prisoners were sentenced to eight months' imprisonment, and
■committed to prison for want of sufficient sureties.
If the court for the consideration of Crown Cases Reserved shall be
of opinion that the above facts in evidence constituted in law any one
of the offences charged in the indictment, and was evidence to go to the
jury in support thereof, the verdict is to stand for such of the counts in
which the offence is laid to which the evidence applies.
Price, for the prisoners. As to the third count, to sustain that the
■evidence should have shown such a false pretence as per se would con-
stitute the ordinary misdemeanor of false pretences.
Pollock, C. B. Why so? This is a count for conspiracy to cheat.
Price. Yes, by false pretences.
Channell, B. If the count had said merely to conspire, and had
■omitted the words " by false pretences," it would have been good.
Blackburn, J. Here the prisoners cheated_the prosecutor, intcu the
belief that he was j^ciing tn rhofiitj whrn in fipt he was to be cheatpd.
""" Price. This is a mere private deceit, not concerning the public, which
the criminal law does not regard, but is a deceit against which common
prudence might be guarded. There is no evidence of any indictable
•combination to cheat and defraud.
Channell, B. If two persons conspire to puff up the qualities of a
horse and thereby secure an exorbitant price for it, that is a criminal
offence.
Price. That affects the public. At the trial the present case was
likened to that of Rex v. Barnard, 7 C. & P. 784, where a person at
'Oxford, who was not a member of the university, went for the purpose
of fraud, wearing a commoner's gown and cap, and obtained goods.
This was held a sufficient false pretence. The present case, however,
was nothing more than a bet on a question of fact, which the prosecu-
tor might have satisfied himself of by looking at the pencil-case. It is
more like an ordinary conjuring-trick. Besides, here the prosecutor
himself intended to cheat one Of the prisoners by the bet.
No counsel appeared for the prosecution.
220 COMMONWEALTH V. MORRILL. [CHAP. III.
Pollock, C. B. We are all of opinion that the conviction on the
third count is good and ought to be supported. The count is in the
usual form, and it is not necessar}- that the words "false pretences"
stated in it should be understood in the technical sense contended for
by Mr. Price. There is abundant evidence of a conspirac}- by the pris-
oners to cheat the prosecutor, and though one of the ingredients in the
case is that the prosecutor himself intended to cheat one of the prisoners,
that does not prevent the prisoners from liability to be prosecuted upon
this indictment. Conviction affirmed.
COMMONWEALTH «. MORRILL.
Supreme Judicial Court op Massachusetts. 1851.
[Reported 8 Gushing, 571.]
This was an indictment which alleged that the defendants, Samuel
G. Morrill and John M. Hodgdon, on the 17th of September, 1850, at
Newburyport, ' ' devising and intending one James Lynch bj' false pre-
tences to cheat and defraud of his goods, did then and there unlawfully,
knowingly, and designedly falsely pretend and represent to said Lynch
that a certain watch which said Morrill then and there had, and which
said Morrill and Hodgdon then^ an4Jhere proposed ajid_oflfired_J;g_e3i:-
change with said Lynch for two other watclie"5_lli£lo5ging to-said Ljnch,
WJC5~a gold watcli of eighteen carats fine and was_oLgreat value, to wit,
of the value ot eighty" dollars ; and the said Lynch, then and there be-
lieving the said false pretences and representations so made as afore-
said by said Morrill and Hodgdon, and being deceived thereby, was
induced by reason of the false pretences and representations so maile
as aforesaid to deliver, and did then and there deliver, to the said Mor-
rill the two watches aforesaid, belonging to said Lynch, and of the value
of twenty dollars, and the said Morrill and Hodgdon did then and there
receive and obtain the two said watches, the property of said Lynch,
as aforesaid, in exchange for the said watch, so represented as a gold
watch as aforesaid, by means of the false pretences and representa-
tions aforesaid, and with intent to cheat and defraud the said L3-nch of
his said two watches, as aforesaid ; whereas in truth and in fact said
, watch so represented by said Morrill and Hodgdon as a gold watch,
Y eighteen carats fine, and of the value of eightj- dollars, was not then
" and there a gold watch, and was not then and there eighteen carats
fine, and was then and there of trifling value," etc.
f At the trial in the Court of Common Pleas, before Hoar, J., it ap-
peared in evidence that Lynch represented his watches, one of which
was of silver and the other of yellow metal, as worth fifty dollars ; and
on the testimony of the only witness for the Commonwealth who was a
judge of the value of watches, thej- were worth not exceeding fifteen
SECT. IV.J COMMONWEALTH V. MORRILL. 221
dollars. L3-ncb testified that his silver watch cost him fifteen dollars ;
that he received the other in exchange for two, which cost him respec-
tively seven dollars and thirteen dollars ; and that he believed it to be
worth thirty dollars.
The defendant requested the presiding judge to instruct the jmy that
if L3nch's watches were not worth Mtj dollars, or some considerable
part of that sum, but were of merely trifling value, this indictment
could not be maintained. But the judge instructed the jurj' that if they
supposed that each of the parties was endeavoring to defraud the other,
and Lj-nch knew that his watches were of little value, the jurj- should
not convict the defendants merely because they had the best of the bar-
gain ; but that if the defendants made the false representations charged
in the indictmeiit, with the intent to defraud, knowing them to be false,
and they were such as would mislead and deceive a man of ordinary I
prudence, and Lynch, bj' reason of the representations, and trusting in
them, parted with his property and was defrauded, it was not necessary
to show that he was defrauded to the extent charged in the indictment,
provided he in good .faith parted with property' which he believed to be
valuable, and was defrauded to any substantial amount, for example,
to the amount of five dollars ^ and that the defendants might be con-
victed, although, from the mistake of Lynch in over-estimating his
propertj', he might not have been cheated to so great an extent as he
at the time supposed.
The jury found the defendants guilt)', who thereupon moved in arrest
of judgment, on the ground that the indictment was insufficient; and
this motion being overruled, they alleged exceptions to the order of the
court, overruling the same, and also to the instructions aforesaid.
W. C. Endicott, for the defendant.
Clifford, Attornej^-General, for the Commonwealth.
Dewey, J.'' The exceptions taken to the instructions of the presid-
ing judge cannot be sustained. If it were true that the partj' from
whom the defendants obtained goods bj- false pretences also made
false pretences as to his goods which he exchanged with the defend-
ants, that would be no justification for the defendants, when put on
trial upon an indictment charging them with obtaining goods by false
pretences, knowingly and designedly in violation of a statute of this
Commonwealth. Whether the alleged misrepresentation of Lynch,
being a mere representation as to the value or worth of a certain watch
and an opinion rather than a statement of a fact, would be such false
pretence as would render him amenable to punishment under this
statute, might be questionable , but supposing that to_be otherwise, and
it should appear that Lynch had also violated the statute, that would
not justify the defendants. If the other party has also subjected him-
self t6~a prosecution fora like ofiTence,' he also may be punished. This
' Part of the opinion, referring to a question of pleading, is omitted.
222 McCOED V. PEOPLE, [CHAP. III.
would be much better than that both should escape punishment because
each deserved it equally.^
McCORD V. PEOPLE.
Court or Appeals of New York. 1871.
[Reported 46 Neiv York, 470.]
Error to the General Term of the Supreme Court in the first depart-
ment to review judgment, affirming judgment of the Court of General,
Sessions in and for the County of New York, convicting the plaintiff in
■ error upon an indictment for false pretences.
The plaintiff in error, Henry McCord, was tried and convicted in the-
Court of General Sessions of the Peace, in and for the County of New-
York, at the June term, 1870, upon an indictment charging in sub-
stance that with intent to cheat and defraud one Charles C. Miller, he
falsely and fraudulently represented, —
" That he, the said Henrj- McCord, wa^s an officer attached to the
bureau of Captain John Young's department of detectives, and that he
had a warrant issued by .Justice Hogan, one of the police justices of
the city of New York, at the complaint of one Henry Brinker, charging
the said Charles C. Miller with a criminal offence and for his arrest ;
and that the said Henry Brinker had promised him, the said Henry
McCord, $200 for the arrest of him, the said Charles C. Miller."
And that said Miller, believing such false representations, was in-
duced to and did deliver to McCord a gold watch and a diamond ring.*'
Per Curiam. If the prosecutor parted with his property upon the
representations set forth in the indictment, it must have been for some
unlawful purpose, a purpose not warranted b}' law. There was no.
legitimate purpose to be attained by delivering the goods to the accused
upon the statements made and alleged as an mducemeut to the act.
What action by the plaintiff in error was promised or expected in,
return for the property given is not disclosed. But whatever it was, it
was necessarily inconsistent with his duties as an officer having a crimi-
nal warrant for tlie arrest of the prosecutor, which was the character
he assumed. The false representation of the accused was that lie was
an officer and had a criminal warrant for the prosecutor. Tliere was
no pretence of an}' agencv for or connection with any person or of any
authority to do any act save such as his dutj' as such pretended officer
demanded.
The prosPfi^f,nr parted with his property M,s «,n ir^tlncement to a HM]^
posed officer to violate the law and his duties ; and if in attempting to.
i^cc. J^eo. V. Mailiu (Ctl.), 30 roii. Oliiiii in m ■Cuiiunius, 16 Col. 4fl, 27 Pac.
887. And see Com. o. Henry, 22 Pa. 253. — Ed.
' Argmnents of counsel and the dissenting opinion of I'liCKUAJi, J,, are omitted.
SECT. IV.] STATE V. PATTERSON. 22.3
do this he has been defrauded, the law will not punish his confederate,
although such confederate may have been instrumental in inducing the
commission of the offence. TVpitVipr thp Ig.yy rp- pnhlin pnlioj- dntiigtin
the protection of rogues in their dealings with each other, or to insure
fSiFciealing and trnthfnlnpsg ga hot,Yyfgn each other in their dishonest
practices4__The design of the law is to protect those wtio, for sortTe
3nest purpose, are induced upon false and fraudulent representations
to give credit or part with their propertj' to another, and not to protect
those who for unworthy or illegal purposes part' with their goods. Peo-
ple V. Williams', 4 Hill, 9 ; Same v. Stetson, 4 Barb. 151.
The judgment of the Supreme Court and of the Sessions must be
reversed and judgment for the defendant.^
STATE V. PATTEESON.
Supreme Court op Kansas. 1903.
[Reported 66 Kan. 447.]
BuBCH, J.^ The appellant was convicted of embezzlement of money
which came into his hands by virtue of his oflScial position as treasurer
of the city of Clyde. . . .
The defence to the action was that appellant collected tlie money
embezzled from persons engaged in unlawful traffic in intoxicating
liquors in the city of Clyde, under an arrangement between such
persons and the city wherebj' immunity from prosecution was secured
to them. Counsel for appellant call this money "blood-money";
characterize its collection as "robbery," and, from their language,
would seem to regard the transaction at least as infamous as that of the
thief " in the sacristy with the fair adornments," whom Dante located
as far down as the eighth circle of hell. And because of the utter
indefensibility of the conduct of the city and of the appellant under
the law, it is claimed he cannot be punished criminally. The defence
is applied in many ways. It is said the citj' could not authorize the
collection of such money ; that appellant could not act for the city
in such business ; that he did not act as city treasurer, or by virtue
of such office, and could exercise no official conduct in such an affair ;
that money received by him Jromism-l) sonvoc' eould notr-aHd^ij not,
become the property of the, city ; and tliat, if it did become the city's
mone}-, it was so uncleanthat the law of embezzlement will not take
cognizance of it. The district court excluded all evidence relating t9
this defence. In this it was norrec};. The defence is repugnant to law,
t(j morality, and even to expediency in the regulation of the conduct
of individuals in societj'.
' Acr. State i: Crowley, 41 Wis. 271. But see Peo. «. Tompkins, (N. Y.), 79
N. E. 326 — Ed.
^ Part of the opinion is omitted. — Ed.
224 STATE V. PATTEESON. [CHAP. III.
In 1852 the Supreme Court of Massachusetts, in deciding that money
accumulated by the illegal sale of intoxicating liquors was nevertheless
the subject of larcenj', said :
" That same common law, which, in its integrity and wisdom, re-
fuses to lend itself to be the instrument, even indirectly, for the execu-
tion of a criminal contract, will as little condescend to throw its mantle
over crime itself. The law_£unishes jarceny, b^cause_it_ia-larceny ;
and, therefore, ionej^^n5eTOn^£drefrthefl.»JJMWgh^ but steal
his own«prop©i=ty, from himself or hisjjailee. 7 H. VI. 43a ; 3 Co.
last. 11^: ijidTthe law punishes the larceny of property, not solely
because of any rights of the proprietor, but also because of its own
inherent legal rights as property ; and, therefore, even he. w^o larceni-
ously takes the stolen object from a thierVhose hands hnvfi but iiist
■etesgdnTpon it, may himself be convicteiL-thefofor, inySgitg,-X>f^ie
- ..iJjMTTgftT^j-if t.hft possessinn r.f hiTTmrTipdiatp predecessor in crime.
This^rinciple is coeval with the common law itself as a collection of
received opinions and rules, for we have to go back to the Year-books
to find its first judicial announcement. The leading decision is the
case of a so-called John at Stile, in 13 Edw. IV, 36, where it was
held by the judges that if A. steal the goods of B., and afterwards
C. steal the same goods from A., in such case C. is indictable both as
to A. and as to B. This decision was afterwards aflBrmed arguendo in
4 Hen. VII 56.
" We do not say our doctrine is good law, merely because it was in
principle so adjudged in the time of the Plantagenets and the Tudors ;
but we say it is good law, also, because it is reasonable and just ;
because every subsequent authority in England, such as Hale, 1 Hale,
P. C. (Am. ed.) 507 ; East, 2 East, P. 0. 654 ; Russell, 2 Buss, on
Crim. (6th Am. ed.) 89, has adopted and approved it; because it has
been affirmed by modern judicial opinion in England ; Wilkin's Case,
2 Leach, 586 ; because it has already been recognized in the United
States; Ward v. The People, 3 Hill, 396; and because it thus bears
that genuine stamp of venerable time, which consists, not in the
antiquity of date — for there may be old errors as well as new ones —
but in having stood the test of the scrutiny of many successive
ages. . . .
" If, looking beyond the mere question of property, we pass to con-
siderations of public policy, this may be regarded in two points of view,
one, of convenience in the administration of justice, the other, of higher
ethical relation. As to the former point, it is not easy to conceive anj^-
thing which would more seriously embarrass the public ministers of
justice, and obstruct its administration, than if it were held that any
element of illegalitj' in the acquisition of property rendered it incapa-
ble of being the subject of larceny, and if, as a consequence, ihe
necessity followed, in every case, to go into the inquiry how the part}'
complaining acquired the property.
SECT. JV.j STATE V. PATTEESOX. 225
" As to the latter point, if the question be put in the form most
favorable to the argument for the defendant here, it stands thus : of
the alternative moral and social evils, which is the greater — ^to deprive
property unlawfully acquired of all protection as such, and thus to dis-
courage unlawful acquisition but encourage larcenj' ; or to punish, and
so discourage larceny, though at the possible risk of thus omitting
80 far forth to discourage unlawful acquisition ? The balance of public
policy, if we thus attempt to estimate the relative weight of alternative
evils, requires, it seems to us, that the larceny should be punished.
Each violation _of law is to he dealt witti by itself. Tke. felonious tak-
ing has ite approuriate and specific punishment; so also has EBfe
nnlfiiwfrfTnnnuiriitiinn " (Commonwealth 'i;7~ROnrliO) 10 Gush. 397.)
Such is the law both of larceny and embezzlement in the United
States. (State v. Cloutman, 61 N. H. 143 ; Commonwealth v. Smith,
129 Mass. 104 ; Commonwealth v. Cooper, 130 id. 285'; Woodward v.
The State, 103 Ind. 127, 2 N. E. 321 ; Stave v. O'Brien, 94 Tenn. 79,
28 S. W. 311, 26 L. R. A. 252; People v. Hawkins, 106 Mich. 479,
64 N. W. 736 ; The State v. Shadd, 80 Mo. 358 ; Miller & Smith v.
The Commonwealth, 78 Ky. 15, 39 Am. Rep. 194 ; The State of Iowa
V. May, 20 Iowa, 305 ; Bales v. The State, 3 W. Va. 685 ; State v.
Littschke, 27 Ore. 189, 40 Pac. 167 ; Hertzler v. Geigley, 196 Pa. St.
419, 46 Atl. 366, 79 Am. St. Rep. 724.)
Crime does indeed beget crime, but such progeny cannot justify itself
hefm-g'tlie ld.W by its LillHUUiJ »ru\ |iMt.Kfiil pirnntatra.
Ttfe'judgment of the district court is therefore aflQrmed. All the
Justices concurring.
226 BEGINA V. HOLLAND. [CHAP. lU.
SECTION V.
Negligence of the Injured Party.
REiSHNA V. HOLLAND.
Liverpool Assizes. 1841.
[Reported 2 Moody §■ Eobinson, 351.]
Indictment for murder. The prisoner was charged with inflicting
divers mortal blows and wounds upon one Thomas Grarland, and
(among others) a cut upon one of his fingers.
It appeared by the evidence that the deceased had been waylaid and
assaulted by the prisoner, and that, among other wounds, he was
severely cut across one of his fingers by an iron instrument. On being
brought to the infirmary, the surgeon urged him to submit to the ampu-
tation of the finger, telling him, unless it were amputated, he considered
that his life would be in great hazard. The deceased refused to allow
the finger to be amputated. It was thereupon dressed by the surgeon,
and the deceased attended at the infirmary from day to day to have his
wounds dressed ; at the end of a fortnight, however, lock-jaw came on,
induced by the wound on the Bnger ; the finger was then amputated,
but too late, and the lock-jaw ultimately caused death. The surgeon
deposed that if the finger had been amputated in the first instance, he
thought it most probable that the life of the deceased would have been
preserved.
For the prisoner, it was contended that the cause of death was not
the wound inflicted by the prisoner, but the obstinate refusal of the
deceased to submit to proper surgical treatment, by which the fatal
result would, according to the evidence, have been prevented.
Maule, J., however, was clearly of opinion that this was no defence,
and told the jury that if the prisoner wilfully, and without any justifi-
able cause, inflicted the wound on the party, which wound was ulti-
mately the cause of death, the prisoner was guilty of murder ; that for
this purpose it made no difference whether the wound was in its own
nature instantly mortal, or whether it became the cause of death by
reason of the deceased not having adopted the best mode of treatment ;
the real question is whether in the end the wound inflicted by the
prisoner was the cause of death. Guilty.^
1 Ace. Com. t). Hackett, 2 All. 136. — Ed.
SECT, v.] KEGINA V. KEW. 227
REGINA V. KEW.
Suffolk Assizes. 1872.
[Reported 12 Cox C. C. 355.]
The prisoners were indicted for manslaughter. It appeared that on
the 2d of June the prisoner, Jackson, who was in the employ of Mr.
Harris, a farmer, was instructed to take' his master's horse and cart
and drive the prisoner Kew to the Bungay railway station. Being late
for the train, Jackson was driving at a furious rate, at full gallop, and
ran over a child going to school and killed it. It was about two o'clock
ill the afternoon, and there were four or five little children from five to
seven years of age going to school unattended by any adult.
Metcalfe and Simms Reeve, for the prisoners, contended that there
was contributory negligence on behalf of the child running on the road, •
and that Kew was not liable for the acts of another man's servant, he
having no control over the horse and not having selected either the
horse or the driver.
Btles, J., after reading the evidence, said : Here the mother lets her
child go out in the care of another child only seven j'ears of age, and .
the prisoner Kew is in the vehicle of another man, driven bj' another
man's servant, so not onl}' was Jackson not his servant but he did not
even select him. It has been contended if there was contributorj- negli-
gence on the children's part, then the defendants are not liable. No
doubt contributory negligence would be an answer to a civil action.
But who is the plaintiff here ? The Queen, as representing the nation ;
and if they were all npg1iffptvt^|.ngpt.hpi^I think their negligence would
be TifTneTftrinp. pvejTII'-ttTPyhnd beeii_^.dn1ts. IfLhe^ weFe 01 o^nion
that tae prisoners were driving at a dangflrnns pupa i" « fiMlp^^y "^*g*-
gent manner7~then Lhsy^re guilty, I^' ^as true that Kew was^ao*
actually driving, but stiii a word from him might havp prevpritrd ^"
accident. If iiticessary ne would reserve the question of contributory
negligence as a defence for the Court of Criminal Appeal.
The jury acquitted both prisoners.'
1 Ace. Reg. V. Longbottom, 3 Cox C. C. 439 ; Belk v. People, 125 111. 584 ; Crum
». State, 64 Miss. 1, 1 So. 1. But see Reg. u. Bivchall, 4 F. & F. 1087. —Ed.
228 COMMONWEALTH V. SLATTERT. [CHAP. III.
SECTION VI.
Condonation.
4 Bl. Com. 133. Theft bote is where the party robbed not only
knows the felon, but also takes his goods again, or other amends upon
agreement not to prosecute. This is frequently called compounding of
felony ; and formerly was held to make a man an accessory ; but it is
now punished only with fine and imprisonment. This perversion of
justice, in the old Gothic constitutions, was liable to the most severe
and infamous punishment. And~ the Salic law ^'■lutroni eum similem
habuit, qui fertum celare vellet, et occidte sine judice compositionem
ejus admittere.'' Bj' statute 25 Geo. II. c. 36, even to advertise a re-
ward for the return of things stolen, with no questions asked, or words
to the same purport, subjects the advertiser and the printer to a forfeit-
ure of £50 each.^ 1 Hawk. P. C. ch. 7, sect. 7. But the bare taking
of one's own goods again which have been stolen is no offence at all
unless some favor be shown to the thief.
COMMONWEALTH v. SLATTERY.
Supreme Judicial Court of Massachusetts. 1888.
[Reported 147 Mass. 423.]
Indictment for rape on Bridget Dpnovan.^ At the trial in the Supe-
rior Court, before Dunbar, J. , the defendant asked the judge to instruct
the jury " that, if said Donovan at any time after the act excused or
forgave the defendant, then she ratified the act, and he cannot be con-
victed in the case." The judge refused so to instruct, but instructed
the jury that evidence of her acts and conversation with the defendant,
both before and after the commission of the alleged offence, was a proper
subject for their consideration in determining the guilt or innocence of
the defendant at the time of its commission. The defendant alleged
exceptions.
W. Allen, J. The court rightly refused to give the instructions
requested. The injured party could not condone the crime by excusing
or forgiving the criminal.
1 See Reg. v. Burgess, 15 Cox C. C. 779.
2 Only so much of the case as involves the question of condonation is printed.
SECT. VI.] COMMONWEALTH V, KENNEDY. 229
FLEENER v. STATE.
Supreme Court op Arkansas. 1893.
[Reported 58 Arh. 98.]
BuNN, C. J.^ The defendant, A. W. Fleener, was indicted at the
October term, 1892, of the St. Francis circuit court, for the crime of
embezzlement ; at the March term, 1893, found guilty and sentenced to
imprisonment in the penitentiary for the period of one year. Motions
in arrest of judgment and also for a new trial were overruled, and
appeal taken to this court.
The fourth ground of the motion for a new trial is a novel one. The
defendant contends that, having hired the guarantee company to make
his bond for faithful performance of duty to the Pacific Express Com-
pany, and that company having paid the express company for all losses
claimed by it to have been suffered by reason of defendant's alleged
embezzlement, therefore there was no crime committed ; that the
express company had no longer any interest at stake, and even that
the State has no interest in the matter. In this the defendant is
mistaken. This is no longer a controvers}' between himself and
the two companies, or either of them, and has not been since he fraud-
ulently appropriated the money of the express companj', if indeed he
did so appropriate it. It is now a controversy between the State of
Arkansas and himself, which the State will not permit either one of the
said companies to determine at present or in the future, nor will the
State acknowledge the validity of any settlement of it, by any thing
they both, or either of them, have done in the past.
(
COMMONWEALTH v. KENNEDY.
Supreme Judicial Court of Massachusetts. 1894.
[Reported 160 Mass. 312.]
Complaint, charging the defendant with violating the provisions of
Pub. Sts. c. 69, § 5, bj' boarding a ship without obtaining leave, as
therein required.
At the trial in the Superior Court, before Bond, J., there was evi-
dence tending to show that the ship was unable to obtain a place at
a wharf as desired, and was obliged to anchor in the harbor, that the
captain was on board and in charge of the vessel, that the defendant
1 Part of the opinion is omitted. — Ed.
230 COMMONWEALTH V. KENNEDY. [CHAP. III.
was not a pilot or public officer, and that he had no written leave from
any owner or agent of the vessel to go on board.
While the vessel was at anchor in the harbor, the defendant went on
board, and, before doing any business, approached the captain and
obtained permission from him to remain on board. The defendant con-
tended, and asked the judge to rule, that, if the defendant boarded the
vessel intending, before he engaged in any business on board, to obtain
leave of the captain to remain, and he did obtain such leave before he
engaged in any business on board, he was not guilty of any violation of
the statute.
The judge declined so to rule, and instructed the jury that the
statute required a person to obtain leave of the master or person in
charge of the vessel before going on board, and that it would be a vio-
lation of the statute if the defendant boarded the vessel before it was
made fast to the wharf without first obtaining leave of the master or
person in charge.
The jury returned a verdict of guilty ; and the defendant alleged
exceptions.
Morton, J. We think that the statute in question must be con-
strued as if it read " without first having obtained leave from the
master or person having charge of such vessel, or without first having
obtained leave in writing from its owners or agents." Pub. Sts. c. 69,
§ 5. The statute as originally enacted was intended according to its
title " to protect mariners and shipowners from imposition " (St. 1867,
c. 139), and in order to do that forbade without qualification the entry
upon a vessel before it was made fast to the wharf of any person except
a pilot or public officer, without having obtained leave from one of the
persons named in the statute. The original statute was re-enacted, with
slight changes in phraseology, in Gen. Sts. c. 52, §§ 22 to 29 inclu-
sive, excepting § 26, which was a re-enactmeijt of St. 1859, c. 235, and
the provisions of the General Statutes were incorporated into Pub. Sts.
c. 69, §§ 5 to 12 inclusive, excepting § 7, which was a re-enactment of
5t. 1874, c. 76. The offence with which the defendant is charged
became complete upon his boarding the vessel without having obtained
Ithe leave which the statute required, no matter what his motive was,
[and without regard to the fact that permission was afterwards given
I him by the captain to remain on board. Commonwealth r. Slattery,
147 Mass. 423 ; Commonwealth v. Tobin, 108 Mass. 426. Cases may
be supposed where the application of this rule would operate with
harshness, but they do not justify us in departing from the words of
the statute. Exceptions overruled.
SECT. VI.] COMMONWEALTH V. ST. JOHN. 231
COMMONWEALTH v. St. JOHN.
Supreme Judicial Court of Massachusetts. 1899.
[Reported 1 73 Mass. 566.]
Indictment, against Joseph St. John, Albert St. Germaine, and
Eugene Bernatchez, charging the first named defendant, on May 31,
1896, at Springfield, with unlawfully using a certain instrument in and
upon the body of a woman named, with intent to procure a miscarriage,
and thereby causing her death ; and charging the other defendants with
being accessories before the fact.
St. Germaine, in support of his plea in bar, offered to show that he
was promised and pledged by the city marshal of Springfield, who was
at the time at the head of the police department of the city, and by one
Boyle, the chief detective of the police department, and who were in
the preliminary proceedings the prosecuting officers, and by whom a
warrant was obtained for the arrest of St. Germaine, that if he would
make full disclosure and confession of wbu,t he knew with reference to
the abortion alleged to have been performed b\- St. John, and against
whom a complaint had been made and a warrant issued from the police
court of Springfield for such ofl'ence, as principal, and if St. Germaine
would hold himself in readiness to testify and would testify at the pre-
liminary hearing in the police court upon the complaint and warrant
against St. John, and if he would hold himself in readiness to testif}'
at any other trial or hearing with reference to the charge against St.
John, he should have immunity and protection from the crime charged
against him in the indictment.
The judge ruled that the evidence offered was not competent, and
excluded the same ; and each of the defendants alleged exceptions.^
Morton, J. The decisive question in each case is the same, and
the cases may therefore properly be considered together. The question
is whether the immunity that was promised to the defendants by the
citj- marshal and by Boyle, the chief detective of the police depart-
ment of Springfield, can be pleaded in bar of the indictment . against
them. We think that it cannot. . The immunity and protection which
maj- be promised from the consequences of crime on condition of a full
disclosure and readiness to testify are not a matter of right, but rest in
the last resort on the sound judicial discretion of the court having final
jurisdiction to sentence, and cannot therefore be pleaded in bar.
Wright «;. Eindskopf, 43 Wis. 344 ; State v. Moody, 69 N. C. 529;
State V. Graham, 12 Vroom, 15 ; Rex v. Rudd, Cowp. 331 ; Whart.
Crim. Ev. §§ 439, 443 ; 3 Buss. Crimes (9th Am. ed.), 599.
When such promises are made by the public prosecutor or with his
authority, the court will see that due regard is paid to them, and that
the public faith which has been pledged by him is duly kept. The
1 The statement of facts has been shortened. — Ed.
232 IN EE LEWIS. [chap. III.
prosecuting oBScer has also the power to enter a nolle prosequi. It ap-
pears in each case that neither the city marshal nor Boyle had any
authority from the District Attorney to make the promises or hold out
the inducements which thej- did. There is notbing in either bill of ex-
ceptions tending to show that the District Attornej- had anything to
do with the prosecution in the police court. Neither of the defendants
appeared before the grand jury, although they were at the court-house
from day to day when the grand jury was in session, ready to testifj',
relying on the promises of immunit}- made by the cit^- maishal and by
Boyle. And there is nothing tending to show that there was any ex-
pectation or understanding on the part of the District Attornej- that
either was to testif}' as a government witness in the Superior Court,
and neither did so testify. If an appeal had been made to the clem-
ency of the court, it would no doubt have been competent for the court
to take into consideration the inducements which had been held out
and the promises tliat had been made, if any, by the city marshal and
b}- Boyle. But what was done was to plead the promises and induce-
ments in bar. A question of law was thus presented, and we think
that the ruling of the court was clearly right. Exceptions overruled.
In re LEWIS.
Supreme Court of Kansas. 1903.
[Reported 67 Kan. .562.]
Mason, J.^ Oscar Lewis was arrested on a warrant issued April 2,
1903, charging him with having, on June 1, 1902, obtained illicit con-
nection, under promise of marriage, with Nellie Meador, she being of
good repute and under twenty-one years of age. Upon a preliminary
examination he was held to answer the charge. It was shown that on
November 27, 1902, he was married to said Nellie Meador, and he now
asks his discharge upon habeas corpus on the ground that such
marriage is a complete bar to the prosecution. The state claims, and
the claim is supported by the evidence, that tlie defendant abandoned
his wife on the morning after the marriage, but this does not affect
the legal aspect of the matter.
In the following cases it has been held that a subsequent marriage
is a bar to a prosecution for seduction : Commonwealth v. Eichar, 4
Pa. L. J. Rep. 326 ; People v. Gould, 70 Mich. 240. 38 N. W. 232,
14 Am. .St. Rep. 493; The State v. Otis, 135 Ind. 267, 24 N. E. 954,
21 L. R. A. 733. The law is so stated in Wharton on Ciiminal
Law, 10th edition, volume 2, page 1760, and Lawson's Criminal De-
fences, volume 6, page 780. These statements of the text-writers,
however, are based solely upon the cases just cited, and therefore
1 Part of the opinion is omitted. — Ed.
SECT. VI.] IN EE LEWIS. 233
add little to their authority. The Michigan and Indiana cases, naore-
over, merely followed the reasoning in Commonwealth v. Eichar,
supra, so that the soundness of the doctrine in principle can be de-
termined from an examination of the opinion in that case. Its full
text upon this point is as follows :
' ' The evidence fully establishes the fact that, six nolonths previous
to the finding of this indictment b^' the grand jurj-, the defendant
was legally married by the Rev. Mr. Rugan, of the Lutheran church,
to the female whom he is charged with having seduced. She is by the
laws of God and man his wife, and as such is entitled to all the rights
which are incident to that relation. Can he now be convicted and
punished for her seduction before marriage? It is not the carnal
connection, even when induced by the solicitation of a man, that is the
object of this st9,tutor3^ penalty, but it is the seduction under promise
of marriage which is an offence of so grievous a nature as to require
this exemplary punishment. What promise? One that is kept and
performed? Clearly not, but a false promise, broken and violated
after performing its fiendish purpose. The evil which led to the en-
actment was not that females were seduced and then made the wives
of the seducer, but that after the ends of the seducer were accom-
plished his victim was abandoned to her disgrace. An objection to
this construction is that it places within the pov^er of the seducer a'
means of escaping the penalty. So be it. This is far better than
bj- a contrary construction to remove the inducement to a faithful
adherence to the promise which obtained the consent."
Our attention has not been called to an^' actual adjudication against
this doctrine, nor have we discovered any. However, in State v. Bierco,
27 Conn. 319, 324, in considering the question whether it could be
shown in defence that the promise of marriage was made in good faith,
and broken only bj- reason of the subsequent misconduct of the
complaining witness, the court said :
" Even if he had performed his promise to marry her, we do not per-
ceive how it could plausibly be urged that it would be any answer to
the chaige of the previous seduction ; however, such partial repara-
tion might he viewed as a circumstance to mitigate the punishment.
As to the claim founded on the misconduct of the female subsequent
to the illicit connection between her and the defendant, it is a sufficient
answer that the offence was committed and complete before such
misconduct took place, and that, whatever effect it might have upon a
claim by her upon him for the V)reach of his promise of marriage, or
however it might be considered by the court in affixing the punish-
ment for the offence charged upon the defendant, it could not relate
back to render legal or innocent a violation of the statute for which
he had already become nmenahle."
In State ?>. Wise, 32 Ore. 280, 282, 50 Pac. 800, it was said :
" But, as we take itj the gravamen of tiie offence is the act of se-
ducing and debauching an unmarried female, of previous chaste
234 IN EE LEWIS. [chap. IH.
cliavacter, under or by means of a promise of marriage ; and the
crime is complete as soon as the act is accomplished, although a
subsequent marriage is b^- statute a bar to a prosecution."
In People v. Hough, 120 Cal. 558, 52 Pac. 846, 65 Am. St. Rep.
201, the court held :
" When a man induces an unmarried female of previous chaste
character to submit her person to him by reason of a promise of mar-
riage upon his part, the seduction has taken place — the crime has
been committed. The succeeding section, which provides that the
marriage is a bar to a prosecution, clearl}' recognizes that the crime has
been committed when the promise has been made and the intercourse
thereunder has taken place. There may be incidental references in
some cases indicating that a refusal upon the part of the man to carrj'
out the promise is a necessary element of the offence. (People v.
Samonset, 97 Cal. 448, 32 Pac.'520; State v. Adams, 26 Ore. 172, 35
Pac. 36, 22, L. E. A. 840, 42 Am. St. Rep. 790.) But such is not
the fact."
In Clark and Marshall's Law of Crimes, page 1122, the authors
say:
" By express provision of the statutes in most states, the subse-
quent intermarriage of the parties is a bar to a prosecution for seduc-
tipn. But this is not the case in the absence of such a provision,
for, as was shown in another place, the person injured by a crime
cannot prevent a prosecution by afterwards condoning the offence."
Notwithstanding the authorities cited in support of the contention
of defendant, we are not disposed to yield assent to it. Being based
upon the Pennsylvania case, they depend for their force, as it does,
upon the soundness of the reasoning by which it is supported, and
this reasoning is based less upon the language of the statute than
upon considerations of public policy, and the decision borders upon
judicial legislation.
While the following language of Mr. Justice Johnston in The State
13. Newcomer, 59 Kan. 668, 54 Pac. 685, was used in a case of stat-
utory rape, it is equalh' applicable here, and is a satisfactory- refu-
tation of every argument advanced in the opinion in the Eichar
case :
"In behalf of the defendant it is ' argued that the evil conse-
quences of the unlawful act have been averted by the marriage ; that
when the parties to the act voluntarily, and in good faith, entered into
the marriage relation the offence was condoned, and that the welfare
of the parties and their offspring requires and the interest of the public
will be best subserved bj' the ending of the prosecution.
" The difficulty with this contention is that the law does not provide
that the offence may be expiated by marriage or condoned by the
injured female. Her consent to the sexual act constitutes no defence,
and neither her forgiveness nor anything which either or both will do
will take awaj- the criminal quality of the act or relieve the defendant
SECT, vl] in ke lewis. 235
Iroin the consequences of the same. The principle of condonation
which obtains in divorce cases where civil rights are involved has no
application in prosecutions brought at the instance of the state for the
protection of the public and to punish a violation of the law. It is
true, as stated, that societ3- approves the act of the defendant, when
he endeavors to make amends for the wrong done the injured female,
by marrying her, and usually a good-faith marriage between the parties
to the wrong prevents or terminates a prosecution; but the statute,
which defines the offence and declares punishment therefor makes no
such provision. If the defendant has acted in good faith in marrying
the girl, and honestly desires to perform the marital obligation resting
upon him, and is prevented from doing so by the influence and inter-
ference of persons other than his wife, it may constitute a strong
appeal to the prosecution to discontinue the same, or to the governor
for the exercise of executive clemency, but as the law stands it furnishes
no defence to the charge brought against the defendant."
Moreover, the doctrine of the Pennsylvania, Michigan and Indiana
courts, if accepted as sound, would not necessarily control here, since
it has arisen under statutes for the punishment of offences that include
the element of seduction, properly so called, and the decisions support-
ing it are based to some extent upon that fact. The Kansas statute
here involved (Gen. Stat. 1901, § 2021) does not use the word
" seduce," and, while the offence it creates is commonly and conven-
iently called "seduction," this does not imply that the term is techni-
cally correct. It makes criminal the act of obtaining illicit connection
under promise of marriage with any female of good reputation under
twenty-one years of age. This does not constitute seduction, as the
word is used in the statutes of other states.
We hold that a subsequent marriage to the injured female is not a
liar to a prosecution under section 2021 of the General Statutes of
1901.
236 EEGINA V. TOLSON. [CHAP. IV;
CHAPTER IV.
CULPABILITY.
SECTION I.
What Crimes Require a Guilty Mind.
EEGINA V. TOLSON.
Crown Case Reserved. 1889.
[Reported 23 Queen's Bench Division, 168.]
Wills, J. In this case the prisoner was convicted of bigamy. She
rrnirrWl ^ flppnnrl timn w^Hiiii kn ynui'ij nf l.lip limpwlipn iSTiP last
' knew of her husband being alive, but upon information of his death,
which the jury round that she upon reasonable grounds believed to be
true. A few months after the second marriage he reappeared.
The statute upon which the indictment was framed is the 24 & 25
Vict. c. 100, s. 57, which is in these words : " Whoever, being mar-
ried, shall marry any other person during the life of the former husband
or wife shall be guilty of felony, punishable with penal servitude for
not more than seven years, or imprisonment with or without hard-
labor for not more than two years," with a proviso that " nothing in
this Act shall extend to any person marrying a second time whose
husband or wife shall have been continually absent from such person
for the space of seven years last past, and shall not have been known
by such person to be living within that time."
I There is no doubt that under the circumstances the prisoner falls
/within the very words of the statute. She, being married, married
another person during the life of her former husband, and, when she
did so, he had not been continually absent from her for the space of
seven years last past.
_TtJP) hnwpvri 'inrlnnhtfrlly n-pripniplR of Enplish Criminal law, th at
■ ordinarily spp'''^'"g « '^■'ime is not committed if the mind of the person
doing an act in question be innocent,. " It is a principle of natural
justice and of our law, says Lord Kenyon, C. J., "that actus non
facit reum, nisi mens sit rea. The intent and act must both concur to
SECT. I.] EEGINA V. TOLSON. 237
constitute the crime." Fowler v. Padget, 7 T. R. 509, 514. The
guilty intent is not necessarily that of intending the very act or thing
-done and prohibited by common or statute law, but it must at least be
the intention to do something wrong. That intention may belong to
one or other of two classes. It may be to do a thing wrong in itself
and apart from positive law, or it may be to do a thing merely prohi-
bited by statute or by common law, or both elements of intention may
co-exist with respect to the same deed. There are many things prohi-
bited by no statute — fornication or seduction for instance — which
nevertheless no one would hesitate to call wrong ; and the intention to
do an act wrong in this sense at the least must as a general rule exist
before the act done can be considered a crime. Knowingly and inten-
tionally to break a statute must, I think, from the judicial point of
view, always be morally wrong in the absence of special circumstances
applicable to the particular instance and excusing the breach of the
law, as, for instance, if a municipal regulation be broken to save life
or to put out a fire. But to make it morally right some such special
matter of excuse must exist, inasmuch as the administration of jus-
tice and, indeed, the foundations of civil society rest upon the prin-
ciple that obedience to the law, whether it be a law approved of or
disapproved of by the individual, is the iirst duty of a citizen.
Although j)n'nia/ac?e and as a general rule there must be a mind at
fault before there can be a crime, it is not an inflexible rule, and a
statute may relate to such a subject-matter and may be so framed as]
to make an act criminal whether there has been any intention to break j
the law or otherwise to do wrong or not. There is a large body of |
municipal law in the present day, which is so conceived. By-laws are
constantly mad'e regulating the width of thoroughfares, the height of
buildings, the thickness of walls, and a variety of other matters neces-
sary for the general welfare, health, or convenience, and such by-laws
are enforced by the sanction of penalties, and the breach of them con-
stitutes an offence and is a criminal matter. In such cases it would,
generally speaking, be no answer to proceedings for infringement of
the by-law that the person committing it had bona fide made an acci-
dental miscalculation or an erroneous measurement. The Acts are
properly construed as imposing the penalty when the act is done, no
matter how innocently, and in such a case the substance of the en-
actment is that a man shall take care that the statutory direction is
obeyed, and that if he fails to do so he does it at his peril.
Whether an enactment is to be construed in this sense or with the
qualification ordinarily imported into the construction of criminal stat-
utes, that there must be a guilty mind, must, I think, depend upon
the subject-matter of the enactment, and the various circumstances
that may make the one construction or the other reasonable or unrea-
sonable. There is no difference, for instance, in the kind of language
used by Acts of Parliament which made the unauthorized possession
of Government stores a crime, and the language used in by-laws which
238 KEGINA V. TOLSOJSr. [CHAP. IV.
say that if a man builds a house or a wall so as to encroach upon a
space protected by the by-law from building he shall be liable to a
penalty. Yet in Eeg. v. Sleep, L. & C 44 ; 30 L. J* M. C. 170, it
was held that a person in possession of Government stores with the
oroad arrow could not be convicted when there was not sufficient evi-
dence to show that he knew they were so marked, while the mere
infringement of a building by-law would entail liability to the penalty.
There is no difference between the language by which it is said that a
man shall sweep the snow from the pavement in front of his house
before a given hour in the morning, and if he fail to do so, shall pay
a penalty, and that by which it is said that a man sending vitriol by
.railway shall mark the nature of the goods on the package on pain of
: brf citing a sum of money ; and yet I suppose that in the first case
■ jhe penalty would attach if the thing were not done, while in the other
jase it has been held in Heme v. Garton, 2 E. & E. 66, that where the
ijender had made reasonable inquiry and was tricked into the belief
ihat the goods were of an innocent character, he could not be con-
victed, although he had in fact sent the vitriol not properly marked.
There is no difference between the language by which it is enacted
that "whosoever shall unlawfully and wilfully kill any pigeon under
ijuch circumstances as shall not amount to a larceny at common law "
i^iall be liable to a penalty, and the language by which it is enacted
that " if any person sliall commit any trespass by entering any land
in the daytime in pursuit of game " he shall be liable to a penalty ; and
lyet in the first case it has been held that his state of mind is material:
JTaylor v. Newman, 4 B. & S. 89 ; in the second that it is immaterial :
Watkins v. Major, L. E. 10 C. P. 662. So, again, there is no differ-
ence in language between the enactments I have referred to in which
the absence of a guilty mind was held to be a defence, and that of the
statute which says that " any person who shall receive two or more
lunatics " into any unlicensed house shall be guilty of a misdemeanor,
under which the contrary has been held : Eeg. v. Bishop, 5 Q. B. D.
259. A statute provided that any clerk to justices who should, under
color and pretence of anything done by the justice or the clerk, receive
a fee greater than that provided for by a certain table, should for
every such offence forfeit £20. It was held that where a clerk to
justices bona fide and reasonably but erroneously believed that there
■were two sureties bound in a recognizance besides the principal, and
accordingly took a fee as for three recognizances when he was only
entitled to charge for two, no action would lie for the penalty. " Actus"
says Lord Campbell, ^^ non facit reum, nisi mens sit rea. Here the
defendant very reasonably believing that there were two sureties bound,
beside the principal, has not, by making a charge in pursuance of his
belief, incurred the forfeiture. The language of the statute is ' for
every such offence.' If, therefore, the table allowed him to charge for
three recognizances where there are a principal and two sureties, he
has not committed an offence under the act." Bowman v. Blyth, 7 E.
& B. 26, 43.
SECT. I.] fiEGINA V. TOLSON. 239
If identical language may thus be legitimately constraed in two
opposite senses, and is sometimes held to imply that there is and some-
times that there is not an offence when the guilty mind is absent, it is
obvious that assistance must be sought aliunde, and that all circum-
stances must be taken into consideration which tend to show that the
one construction or the other is reasonable, and among such circum-
stances it is impossible to discard the consequences. This is a con-
sideration entitled to little weight if the words be incapable of more
than one construction ; but I have, I think, abundantly shown that
there is nothing in the mere form of words used in the enactment now
under consideration to prevent the application of what is certainly the
normal rule of construction in the case of a statute constituting an
offence entailing severe and degrading punishment. If the words are
not conclusive in themselves, the reasonableness or otherwise of the
construction contended for has always been recognized as a matter
fairly to be taken into account. In a case in which a woman was
indicted under 9 & 10 Wm. III., c. 41, s. 2, for having in her posses-
sion without a certificate from the proper authority Government stores
marked in the manner described in the Act, it was argued that by the
Act the possession of the certificate was made the sole excuse, 'and
that as she had no certificate she must be convicted. Foster, J., said,
however, that though the words of the statute seemed to exclude any
other excuse, yet the circumstances must be taken into consideration,
otherwise a law calculated for wise purposes might be made a hand-
maid to oppression ; and directed the jury that if they thought the
defendant came into possession of the stores without any fraud or
misbehavior on her part they ought to acquit her. Foster's Crown
Law, 3d ed. App. pp. 439, 440. This ruling was adopted by Lord
Kenyon in Rex v. Banks, 1 Esp. 144, who considered it beyond ques-
tion that the defendant might excuse himself by showing that he came
innocently into such possession, and treated the unqualified words of
the statute as merely shifting the burden of proof and making it neces-
sary for the defendant to show matter of excuse, and to negative the
guilty mind, instead of its being necessary for the crown to show the
existence of the guilty mind. Prima facie the statute was satisfied
when the case was brought within its terms, and it then lay upon the
defendant to prove that the violation of the law which had taken
place had been committed accidentally or innocentl)' so far as he was
concerned. Suppose a man had taken up by mistake one of two
baskets exactly alike and of similar weight, one of which contained
innocent articles belonging to himself and the other marked " Govern-
ment Stores," and was caught with the wrong basket in his hand. He
would by his own act have brought himself within the very words of
the statute. Who would think of convicting him? And yet what
defence could there be except that his mind was innocent, and that he
had not intended to do the thing forbidden by the statute? In Fowler
V. Padget. 7 T. R. 509, the question was whether it was an act of
240 EEGINA V. TOLSON. [CHAP. IV.
bankruptcy for a man to depart from his dwelling-hoase, whereby his
creditors were defeated and delayed, although he had no mtention of
defeating and delaying them. The statute which constituted the act
of bankruptcy was 1 Jac. I. c. 15, which makes it an act of bankruptcy
(among other things) for a man to depart his dwellmg-house "to the
intent or whereby his creditors may be defeated and delayed." The
court of King's Bench, consisting of Lord Kenyon, C. J., and Ashurst
and Grose, JJ., held that there was uo act of bankruptcy. " Bank-
ruptcy," said Lord Kenyon, " is considered as a crime, and the bank-
rupt in the old laws is called an offender ; but," he adds in the passage
already cited, " it is a principle of natural justice and of our law that
uctus non facit reum nisi mens sit rea ; " and the court went so far
as to read " and" in the statute in place of " or," which is the word
used in the Act, in order to avoid the consequences which appeared to
them unjust and unreasonable. In Rex v. Banks, 1 Esp. 144, above
cited. Lord Kenyon referred to Foster, J.'s, ruling in this case as that
of " one of the best Crown lawyers that ever sat in Westminster Hall."
These decisions of Foster, J., and Lord Kenyon have been repeatedly
acted upon. See Reg. u. Willmett, 3 Cox C. C. 281 ; Reg. v. Cohen,
S Cox C. C. 41 ; Reg. o. Sleep (in the Court for C. C. R.), L. & C.
44 ; 30 L. J. N. C. 170 ; Reg. v. O'Brien, 15 L. T. (N. S.) 419.
Now in the present instance one consequence of holding that the
offence is complete if the husband or wife is de facto alive at the time
of the second marriage, although the defendant had at the time of the
second marriage every reason to believe the contrary, would be that
though the evidence of death should be sufiBcient to induce the Court,
of Probate to grant probate of the will or administration of the goods
of the man supposed to be dead, or to prevail with the jury upon au
action by the heir to recover possession of his real property, the wife
of the person supposed to be dead who had married six years and
eleven months after the last time she had known him to be alive would
be guilty of felony in case he should turn up twenty years afterwards.^
It would be scarcely less unreasonable to enact that those who had in
the meantime distributed his personal estate should be guilty of lar-
ceny. It seems to me to be a case to which it would not be improper
to apply the language of Lord Kenyon when dealing with a statute
which literally interpreted led to what he considered an equally pre-
posterous result : " I would adopt any construction of the statute that
the words will bear in order to avoid such monstrous consequences."
Fowler v. Padget, 7 T. R. 509, 514.
Again, the nature and extent of the penalty attached to the offence
may reasonably be considered. There is nothing that need shock any
mind in the payment of a small pecuniary penalty by a person who
has unwittingly done something detrimental to the public interest. To
subject him, when what he has done has been nothing but what any
well-disposed man would have been very likely to do under the cir-
cumstances, to the forfeiture of all his goods and chattels, which
SECT. I.] EEGINA V. TOLSON. '241
would have been one consequence of a conviction at the date of the
Act of 24 & 264 Vict., to tlie loss of civil rights, to imprisonment with
hard labor, or even to penal servitude, is a very different ttiatter ; and
such a fate seems properly reserved for those who have transgressed
morally, as well as unintentionally done something prohibited by law.
I am well aware that the mischiefs which may result from bigamous
marriages, however innocently contracted, are great ; but I cannot
thiak that the appropriate way of preventing them is to expose to the
danger of a cruel injustice persons whose only error may be that of
acting upon the same evidence as. has appeared perfectly satisfactory
to a Court of Probate, a tribunal emphatically diflScult to satisfy in
such matters, and certain only to act upon what appears to be the most
cogent evidence of death. It is, as it seems to me, undesirable in the
highest degree without necessity to multiply instances in which people
shall be liable to conviction upon very grave charges, when the cir-
cumstances are such that no judge in the kingdom would think of
pronouncing more than a nominal sentence.
It is said, however, in respect of the offence now under discussion,
that the proviso in 24 & 25 Vict. c. 100, s. 57, that " nothing in the sec-
tion shall extend to any person marrying a second time whose husband,
or wife shall have been continually absent from such person for seven
years last past, and shall not have been known by such person to be
living within that time," points out the sole excuse of which the Act
allows. I cannot see what necessity there is for drawing any such
inference. It seems to me that it merely specifies one particular case,
and indicates what in that ease shall be sufficient to exempt the party,
without any further inquiry, from criminal liability ; and I think it is an
argument of considerable weight in this connection, that under 9 & 10
Wm. III. c. 41, s. 2, where a similar contention was founded upon the
specification of one particular circumstance under which the possession
of Government stores should be justified, successive judges and courts
have refused to accede to the reasoning, and have treated it, to use
the words of Lord Kenyon, as a matter that " could not bear a ques-
tion," that the defendant might show in other ways that his posses-
sion was without fraud or misbehavior on his part. Rex v. Banks,
1 Esp. 144, 147.
Upon the point in question there are conflicting decisions.' There
is nothing, therefore, in the state of the authorities directly bearing
upon the question to prevent one from deciding it upon the grounds of
principle. It is suggested, however, that the important decision of the
court of fifteen judges in Reg. v. Prince, L. R. 2 C. C. 164, is an
authority in favor of a conviction in this case. I do not think so. In
Reg. V. Prince the prisoner was indicted under 24 & 25 Vict. c. 100,
1 The learned judge here examined the following conflicting decisions: Keg. '•
Turner, 9 Cox C. C. 145; Eeg. 0. Horton, 11 Co;: C. C. 670; Beg. v. Gibbons, 12
Cox C. C. 237; Reg. v. Bennett, 14 Cox C. C. 45; Reg. ,>. Moore, 13 Cox C. C,
644. — Kd.
242 ' EEGINA V. TOLSON. [CHAP. IV.
s. 55, for " unlawfully taking an unmarried girl, then being under the
age of sixteen years, out of the possession and again^ the will of her
father." The jury found that the prisoner bona fide believed upon
reasonable grounds that she was eighteen. The court (dissentiente
Brett, J.,) upheld the conviction. Two judgments were delivered by
a majority of the court, in each of which several judges concurred,
whilst three of them, Denman, J., Polloclf, B., and Quain, J., concurred
in both. The first of the two, being the judgment of nine judges,
upheld the conviction upon the ground that, looking to the subject-
matter of the enactment, to the group of sections amongst which it is
found, and to the history of legislation on the subject, the intention
of the legislature was that if a man took an unmarried girl under six-
teen out of the possession of her father against his will, he must take
his chance of whether any belief he might have about her age was
right or wrong, and if he made a mistake upon this point so much
the worse for him, — he must bear the consequences. The second
of the two judgments, being that of seven judges, gives a number of
other reasons for arriving at the same conclusion, some of them
founded upon the policy of the legislature as illustrated by other asso-
ciated sections of the same Act. This judgment contains an emphatic
recognition of the doctrine of the "guilty mind," as an element, in gen-
eral, of a criminal act, and supports the conviction upon the ground
that the defendant, who believed the girl to be eighteen and not six-
teen, even then, in taking her out of the possession of the father against
his will was doing an act wrong in itself. " This opinion," says the
judgment, " gives full scope to the doctrine of the mens, rea." ^
The case of Reg. v. Prince, therefore, is a direct and cogent author-
ity for saying that the intention of the legislatuce-eaftBOtTbe decTclEti--
upon simple prnhi hi tory words, witliout reference to other consid^ra-
/<L1011B. — The considerations relied upon in that case' are wanting in the
~~TTr»eent case, whilst, as it seems to me, those which point to the appli-
cation of the principle underlying, a vast area of criminal enactment,
that there can be no crime without a tainted mind, preponderate greatly
over any that point to its exclusion.
1 "To my mind, it is contrary to the whole established law of England (unless the
legislation on the subject has clearly enacted it), to say that a person can be guilty of a
Crime in England without a wrongful intent, — without an attempt to do that which
the law has forbidden. I am aware that in -i particular case, and under a particular
criminal statute,' fifteen judges to one held that a person whom the jury found to have
no intent to do what was forbidden, and whom the jury found to have been deceived,
and to have understood the facts to be such that he might with impunity have done a
certain thing, was by the terms of that Act of Parliament guilty of a crime, and could
be imprisoned. I say still, as I said then, that I cannot subscribe to the propriety of
that decision. I bow to it, but I cannot subscribe to it; but the majority of the judges
forming the court so heldi because they said that the enactment was absolutely clear. "
Brett, M. R., in Attorney General v. Bradlaugh, 14 Q. B. D. 667, 689.
" Actios noil facit reum, nisi mens sit rea is the foundation of all criminal justice."
CocKBURN, C. J., in Reg. «. Sleep, 8 Cox C. V. 472, 477. — Ed.
SECT. I.J EBGINA V. TOLSON. 243
In my opinion, therefore, this conviction ought to be quashed.*
Stephen, J. I am of opinion that the conviction should be quashed.
My view of the subject is based upon a particular application of the
doctrine usually, though I think not happily, described by the phrase
"mom est'reus, nisi mens sit rea." Though this phrase is in common
use, I think it most unfortunate, and not only likely to mislead, but
actually misleading, on the following grounds : It naturally suggests
that, apart from all particular definitions of crimes, such a thing exists
as a me7is rea, or " guilty mind," which is always expressly or by
implication involved in every definition. This is obviously not the case,
for the mental elements of different crimes differ widely. Mens rea
means, in the case of murder, malice aforethought ; in the case of theft,
an intention to steal ; in the case of rape, an intention to have forcible
connection with a woman without her consent ; and in the case of
receiving stolen goods, knowledge that the goods were stolen. In some
eases it denotes mere inattention. For instance, in the case of man-
slaughter by negligence, it may mean forgetting to notice a signal. It
appears confusing to call so many dissimilar states of mind by one
name. It seems contradictory indeed to describe a mere absence of
mind as a "mens rea," or "guilty mind." The expression, again, is
likely to and often does mislead. To an unlegal mind it suggests that
by the law of England no act is a crime which is done from laudable
motives ; in other words, that immorality is essential to crime. It will,
I think, be found that much of the discussion of the law of libel in
Shipley's Case, 4 Doug. 73 ; 21 St. Tr. 847, proceeds upon a more or
less distinct belief to this effect. It is a topic frequently insisted upon
in reference to political offences, and it was urged in a recent notorious
case of abduction, in which it was contended that motives said to be
laudable were an excuse for the abduction of a child from its parents.
Like most legal Latin maxims, the maxim on mens rea appears to me
to be too short and antithetical to be of much practical value. It is,
ind«ed, more like the title of a treatise than a practical rule. I have
tried to ascertain its origin, but have not succeeded in doing so. It is
not- one of the '■'■regulce juris" in the digests. The earliest case of its
use which I have found is in the " Leges Henrici Primi," v. 28, in
which it is said: '■'■Si quia per coactio'nem abjurare cogatur quod per
multos annos quiete tenuerit non in jurante set cogente perjurium erit.
JReum non facit nisi mens rea." In Broom's Maxims the earliest
authority cited tor its use is 3d Institute, ch. i. fol. 10. In this place
it is contained in a marginal note, which says that when it was found
that some of Sir John Oldcastle's adherents took part in an insurrection
'■^pro timore mortis el quod, recesserunt quam cito potuerunt," the judges
held that this was to be adjudged no treason, because it was for fear
of death. Coke adds : "JSi actus non facit reum nisi mens sit rea."
' Concurring opinions of Cave and Hawkins, JJ., and Lord Coleridge, C. J., are
omitted. Charles, Day, A. L. Smith, and Grantham, JJ., concui-red. Part of the
opinion of Stephen, J., is omitted. — Ed.
244 KEGINA V. TOLSON. [CHAP. IV.
This is only Coke's own remark, and not part of the judgment. Now
Coke's scraps of Latin in this and the following chapters are some-
times contradictory. Notwithstanding the passage just quoted, he
says in the margin of his remarks on opinions delivered in Parliament
by Thyrning and others in the 21 R. 2 : ^^ Melius est omnia mala pati
quam malo consentire " (22-23) , which would show that Sir J. Oldcas-
tle's associates had a mens rea, or guilty mind, though they were
threatened with death, and thus contradicts the passage first quoted.
It is singular that in each of these instances the maxim should be
used in connection with the law relating to coercion.
The principle involved appears to me, when fully considered, to
amount to no more than this : The full definition of every crime con-
tains, expressly or by implication, a proposition as to a state of mind.
Therefore, if the mental element of any conduct alleged to be a crime
is proved to have been absent in any given case, the crime so defined
is not committed ; or, again, if a crime is fully defined, nothing amounts
to that crime which does not satisfy that definition. Crimes are in the
present day much more accurately defined by statute or otherwise than
they formerly were. The mental element of most crimes is marked
by one of the words "maliciously," "fraudulently," "negligently," or
" knowingly," but it is the general — I might, I think, say, the inva-
riable — practice of the legislature to leave unexpressed some of the
mental elements of crime. In all cases wliatever, competent age,
sanity, and some degree of freedom from some kinds of coercion are
assumed to be essential to criminality, but I do not believe they are
ever introduced into any statute by which any particular crime is
defined.
The meanings of the words "malice," "negligence," and "fraud,"
in relation to particular crimes has been ascertained by numerous cases.
Malice means one thing in relation to murder, another in relation to
the Malicious Mischief Act, and a third in relation to libel, and so of
fraud and negligence.
With regard to knowledge of fact, the law, perhaps, is not quite so
clear, but it may, I think, be maintained that in every case knowledge
of fact is to some extent an element of criminality as much as compe-
tent age and sanity. To take an extreme illustration, can any one
doubt that a man who, though he might be perfectly sane, committed
what would otherwise be a crime in a state of somnambulism, would
be entitled to be acquitted? And why is this? Simply because he
would not know what he was doing. A multitude of illustrations of
the same sort might be given. 1 will mention one or two glaring ones.
Levet's Case, 1 Hale, 474, decides that a man who, making a thrust
with a sword at a place where, upon reasonable grounds, he supposed
a burglar to be, killed a person who was not a burglar, was held not
to be a felon, though he might be (it was not decided that he was)
guilty of killing per mfortunium, or possibly, se defendendo, which
then involved certain forfeitures. In other words, he was in the same
SECT. I.] EEGINA V. TOLSON. 245
situation as far as regarded the homioide as if he had killed a burglar,
In the decision of the judges in McNaghten's Case, 10 CI. & F. 200,
it is stated that if, under an insane delusion, one man killed another,
and if the delusion was such that it would, if true, justify or excuse
the killing, the homicide would be justified or excused. This could
hardly be if the same were not law as to a sane mistake. A bo7ia fide
claim of right excuses larceny, and many of the offences against the
Malicious Mischief Act. Apart, indeed, from the present case, I think
it may be laid down as a general rule that an alleged offender is deemed
to have acted under that state;of facts which he in good faith and on
reasonable grounds believed to exist when he did the act alleged to be
an offence.
I am unable to suggest any real exception to this rule, nor has one
ever been suggested to me. A very learned person suggested to me
the following case : A constable, reasonably believing a man to have
committed murder, is justified in killing him to prevent his escape, but
if he had not been a constable he would not have been so justified, but
would have been guilty of manslaughter. This is quite true, but the
mistake in the second case would be not only a mistake of fact, but a
mistake of law on the part of the homicide in supposing that he, a
private person, was justified in using as much violence as a public offi-
cer, whose duty is to arrest, if possible, a person reasonably suspected
of murder. The supposed homicide would be in the same position as
if his mistake of fact had been true ; that is, he would be guilty, not
of murder, but of manslaughter. I think, therefore, that the cases
reserved fall under the general rule as to mistakes of fact, and that
the conviction ought to be quashed.
I will now proceed to deal with the arguments which are supposed
to lead to the opposite result.
It is said, first, that the words of 24 & 25 Vict. c. 100, s. 57, are
absolute, and that the exceptions which that section contains are the
only ones which are intended to be admitted ; and this, it is said, is
confirmed by the express proviso in the section, — an indication which
is thought to negative any tacit exception. It is also supposed that
the case of Reg. v. Prince, L. R. 2 C. C. 154, decided on s. 55, con-
firms this view. I will begin by saying how far I agree with these
views. First, I agree that the ease turns exclusively upon the con-
struction of s. 57 of 24 & 25 Vict. c. 100. Much was said to us in
argument on the old statute, 1 Jac. I. c. 11. T cannot see what this
has to do with the matter. Of course, it would be competent to the
' legislature to define a crime in such a way as to make the existence of
any state of mind immaterial. The question is solely whether it has
actually done so in this case.
In the first place I will observe upon the absolute character of the
section. It appears to me to resemble most of the enactments con-
tained in the Consolidation Acts of 1861, in passing over the general
mental elements of crime which are presupposed in every case. Age,
246 EEGINA V. TOLSON. [CHAP. IV.
sanity, and more or less freedom from compulsion, are always pre-
sumed, and I think it would be impossible to quote any sttitute which
in any case specifies these elements of criminality in the definition of
any crime. It will be found that either by using the words " wilfully
and maliciously," or by specifying some special intent as an element
of particular crimes, knowledge of fact is implicitly made part of the
statutory definition of most modern definitions of crimes ; but there are
some cases in which this cannot be said. Such are : s. 55, on which
Reg. V. Prince, L. E. 2 C. C. 154, was decided ; s. 56, which punishes
the stealing of "any child under the age of fourteen years ;" s. 49, as
to procuring the defilement of any " woman or girl under the age of
twenty-one," — in each of which the same question might arise as in
Eeg. V. Prince, L. R. 2 C. C. 154 ; to these I may add some of the pro-
visions of the Criminal Law Amendment Act of 1885. Reasonable
belief that a girl is sixteen or upwards is a defence to the charge of
an offence under ss. 5, 6, and 7, but this is not provided for as to an
offence against s. 4, which is meant to protect girls under thirteen.
It seems to me that as to the construction of all these sections the
case of Reg. v. Prince is a direct authority. It was the case of a man
who abducted a girl under sixteen, believing on good grounds that
she was above that age. Lord Esher, then Brett, J., was against
the conviction. His judgment establishes at much length, and, as it
appears to me, unanswerably, the principle above explained, which he
states as follows : "That a mistake of facts on reasonable grounds, to
the extent that, if the facts were as believed, the acts of the prisoner
would make him guilty of no offence at all, is an excuse, and that
such an excuse is implied in every criminal charge and every criminal
enactment in England."
Lord Blackburn, with whom nine other judges agreed, and Lord
Bramwell, with whom seven others agreed, do not appear to me to
have dissented from this principle, speaking generally ; but they held
that it did not apply fully to each part of every section to which I have
referred. Some of the prohibited acts they thought the legislature
intended to be done at the peril of the person who did them, but not
all.
The judgment delivered by Lord Blackburn proceeds upon the prin-
ciple that the intention of the legislature in s. 55 was "to punish the
abduction unless the girl was of such an age as to make her consent
an excuse."
Lord Bramwell's judgment proceeds upon this principle : " The legis-
lature has enacted that if any one does this wrong act he does it at
the risk of her turning out to be under sixteen. This opinion gives
full scope to the doctrine of the mens rea. If the taker believed he
had her father's consent, though wrongly, he would have no mens rea;
BO if he did not know she was in any one's possession nor in the care
or charge of any one. In those cases he would not know he was doing
the act forbidden by the statute."
SECT. I.J EEGINA V. TOLSON. 247
All the judges, therefore, in Reg. v. Prince agreed on the general
principle, though they all, except Lord Esher, considered that the
object of the legislature being to prevent a scandalous and wicked
invasion of parental rights (whether it was to be regarded as illegal
apart from the statute or not) it was tp be supposed that they intended
that the wrong-doer should act at his peril.
As another illustration of the same principle, I may refer to Reg. v.
Bishop, 5 Q. B. D. 259. The defendant in that case was tried before
me for receiving more than two lunatics into a house not duly licensed,
upon an indictment on 8 and 9 Vict. c. 100, s. 44. It was proved that
the defendant did receive more than two persons, whom the jury found
to be lunatics, into her house, believing honestly, and on reasonable
grounds, that they were not lunatics. I held that this was immaterial,
having regard to the scope of the Act, and the object for which it was
apparently passed, and this court upheld that ruling.'
The application of this to the present case appears to me to be as
follows : The general principle is clearly in favor of the prisoner, but
how does the intention of the legislature appear to have been against
her? It could not be the object of parliament to treat the marriage of
widows as an act to be if possible prevented as presumably immoral.
The conduct of the woman convicted was not in the smallest degree
immoral ; it was perfectly natural and legitimate. Assuming the facts
to be as she supposed, the infliction of more than a nominal punishment
on her would have been a scandal. Why, then, should the legislature
be held to have wished to subject her to punishment at all?
If such a punishment is legal, the following among many other
cases might occur: A number of men in a mine are killed, and their
bodies are disfigured and mutilated, by an explosion. One of the sur-
vivors secretly absconds, and it is supposed that one of the disfigured
bodies is his. His wife sees his supposed remains buried ; she marries
again. I cannot believe that it can have been the intention of the legis-
lature to make such a woman a criminal ; the contracting of an invalid
marriage is quite misfortune enough. It appears to me that every
argument which showed, in the opinion of the judges in Reg. v. Prince,
L. R. 2 C. C. 154, that the legislature meant seducers and abductors to
act at their peril, shows that the legislature did not mean to hamper
what is not only intended, but naturally and reasonably supposed by
the parties to be a valid and honorable marriage, with a liability to
seven years' penal servitude.
It is argued that the proviso that a re-marriage after seven years'
separation shall not be punishable operates as a tacit exclusion of all
other exceptions to the penal part of the section. It appears to me
that it only supplies a rule of evidence which is useful in many cases
1 " I am not aware of any other way in which it is. possible to determine whether
the word ' knowingly ' is or is not to he implied in the definition of a crime in which it
is not expressed." 2 Stephen Hist. Cr. L. 117.
248 EEGINA V. TOLSON. [CHAP. IV.
in the absence of explicit proof of death. But it seems to me to show,
not that belief in the death of one married person excuses the ibarriage
of the other only after seven years' separation, but that mere separation
for that period has the effect which reasonable belief of death caused
by other evidence would have at any time. It would to my mind be
monstrous to say that seven years' separation should have a greater
effect in excusing a bigamous marriage than positive evidence of death,
sufHcient for the purpose of recovering a policy of assurance or obtain-
ing probate of a will, would have, as in the case I have put, or in others ,
which might be even stronger.
Manisty, J. I am of opinion that the conviction should be affirmed.
The question is whether if a married woman marries another man
during the life of her former husband, and within seven years of his
leaving her, she is guilty of felon}-, the jurj' having found as a fact that
she had reason to believe, and did honestlj- believe, that her former
husband was dead.
The 57th section of the 24 & 25 Vict. c. 100 is as express and as
free from ambiguit}' as words can make it. The statute says : " Who-
soever being married shall marry an}* .other person during the life of
the former husband or wife . . . shall be guilt}- of felony, and being
convicted shall be liable, at the discretion of the court, to be kept in
penal servitude for any term not exceeding seven years, and not less
than three years, or to be imprisoned for any term not exceeding two
years, with or without hard labor." The statute does not even say if
the accused shall feloniously or unlawfully or knowingly commit the
act he or she shall be guilty of felony, but the enactment is couched in
the clearest language that could be used to prohibit the act, and to
make it a felony if the act is committed.
If any doubt could be entertained on the point, it seems to me the
proviso which follows the enactment ought to remove it. The proviso
is, that "Nothing in the 57th section of the Act shall extend to any
person marrying a second time whose husband or wife shall have been
continually absent from such person for the space of seven years then
last past, and shall not have been known by such person to be living
within that time."
Such being the plain language of the Act, it is, in my opinion, the
imperative duty of the court to give effect to it, and to leave it to the
legislature to alter the law if it thinks it ought to be altered.
Probably if the law was altered some provision would be made in
favor of children of the second marriage. If the second marriage is to
be deemed to be legal for one purpose, surely it ought to be deemed
legal as to the children who are the offspring of it. If it be within the
province of the court to consider the reasons which induced the legis-
lature to pass the Act as it is, it seems to me one principal reason is
on the surface, namely, the consequence of a married person raai-i-ying
again in the lifetime of his or her former wife or husband, in which
case it might, and in many cases would be, that several children of the
SECT. I.] EEGIXA V. TOLSON. 249
second marriage would be born, and all would be bastards. The pro-
viso is evidently founded upon tlie assumption that after the lapse of
seven years, and the former husband or wife not being heard of, it may
reasonably be inferred that he or she is dead, and thus the mischief of
a second marriage in the lifetime of the former husband or wife is to a
great extent, if not altogether, avoided.
It is to be borne in mind that bigamy never was a crime at common
law. It has been the subject of several Acts of Parliament, and is now
governed by 24 & 25 Vict. c. 100, s. 57.
No doubt in construing a statute the intention of the legislature is
what the court has to ascertain ; but the intention must be collected
from the language used ; and where that language is plain and explicit,
and free from all ambiguity, as it is in the present case, I have always
understood that it is the imperative dutj' of judges to give effect to it.
The cases of insanity, etc., on which reliance is placed stand on a
totally different principle, namely, that of an absence of mens. Igno-
rance of the law is no excuse for the violation of it ; and if a person
choose to run the risli of committing a felony, he or she must take the
consequences if it turn out that a felony has been committed.
Great stress is laid by those who hold that tlie conviction should be
quashed upon the circumstance that the crime of bigamy is by the
statute declared to be a felony, and punishable with penal servitude
or imprisonment, with or without hard labor, for any term not exceed-
ing two years. If the crime had been declared to be a misdemeanor
punishable with fine or imprisonment, surely the construction of the
statute would have been, or ought to have been, the same. It may
well be that the legislature declared it to be a felony to deter married
persons from running the risk of committing the crime of bigamj-, and
in order that a severe punishment might be inflicted in cases where
there were no mitigating circumstances. No doubt circumstances may
and do affect the sentence, even to the extent of the punishment being
nominal, as it was in the present case ; but that is a very different thing
from disregarding and contravening the plain words of the Act M
Parliament.
The case is put by some of my learned brothers of a married man
leaving his wife and going into a foreign country intending to settle
there, and, it may be, afterwards to send for his wife and children, and
the ship in which he goes is lost in a storm, with, as is supposed, all on
board ; and after the lapse of say a year, and no tidings received of any
one having been saved, the underwriters pay the insurance on the ship,
and the supposed widow gets probate of her husband's will, and mar-
ries and has children, and after the lapse of several years the husband
appears, it ma}' be a few da3-s liefore seven j-ears have expired ; and
the question is asked, would it not be shocking that in such a case the
wife could be found guilty of bigamy?
My answer is, that the Act of Parliament says in clear and express
words, for very good reasons, as I have alreadj' pointed out, that slie
250 EEGINA V. TOLSON. [CHAP. IV.
is guilt}- of bigamj'. The onlj- shocljing fact would be that some one,
for some purpose of his own, had instituted the prosecution. I need
not say that no public prosecutor would ever think of doing so, and the
judge before whom the case came on for trial would, as my brother
Stephen did in the present case, pass a nominal sentence of a day's
imprisonment (which in effect is immediate discharge), accompanied,
if I were the judge, with a disallowance of the costs of the prosecution.
It may be said, but the woman is put to some trouble and expense in
appearing before the magistrate (who would, of course, take nominal
bail) and in appearing to take her trial. Be it so, but such a case
would be ver}' rare indeed. On the other hand, see what a door would
be opened to collusion and mischief if, in the vast number of cases
where men in humble life leave their wives and go abroad, it would be
a good defence for a woman to say and give proof, which the jurj-
believed, that she had been informed bj- some person upon whom she
honestly thought she had reason to rely, and did believe, that her hus-
band was dead, whereas in fact she had been imposed upon, and her
husband was alive.
What operates strongly on my mind is this, that if the legislature
intended to prohibit a second marriage in the lifetime of a former hus-
band or wife, and to make it a crime, subject to the proviso as to seven
years, I do not believe that language more apt or precise could be found
to give effect to that intention than the language contained in the 57tli
section of the Act in question. In this view I am fortified by several
sections of the same Act, where the words " unlawfullj- " and "mali-
ciously and unlawfully" are used (as in s. 23), and bj- a comparison
of them with the section in question (s. 57), where no such words are
to be found. I especially rely upon the 55th section, by which it is
enacted that " whosoever shall unlawfully" (a word not used in s. 57)
" take or cause to be taken an}- unmarried girl being under the age of
sixteen years out of the possession of her father or mother, or any
other person having the lawful care or charge of her, shall be guilty of
a misdemeanor." Fifteen out of sixteen judges held, in the case of
Reg. V. Prince, L. R. 2 C. C. 154, that, notwithstanding the use of the
word " unlawfully," the fact of the prisoner believing and having
reason to believe that the girl was over sixteen afforded no defence.
This decision is approved of upon the present occasion by five judges,
making in all twenty against the nine who are in favor of quashing the
conviction. To the twenty I may, I think, fairly add Tindal, C J ,
in Reg. v. Robins, 1 C. & K. 456, and Willes, J., in Reg. v. Mycock,
12 Cox C. C. 28.
I rely also very much upon the 5th section of the Act passed in 1885
for the better protection of women and girls (48 & 49 Vict. c. 69), bv
which it was enacted that " any person who unlawfully and carnally
linows any girl above thirteen and under sixteen years shall be guilty
of a misdemeanor ; " but to that is added a proviso that " it shall he a
sufficient defence if it be made to appear to the court or jurv before
SECT. I.] EEGIiXA V. TOLSON. 251
whom the charge shall be brought that the person charged had reason-
able cause to believe, and did believe, that the girl was of or abov(!
the age of sixteen." It is tO' be observed that notwithstanding the
word " unlawfully" appears in this section it was considered necessary
to add the proviso, without which it would have been no defence that
the accused had reasonable cause to believe, and did believe, that the
girl was of or above the age of sixteen. Those who hold that the con-
viction in the present case should be quashed really import into the
57th section of the 24 & 25 Vict. c. 100, the proviso which is in the
5th section of the 48 & 49 Vict. c. 69, contrary, as it seems to me, to
the decision in Eeg. v. Prince, and to the hitherto undisputed canons
•for construing a statute.
It is said that an indictment for the offence of bigamy commences by
stating that the accused feloniously married, etc., and consequently the
principle of mens rea is applicable. To this I answer that it is to the
language of the Act of Parliament, and not to that of the indictment,
the court has to look. I consider the indictment would be perfectly
good if it stated that the accused, being married, married again in the
lifetime of hjs or her wife or husband, contrary to the statute, and so
was guilty of felony.
I am very sorry we had not the advantage of having the case argued
bj' counsel on behalf of the Crown. My reason for abstaining from
commenting upon the cases cited by Mr. Henry in his very able argu-
ment for the prisoner is because the difference of opinion among some
of the judges in those cases is as nothing compared with the solemn
-decision of fifteen out of sixteen judges in the case of Eeg. v. Prince.
So far as I am aware, in none of tlie cases cited by my learned brothers
was the Interest of third parties, such as the fact of there being children
of the second marriage, involved. I have listened with attention to
the judgments which have been delivered, and I have not heard a single'
observation with reference to this, to my mind, important and essential
point. I am absolutelj' unable to distinguish Reg. v. Prince from the
present case, and, looking to the names of the eminent judges who
■constituted the majority, and to the reasons given in their judgments,
I am of opinion, upon authority as well as principle, that the conviction
should be affirmed.
The only observation which I wish to make is (speaking for myself
only) that I agree with my learned brother Stephen in thinking that
the phrases " mens rea " and " non est reus nisi mens sit rea " are not
of much practical value, and are not only " likely to mislead," but are
" absolutely misleading." Whether thej' have had that effect in the
present case on the one side or the other it is not for me to say.
I think the conviction should be affirmed. My brothers Denman,
Pollock, Field, and Hdddleston agree with this judgment.
Conviction quashed
252 EEGINA V. STEPHENS. [CHAP. IV.
REGINA V. STEPHENS,
Queen's Bench. 1866.
[Repot-ted L. R. 1 Q. B. 702.]
Indictment. First count for obstructing tlie navigation of a public
river called the Tivy by casting and throwing, and causing to be cast
and thrown, slate stone and rubbish in and upon the soil and bed of
the river, and thereby raising and producing great mounds projecting
and extending along the stream and waterway of the river.
Second count that the defendant was the owner of large quantities
of slate quarried from certain slate quarries near the river Tivj', and
that he unlawfullj' ICept, permitted, and suffered to be and remain large
quaniities of slate sunk in the river, so that the navigation of the river
was obstructed.
Plea, not guilty.
The indictment was tried before Blackburn, J., at the last spring
assizes for Pembrokeshire, when the following facts were proved : —
The Tivy is a public navigable river which flows through Llechryd
Bridge, thence bj' Kilgerran Castle, and from thence past the town of
Cardigan to the sea. About twenty jears ago the Tivy was navigable
to within a quarter of a mile of Llechryd Bridge, from which place a
considerable traffic was carried on in limestone and culm by means of
lightei-s.
The defendant is the owner of a slate quarry called the Castle Quarry,
situate near the Castle of Kilgerran, which he has extensively worked
since 1842. The defendant had no spoil bank at the quarry. The
rubbish from the quarrj' was stacked about Ave or six j-ards from
the edge of the river. Previous to 1847, the defendant erected a wall
to prevent it from falling into the river, but in that year a heavy flbod
Lcarried awav thft wall, nnd with it Jarge quantities of the rubbish.
Quantities of additional rubbish were from time to time shot by the
defendant's workmen on the same spot, and so slid into the river. B3-
these means the navigation was obstructed, so that even small boats
were prevented from coming up to Llechryd Bridge.
The defendant being upwards of eighty years of age was unable per-
sonallj' to superintend the working of the quarry, which was managed
for his benefit by his sons. The defendant's counsel was prepared to
offer evidence that the workmen at the quarry had been prohibited both
by the defendant and his sons from thus depositing the rubbish ; and
that they had been told to place the rubbish in the old excavations
and in a place provided for that purpose. The learned judge intimated
"tEe"
SECT. I.] EEGINA V. STEPHENS. 253
to prevent_lbfi_iubbiuli fiuiu ftilliiig into tne river, and tliai if a sub-
"stantial part of the rubbish went into the river from having been im- .
pfgperly stacked so near the river as to fall into it. thf ftpfRV"^""'' ^°°
■wtjtitysniaving caused a nuisance, although the acts might have been
— 6e«Maattted"~b,y his workmen, without his TiiiowlMge ~and against his
uoneml-wdfrrsr^i'lie lurv found a verdict of g;iiilt_v.
A rule having been obtained for a new trial, on the groiuid~that the
judge misdirected the jury in telling them that the defendant would be
liable for the acts of his workmen in depositing the rubbish from the
quarries so as to become a nuisance,. though without the defendant's
knowledge and against his orders,
H. S. Oiffard, Q. C, and Poland, showed cause. ^
J. W. Bowen and Hughes, in support of the rule.
Mellor, J. In this case I am of opiniou, and in my opinion my
Brother Shee concurs, that the direction of my Brother Blackburn
was right.--. It is quite true that this in point of form is a proceeding
of a criminal nature, but in substance I think it is in the nature of a
civil proceeding, and I can see no reason why a different rule should
prevail with regard to such an act as is charged in this indictment
between proceedings which are civil and proceedings which are crim-
inal. I think there may he nuisances of such a character that the rule
I am applying here, would not be applicable to them, but here it is per-
fectly clear that the onlj' reason for proceeding criminallj- is that the
nuisance, instead of being merely a nuisance affecting an individual, or
one or two individuals, affects the public at large, and no private indi-
vidual, without receiving some special injury, could have maintained an
action. Then if the contention of those who rhj t.hp Hii-pntinr) \<=, wrnno
is to prfvtiilj ThppuJTJKLJTf'uld hnvp fjrfnt difficulty in [;^p.tt.inp; redress.
Tilt! Object of tnis indictment is to prevent the recurrence of the nui-
sance. The prosecutor cannot proceed by action, but must proceed h^
indictment, and if this were strictly a criminal proceeding the prosecu-
tion would be met with the objection that there was no mens rea : that
the indictment cliarged the defendant with a criminal offence, when in
realit}- tliere was no proof that the defendant knew of the act, or that
he himself gave orders to his servants to do the particular act he is
charged with ; still at the same time it is perfectly' clear that the defend-
ant finds the capital, and carries on the business which causes the
nuisance, and it is carried on for his benefit ; although from age or in-
firmity the defendant is unable to go to the premises, the business is
carried on for him b}' his sons, or at all events by his agents. Unueri
these circumstances the defendant must necessarily' give to his
or agents all the authoritj- tliat is incident to the carrying on of (
ness. It is not because he had at some time or other given directions'
that it should be carried on so as not to allow the refuse from the works
to fall into the river, and desired his servants to provide some other
' Argnments of counsel .are omitted.
5. Unueri
i servants]
■ the busi-/
254 EEGINA V. STEPHENS. [CHAP. IT.
place for depositing it, that when it has fallen into the river, and has
become prejudicial to the public, he can sa}- he is not liable on an indict-
ment for a nuisance caused by the acts of his servants. It appears to
me that all it was necessary to prove is, that the nuisance was caused
in the carrying on of the works of the quarrj-. That being so my
Brother Blackburn's direction to the jury was quite right.
I agree that the authorities that bear directlj' upon the case are very
few.- In the case of Reg v. Russell, 3 E, & B. 942, 23 L. .J. M. C. 173,
the observations of Lord Campbell might have been justified b^' the cir-
cumstances of that case, though as I understand it the judgment of the
other judges did not proceed on the same reasons. It is therefore onl}-
t^e opinion of Lord Campbell as applied to that case. Whether there
ii; or is not any distinction between that case and the present may be-
open to question ; but if there is no distinction, I should be prepared
rather to have acted upon the reasons which influenced the other judges^
(than those which influenced Lord Campbell. Inasmuch as the object
of the^iridiftTTipnt, jw not, fo pnniali tliji,;jp^P"'1a"t., but really to prevent the
nniagi^ t[-f)|^~hoing Continued. I think that thg-taJili^iice tyhictf would
support a civil action would be suflicicuL tcfsupport an mfetnient.
The rule must be discharged. As I have said, ray Brother Shee con-
curs with me in that opinion.
Blackburn, J. I need only add that I see no reason to change th&
opinion I formed at the trial. I only wish to guard myself against it
being supposed that either at the trial or now, the general rule that a
principal is not criminally answerable for the act of his agent is in-
fringed. All that it is necessarj- to sa}' is this, that where a person main-
tains works by his capital, and emploj's servants, and so carries on the
works as in fact to cause a nuisance to a private right, for which an
action would lie, if the same nuisance inflicts an injurj' upon a public
right the remed}- for which would be bj- indictment, the evidence which
would maintain the action would also support the indictment. That is
all that it was necessary to decide and all that is decided.
Rule discharged.
SECT. I.] CHISHOLM V. DOULTON. 25 C
CHISHOLM V. DOULTON.
High Court op Justice, Queen's Bench Division. 1889.
[Exported 22 Q. B. D. 736.]
Case stated by a metropolitan police magistrate under 20 & 21 Viet,
c. 43.
The respondent, the owner and occupier of certain pottery works
situate in the metropolis, was summoned by the appellant, one of the
chief inspectors of the metropolitan police, for having on April 18,
1888, negligently used a furnace employed in his pottery works so that
the smoke was not effectually consumed or burnt, contrary to the pro-
visions of 16 & 17 Vict. c. 128, s. 1.^
The magistrate dismissed the summons subject to a case, of which
the material facts were as follows : Smoke issued for the space of ten
minutes on the morning of the day in question from one of the respon-
dent's furnaces, but the furnace was properly constructed, and the
smoke arose by the act of the stoker or person who lighted the fire,
who might by proper care have prevented the occurrence. Neither the
respondent nor his foreman were guilty of any negligence. The ques-
tion for the opinion of the Court was whether the respondent was
liable for the negligence of the stoker.
Field, J. My mind has not been altogether free from doubt during
the argument, but I think upon the whole that the true conclusion to
arrive at upon the, construction of the Act is that the respondent can-
not be convicted upon the facts found by the magistrate. The offence
of which it is sought to convict him is (to put it shortly) that of negli-
gently using a furnace so as to emit black smoke, which is the thing
1 By the Smoke Nuisance (Metropolis) Act, 1853 (16 & 17 Vict. c. 128, s. 1), it is
provided that " every furnace employed in any mill, factory, ... or other buildings
used for the purpose of trade or manufacture within the metropolis, . . . shall in all
cases be constructed or altered. so as to consume or burn the smoke arising from such
furnace; and if any person shall . . . within the metropolis use any such furnace
which shall not be constructed so as to consume or burn its own smoke, or shall so
negligently use any such furnace as that the smoke arising therefrom shall not be effec-
tually consumed or burnt, or shall carry on any trade or business which shall occasion
any noxious or offensive effluvia, or otherwise annoy the neighbourhood or inhabitants,
without using the best practicable means for preventing or counteracting such smoke
or other annoyance, every person so ofiending, being the owner or occupier of the
premises, or being a foreman or other person employed by such owner or occupier,
shall, upon a summary conviction for such offence before any justice or justices, forfeit
and pay a sum of not more than five pounds nor less than forty shillings, and upon a
second conviction for such offence the sum of ten pounds, and for each subsequent
conviction a sum doubled the amount of the penalty imposed for tlie last preceding
conviction,"
256 • CHISHOLM V. DOULTON. [CHAP. IV.
that the legislature was desirous of preventing. The magistrate has
found that the furnace was properly constructed, and that the respon-
'V dent had gone to great expense in taking precautions against the dis-
charge of smoke from his furnaces. He also found that the respondent
had taken care to emplo}' an efficient foreman to superintend the vari-
ous persons having control of the furnaces. In short, the respondent
was not personally guilty of any negligence whatever. The negligence
which caused the emission of smoke on the particular morning in ques-
tion was that of the stoker who lit the fire. And the question is,
whether the respondent is criminally answerable for the negligence of
his servant.
Now the general rule of law is that a person cannot be convicted and
punished in a proceeding of a criminal nature unless it can be shewn
that he had a guilty mind. And though the legislature undoubtedlj'
may enact, as in the case of certain of the offences under this very Act
it has enacted, that persons shall be criminally responsible for the
doing of particular acts, even though they have no guiltj' mind in
doing them, yet it is for the prosecution in each case to make out
clearlj' that the legislature has in fact so enacted.
It is said that the respondent is liable because he in fact used this
furnace for the purposes of his trade. I agree that he used it, for I
entertain no doubt that if this were a civil proceeding for damages he
would be liable, and 3'et he could in such proceeding only be liable
if he were the person qsing it. But the mere use of a furnace so as to
emit smoke is not an offence against the section, the offence is the
using of it negligently. Suppose that by an accident which no care
could have guarded against the furnace had got out of order, whereby
an emission of smoke ensued, that could not be said to be an offence,
for there would be no negligence. The essence of the offence is that
it should be negligent. And here the respondent took all the care he
could.
Looking at the cases in which it has been held that no appeal lies to
the Court of Appeal from decisions relating to public nuisances, I am
forced to the conclusion that this is not a mere civil proceeding, but
that the offence charged against the respondent is a criminal offence.
No doubt in the case of Reg. v. Stephens, Law Rep. 1 Q. B. 702, the
learned judges came to the conclusion that in that particular case the
proceeding was civil. Whether thej' were right or wrong in that view
it is not necessary for me to express any opinion, but they carefully
guarded themselves against being supposed to infringe on the general
rule of law that a master is not criminall}' responsible for the acts of
his servants. That case must be taken to stand upon its own facts.
The case here being a criminal one I must apply the general rule, and
by that rule the respondent must be acquitted.
The conclusion that the respondent is not criminally liable for his
servant's negligence is much fortified by a comparison of the provi-
SECT. I.J CHISHOLM V. DOULTON. 257
sions of s. 1 with those of s. 2. Sect. 1 applies to a stationary thing,
a furnace fixed in a building, and provides that the person to be
punished shall be the " person so offending," the person, that is to say,
who negligently uses the furnace ; whereas s. 2 applies to a thing which
is transient, a steamer moving up or down the river, and provides that
the person to be punished shall be not the " person so offending," but
" the owner or master or other person having charge of such vessel."
From a comparison of the language of those two sections it seems to
me that in the one ease the intention of the legislature was to strike at
the person guilty of the negligence, while in the other, owing to the
difficulty of finding out who that person was, it struck directly at the
owner or person in charge. I quite admit that this construction may
throw difficulties in the way of securing convictions under the former
section, but I must construe the language as I find it.
1 must also confess that the provision of s. 1 as to the increase of
the penalties on repeated convictions raises a doubt in my mind as to
the correctness of our construction. The penalty paj-able on the first
conviction is one which, with the costs, there would be great difficulty
in getting paid by a mere stoker ; and on each subsequent conviction
the penalty is to be doubled, so that if the stoker is the person respon-
sible the penalty is to be recovered from a person who is utterly unable
to pay it. This certainly does seem to suggest that the person respon-
sible is the person to whom the premises belong, and wlio is capable of
a series of offences, the opportunity of committing which a stoker
would probably not be given.
But although I feel the difficulty I think it better to be bound by the
general rule of law that a man cannot be convicted of a criminal
offence unless he had a criminal mind. I am therefore of opinion that
tlie magistrate was right, and that this appeal must be dismissed.
Cave, J. I am of the same opinion. It is a general principle of
our criminal law that there must be as an essential ingredient in a
criminal oflence some blameworthy condition of mind. Sometimes it
is negligence, sometimes malice, sometimes guilty knowledge — but as
a general rule there must be something of that kind which is designated
by the expression mens rea. Moreover, it is a principle of our criminal
law that the condition of mind of the servant is not to be imputed to
the master. A master is not criminally responsible for a death caused
by his servant's negligence, and still less for an offence depending on
the servant's malice ; nor can a master be held liable for the guilt of his
sei-vant in receiving goods knowing them to have been stolen. And
this principle of the common law applies also to statutory oflences, with
this difference, that it is in the power of the legislature, if it so pleases,
to enact, and in some cases it has enacted, that a man may be con-
victed and punished for an offence although there was no blameworthy
condition of mind about him ; but, inasmuch as to do so is contrary to
the general principle of the law, it lies on those who assert that the
258 CHISHOLM V. DOULTON. [CHAP. IV.
legislature has so enacted to make it out convincingly by the language
of the statute ; for we ought not lightly to presume that the legislature
intended that A. should be punished for the fault of B.
Now apply those principles to the statute in question. Sect. 1
enacts that every furnace shall be " constructed or altered so as to
consume or burn the smoke arising from such furnace." Then comes
the part of the section which affixes penalties for various acts tending
to produce the evil against which the legislation is directed. " If anj-
person shall . . . use any such furnace which shall not be constructed
so as to consume or burn its own smoke." Now there no condition of
mind is required as an element in the oflFence ; and we ought to hold
with regard to that offence that the owner of the works, although not
cognisant that his furnace is incapable of consuming its own smoke, is
liable to be convicted if it in fact is so ; for it is expressly enacted that
if he uses a furnace not properly constructed he shall be liable to the
penaltj', and he certainly may use it bj- his servants. Then, passing
over the middle clause for a moment, another part of the section enacts
that if any person " shall carry on any trade or business which shall
occasion any noxious or offensive effluvia, or otherwise annoy the
neighbours or inhabitants, without using the best practicable means for
preventing or counteracting such smoke or other annoyance," he shall
be liable. There, again, a mens rea is not essential to the commission
of the offence, the owner of the premises is absolutely liable if the
trade is carried on in such a manner. Now go back to the clause
under which the respondent has been summoned, " or shall so negli-
gentlj- use any such furnace as that the smoke arising therefrom shall
not be effectually consumed." This differs from the other clauses in
that it introduces the word "negligently," a word which imports a
blamable condition of mind. If that word were not there, the owner
would be responsible for the use of the furnace in such a waj' that the
smoke was not consumed although the use was by his servants and not
personally by himself. But the legislature has chosen to make negli-
gence an essential ingredient in this particular offence. And, al-
though the decisions under the Licensing Acts have established that,
where a statute has expressly prohibited the doing of something with-
out reference to the condition of mind of the party doing it, it may
under certain circumstances, and having regard to the object of the
statute, be reasonable to infer that the legislature intended that the
master should be responsible if his servant disobeyed the prohibition,
yet so far as I know no statute has ever yet been judicially interpreted
as enacting that where negligence is an essential ingredient in the
offence a master is to be responsible for the negligence of his servant.
Then is there anything else in the section which points to a different
interpretation of the clause which we have to construe. I think there
is not. The section goes on — " Every person so offending, being the
owner or occupier of the premises, or being a foreman or other person
SECT. I.] SHEERAS V. DE EUTZEN. 259
employed by such owner or occupier," shall be liable to the penalties
provided. That no doubt clearly imports that under certain circum-
stances the owner or occupier may be guilty of some of the offences
created by the section ; but it creates no diflBculty, for the words would
be satisfied by reference to the first-mentioned offence, that of using
a furnace not properly constructed, which, as I have said, would clearly
be an offence in the owner. And, further, the owner might be guilty
of the offence of negligently using the furnace, provided there was
personal negligence on his part, as, for instance, if he were to employ
an incompetent person to attend to the furnace, or neglected to pro-
vide the person employed with the proper appliances to prevent smoke
arising, or if he continued to retain in his employment a person who,
by allowing smoke to be emitted, shewed that he was unfit to have the
control of the furnace. On the other hand the words above referred
to equally clearly import that under certain circumstances the person
employed by the owner may be guilty of some of the offences created
by the section and liable to the penalties thereto attached. And this,
to my mind, at once disposes of the difficulty suggested with regard to
the magnitude of the penalties, which it was said a stoker would be
unable to pay, and which it was said consequently pointed to the
owner as the sole person who was intended to be held responsible.
I should be quite content to rest my judgment on a consideration of
the language of the 1st section alone. But the case for the respondent
is still stronger when we come to look at the language of the 2nd
section. The language under that section is very different. The
legislature has there clearlj' expressed its intention that in the event of
the stoker on board a steamer being guilty of negligence in the use
of the furnace, the owner or person in charge of the vessel should be
responsible. But the fact that the legislature where it intended that
the master should be responsible for the negligence of the servant has
expressed that intention in plain language, affords a strong reason why
we should not infer such an intention where it has not expressed it
clearly.
For these reasons I think that the decision of the magistrate must
be affirmed. Appeal dismissed.
SHERRAS V. DE RUTZEN.
High Court of Justice, Queen's Bench Division. 1895.
[Reported 1895, 1 Q. B. 918.]
The appellant was the licensee of a public-house, and was convicted
before a metropolitan police magistrate under s. 16, sub-s. 2, of the
Licensing Act, 1872, for having unlawfully supplied liquor to a police
constat on duty without having the authority of a superior officer of
such pfmstable for so doing. - ' ^ ~
260 SHEEEAS V. DE EUTZEN. [CHAP. IV.
It appeared that the appellant's public-house was situated nearlj-
opposite a police-station, and was much frequented hy jthp pnjjnft
when off duty and that on July 16, 189'lpat about 4.40, the police
■Nonstable in question, being then on dutj', entei-ed the appellant's
house and was served with liquor by the appellant's daughter in his
presence. Prior to entering the house the police constable had_xe.-
moved his armlet, and it was admitted that if a police constable is not
Tveai'lllg his afnilet that is an indication that he is off duty. Neither
the appellant nor his daughter made an^- inquiry of the police con-
stable as to whether he was or was not on duty, but thej' took it for
granted that he was off duty in consequence of his armlet being off,
and served him with liquor under that belief.^
Day, J. I am clearly of opinion that this conviction ought to be
quashed. This police constable comes into the appellant's house
without his armlet, and with every appearance of beingoff duty. The
house was in the immediafe neighborhood of the police-stetion, and the
appellant believed, and he had very natural grounds for believing, that
the constable was off duty. In that belief he accordingly served him
with liquor. As a matter of fact, the constable was on dut^- ; but does
that fact make the innocent act of the appellant an offence ? I do not
think it does. He bad--no intention to do-3 wrnngfnl nnt j t^q s^tpd '"q
the bona fide belief that the constable was off dutj'. It seems to me
'LUat the uuuttiulion that he committed an offence is utterly erroneous.
An argument has been based on the appearance of the word " know-
ingly " in sub-s. 1 of s. 16, and its omission in sub-s. 2. In my opin-
ion the only effect of this is to shift the burden of proof. In cases
under sub-s. 1 it is for the prosecution to prove the knowledge, while in
cases under sub-s. 2, the defendant has to prove that he did not know.
That is the only inference I draw from the insertion of the word " know-
ingly " in the one sub-section and its omission in the other.
It appears to me that it would be straining the law to say that this
publican, acting as he did in the bona fide belief that the constable was
off duty, and having reasonable grounds for that belief, was neverthe-
less guilt}' of an offence against the section, for which he was liable
both to a penaltj' and to have his license indorsed.
Wright, J. I am of the same opinion. There are many cases on the
subject, and it is not very easy to reconcile them. There is3.prpa"mp-
tjoH-tirat mens rea, an eyiTrirterrtisti, or a knowledge oC^the wrongful-
nggg Af^^i avr. tvt i\\\ HMjetUlal Ihifreaiencin every o&'ence ; but that
-pFganjnpH"" ia iiable.tobe cilsplaced_ailill^?^v the wQrcU-&g-tbe^tatute
creating the offence orlSyTTnr'sMTvJRnt.-ma.t.^.Rr with which it deals, and
'B^JijaiistiiajjSP^^*^^''®'^ '• Nichols v. Hall, Law Rep. 8 C. P. 322. One
of the most remSrteible exceptions was in the case of bigamj'. It
was held by all the judges, on the statute 1 Jae. 1, c. 11, that a man
was rightly convicted of bigamj' who had married after an invalid
1 The statement of facts has been slightly condensed. The arguments are omitted
-•Ed.
SECT. I.J SHERKAS V. DE EUTZEN. 261
Scotch divorce, which had been obtained in good faith, and the validity
of which he had no reason to doubt : Lolley's Case, R. & R. 237. An-
other exception, apparently grounded on the language of a statute, is
Prince's Case, Law Rep. 2 C. C. 154, where it was held by fifteen judges
against one that a man was guilty- of abduction of a girl under sixteen,
although he believed, in good faith and on reasonable grounds, that she
was over that age. Apart from isolated and extreme cases of this kind,
the principal classes of exceptions may pp,rhapg hg rprlnced to tln-ee.
One is a class of acts which, in the language of Lush, J., in Davies v.
Harvey, Law KepTg Q. B. 433, are not criminal in any real sense, but
are acts which in the public interest are prohibited under a penalty. '
SeveTS.1 suclTinstauces are to be found in the decisions on the Revenue
Statutes, e. g., Attorney General v. Lockwood, 9 M. & W. 378, where
the innocent possession of liquorice by a beer retailer was held an
offence. So under the Adulteration Acts, Reg. v. Woodrow, 16 M. &
W. 404, as to the innocent possession of adulterated tobacco ; Fitz-
patrick v. Kelly, Law Rep. 8 Q. B. 337, and Roberts v. Egerton, Law
Rep. 9 Q. B. 494, as to the sale of adulterated food. So under the
Game Acts, as to the innocent possession of game bj' a carrier : Rex«.
Marsh, 2 B. & C. 717. So as to the liability of a guardian of the poor,
whose partner, unknown to him, supplied- goods for the poor : Davies
V. Harvey, Law Rep. 9 Q. B. 433. To the same head may be referred
Reg. V. Bishop, 5 Q. B. D. 259, where a person was held rightl}- con-
victed of receiving lunatics in an unlicensed house, although the jury
found that he honestly and on reasonable grounds believed that they
were not lunatics. Another cl.ias cf>rnprp|iPT^rla anmp, and perhaps all^
public nuisancgs-^-Jteg. v. Stephens, Law Rep. 1 Q. B. 702, where the
emploj-er was held liable on indictment for a nuisance caused bj- work-
men without his knowledge and contrary to his orders ; and so in Rex
V. Medley, 6 C. & P. 292, and Barnes v. Akroyd, Law Rep. 7 Q. B. 474.
Lastly, there may be cases injyhich, although the proceeding is criminal
,in form. "it is really only a summary mode of enforcing a civil right :
see per WiLLiAMs'Slid WjLLitSj.-J^rnh Morden v. Porter, 7 C. B. (N, S.)
641 ; 29 L. J. (M. C.) 213, as to unintentional trespass in pursuit of
game ; Lee v. Simpson, 3 C. B. 871, as to unconscious dramatic piracy;
and Hargreaves v. Diddams, Law Rep. 10 Q. B. 582, as to a bona fide
belief in a legallj' impossible right to fish. But, except in such cases
as these, there must in general be guilty knowledge on the part of the
defendant, or of some one whom he has put in his place to act for him,
generally, or in the particular matter, in order to constitute an offence.
It is plain that if guilty kjogadefhtu is not uecutisayv,-QCL.care on the part/y
of the publican could save him from a conviction under s. 16, sub-s. 2,
since it wouldbe as eas}' for the constable to denj- that he was on dut^-
when asked, or to produce a forged permission from his superior officer,
as to remove his armlet before entering the public-house. I am, there-/
fore, of opinion that this conviction ought to be quashed.
Conviction quashed.
262 BANK OF NEW SOUTH WALES V. PIPER. [i'li^- IT.
BANK OF NEW SOUTH WALES v. PIPER.
Judicial Committee op the Peivt Cocncil. 1897.
[Reported 1897,^. C. 383.]
The judgment of their Lordships was delivered hy
Sir Eichaed Cotjch. The suit in this appeal was brought by the
respondent against the appellants for falsely and maliciously and with-
out reasonable or probable cause making a charge against him before
a justice of the peace, upon which he was summoned to appear at the
police court at Cowra in New South Wales, and was committed for
trial at the court of quarter sessions at Cowra. Afterwards the
attornej- general refused to prosecute. The defendants pleaded not
guilty. The trial took place in March, 1895, before Simpson, J., when
the jury found a verdict for the plaintiff for 1000^. damages. On May
7, 1895, a rule nisi for a new trial or for a nonsuit or verdict for the
defendants, pursuant to leave reserved at the trial, was granted by
the Supreme Court. On May 11, 1896, the rule was discharged by the
Chief Justice and Owen, J. , Stephen, J. , the third judge, dissenting.
The appellants are a banking company incorporated in the Colony
of New South Wales by Act of Parliament and Deed of Settlement.
The respondent is a farmer and grazier residing near Cowra. By a
deed of mortgage dated February 29, 1892, the respondent assigned to
the appellants by way of mortgage 2050 sheep,- ninetj-five head of
cattle, and twelve horses, as a collateral security for credit advances
and accommodation to the extent of 2501. in account current which the
bank had agreed to grant to him. The mortgage was dulj' executed
and registered in accordance with the provisions of the Act 11 Vict.
No. 4. Sect. 7 of that Act is as follows : —
" And whereas it is expedient, with a view to increase the public con-
fidence in the validity of such preferable liens on wool and mortgages
of live stock to surround them with the penal provisions necessary for
the punishment of frauds : Be it enacted that any grantor of any such
preferable lien on wool or of any mortgage of sheep, cattle, or horses
and of their increase and progeny under this Act, whether such grantor
shall be principal or agent, who shall afterwards by the sale or delivery
of the wool under any such lien, without the written consent of the lienee,
to any purchaser, pawnee, or other person, or by selling, steaming,
or boiling down or causing to be sold, steamed, or boiled down without
such written consent as aforesaid the sheep whereon the same shall be
growing with a view to defraud such lienee of such wool or of the value
thereof, or who shall, after the due execution and registry of any such
mortgage, without the written consent of the mortgagee thereof, sell or
dispose of or steam or boil down, or cause to be sold and disposed of or
SECT. I.] BANK OF NEW SOUTH WALES V. PIPEE, 263
to be steamed or boiled down, any sheep, cattle, or horses or their
increase or progeny, or who shall in any way or by any means whatso-
ever or howsoever directly or indirectly destroy, defeat, invalidate, or
impair, or any other person or persons who shall wilfully and knowingly
incite, aid, or abet any such grantor directly or indirectly to defeat,
destroy, invalidate or impair the right of property of any lienee in the
wool of any sheep mentioned and described in any such registered
agreement as aforesaid, or the right of property of any such mortgagee
as aforesaid, in any sheep, cattle, or horses or their increase and progen}^
mentioned in any mortgage duly executed and registered as aforesaid,
under the provisions of this Act, shall be severally held and deemed
guilty of an indictable fraud and misdemeanor ; and being thereof duly
convicted, shall be severally liable, in the discretion of the judge or
Court before whom any such offender shall be so convicted, to fine or
imprisonment, or to both fine and imprisonment, for any period not ex-
ceeding three years with or without hard labor at the discretion of
such Court or judge."
In May, 1893, whilst the mortgage was subsisting, and the respon-
dent was indebted Eheretm-tcrtbe appellants in about 240^., the respon-
"dent, without their written consent, sold and delivered to one Robert
-Fhilip IBng 615 uhuup~aiKranumber of cattle, part of the sheep and
cattle included in the mortgage] Un JNovember JJ,^ 1893, James
Thomas Evans, the manager of the bank at Cowra, swore an infor-
mation under s. 7 before a justice of the peace that the respondent
on or about May 19, 1893, without the written consent of the bank,
sold and disposed of the sheep and cattle to King. Upon this infor-
mation the respondent was brought before the justice of the peace and
committed for trial, but the Attornej'-General, as already stated, re-
fused to file a bill against him. The action was then brought.
At the trial the respondent admitted the execution and registration
of the mortgage and the sale to King, and did not suggest or set up
that at the time of tlie sale he had or believed himself to have the
written consent of the appellants or their manager to the sale ; but he
swore that before the sale he obtained the verbal consent of Evans to
it. At the close of the respondent's case the appellants'' counsel ap-
plied for a nonsuit on the ground that on the respondent's evidence he
was in fact guilty of the offence with which he had been charged, and
that even if it were proved that the appellants had given a verbal con-
sent to the sale, it would afford no answer to the charge ; and that,
therefore, upon the admitted facts there was reasonable and probable
cause for the information and charge. The learned judge declined to
nonsuit, but reserved leave to the appellants to move to enter a non-
suit or a verdict for them. Evans was then examined as a witness for
the appellants. He denied that he gave the respondent any authoritj'
orall}' or in writing to make the sale to King ; but the jurj', in answer
to the first question put to them by the learned judge, found that
264 BANK OF NEW SOUTH WALES V. PIPER. [CHAP. IV.
Evans did verbally authorize the sale. That must therefore be taken
as the fact. Two other questions were submitted to the jury, one
being: "Did Evans entertain an honest belief that the plaintiff was
guilty of the offence charged in the information, and, if so, was his
belief founded on such reasonable grounds as would lead an ordinarilj-
prudent and cautious man, placed in the position of Mr. Evans, to the
conclusion that the plaintiff was probably guilty of the offence?" and
the other: "Did Evans honestly believe that the plaintiff, having sold
and disposed of certain slieep and cattle, covered by the mortgage to
the bank, without written authority, although he may have had verbal
authority, was guilty of an indictable offence under 11 Vict. No. 4, s.
7, and, if so, was his belief founded on such reasonable grounds as
would lead a fairly cautious and prudent man in the position of Mr.
Evans to entertain such belief?" To both these questions the jury
answered " No.''
The decision of the question whether there was reasonable or proba-
ble cause for the charge depends upon the construction of s. 7. It was
for the judge to decide that question, as a matter of law, upon the facts
admitted or found by the jur3'. It is to be observed that in the first
part of s. 7, which relates to the sale i
a lieruJtlte-wtrrdg""^with a view to defraud" are introduced as an essen-
.Jial—qtrslfEj^'oFthe offence ; but in the part of the section which relates
to-tfag-Bate"ajrd disposition of sheep or cattle that have been mortgag;eJ.
H.lin.mj Timrris_grp nmit.t.p,£L_ This oannnt be considered to be an uninten-
--ttonafoniission unless it is shewn to be so hx the context of the sec-
tion. Their Lordships do not see anj' ground for construing the
section as if the words "with a view to defraud" had been inserted
in this part of it. They cannot alter the offence created by the statute
b}' the introduction of words which the Legislature has omitted.
It was certainly competent to the Legislature of New South Wales
to define a crime in such a way as to make the existence of any state
of mind of the perpetrator immaterial, and the question is whether in
the case of the sale b}' the mortgagor it has not done so. The enact-
ment in this part of s. 7, according to the ordinarj' meaning of the
words, appears to their Lordships to provide that the selling without
a written consent shall be punished as if it were a fraud. In their
Lordships' opinion neither the preamble to the 7th section nor the
enactment that the persons offending shall be held and deemed guilty
of an indictable fraud justifies the opinion that an intent to defraud
must be implied, or that it is open to the person charged to give evi-
dence to rebut the presumption of fraud. It is thn ini-nntion of tlia
Legislature to make a sale b.v ''h" n""rtfl'i^"'' without the wri tten con-
sent ofthe mortgagee a criminal offence. It was strongly urged by
the respondent's counsel that in order to the constitution of a crime,
whether common law or statutory, there must be 9nens rea on the part
of the accused, and that he maj' avoid conviction by shewing that such
SECT. I.J BANK OF NEW SOUTH WALES V. PIPEE. 265
mens did not exist. Tliat is a proposition which their Lordships do not
desire to dispute ; but the questions whether a particular intent is made
an element bf the statutory crime, and when that is not the case,
whether there was an absence of mens rea in the accused, are questions
entirely different, and depend upon different considerations. In cases
when the statute requires a motive to be proved as an essential element
of the crime, the prosecution must fail if it is not proved. On the
nth<>r_h^pdi t^"^ Jibspripe nf mens rea really consists in an honest and
reasonable belief entertained by the accused of the existence of facts
w'EicHTif true, would make the act char.^firl nrninnt him inngponf The
5aS6 of bnerras v. De Kutzen, [1895] 1 Q. B. 918, where the convic-
tion of a publican for the offence of selling drink to a constable on
duty was set aside by the court because the accused believed, and had
reasonable grounds for the belief, that the constable was not on dutj' at
the time, is an illustration of its absence. The circumstances of the
present case are far from indicating that there was no mens rea on the
part of the respondent. He must be presumed to have known the pro-
visions of s. 7, whether he was actually acquainted with its terms or
not. Then he knew that he had not the written consent of the mort-
gagee; and that knowledge was sufficient to make him aware that he
was offending against the provisions of the Act, or, in other words,
was sufficient to constitute what is known in law as mens rea. If the
offence of which the offender is convicted is a venial one, the Act puts
it within the discretion of the judge who tries the case to award a
nominal punishment. At tjie end of the defendants' case the learned
judge ought to have ruled that, there being no written consent, fBCre
was reasonable and probable cause for making the etetrg'e in Llie lirfor-
mation, and he should have directed the jury to find a verdict for the
Jlfefeadauts" Tho qnoatirvna whiph wprp Ullhnii Uj^ii--tTTjynr^m:y~^^ov^
necessarTT^nd ou^&t-ftet to tia-KC-— tirrm submitted! Their Lordships
will therefore humbly advise Her Majesty to discharge the order of the
Supreme Court, and to order the rule to enter a verdict for the defen-
dants to be made absolute with costs. The respondent will pay the
costs of this appeal.
266 MYERS V. STATE. [CHAP. IV.
MYERS V. STATE.
Supreme Court of Errors of Connecticut. 1816.
[Riported 1 Connecticut, 502.]
This was an information, brought before the county- court, on the
statute,^ for suffering and allowing A. M. and others to travel in a
hackney-coach owned bj- the defendant, from New Haven to Middle-
town, on the Sabbath-day.^
The court charged the jury that it was incumbent on the defendant,
if he justified his act as a case of necessity or charity, to prove by evi-
dence on the trial that a case of necessity or charitj- existed, and that
the representation of the passenger to the driver did not in law amount
Ito a justification, unless the same was proved to have been true when
• made.
Swift, C. J.' The letting of a carriage on Sunday, on the ground of
necessitj' or charit}', is not prohibited bj- the statute. If then a man
acts honestjy_on-8tich principle, and reallj' bpl'p'^pg iha± ^he-ease of
^TTecessity or charity exists, he isnot_criiniaal. It is true, a man ma}'
be deceived and impoiied~upon bj" falsehood and misrepresentation ;
yet if he verily believes that the case exists, and acts on that ground,
it is as much a deed of charitj^ in him, if the fact does not exist, as if
it does. It is a letting of the carriage as a matter of charity. Unless
this construction be adopted, a man may be convicted of a crime when
he had no intent to violate the law, and when his object was to perform
a deed of charity conformable to law. This would oppugn the maxim
that a criminal intent is essential to constitute a crime.
It is true, on this construction, attempts may be made to evade the
statute ; but in all cases it will be a question of fact to the jurj' whether
the part}' acted under a serious impression of the truth of the repre-
sentation made to him. If there be any appearance of collusion, any
management to elude the statute, tnen the excuse o'lghti .""t t'=> aynil :
SE^Dythe exercise of a proper discretion the violaMon of this law
may comrhonly be prevented. Rnt on a, diffp.rer|,tr rinn°trn"tion, ill
works of charity would be prevented. If a man is bound to prove not
'"only ttiat he believed it to be an tlt't of charity, but that the facts existed,
otherwise he should be liable to be punished, there would be verj- great
danger in performing the charity which the statute does not prohibit.
The court, then, in charging the jurj' that the facts constituting the
act of charity iBust be proved to have existed, committed an error.
1 Oct. Sess. 1814, c. 17. " 'So proprietor ... of any coach . . . shall suffer or allow
any person or persons to travel, except from necessity or charity, in such carriage,
within this state, on the Sabbath or Lord's day."
2 The statement of facts ha.s been abridged.
' The concurring opinion of Gould, J. , is omitted.
SECT. I.j BIRNEY V. STATE. 267
They should have directed the i'lryi '^^ ^^'"Y finnnrl th-it thn AafonAoni.
had reasonable ground to believe from the representation made to him
Uhal the case of chaiit} eji.Lsl.nJ, and that he honc3tl_y deled Utider'tbe
iWi'esMumuf tUat'beliuf, they ou^ht to flad him not ^ililty." ~~"
""amoTopinion there is error in tfie judgment of the county court.*
BIENEY V. STATE.
Supreme Codrt of Ohio. 1837.
[Reported 8 Ohio, 230.]
Judge Wood * delivered the opinion of the court.
The statute upon which this indictment is predicated enacts "that
if any person shall harbor or secrete any black or mulatto person, the
property of another, the person so offending shall, on conviction thereof,
be lined any sum not less than ten nor more than fifty dollars." We are
first called to consider whether, under this enactment, the indictment
is sufl8cient.
It is required that every indictment shall have a precise and sufficient
certainty. The omission of a word of substance is fatal. (2 Haw. P. C.
chap. 25, s. 4.) Vfprp. the p1a.int.iff in error is charg-fid with harhorinfy
and secreting a certain mnlatt," g'jrl ^y the name of Matilda, the prop-
— ^rty of L. Larkin. T^fiere ia tin avermoi^^. that the plaintiff' in error "knew
the tacts alleged, that Matilda was a slave and the property of L. Lar-
king or of any other pei;^on ; and such is not the legal inference, in a
state whose constitution declares that all are born free and equal, and
that there shall be neither slavery nor involuntarj' servitude within its
limits, except as a punishment for the commission of crimes. Qn t,^jp
contrary', thu piubuuipliuii m in luvui of Ireedom. "The scienter, or
knowledge of the plaintiff in error, of this material fact was an ingredi-
ent necessary to constitute his guilt. This knowledge should_^ajcer^en
flvPi-rpH in t.hp indip.tment^ t^Hd pr»voH nn thp trial ; fnr wit.hnnt snp.h
knowledge the act charged as a crime was innocent in its character.
We know of 110 case where positive action is held criminal, unless the
intention accompanies the act, either expressly or necessarily inferred
from the act itself. '■'■Ignorantia facti doth excuse, for such an igno-
r9,nce, many times, makes the act itself morally involuntary." 1 Hale's
P. C. 42.
It is true that the statute upon which the indictment is founded
omits the scienter, and the indictment covers all the facts enumerated
in that statute. But this is not suflflcient ; it cannot be assumed
that an act which, independent of positive enactment, involves no
1 See Bradley v. People, 8 Col. 599. — Ed
2 The opinion only is given ; it sufficiently states the case.
268 COMMONWEALTH V. MASH. [CHAP. IV.
I
moral wrong, naj', an act that in many cases would be highly praise-
worthj', should be made grievously criminal, when performed in total
unconsciousness of the facts that infect it with crime. This court has
determined differentlj'. In the case of Anderson against the State, 7
Ohio Eep. part 1, 255, the plaintiff in error was indicted for uttering
and publishing forged certificate of deposit, without averring his knowl-
edge of such forgery. The statute under which the indictment was
found does not, in express terms, make this knowledge a constituent
of the crime. Nevertheless, the court held that the criminality could
not exist without the knowledge, and that an indictment that did not^
iw'er it wao dofcctivc: — I'hal case runs upon all fours with this, and the
further investigation of the principles upon which it is based confirms
the court in the conviction that it is correct. This judgment must be
reversed for this cause, and it thus becomes unnecessary to decide upon
the other points, so laboriously argued for the plaintiflT in error, and of
a character too important in their bearing upon the whole country, to
be adjudicated upon without necessity.'
COMMONWEALTH v. MASH.
Supreme Judicial Court of Massachusetts. 1844.
[Reported 7 Metcalf, 472.]
The defendant was indicted, on the Rev. Sts. c. 130, s. 2, for marry-
ing a second husband while her former husband was living.
At the trial in the Municipal Court, at August term, 1843, there was
evidence tending to prove that the defendant was married to Peter
Mash on the 7th of December, 1834, and that she afterwards cohabited
with him until about the 10th of November, 1838, when he left home
in the morning, saying he should return to breakfast, and was not after-
I' wards heard from by the defendant till about the middle of JUay, 1842,
when he returned; that on the 10th of April, 1842, she was married,
in Boston, by a clergyman of competent authority to solemnize mar-
riages in this Commonwealth, to William M. Barrett, with whom she
cohabited in Boston until she heard that said Peter Mash was still liv-
ing, when she immediately withdrew from said Barrett, and had no
intercourse with him afterwards ; that she was-ef-tmiformlv good clfa,r-
ac'ter>»d"vrrtuous c6hdu(it, aml-tttaai^ie hoiiestlx-b''^iftyfid , ?t thpJJTUf
of said..sec^i4-itrHi I'Uige. lli!jfr«aixL.Peter Magh^wao- doad-;-lhat during
his absence, as aforesaid, she made maiiy^quiries, and was unable to
obtain any information concerning him, or to ascertain whether he was
or was not alive.
1 See U. S. V. Beiity, Hempst. 489 : Lee v. Lacey, 1 Cranch C. C. 263 ; conf. State
V. B. & S. Steam Co. 13 Md. 181. — Ed.
SECT. I.] COMMONWEALTH V. MASH. 269
The counsel for the defendant moved the court to instruct the jury
that if they believed all the facts which the aforesaid evidence tended
to prove, she was entitled to an acquittal. But the court refused so to
ina<^ir.<: t.hp j|]ry, nnrl Ti^sfirnpf^jH tliem thnf t.hn flrfor|f|^nt.'a )^nOran(%
'TEaF'her said husband, Peter, Mash, was alive^and her IjnnPP^ ]r,if\\of
tBat he was dead, constituted no lej^al defeiicel
"TEe'jury found the defendant guilty, and she filed exceptions to the
instruction of the court.
Hallett, for the defendant.
S. D. Parker, for the Commonwealth.
Shaw, C. J. The court are of opinion that the instruction to the jury
was right. The rule of law was certain!}- strongly expressed by the
judge, no doubt in consequence of the terms in which the motion of the
defendant's counsel was expressed. The rule, as thus laid down, in
effect was, that a woman whose husband suddenly left her without
notice, and sa5-ing, when he went out, that he should return immediatel}-,
and who is absent between three and four years, though she have made
inquiry after him, and is ignorant of his being alive, but honestly believes
him to be dead, if she marries again is guilty' of polygamj'. The cor-
rectness of this instruction must of course depend upon the construction
of the Eev. Sts. c. 130, which regulate this subject. The second sectioni
imposes a penaltj' upon any person who, having a former husband or wife,
shall marry another person ; with some exceptions. The third sectioni
excepts from the operation of the statute "any person whose husband \
or wife shall have been continuallj- remaining beyond sea, or shall have 1
voluntarily withdrawn from the other, and remained absent for the \
space of seven years together, — the party marrying again not knowing \
the other to be living within that time."
It appears to us that in a matter of this importance, so essential to
the peace of families and the good order of society, it was not the inten-
tion of the law to make the legality of a second marriage, while the
former husband or wife is in fact living, depend upon ignorance of such
absent party's being alive, or even upon an honest belief of such per-
son's death. Such belief might arise after a very short absence. But
it appears to us that the legislature intended to prescribe a more exact
rule, and to declare, as law, that no one should have a right, upon such
ignorance that the other partj' is alive, or even upon such honest belief
of his death, to take the risk of marrying again, unless such belief is
confirmed by an absence of seven years, with ignorance of the absent
party's being alive within that time. It is analogous to other provis-
ions and rules of law, bj' which a continued absence of a person for
seven years, without being heard of, will constitute a presumption of
his death. Loring v. Steineman, 1 Met. 204 ; Greenl. on Ev. s. 41.
We are strongly confirmed in this construction of the statute, and
that such was the deliberate expression of the legislative will, by refer-
ence to the report of the commissioners for revising the statutes. It
appears, by their report upon this provision, that they prescribed a much
270 COMMONWEALTH V. BOYNTON. [OHAP. IV.
more mitigated rule, and proposed to extend the exception "to anj-
person whose former husband or wife, having been absent one year or
more at the time of such second marriage, shall be believed to be dead."
This proposal was stricken out bj- the committee appointed to consider
the report of the commissioners, and the legislature adopted their
amendment, and passed the law as it stands, without the proposed
additional exception. This shows at least that the attention of the
legislature was called to the subject, and that it was by design, and not
through inadvertence, that the law was framed as it is.
It was urged in the argument that where there is no criminaLintent.
thei'e uati be no guilt ; and if the former husband was honestlj' believed
*T6 be dead, Lhere~couI3 be no criminal intent. The proposition stated
is undoubtedly correct in a general sense ; but the conclusion drawn
from it in this case by no means follows. Whatever one voluntaril}'
does, he of course intends to do. If the statute has made it criminal
to do any act under particular circumstances, the party voluntarily doing
that act is chargeable with the criminal intent of doing it. On this
subject the law has deemed it so important to prohibit the crime of
polj'gamy, and found it so difHcult to prescribe what shall be sufficient
evidence of the death of an absent person to warrant a belief of the
fact, and as the same vague evidence might create a belief in one mind
and not in another, the law has also deemed it wise to flxadgfinite
period of seven years' coTTLitiued abbenw, wllhoul knowiedgeofthe con-
—trafy, to warrant a belief that the absent person is actually dead. One,
theiefuie, who marries within LhaL Lime, If the other party b'e actually
f living, whether the fact is believed or not, is chargeable with that crimi-
nal intent, bj' purposely doing that which the law expresslj- prohibits.
JExceptions overruled}
[The court did not pass sentence on the defendant, but took a recog-
nizance for her appearance in court at a future day. On the 9th of July,
1844, the defendant received a full pardon from the governor, which
she brought into court on the 15th of said Julj', and pleaded the same
in bar of sentence. Whereupon the court ordered her to be discharged.]
COMMONWEALTH v. BOYNTON.
StTPREME Judicial Court of Massachusetts. 1861.
[Reported 2 Allen, 160.]
Indictment against the defendant for being a common seller of
intoxicating liquor. At the trial in the Superior Court, after certain
sales of beer had been testified to, the defendant otfered evidence to
'prove that the article sold was not intoxicating, and that, if it were
1 See, contra, Squire v. State, 46 Ind. 459. — Ed.
SECT I.] COMMONWEALTH V. BOYNTON. 271
SO, he had no reason to suppose that it was so, and bought it for beer
which was not intoxicating, and did not believe it to be intoxicating ;
but Bbigham, J., rejected the latter part of the evidence offered, and
instructed the jury that if f-.lip r)pfpndant sold ^jfinnr \vfiip|i wgfi intV'gi
eating, as alleged, he might be found guilty,, although he did not know
of-uuppuijH that it yftw s^' The defendant was convicted, and alleged
exceptions.
J. Q. A. Griffin for the defendant.
Foster, Attorney-General, for the Commonwealth.
Hoar, J. The court are of opinion that t.hp. sa.lf- f)f intoxicating
iiqnnvs in vinjfftinn nf t.hp Btn^^'it" prffhibitjftp js not One of those cases
m which it is necessary to allegp. or prove that the peTsnn ntjprpy^d
wita the otfence knew the illfiiCral character of his act ; or in which a
want 01 such knowledge would avail him in defence. TFTJie defendant
purposely sold the liquor, which was in fact intoxicating, he was bound
at his peril to ascertain the nature of the article which he sold. Where
the act is expressly prohibited, without reference to the intent or pur-
pose, and the party committing it was under no obligation to act in
the premises, unless he knew that he could do so lawfullj', if he violates
the law he incurs the penalty. The salutary rule thfit fvpry mf^n in ^
conclusively presumed to know the law is sometimes prodnctivo o^
hardship lit [)ai'ticii1ni' KUi^. — And the hardship ih no gieatei' — where ■
the law imposes the duty to ascertain a fact.
It could hardly be doubted that it would constitute no defence to an
indictment for obstructing a highway, if the defendant could show
that he mistook the boundaries of the way, and honestly supposed
that he was placing the obstruction upon his own land. The same
principle was applied in the case of bigamy. Commonwealth v. Mash,
7 Met. 472 ; and in the case of adultery, Commonwealth v. Elwell, 2
Met. 190.
Exceptions overruled.^
1 See ace. Com. v. Farren, 9 All. 489 ; State v. Smith, 10 E. T. 258 (selling adul-
terated milk); State v. Stanton, 37 Conn. 421 (selling adulterated liquor).
Contra, Teague v. State, 25 Tex. App. 577 (selling diseased meat).
On the same principle it has been held that one is guUty (under a statute forbid-
ding it) for allowing a minor to remain in his billiard saloon, though he did not know
that the youth was a minor. State v. Probasco, 62 la. 400. (See, contra, Marshall v.
State, 49 Ala. 21 ; Stern v. State, 53 Ga. 229.) The same decision has been reached
in a prosecution upon a statute forbidding the sale of intoxicating liquor to a minor. .
McCutcheon v. People, 69 111. 601 ; Ulrich v. Com., 6 Bush, 400 ; In re Carlson's
License, 127 Pa. 330 ; State v. Hartfiel, 24 Wis. 60. (See, contra, Mulreed v. State,
107 Ind. 62.) So in the case of a sale to a common drunkard. Barnes v. State, 19
Conn. 398. (See, contra, Williams v. State, 48 Ind. 306).
On the same ground one is held guilty under a statute forbidding the sale of oleo-
margarine, though he sold oleomargarine in ignorance of its real nature. State ».
Newton, 50 N. J. 534 ; Com. v. Weiss, 139 Pa. 247.
See also U. S. v. Leathers, 6 Sawy. 17; People v. Harris, 29 Cal. 678 ; State*
Welch, 21 Minn. 22. — Ed.
272 STATE V. CHICAGO, MILWAUKEE & ST. PAUL EY. [CHAP. IV.
STATE V. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY.
Supreme Court of Iowa. 1903.
[Reported 122 la. 22.]
Ladd, J.^ The defendant admitted the failure of its train to stop
within 800 feet and more than 200 feet from the crossing, and inter-
posed the defence that the engineer in charge did all he could to stop
it, but that, owing to the brakes not working in the usual manner, the
I momentum of the train carried it over the crossing. The court sub-
Imitted the case to the jury on the theorj- that the burden of proof was
Ion the defendant, in order to exonerate itself from liabilitj', to show
' by a preponderance of evidence that the failure to stop was not due to
anj- negligence on the part of its employees in operating the train, or
of the company in not having proper appliances, or in keeping those
had in proper condition, and that the company might be Ijahle even
though the engineer was not. Possiblyjhat shaulrl havp hf^pi7tiTg~Vaw^
but it was not so written by the legislature. The statute in question
"SeadsT'^^All trains run upon an}- railroadTn this state which intersects
or crosses any other railroad on the same level shall be brought to a
full stop at a distance of not less than two hundred and not more than
eight hundred feet from the point of intersection or crossing, before
such intersection or crossing is passed, except as otherwise provided in
this chapter. An}' engineer violating the provisions of this section
shall forfeit one hundred dollars for each offence, to be recovered in an
action in the name of the State for the benefit of the school fund, and
the corporation on whose road the offence is committed shall forfeit the
sum of two hundred dollars for each offence, to be recovered in like
manner." Section 2073, Code. The latter part of the statute is purely
penal in character, with the evident object of punishing the offender,
rather than afford a remedy for the wrongful act. In this respect it
differs radically from provisions awarding damages flowing from cer-
tain acts, such as the setting out of fire. Its meaning, then, cannot be
extended beyond the terms employed. But one offence is denounced
by it, and that is the omission of the engineer to stop the train as
required. The first sentence commands what shall be done — defines
a duty ; the first clause of the second sentence imposes a penalty on
any engineer for "each offence" of omitting such duty; the second
clause of the second sentence adds a penalty against the corporation
"on whose road such offence is committed." To what do these last
words refer? Manifesth', to the offence of which the engineer is guilty,
1 Part of the opiuion only is given. — Ed.
SECT. I.J STATE V. CHICAGO, MILWAUKEE & ST. PAUL BY. 273
No other is mentioned in the section. The statute cannot be fairly read
otherwise. The thought seems to have been that, as the engineer con-
trols the train, the fault in failing to stop as required is primarily his,
and secondarily that of the company for which he acts. wThere. ia ly
ground for holding that th° mrr'pp'iy ^^"y t^" H'I^I" inrinpon^ont nf ^py
finUt of__tti£. engij;iger. The forfeiture of the corporation is made to
depend upon his guilt of the oflfence defined, and upon that only.
As the statute is purely penal in character, it ought not to be
construed as fixing an absolute liability. ,_A failure to stop may some-
times occur, notwithstanding the utmnat. ofF<^>-ta »f tv>p oTigjjT»<Md?nrn
^vfh— °y^ th'a r>m;go;r»ri~222Jlp1' bp r°gflirdvrl nn unlniyfyil The law
never designs the inttictionof punishment where there is no wrong.
The necessity of intent of purpose is alwa3's to be implied in such
statutes. An actual and conscious infraction of duty is contemplated.
The maxim, '' Actus non facit reum nisi mens sit rea" obtains in all
penal statutes unless excluded by their language. See Regina v.
Tolson, 23 Q. B. Div. 168, where it was said, " Crime is not com-
mitted where the mind of the person committing the act is innocent."
See, also, Sutherland on Statutory Construction, section 364 et seq.
No doubt many statutes impose a penalt}' regardless of the intention
of those who violate them, but these ordinarilj' relate to matters which
may be known definitely in advance. In such cases commission of the
offence is due to neglect or inadvertence. But even then it can hardly
he supposed the offender would be held if the act were committed when
in a state of somnambulism or insanit)'. As it is to be assumed in the
exercise of the proper care that the engineer has control of his train at
all times, proof of the mere failure to stop makes out a prima facie
case. But this was open to explanation, and if, from that given, it
was made to appear that he made proper preparation, and intended
to stop, and put forth every reasonable effort to do so, he should be
exonerated. See Furley v. By. Co., 90 Iowa, 146.
274 EEGINA V. SHAKPE. [CHAP. IV.
SECTION n.
The mens rea : Intent.
REGINA V. SHARPE.
Crown Case Eeseeved. 1857.
[Reported 7 Cox C. C. 214.]
The defendant was tried at Hertford, before Erie, J., who reserved
the following case : —
The indictment in the first count charged that the defendant, a
certain burial-ground belonging to a certain meeting-house of a con-
gregation of Protestants dissenting from the Church of England,
unlawfully did break and enter, and a. certain grave ^jiere. in which
the body of one LouiSS, Sliarpe, had before then been interred, with
force and arms, unlawfully, wilfully, and indecently did dig open,
and the said body of the said Louisa Sharpe out of the said grave,
unlawfully, wilfully, and indecentlxJid tnikf> nnd cnrr.y.^jvay.
And there were other counts, varying the charge, which may be
resorted to if necessary. The evidence was, that the defendant's
family had belonged to a congregation of dissenters at Hitchin, and
his mother, with some other of his relations, had been buried in one
grave in the burying-ground of that congregation there, with the con-
sent of those who were interested. That the father of the defendant
had recently died. That the defendant prevailed on the wife of the
person to whom the Icey of the burying-ground was intrusted to allow
him to cause the grave above mentioned to be opened, under the pre-
text that he wished to bury his father in the same grave, and, in order
thereto, to examine whether the size of the grave would admit his
father's coffin. That he caused the coffins of his stepmother and two
children to be taken out, and so came to the coffin of his mother,
which was under them, and was much decomposed, and that he
caused the remains of this coffin, with the corpse therein, to be placed
is no authority.for aavinp- tlmt rplatinngt^ip nan instify the taking of a
corpse from the graYe_wheie-it Jwid ■ hnenJaic^. We have been unwill-
ifag to amrm tfae_con3ction on account_of_our respect for the motives
of tfaejefendant ; but we have felt it our duty to do so rather than
~"1^^3owna rule which might lessen the only protection the law affords
in regEatit-ot tW burrars~or(liSsfSlIafs. The result is, the convtotipn
win stand, and, as the judge states, the sentence should be a nominal
fine of one shilling. Conviction affirmed.^
- See Rex v. Ogden, 6 C. & P. 631. —Ed.
SECT. II.] KBGINA V. PEINCE. 275
REGINA B. PRINCE.
Court for Crown Cases Reserved. 1875.
[Reported L. R. 2 C. C. 154.]
Case stated by Denman, J.
At the assizes for Surrey, held at Kingston-upon-Thames, on the
24th of March last, Henry Prince was tried upon the charge of having
unlawfully taken one Annie Phillips, an unmarried girl, being under
the age of sixteen years, out of the possession and against the will of
her father. The indictment was framed under s. 55 of 24 & 25 Vict.
c. 100.
He was found guilty.
All the facts necessary to support a conviction existed, unless the
following facts constituted a defence. The girl Annie Phillips, though
proved by her father to be fourteen years old on the 6th of April fol-
lowing, looked very much older than sixteen, and the jury found upon
reasonable evidence that before the defendant took her away she had
told him that she was eighteen, and that the defendant bona fide
believed that statement, and that such belief was reasonable.
If the Court should be of opinion that under these circumstances a
conviction was right, the defendant was to appear for judgment at the
next assizes for Surrey ; otherwise the conviction was to he quashed :
see Reg. v. Robins, C. & K. 546, and Reg. v. Oiifier, 10 Cox, Cr. C.
402.
Brett, J.^ . . . It would seem that there must be proof to satisfy a
jury ultimately that' there was a criminal mind, or inens rea, in every
offence really charged as a crime. In some enactments, or common
law maxims of crime, and therefore in the indictments charging the
committal of those crimes, the name of the crime imports that a mens
rea must be proved, as in murder, burglary, etc. In some the mens rea
is contained in the specific enactments as to the intent which is made a
part of the crime. In some the word " feloniouslj' " is used, and in
such cases it has never been doubted but that a felonious mind must
ultimately be found by the jury. In enactments in a similar form, but
in which the prohibited acts are to be classed as a misdemeanor, the
word " unlawfully " is used instead of the word " feloniously." What
reason is there why, in like manner, a criminal mind, or mens rea, must
not ultimately be found by the jury in order to justify a conviction, the
distinction alwaj's being observed, that in some cases the proof of the
committal of the acts may prima facie, either by reason of their own
nature, or by reason of the form of the statute, import the proof of
the mens rea f But even in those cases it is open to the prisoner to
rebut the prima facie evidence, so that if, in the end, the jury are
satisfied that there was no criminal mind, or mens rea, there cannot be
1 Fut of this dissenting opinion is omitted. — Ed.
276 EEGINA V. PRINCE. [OHAP. IV.
a conviction in England for that which is bj' the law considered to be a
crime.
There are enactments which by their form seem to constitute the pro-
hibited acts into crimes, and jet by virtue of which enactments the
defendants charged with the committal of the prohibited acts have been
convicted in the absence of the knowledge or intention supposed neces-
sary to constitute a mens rea. Such are the cases of trespass in pursuit
of game, or of piracy of literary or dramatic works, or of the statutes
passed to protect the revenue. But,the decisions have been based upon
the judicial declaration that the enactments do not constitute the pro-
hibited acts into crime, or offences against the Crown, but only prohibit
them for the purpose of protecting the individual interest of individual
persons, or of the revenue. Thus, in Lee v. Simpson, 3 C. B. 871 ; 15
L. J. (C. P.) 105, in an action for penalties for the representation of a
dramatic piece, it was held that it was not necessary to shew that the de-
fendant knowingly invaded the plaintiff's right. But the reason of the
decision given by Wilde, C. J., 3 C. B. at p. 883. "is : "The object of
the legislature was to protect authors against the piratical invasion
of their rights. In the sense of having committed an offence against
the Act, of having done a thing that is prohibited, the defendant is an
offender. But the plaintiff's rights do not depend upon the innocence
or guilt of the defendant." So the decision in Morden v. Porter, 7 C.
B. (N. S.) 631 ; 29 L. J. (M. C.) 218, seems to be made to turn upon
the view that the statute was passed in order to protect the individual
property of the landlord in game reserved to him by his lease against
that which is made a statutory trespass against him, although his land
is in the occupation of his tenant. There are other, cases in which the
ground of decision is that specific evidence of knowledge or intention
need not be given, because the nature of the prohibited acts is such that,
if done, they must draw with them the inference that they were done
with the criminal mind or intent which is a part of every crime. Such
is the case of the possession and distribution of obscene books. If a
man possesses them, and distributes them, it is a necessary inference
that he must have intended that their first effect must be that which is
prohibited by statute, and that he cannot protect himself by shewing
that his ultimate object or secondarj' intent was not immoral : Reg. v.
Hieklin, Law Rep. 3 Q. B. 360. This and similar decisions go rather
to shew what is mens rea, than to shew whether there can or cannot be
conviction for crime proper without mens rea.
As to the last question, it has become very necessarj' to examine the
authorities. In Blackstone's Commentaries, by Stephen, 2d ed., vol.
iv.. Book G, Of Crimes, p. 98. " And as a vicious will without a vicious
act is no civil crime, so, on the other hand, an unwarrantable act
without a vicious will is no crime at all. So that, to constitute a crime
against human laws, there must be first a vicious will, and secondlv an
unlawful act consequent upon such vicious will. Now there are three
cases in which the will does not join with the act : 1. Where there is a
SECT. II.] EEGINA. V. PRINCE. ^77
defect of understanding, etc. ; 2. Where there is understanding and
will sufHcient residing in the party, but not called forth and exerted at
the time of the action done, which is the case of all offences committed
by chance or ignorance. Here the will sits neuter, and neither concurs
with the act nor disagrees to it." And at p. 105 : " Ignorance or mis-
take is another defect of will, when a man, intending to do a lawful act,
does that which is unlawful; for here, the deed and the will acting
separately, there is not that conjunction between them which is neces-
sary to form a criminal act. But this must be an ignorance or mistake
in fact, and not an error in point of law. As if a man, intending to
kill a thief or housebreaker in his own house, by mistake kills one of
his family, this is no criminal action; but if a man thinks he has a right
to kill a person excommunicated or outlawed wherever he meets him,
and does so, this is wilful murder." In Fowler v. Padget, 7 T. E. 509,
the jury found that they thought the intent of the plaintiff in going to
London was laudable ; that he had no intent to defraud or delay his
creditors, but that delaj- did actually happen to some creditors. Lord
Ken3'on said: " Bankruptcj' is considered as a crime, and the bankrupt
in the old laws is called an offender ; but it is a principle of natural
justice and of our laws that actus non facit reurn nisi mens sit rea.
The intent and the act must both concur to constitute the crime."
And again : "I would adopt any construction of the statute that the
words will bear, in order to avoid such monstrous consequences as
would manifestly ensue from the construction contended for."
In Hearne v. Garton, 2 E. & E. 16 ; 28 L. J. (M. G.) 216, the respond-
ents were charged upon an information for having sent oil of vitriol by
the Great Western Railway without marking or stating the nature of
the goods. By 20 & 21 Vict. c. 43, s. 168, " every person who shall
send or cause to be sent by the said railway any oil of vitriol, shall dis-
tinctly mark or state the nature of such goods, etc., on pain of forfeit-
ing, etc." By s. 206 such penalty is recoverable in a summary wa}'
before justices, with power to imprison, etc. The respondents had in,
fact sent oil of vitriol unmarked. But the justices found that there was
no guilty knowledge, but, on the contrary, the respondents acted under
the full belief that the goods were correctly described, and had pre-
viously used all proper diligence to inform themselves of the fact.-
They refused to convict. It must be observed that in that case, as in
the present, the respondents did in fact the prohibited acts, and that
in that case as in this, it was found, as the ultimate proof, that they
were deceived into the belief of a different and non-criminal state of
facts, and had used all proper diligence. The case is stronger, per-
haps, tban the present by reason of the word " unlawfuUj' " being
absent from that statute. The Court upheld the decision of the magis-
trates, holding that the statute made the doing of the prohibited acts a
crime, and therefore that there must be a criminal mind, which there
was not. " As to the latter reason I think the justices were perfectly
right: actus non facit reum nisi mens sit rea. The act with which the
278 KBGINA V. PRINCE. [CHAP. IV.
respondents were charged is an offence created by statute, and for
which the person committing it is liable to a penalty or to imprison-
ment ; not only was there no proof of guiltj- knowledge on the part of
the respondents, but the presumption of a guilty knowledge on their part,
if any could be raised, was rebutted by the proof that a fraud had been
practised on them. I am inclined to think they were civilly liable : "
Lord Campbell, C. J. "I was inclined to think at first, tliat the pro-
vision was merely protective ; but if it create a criminal offence, which
I am not prepared to denj-, then the mei'e sending bj- the respondents,
without a guilty knowledge on their part, would not render them crimi-
nally liable, although, as the}' took Nicholas's word for the contents of
the parcel, they would be civilly liable : " Erle, J.
In Taylor v. Newman, 4 B. & S. 89 ; 32 L. J. (M. C.) 186, the infor-
mation was under 24 & 25 Vict. c. 96, s. 23: "Whosoever shall un-
lawfully and wilfully kill, etc., any pigeon, etc." The appellant shot
pigeons on his farm belonging to a neighbor. The justices convicted
on the ground that the appellant was not justified by law in killing the
pigeons, and, therefore, that the killing was unlawful. In other words
they held that the only meaning of " unlawfully' " in the statute was
*' without legal justification." The Court set aside the conviction.
' ' I tliink that the statute was not intended to apply to a case in which
there was no guiltj^ mind, and where the act was done bj' a person
under the honest belief that he was exercising a right." Mellor, J.
In Buckmaster v. Reynolds, 13 C. B. (N. S.) 62, an information was
laid for unlawfully, by a certain contrivance, attempting to obstruct or
prevent the purpose.s of aji election at a vestrj'. The evidence 'was
tliat the defendant did obstruct the election because he forced himself
and others into the room before eight o'clock, believing that eight o'clock
was passed. The question asked was, wliether an intentional obstruc-
tion by actual violence is an offence, etc. This question the Court
answered in the aflflrmative, so that there, as here, the defendant had
done the prohibited acts. But Erle, J., continued : " I accompany this
statement (i. e. the answer to the question) by a statement that upon
the facts set forth I am unable to see that the magistrate has come to
a wrong conclusion. A man cannot be said to be guilty of a delict
unless to some extent his mind goes with the act. Here it seems that
the respondent acted in the belief that he had a right to enter the room,
and that he had no intention to do a wrongful act."
In Reg. V. Hibbert, Law Eep. 1 C. C. 184, the prisoner was indicted
under the section now in question. The girl, who lived with her father
and mother, left her home in company with another girl to go to a
Sunday school. The prisoner met the two girls and induced them to
go to Manchester. At Manchester he took them to a public house and
there seduced the girl in question, who was under sixteen. The prisoner
made no inquiry and did not know wlio the girl was, or whether she
tiad a father or mother living or not, but he had no reason to, .ind did
not believe that she was a girl of the town. The jurj' found the prisoner
SECT. II.] EEGINA V. PEINCE. 279
guiltj-, and Lush, J., reserved the case. In the Court of Criminal
Appeal, BoviLLL, C. J., Channell and Pigott, BB., Byles and Lush, JJ.,
quashed the conviction. Bovill, C. J. : " In the present case there is
no statement of any finding of fact that the prisoner knew, or had
reason to believe that the girl was under the lawful care or charge of
her father or mother, or any other person. In the absence of any find-
ing of fact on this point the conviction cannot be supported." This
case was founded on Eeg. v. Green, 3 F. & F. 274, before Martin, B.
The girl was under fourteen, and lived with her father, a fisherman, at
Southend. The prisoners saw her in the street by herself and induced
her to go with them. They took her to a lonely house, and there Green
had criminal intercourse with her. Martin, B., directed an acquittal :
" There must, he said, be a taking out of the possession of the father.
Here the prisoners picked up the girl in the street, and for anything
that appeared, they might not have known that the girl had a father.
The .girl was not taken out of the possession of any one. The prison-
ers, no doubt, had done a very immoral act, but the question was whether
they had committed an illegal act. The criminal law ought not to be
strained to meet a case which did not come within it. The act of the
prisoners was scandalous, but it was not any legal offence."
In each of these cases the girl was surelj- in the legal possession of
her father. The fact of her being in the street at the time could not
possibly prevent her from being in the legal possession of her father.
Everything, therefore, prohibited was done by the prisoner in fact. But -
in each case the ignorance of facts wag helH tr> p^pvpnt thejcase-fiuyn
B^ing the crime to be punished.
In 'Uyg. v. linckler, 1 F. & F. 513, in a case under this section,
CocKBUKN, C. J., charged the jury thus: " It was clear the prisoner
had no right to act as he had done in taking the child out of Mrs.
Barnes's custody. But inasmuch as no improper motive was suggested
on the part pf the prosecution, it might ver}' well be concluded that the
prisoner wished the child to live with him, and that he meant to dis-
charge the promise which he alleged he had made to her father, and
that he did not suppose he was breaking the law when he took the child
away. This being a criminal prosecution, if the jury should take this
view of the case, and be of opinion that the prisoner honestly believed
that he had a right to the custodj' of the child, then, although the prisoner
was not legally justified, he would be entitled to an acquittal." The
jury found the prisoner not guilty.
In Reg. V. Sleep, 8 Cox, Cr. C. 472, the prisoner had possession of
government stores, some of which were marked with the broad arrow.
The jury, in answer to the question whether the prisoner knew that the
copper, or any part of it was marked, answered, " We have not suffi-
cient evidence before us to shew that he knew it." The Court of
Criminal Appeal held that the prisoner could not be convicted. Cock-
burn, C. J. : A.ctus non facit reum nisi mens sit rea is the foundation'
of all criminal procedure. The ordinary principle that there must be a
280 EEGINA V. PRINCE. [CHAP. IV.
guilty mind to constitute a guiltj^ act applies to this case, and must be
imported into this statute, as it was held in Reg. v. Cohen, 8 Cox, Cr.
C. 41, where this conclusion of the law was stated by Hill, J., with his
usual clearness and power. It is true that the statute says nothing
about knowledge, but this must be imported into the statute." Pol-
lock, C. B., Martin, B., Crompton and Willes, JJ. , agreed.
In the cases of Reg. v. Robins, 1 C. & K. 456, and Reg. v. Olifier, 10
Cox, Cr. C. 402, there was hardlj' such evidence as was given in this
case, as to the prisoner being deceived as to the age of the girl, and
having reasonable grounds to believe the deception, and there cer-
tainly were no findings by the jury equivalent to the findings in this
case.
In Reg. V. Forbes and Webb, 10 Cox, Cr. C. 362, although the
policeman was in plain clothes, the prisoners certainly had strong
ground to suspect, if not to believe, that he was a policeman ; for the
case states that they repeatedly called out to rescue the boy and pitch
into the constable.
Upon all of the cases I think it is prgvgd that t|iere can be no con;^
viction^or crime in ii^nglana in_tHelAbscncc of a emoinalmind^o^....
mens rea.
Then comes the question, what is the true .meaning of the phrase?
I do not doubt that it exists where the prisoner knowingly does acts
which would constitute a crime if the result were as he anticipated, but
In which the result may not improbably end by bringing the offence
within a more serious class of crime. As if a man strikes with a dan-
gerous weapon, with intent to do grievous bodily harm, and kills, the
result makes the crime murder. The prisoner has run the risk. So, if
a prisoner do the prohibited acts, without caring to consider what the
truth is as to facts — as if a prisoner were to abduct a girl under sixteen
without caring to consider whether she was in truth under sixteen — he
runs the risk. So if he without abduction defiles a girl w^ho is in fact
under ten }-ears old, with a belief that she is between ten and twelve.
If the facts were as he believed, he would be committing the lesser crime.
Then he runs the risk of his crime resulting in the greater crime. It is
clear that ignorance of the law does not excuse. It seems to me to fol-
low that the maxim as to -mens rea applies whenever the facts which
are present to the prisoner's mind, and which he has reasonable ground
to believe, and does believe to be the facts, would, if true, make his
acts no criminal offence at all.
It may be true to sa}' that the meaning of the word " unlawfully " is
that the prohibited acts be done without justification or excuse ; I. of
course, agree that if there he a legal justification there can be no crime ;
but T come to the cori('1"°'"" thnt a.^mistake of facts, on reasonable
grounds^ tothe extent that if the facts were as believed, the acts ofthe
prisoner would make him guilty of no criminal offemic^at all, is_ an
excuse, and th^t^ such exciise_isrTiapIi31n~every criminal chaige.and
every criminal enactment in England. I agree with Lord Kentok
SECT. II.] KEGINA V. PRINCE. 281
that " such is our law," and with Cockburn, C. J., that " such is the
foundation of all criminal procedure."
Bkamwell, B.' The question in this case depends on the construc-
tion of the statute under which the prisoner is indicted. That enacts
that " whosoever shall unlawfully take anj' unmarried girl under the
age of sixteen out of the possession and' against the will of her father
or mother, or any other person having the lawful care or charge of her,
shall be guilty of a misdemeanor." Now the word "unlawfully " means
"not lawfully," "otherwise than lawfully," "without lawful cause,"
such as would exist, for instance, on a taking by a police officer on a
charge of felony, or a taking by a father of his child from his school.
The statute, therefore, may be read thus : " Whosoever shall take, etc.,
without lawful cause." Now the prisoner had no such cause, and con-
sequently, except in so far as it helps the construction of the statute,
the word " unlawfully" may in the present case be left out, and then
the question is, has the prisoner taken an unmarried girl under the age
of sixteen out of the possession of and against the will of her father? In
fact, he has ; but it is said not within the meaning of the statute, and
that that must be read as though the word " knowingly," or some equiv-
alent word, was in ; and the reason given is, that as a rule the mens
red is necessary to make any act a crime or offence, and that if the facts
necessary to constitute an offence are not known to the alleged offender,
there can be no mens rea. I have used the word "knowingly ; " but it
will, perhaps, be said that here the prisoner not only did not do the act
knowingly, but knew, as he would have said, or believed, that the fact
was otherwise than such as would have made his act a crime ; that here
the prisoner did not say to himself, " I do not know how the fact is,
whether she is under sixteen or not, and will take the chance," but
acted on the reasonable belief that she was over sixteen ; and that
though if he had done what he did, knowing or believing neither waj',
but hazarding it, there would be a mens rea, there is not one when, as
he believes, he knows that she is over sixteen.
It is impossible to suppose that, to bring the case within the statute,
a person taking a girl out of her father's possession against his will is
guilty of no ofEence unless he, the taker, knows she is under sixteen ;
that he would not be guilty if the jury were of opinion he knew neither
one way nor the other. Let it be, then, that the question is whether
he is guilty where he knows, as he thinks, that she is over sixteen.
This introduces the necessitj' for reading the statute with some strange
words introduced; as thus: "Whosoever shall take any unmarried
girl, being under the age of sixteen, and not believing her to be over
the age of sixteen, out of the possession," etc. Those words are not
1 In this opinion Kellt, C. B., Cleasby, Pollock and Amphlbtt, BB., and
Gbove, Quaiw, and Denman, .TJ , concurred. Blackburn, J., also delivered an
opinion supporting the conviction, in which Cockburn, C. J., Mellok, Lush, Quain,
Denman, Archibald, Field, and Lindley, JJ., and Pollock, i B., concurred.
— Ed.
282 REGINA V. PKINCE. i[CHAP. IV.
there, and the questioa is, whether we are bound to construe the stat-
ute as though they were, on account of the rule that the mens rea is
necessary' to make an act a crime. I am of opinion that we are not,
nor as though the word " Icnowingly" was there, and for the following
reasons : The act for^'"'^'^g1 'g wrnno; in itself, if wit.l^nnf. jawfnl cause ^
I do not say illegal, but wrong. I have not lost sight of this, that
though the statute probably principally aims at seduction for carnal
purposes, the taking may be by a female with a good motive. Never-
theless, though there may be such cases, which are not immoral in one
sense, I say that the act forbidden is wrong.
Let us remember what is the case supposed by the statute. It sup-
poses that there is a girl — it does not say a woman, but a girl —
something between a child and a woman ; it supposes she is in the
possession of her father or mother, or other person having lawful care
or charge of her ; and it supposes there is a taking, and that that
taking is against the will of the person in whose possession she is.
It is, then, a taking of a girl, in the possession of some one, against
his will. I sa}' that done without lawful cause is >wrong, and that the
legislature meant it should be at the risk of the taker whether or no
she was under sixteen. I do not say that taking a woman of fifty from
her brother's or even fathei"'s house is wrong. She is at an age when
she has a right to choose for herself; she is not a girl, nor of such
tender age that she can be said to be in the possession of or under the
care or charge of anyone. I am asked where I draw the line; I answer
at when the female is no longer a girl in anyone's possession.
But what the statute contemplates, and what I say is wrong, is the
taking of a female of such tender years that she is properly called a
girl, can be said to be in another's possession, and in that other's care
or charge. No argument is necessary to prove this ; it is enough to
state the case. Tho locrig^j^tnro ]<aa pna-^t-od that if flnynne cjcpp this
WTQiLg aotj ho docf it at^t^erisk of her tut'sijig out to bejmdgr sixteen.
Phis opinion gives full scopg" la theTtot.Uiiie ol Lb<j Jjhi;u '/(ja,r^f the
taker belieVed he had the father's consent, though wrongly, he would
have no mens rea / so if he did not know she was in anyone's posses-
sion, nor in the care or charge of anyone. In those cases he would not
know he was doing the act forbidden by the statute — an act which, if
he knew that she was in possession and in care or charge of anyone,
he would know was a crime or not, according as she was under sixteen
or not. He would not know he was doing an act wrong in itself,
whatever was his intention, if done without lawful cause.
I In addition to these considerations, one may add that the statute
Idoes use the word " unlawfully," and does not use the words " know-
ingly " or " not believing to the contrary." If the question was whether
I his act was unlawful, there would be no difficultj', as it clearly was not
lawful.
This view of the section, to my mind, is much strengthened by a
reference to other sections of the same statute. Sect. 60 makes it
SECT. II.] KEGINA V. PRINCE. 283
a felony to unlawfully and carnal I3' know a girl under the age of ten.
Sect. 51 enacts when she is above ten and under twelve to unlawfully
and carnally know her is a misdemeanor. Can it be supposed that in
the former case a person indicted might claim to be acquitted on the
ground that he had believed the girl was over ten though under twelve,
and so that he had only committed a misdemeanor; or that he believed
her over twelve, and so had committed no offence at all ; or that in a
case under s. 51 he could claim to be acquitted, because he believed her
over twelve ? In both cases thf' i"t; h intrinrifitily irrTTPg': for the stat-
ute sayij if *< uulawf uUj^ j*^"^' '^'^^ ^"^ '^otie with a mens rea is un-
lawfully and carnally knowing the girl, and the man doing that act does
it ai the risk of the child being under the statutory age. It would be
mischievous to hold otherwise. So s. 56, by which, whoever shall take
away any child under fourteen with intent to deprive parent or guardian
of the possession of the child, or with intent to steal any article upon
such child, shall be guilty of felonj'. Could a prisoner say, " I did
take away the child to steal its clothes, but I believed it to be over
fourteen ? " If not, then neither could he say, " I did take the child
with intent to deprive the paretit of its possession, and I believed it
over fourteen." Because if words to tiiat effect cannot be introduced
into the statute where the intent is to steal the clothes, neither can they
where the intent is to take the child out of the possession of the parent.
But if those words cannot be introduced in s. 56, why can they be in
s. 55?
The same principle applies in other cases. A man was held liable for
assaulting a police officer in the execution of his duty, though he did not
know he was a police officer. (10 Cox, Cr. C. 362.) Why? because the
act was wrong in itself. So, also, in the case of burglary, could a person
charged claim an acquittal on the ground that he believed it was past
six when he entered, or in housebreaking, that he did not know the
place broken into was a house? Take also the case of libel, published
when the publisher thought the occasion privileged, or that he had a
defence under Lord Campbell's Act, but was wrong; he could not be
entitled to be acquitted because there was no mens rea. Why ? because
the act of publishing written defamation is wrong where there is no'
lawful cause.
As to the case of the marine stores, it was held properly that there
was no Tnens rea where the person charged with the possession of
naval stores with the Admiralty mark did not know the stores he had
bore the mark : Reg. v. Sleep, 8 Cox, Cr. C. 472 ; because there is
nothing prima facie wrong 01 immoral in having naval stores unless
thej' are so marked. But suppose his servant had told him that there
was a mark, and he had said he would chance whether or not it was the
Admiralty mark? So in the case of the carrier with game in his pos-
session ; unless he knew he had it, there would be nothing done or
permitted by him, no intentional act or omission. So of the vitriol
284 REGINA. V. PEINCE. [CHAP. IV.
senders ; there was nothing wrong in sending such packages as were
sent unless they contained vitriol.
Further, there have been four decisions on this statute in favour of
the construction I contend for. I say it is a question of construction
of this particular statute in doubt, bringing thereto the common law
doctrine of mens rea being a necessary ingredient of crime. It seems
to me impossible tO-say that where--a._p£iison_lafeesT, girl out ^ Tjei^
fiber's possession, not knowing whether she is or is not under sixteen,
thart-hc is not- guilty ; and equallx:iJaf>aCTrt1iito When he"~'bei4«Kea,,^t
erroneousl}', that she is old enough for him to"do a wrongact with
saf^W;__I think the conviction shoiald be aflSrmed.
Denman, J. I agree in the judgment of my Brothers Beamtvbll and
Blackbukn, and I wish what I add to be understood as supplementary
to them. The defendant was indicted under the 24 & 25 Vict c. 100,
s. 55, which enacts that " whosoever shall unlawfully take, or cause to
be taken, any unmarried girl, being under the age of sixteen years, out
of the possession and against the wish of her father or mother, or of
any other person having the lawful care or charge of her, shall be guilty
of a misdemeanor."
I cannot hold that the word " unlawfully " is an immaterial word in
an indictment framed upon this clause. I think that it must be taken
to have a meaning, and an important meaning, and to be capable of
being supported or negatived by evidence upon the trial: see Reg. v.
Turner, 2 Moo. Cr. C. 41 ; Reg. v. Ryan, 2 Hawk, P. C. C. 25, § 96.
In the present case the jury found that the defendant had done everj'-
thing required to bring himself within the clause as a misdemeanant,
unless the fact that he bona fide and reasonably believed the girl taken
by him to be eighteen years old constituted a defence. That is in
other words, unless such bona fide and reasonable belief prevented
them from saying that the defendant in what he did acted " unlawfully "
within the meaning of the clause. The qn°gj^i£Mi,_LhfirpfnrP| in whrthrr,
upon this finding of the_jur3', tho defendant did unlawfuHy^jothe things
-which thny fonm-Hrinrto h^v" dnnf' "" ~
The solution of this question depends upon the meaning of the word
" unlawfully " in s. 55. If it means " with a knowledge or belief that
every single thing mentioned in the section existed at the moment of
the taking," undoubtedly the defendant would be entitled to an acquittal,
because he did not believe that a girl of under sixteen was being takeu
by him at all. If it only means " without lawful excuse " or justifica-
tion, then a further question arises, viz., whether the defendant had any
lawful excuse or justification for doing all the acts mentioned in the
clause as constituting the offence, by reason, merely, that he bona fide
and reasonably believed the girl to be older than the age limited by the
clause. Bearing in mind the previous enactments relating to the abduc-
tion of girls under sixteen, 4 & 5 Phil. & Mary, c. 8, s. 2, and the gen-
eral course of the decisions upon those enactments, and upon the present
statute, and looking at the mischief intended to be guarded against.
SECT., II.] EEGINA V. PEINCE. 285
it appears to me reasonably clear that the word ' ' ii^lawfoHj',''_^in the
true gpnopj whicb- it wnn naadj ia fnlly satisfied hy holding tha"t, it jfl
equivalent to the words " ^dthoutlaw&iJ-&KCUse.'' using those words aa
equivalent to " without such an excuse as being proved would be a
complete legal justification for the act, even where all the facts con-
stituting the oiTence exist."
Cases maj' easily be suggested where such a defence might be made
out, as, for instance, if it were proved that he had the authority of a
Court of competent jurisdiction, or of some legal warrant, or that he
acted to prevent some illegal violence not justified by the relation of
parent and child, or school-mistress, or other custodian, and requiring
forcible interference by way of protection.
In the present case the jury find that the defendant believed the girl
to be eighteen years of age ; even if shqjia.d bepn of that age^he wog
have been in the lawful care and""oEar^e of her~jaiher^^as-itSI!gnardian
"byTiature: see CorTlitt. 88, b, n. 12, 1 9th ' ed. , recognized in Reg. v.
IHow^, 3~iE. & E. 332. Her father had a right to her personal custody
up to the age of twenty-one, and to appoint a guardian by deed or will,
whose right to her personal custody would have extended up to the
same age. Thw belief ^hf\,i «be was-eightecn would-be no justificatien
J(2_tll£-d«feBdanwbr taSing beg-otrTo!' his pogseasign, and again^st-bis
^^rill. By taking hCTT'Svenwith her own consent, he must at least have
been guilty of aiding and abetting her in doing an unlawful act, viz., in
escaping against the will of her natural guardian from his lawful care
and charge. This, in my opinion, leaves him whollj' without lawful
excuse or justification for the act he did, even though he believed that
the girl was eighteen, and therefore unable to allege that what he has
done was not unlawfullj- done, within the meaning of the clause. In
other words, having knowingly done a wrongful act, viz., in taking the
girl awaj- from the lawful possession of her father against his will, and
in violation of his rights as guardian b}'^ nature, he cannot be li,eard to
say that he thought the girl was of an age beyond that limited by the
statute for the offence charged against him. He had wrongfully done
the very thing contemplated bj' the legislature : He had wrongfulh' and ,
knowingly violated the father's rights against the father's will. And
he cannot set up a legal defence by merely proving that he thought he
was committing a different kind of wrong from that which in fact he
was committing. Conviction affirmed.
286 KEYNOLDS V. UNITED STATES. [CHAP. IV.
REYNOLDS v. UNITED STATES.
Supreme Codbt of the United States. 1878.
[Reported 98 United States, 145.]
Error to the Supreme Court of the Territory of Utah.
This is au iudictinent found in the District Court for the third judicial
district of the Territory of Utah, charging George Reynolds with bigamy
in violation of sect. 5352 of the Revised Statutes.'
Mr. Chief Justice Waite delivered the opinion of the court.
In our opinion, the statute immediately under consideration is within
the legislative power of Congress. It is constitutional and valid as pre-
scribing a rule of action for all those residing in the Territories, and in
places over which the United States have exclusive control. This being
so, the only question whigh remains is, whether those who make polyg-
amy a part of their religion are excepted from the operation of the
~St3Xute. if they are, then those who do not make pol3gamj' a part of
their" religious belief may be found guilt}' and punished, while those
who do, must be acquitted and go free. This would be introducing a
new element into criminal law. T.awfj gjre madp. for the-ggvernmenli of
actions, and while they cannot interfere with mere religious belief and
opinions, Ikey Uiay vviLh pmiJLlces^ Suppose one believed that human.
"HiKJl'ihces were a necessary part of religious worship, would it be seri-
ouslj' contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously believed it
was her duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to prevent her
carrying her belief into practice ?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages shall
not be allowed. Can a man excuse his practices to the contrary because
of his religious belief? To permit this would be to make the professed
doctrines of religious belief superior tn the law of the land, and in etfect
to permit every citizen to become a law unto himself. (Tovernment
coii'ia exist only in name under such circumstances.
A criminal intent is generally an element of crime, but everj' man is
presumed to intend the necessary and legitimate consequences of what
he knowingly does. Here the accused knew he had been once married^
and that his first wife was living. He also knew that his second mar-
1 Part only of the case, relating to the question of intent, is here given.
SECT. II.] UNITED STATES V. HARMON. 287
riage was forbidden by law. When, therefore, he married the second
time, he is presumed to have intended to break the law. And the
breaking of the law is the crime. Ever}- act necessary to constitute
the crime was knowingly done, and the crime was therefore knowingly
committed. Ignorance of a fact may sometimes be taken as evidence
of a want o i criminal intent, but not ignorance of the law. The only
defence of the accused in this case is his belief that the law ought not
to have been enacted. It matters not that his belief was a part of his
professed religion ; it was still belief, and belief only.*
UNITED STATES v. HAEMON.
United States District Court, Dist. of Kansas. 1891.
[Reported 45 Federal Reporter, 414.]
Philips, 3.'' Reduced to its actual essence, the ultimate position of
defendant is this : That altliough the language emploj'ed in the given
article may be obscene, as heretofore defined, yet as it was a necessarj'
vehicle to convey to the popular mind the aggravation of the abuses in
sexual commerce inveighed against, and the object of the publisher
being to correct the evil and thereby alleviate human condition, the
author should be deemed a public benefactor, rather than a malefactor.
In short, the proposition is that a man can do no public wrong who
believes that what he does is for the ultimate pubhc good. The under-
lying vice of all this character of argument is that it leaves out of view
the existence of the social compact, and the idea of government by law.
If the end sought justifies the means, and there were no arbiter but the
individual conscience of the actor to determine the fact whether the
means are justifiable, homicide, infanticide, pillage, and incontinence
might run riot ; and it is not extravagant to predict that the success of
such philosophy would remit us to that barbaric condition where
" No common weal the human tribe allied,
Bound by no law, by no fixed morals tied.
Each snatched the booty which his fortune brought.
And wise in instinct each his welfare sought."
Guiteau stoutly maintained to the end his sanity, and that he felt he
had a patriotic mission to fulfil in taking off President Garfield, to the
salvation o^a political party. The Hindu mother cast her babe to the
1 Ace. State v. "White, 64 N. H. 48, 5 Atl. 828. — Ed.
2 Part of- the opinion only is given. The case was an indictment for depositing an
obscene publication in the United States post-ofiSce in violation of the provisions of
section 3893 of the Revised Statutes of the United States. The defendant attempted
to justify his act on the ground that he was actuated solely by the desire to improve
sexual habits, and thus benefit the human race. — Ed.
288 ANONYMOUS. [CHAP. IV.
advouring Ganges to appease the gods. But civilized societj' says both
are murderers. The Mormon contends that his religion teaches polyg-
amy ; and there is a school of so-called " modern thinkers" who would
abolish monogamy, and efect on" the ruins the flagrant doctrine of
promiscuitj^ under the disguise of the affinities. All these claim liberty
of conscience and thought as the basis of their dogmas/ and the pro
bono publico as the strength of their claim to indulgence. The law
against adultery itself would lie dormant if the libertine could get the
courts to declare and the jury in obedience thereto to say that if he
invaded the sanctuary of conjugal life under the belief that the improve-
ment of the human race demanded it he was not amenable to the statute.
Society is organized on the theory, born of the necessities of human
well-being, that each member yields up something of his natural privi-
leges, predilections, and indulgences for the good of the composite
community ; and he consents to all the motto implies, salus populi
sitprema est lex; and, as no government can exist without law, the law-
making power, within the limits of constitutional authority-, must be
recognized as the body to prescribe what is right and prohibit what is
wrong. It is the very incarnation of the spirit of anarchy for a citizen
to proclaim that like the heathen he is a law unto himself. The respon-
sibility for this statute rests upon Congress. The duty of the courts is
imperative to enforce it while it stands.
ANONYMOUS.
Eepokteks' Note. 1498.
[Reported Year-Book, 13 Hen. VII. 14, pi. 5.]
, Hussey said that a question had been put to him, which was this:
A clerk of a church being in a chamber struck another with the kej-s
of the church ; which with the force of the blow flew out of his hand
and through a window, and put out the eye of a woman. Tl^^^ajion
was, whether it should becalled maihem or not. And It seems that it
wa|8^^because h°>«^ <■ v-HTntpnt at. HTpjTPgimving ; but it should be well
considered in assessing the damages.
SECT. II.J EEGINA V. BRUCE. 289
REX V. BLACKHAM.
Ceown Case Reserved. 1787.
[Reported 2 East, Pleas of the Crown, 7U.]
Blackham assaulted a woman with intent to commit a rape, and she
without anj' demand from him ofiered him monej-, which the prisoner
tooli and put into his pocket, but continued to treat her with violence
to effect his original purpose till he was interrupted bj- the approach of
another person. This was holden to be robbery by a. (jr^nsirlprahlA
majority ofthe judges ; Joi- the ffipmanTfrom violence and terror occa-
sioned Vy the prisoner's behavior, and to redeem her chastity, _o£Ger£d_
the money, which it was clear slie would n^i h.i.in ttiuBn yoluntarilv ;
and the prisoner, py taking it, derived that advantap;e to himsfilffrom
his felonious conduct ; luough his original intent were to commit a rape.
REGINA V. BRUCE.
Central Criminal Court. 1847.
[Reported 2 Cox C. C. 262.]
The prisoner -was indicted for manslaughter, under the circumstances
detailed by one of the witnesses. He said the prisoner came into his
master's shop, and pulled him bj' the hair off a cask where he was sit-
ting, and shoved him to the door, and from the door back to the counter.
That the prisoner then put his arm round his neck and spun liim round,
and thej- caflie together out of the shop; the prisoner kept "hold of
the witness when they were outside, and kept spinning him round ; the
latter broke away from him, and, in consequence and at the moment of
his so doing, he (the prisoner) reeled out into the road ajid knocked
against a woman who was passing and knocked her down. The prisoner
was verj- drunk, and staggered as he walked."
The woman so knocked down died shortl}' afterwards of the injuriesk
she had received, and it was for having caused her death that the pris- '
oner was indicted.
Mr. Justice Erlb inquired of the witness (a young lad) whether he
resisted the prisoner during the transaction. The lad answered that he
did not; he thought ^g prisoner was only playing with_^him, and was
sure that it was intended as a joke throughout!
Erle, J. (to the jury). I think, upon this evidence, you must acquit
the prisoner. Where_the_deatLJi£-JM«-^ere©jMS-T;ansEa''¥ylhe act of
another, while the latter is in pursuit of any unlawfuF object, the person
so killing is guiltTTrf manslaughter, althoua;h licjiad no intention what-
ever of injuring'hfm who was tUe victim of tiis conduct. Here, however,
290 EEGINA V. FEANKLIN. fCHAP. lY.
there was nothing unlawful in what the prisoner did to this lad, and
which led to the death of the woman. Had his treatment of the boy
been against the will of the latter, the prisoner would have been com-
mitting an assault — an unlawful act — which would have rendered
him amenable to the law for any consequences resulting from it ; but
. as evei-y thing that was done was_with the witness's consentjJheifijEEasL.
no assault, and consequently noiJle^iHtv: — itris7iSTI[e"^eof the law,
— aH-aCCi9ent, and nothing more.
REGINA V. FRANKLIN.
Sussex Assizes. 1883.
{Reported 15 Cox C.C. 16.3.]
Charles Harris Franklin was indicted before Field, J., at Lewes,
for the manslaughter of Craven Patrick Trenchard.
The facts were as follows :
On the morning of the 25th day of July, 1882, the deceased was bath-
ing in the sea from the "West Pier, at Brighton, and swimming in the
deep water around it. The prisoner took up a good sized box from
the refreshment stall on the pier and wantonly threw it into the sea.
Unfortunately the box struck the deceased, C. P. Trenchard, who was
at that moment swimming underneath, and so caused his death.
Gore, for the prosecution, urged that it would, apart from the ques-
tion of negligence, be sufBcient to constitute the offence of manslaughter,
that the act done by the prisoner was an unlawful act, which the facts
clearly showed it to be, and cited the case of Rex v. Fenton, 1 Lewin's
Cr. Cas. 179. This case is referred to in 1 Russell on Crimes, 638 : " If^
death_ensHea in consequence^^a wrongful act, which the party who
commits it can neither justify nor excuse, it iFmanslaughter. An indict-
mern; chargedTEat there was^a~icaiKI3ing in a certain coal mine, and
that the prisoners, by throwing large stones down the mine, broke the
scaffolding, and that in consequence of the scaffolding being so broken
'a corf in which the deceased was descending the mine struck against a
beam on which the scaffolding had been supported, and bj^ such striking
the corf was overturned and the deceased precipitated into the mine
and killed. Tindal, C. J., said : If death ensues as the consequence of a
wrongful act, which the party who commits it can neither justify nor
excuse, it is not accidental death, but manslaughter. If the wrongful
act was done under circumstances which show an intent to kill or do
any serious injury in the particular ease, or any general malice, the
offence becomes that of murder. In the present instance the act was
one of mere wantonness and sport, but still the act was wrongful, it was
a trespass. The only question, therefore, is, whether the death of the
SECT. n.J COMMONWEALTH V. ADAMS. 291
party is to be fairly and reasonably considered as a consequence of
such wrongful act. If it followed from such wrongful act, as an effect
from a cause, the offence is manslaughter ; if it is altogether unconnected
with it, it is accidental death." '
Field, J. This is a question of great importance, for if I must follow
the ruling of the very learned judge in Reg. v. Fenton (ubi supra) it will
'be necessary to go into' the question whether the prisoner was guilty of
negligence. I will consult my brother Mathew upon the point.
Field, J., after a short interval, returned into court and said ; Xam
of opinion that the .ease must go to the jury upon the broad ground of
negligence, and not upon'the narrow ground proposed by the learned
counsel, oecause it seems to me — and I may say that in this view my
brother Mathew agrees — that the mere fact of a civil wrong committed
by one person against another ought not to be used as an incident which
is a necessary step in a criminal case. I have a great abhorrence of
constructive crime. We do not think the case cited by the counsel for
the prosecution is binding upon us in the facts of this case, and, there-
fore, the .civil wrong againstJAe refreshment-stall kp.pppr ja immaterial
to this charge of manslaughter^^ I do not think that the facts "of this
case bring it clearly withm the principle laid down bj' Tindal, C. J., in
Reg. V. Fenton. If I thought this case was in principle like that case
I would, if requested, state a case for the opinion of the Court of Crimi-
nal Appeal. But I do not think so.
It was not disputed that the prisoner threw the box over the pier,
that the box fell upon the boy, and the death of the boy was caused by
the box falling upon him.
Gill, for the prisoner, relied upon the point that there was not proved
such negligence as was criminal negligence on the part of the prisoner.
Field, J., in summing up the case to the jury, went carefully through
the evidence, pointing out how the facts as admitted and proved affected
the prisoner upon the legal question as he had explained it to them.
The jury returned a verdict of guilty of manslaughter. Guilty^
The prisoner was sentenced to two months' imprisonment
COMMONWEALTH v. ADAMS.
SuPEEME Judicial Court op Massachusetts. 1873.
[Reported 114 Massachusetts, 323.]
Complaint for assault and battery.
At the trial in the Superior Court, before Bacon, J., it appeared that
the defendant was driving in a sleigh down Beacon Street, and was
approaching the intersection of Charles Street, when a team occupied
the crossing. The defendant endeavored to pass the team while driving
292 COMMONWEALTH V. ADAMS. [CHAP. IV.
at a rate prohibited by an ordinance of the city of Boston. In so doing,
he ran against and knocked down a boy who was crossing Beacon Street.
No special intent on tlie part of the defendant to injure the boy was
shown. The defendant had pleaded guilty to a complaint for fast driv-
ing, in violation of the city orduuiuce. The jCam^onwealthasked for a
verdict, upon the ground t.hafjjip intent, to violatetEe city oj;^ance
TnTppltpfrFTip intent, np.ceasaryto snstflj" tlie cliflrorpj-vfj^aiilf, ariHyiat-
tery;_jriie court so ruled, and thereupon the defendant submitte3~E3~ar
verdict of guilty, and the judge, at the defendant's request, reported
the case for the determination of this court.
A. Russ, for the defendant.
C. a. Train, Attorney-General, for the Commonwealth.
Endicott, J. We are of opinion that the ruling in this case cannot
be sustained. It is true that one in the pursuit of an unlawful act may
sometimes be punished for another act done without design and b3' mis-
take, if the act done was one for which he could have been punished if
done wilfully. Bivt_t.V|p gft, in hp nnlawfjil in t,his_sense, must be an act
bad in itself, 'and done with an evil intent ; and the law has always
made this distinction : that li the act tfig^arty was doing was merely
malum prohibitum, he shall not be punishable for the act arising from
TlTisfortune or mistake ; but if m,alum in se, it is otherwise. 1 Hale
f. (J. 89 ; Jfoster U. Li. 2oa. Acts m.ala in se include, in addition to
felonies, all breaches of pubhc order, injuries to person or property,
outrages upon public decency or good morals, and breaches of official
dut\-, when done wilfully or corruptly. Acts mala prohibita include
any matter forbidden or commanded by statute, but not otherwise wron".
3 Greenl. Ev. § 1. It is within the last class that the city ordinance of
Boston falls, prohibiting driving more than six miles an hour in the
streets.
Besides, to prove the violation of such an ordinance, it is not neces-
sary to show that it was done wilfully or corruptlj\ The ordinance
declares a certain thing to be illegal ; it therefore becomes illegal to do
it, without a wrong motive charged or necessary to be proved ; and
the court is bound to administer the penalty, although there is an entire
want of design. The King ?;. Sainsbury, 4 T. R. 451, 4,57. It was held
in Commonwealth v. Worcester, 3 Pick. 462, that proof only of the fact
that the party was driving faster than the ordinance allowed was suf-
ficient for conviction. See Commonwealth v. Farren, 9 Allen, 489 ;
Commonwealth v. Waite, 11 Allen, 264. It is therefore immaterial
whether a party violates the ordinance wilfully or not. The oflfence
consists, not in the intent with which the act is done, but in doing the
act prohibited, but not otherwise wrong. It is obvious, therefore, that
the violation of the ordinance does not in itself supply the intent to do
another act which requires a criminal intent to be proved. The learned
iudgeerred in rulingthat the intent to violate the ordinance i'nltiiir^
— sirppITed the intent to'^iT5taTn-tb«--elrargy"orlLssault"ancr~5attf>w:-^The
verdict must therefore be set aside, anttn N'tw Iriel-gr anted.
SECT. II.J STATE V. HOKTON. 293
STATE V. HORTON.
Supreme Court of North Carolina. 1905.
[Reported 139 N. C. 588.]
Indictment for manslaughter against W. P. Horton, heard by Judge
W. B. CouNCiLL and a jury, at April Term, 1905, of the Superior Court
of Franklin County. The jury rendered a special verdict, and such
verdict and proceedings thereon are as follows :
"That in the month of November, 1904, to-wit: on the day
thereof, the defendant, W. P. Horton, was hnnH^o ..fijrlrnyn nn t.hr
lands of another ; that_me following local statute, enacted by th*^ ftpn-
eral Assembly of 1901, was in force at ami in the place^ iiTwHich said
defendant was hunting, to-wit: chapter "$i<i^f the Laws of 1901 ; that
the said Horton at the time he was so huntingflwt^ not the written con-
sent of the owner of said land, or of his lawful agent; that while so ■
engaged in bunting he killed (Jliarhe Hunt, the deceased, but that said
killing was wholly unintentional ; that the shooting of the deceased was
done while the defendant was under the impression and belief that he
was shooting at a wild turkey; that the hunting engaged in by the
defendant was not of itself dangerous to human life, nor was he reck-
less in the manner of hunting or of handling the firearm with which the
killing was done ; that hunting at that season was not forbidden under
the general game law of the State, but was prohibited onl}' by the
special statute referred to ; that the shooting from which the ivilling
resulted was not done in such grossly- careless or negligent manner as
to implj- any moral turpitude, or to indicate &ny indifference to tlie
safeguarding of human life; that, but for the said statutejierein incor-
porated, the killing of the deceased by rlpfpnrlgnt rlnoa ^"^ fnpgHt.ntp
anj:-violation of the law, if upon ttie aPove tindings of fact, the court
^ould be of opinion that the defendant is guilt}- of manslaughter, we
for our verdict find the defendant guilty of manslaughter, but if the
court should be of opinion that the defendant is not guilty, we for our
verdict find that the defendant is not guilty." Upon this special find-
ing, the court being of opinion that the defendant was guilty of man-
slaughter^so aj^jildged^nd orrlerpd t vordinti of [juilTyTrf— rininvlnii^^fflyr
to be entered, and gave judgment that the defendant be imprisoned in
the county jail of Franklin, for a period of four months. Defendant
excepted to the ruling of the court, and appealed from the judgment
against him.
Hoke, J., after stating the ease: It will be noted that the finding of
the jury declares that the act of the defendant was not in itself danger-
ous to human life, and excludes every element of criminal negligence,
and resfci the,guilt or innocence of thr drfrndint nn thn furf, nlrnr t^"^
at the time of the homicide the defendant was hunting on another's
land without written permission from the owner. The act which applies
294 STATE V. HOETON. [CHAP. IV.
only in the counties of Orange, Franklin, and Scotland, makes the eon-
duct a misdemeanor, and imposes a punishment on conviction, of not
less than five nor more than ten dollars.
The statement sometimes appears in works of approved excellence to
the eflfect that an unintentional homicide is a criminal oflfence when
occasioned by a person engaged at the time in an unlawful act. In
nearly every instance, however, will be found the qualification that if
the act in question is free from negligence, and not in itself of danger-
ous tendency, and the criminality must arise, if at all, entirely from the
fact that it is unlawful, in such case, the iiTi]ij|-fn1 Tnt munt ho nn? t''°^
is malum •»'■>?. sp- anrl nf)t mprply malum, prohibitum, and this we hold to
l^the correct, doctrine.. In J^'ostep's (Jrown Law, it is thus stated at
"page 258 : "In order to bring a case within this description (excusable
homicide) the act upon which death ensueth must be lawful. For if
the act be unlawful, I mean if it be m,alum in se, the ease will amount
to felony, either murder or manslaughter, as circumstances ma}' vary
the nature of it. If it be done in prosecution of a felonious intent, it
will be murder ; but if the intent went no further than to commit a bare
trespass, it will be manslaughter." At page 259, the same author puts
an instance with his comments thereon as follows: "A shooteth at
the poultrj- of B and by accident killeth a man ; if his intention was to
steal the poultry, which must be collected from circurnstances, it will
be murder by reason of that felonious intent, but if it was done wan-
tonl}' and without that intention, it will be barely manslaughter. The
rule I have laid down supposeth that the act from which death ensued
was malum, in se. For if it was barely malum-prohibitum, as shooting
at game by a person not qualified by statute law to keep or use a gun
for that purpose, the case of a person so offending will fall under the
same rule as that of a qualified man. For the statutes prohibiting the
destruction of the game under certain penalties will not, in a question
of this kind, enhance the accident be3'ond its intrinsic moment."
One of these disqualifying statutes here referred to as an instance of
m,alum, prohibitum was an act passed (13 Richard II, chap. 13) to
prevent certain classes of persons from keeping dogs, nets, or engines
to destroj' game, etc., and the punishment imposed on conviction was
one year's imprisonment. There were others imposing a lesser penalty.
Bishop, in his work, entitled New Criminal Law, vol. 1, sec. 332,
treats of the matter as follows : "In these cases of an unintended evil
result, the intent whence the act accidentally sprang must probably be,
if specific, to do a thing which is malum in se and not merely malum,
prohibitum,." Thus Archbold sa3-s : "When a man in the execution
of one act, by misfortune of chance and not designedly, does another
act for which, if he had wilfully committed it, he would be liable to be
punished — in that case, if the act he were doing were lawful or merely
malum prohibitum,, he shall not be punishable for the act arising from
- misfortune or chance, but if it be malum in se, it is otherwise. To
illustrate : since it is malum prohibitum, not malum, in se, for au
SECT. II.] STATE V. HOKTON. ' 295
unauthorized person to kill game in England contrary to the statutes,
if, in unlawfully shooting at game, he accidentally kills a man, it is no
more criminal in him than if he were authorized. But to shoot at
another's fowls, wantonly or in sport, an act which is malum in se,
though a civil trespass, and therebj' accidentally to kill a human being
is manslaughter. If the intent in the shooting were to commit larceny
of the fowls, we have seen that it would be murder." To same effect
is Estelle i;. State, 21 N. J. Law, 182; Com. v. Adams, 114 Mass.
323.
An offence malum in se is properly defined as one which is naturallj'l,
evil as adjudged by the sense of a civilized community, whereas an act I
malum, prohibitum, is wrong only because made so by statute. For '
the reason that acts m,ala in se have, as a rule, become criminal offences
\)y the course and development of the common law, an impression has
sometimes obtained that only acts can be so classified which the
common law makes criminal, but this is not at all the test. An act
can be, and frequently is, malum, in se, when it amounts only to a civil
trespass, provided it has a malicious element or manifests an evil
nature, or wrongful disposition to harm or injure another in his person
or property. Bishop Cr. Law, supra; Com. v. Adams, supra.
The distinction between the two classes of acts is well stated in 19
Am. & Eng. Enc. (2nd ed.), at p. 705 : " An offence malum in se is
one which is naturally evil, as murder, theft, and the like. Offences at
common law are generally m,alum in se. An offence malum, prohibi-
tum, on the contrary, is not naturally an evil, but becomes so in
consequence of being forbidden."
We do not hesitate to declare that the offence of the defendant in
ihunting on the lan'fl' vrithuut vyrittcn peiuiitJHlUH ol Uie nwr"" "y
m,nl,v,m prohibitum,^a,x\A the special verdict having found that the act
in which the defendant was engaged was not in itself dangerous to
human life, and negatived all idea of negligence, we hold that the case
is one of excusable homicide, and the defendant should be declared not
guilty.
We are referred by the Attorney-General to East's Pleas of the
Crown, and Hale's Pleas of the Crown, as authorities against this
position. We would be slow indeed to hold that the law differed from
what these eminent authors declared it to be in their daj- and time, nor
are we required to do so, for a careful examination of their writings
will, we think, confirm the views expressed by the court. My Lord
Hale does say in volume 1, p. 39, that " If a man do e/x, intentione an
unlawful act, tending to the bodily hurt of any person, as by striking or
beating him, though he did not intend to kill him, but the death of the
party struck, follow thereby witirin the year and day ; or if he strike at
one and missing him kill another whom he did not intend, this is felony
and homicide, and not casualtj' or per infortunium." " So it is, if he
be doing an unlawful act though not intending bodily harm to any per-
son, as throwing a stone at another's horse, if it hit a person and kill
296 STATE V. HOETON. [CHAP. IV.
him, this is felony and homicide, and not^er infortunium,- foi- tlie act
was voluntarj', though the event was not intended, and therefore the
act itself being unlawful, he is criminally guilty of the consequence that
follows."
But this author says in treating of the same subject, at pp. 475, 476 :
" So if A throws a stone at a bird, and the stone striketh and killeth
another to whom he intended no harm, it is^er infortunium, but if he
had thrown the stone to kill the poultry or cattle of B, and the stone
hits and kills a b^'stander, it is manslaughter because the act was un
lawful; but not murder because he did not maliciousl}* or with intent
to hurt the bystander. . . . By the statute of S3 Henry VIII, chap. 6,
no person not having lands, etc., of the yearly value of one hundred
pounds per annum may keep or shoot a gun, upon pain of forfeiture of
ten pounds. Suppose, therefore, such a person, not qualified, shoot
with a gun at a bird or at crows, and b}' mischance it kills a bystander,
by the breaking of the gun or some other accident, that in another case
would have amounted onl}- to chance-medley, this will be no more than
chance-medley in him ; for though the statute prohibits him to keep or
shoot a gun, 3-et the same was but malum prohibitum, and that only
under a (jenaltj-, and will not enhance the effect beyond its nature."
Mr. East, while he gives an instance which apparently supports the
view of the State, in treating further on the subject in volume 1, p. 255,
says: " Homicide in the prosecution of some act or purpose criminal
or unlawful in itself, wherein death ensues collaterallj' to or beside the
principal intent ; I sa}' collaterally to or beside the principal intent in
order to distinguish this kind of homicide from that before treated of
under the general head of malice aforethought, where the immediate
and leading purpose of the mind was destruction to another. And first,
it is principally to be observed that if the act on which death ensued be
malum in se, it will be murder or manslaughter according to the cir-
cumstances ; if done in the prosecution of a felonious intent, however,
the death ensued against or beside the intent of the party, it will be
murder ; but if the intent went no further than to commit a bare tres-
pass, it will be manslaughter. As where A shoots at the poultry of B,
and by accident kills a man ; if his intent were to steal the poultry,
which must be collected from circumstances, it will be murder by reason
of that felonious intent ; but if it were done wantonly and without that
intent, it v.ill be barelj' manslaughter. A whips a horse on which B is
riding, whereupon the horse springs out and runs over a child and kills
it ; this is manslaughter in A and misadventure in B." And again, at
page 257 : " So if one be doing an unlawful act, though not intending
bodily harm to any person, as throwing at another's horse, if it hit a
person and kill him, it is manslaughter. Yet in each case it seems that
the guilt would rather depend on one or other of th^se circumstances ;
either that the act might probablj- breed danger or that it was done
with a mischievous intent."
So we have it, that both Sir Matthew Hale and Mr. East, to whom
SECT. II.] STATE V. HORTON. 297
we were referred as supporting the claim of guilt, declared that the act
must be malum in se, and the instances given bj- them show that these
writers had this qualification in mind whenever they state the doctrine
in more general terms.
Sir William Blackstone also says in volume 4, pp. 192, 193 : "And
in general when an involuntarj'' killing happens in consequence of an
unlawful act, it will be either murder or manslaughter, according to the
nature of the act which occasions it. If it be in prosecution of a
felonious intent, or its consequences naturallj' tended to bloodshed, it
will be murder; but if no more was intended than a mere civil trespass,
it will be manslaughter" — citing Foster's Criminal Law. "We take it
that the distinguished commentator must have intended only such civil
trespasses as involve an element malum in se, as he cites Foster's
Criminal Law, and this author, as we have seen, states the qualification
suggested.
Again, we are cited by the State to an instance put by East at
p. 269 : " But though the weapons be of a dangerous nature yet if they
be not directed bj* the person using them against each other, and so no
danger to be reasonably apprehended, and if death casually ensue, it is
but manslaughter ; as if persons be shooting at game, or butts, or anj'
other lawful object, and a bj-stander be killed. And it makes no differ-
ence with respect to game whether the partv be qualified or not, but if
the act be unlawful in itself, as shooting at deer in another's park with-
out leave, though in sport and without anj* felonious intent, wherebj^ a
bj'stander is killed, it will be manslaughter ; but if the owner had given
leave or the party had been shooting in his own park, it would only
have been misadventure." Lord Hale, at page 475, gives the same
instance. And it is urged that this instance is exactly similar to the
one before us, but not so.
According to Sir William Blackstone, in his Commentaries, book 2,
p. 415 : " For sometime prior to the Norman Conquest, every free-
holder had the full liberty of sporting upon his own territories, provided
he abstained from the king's forests, as is full}' expressed in the laws
of Canute and Edward the Confessor. Cuique enini in propria fundo
quamlibet feram quoquo rnodo venari permissum." And further on it
is said: "That if a man shoots game on another's private ground and
kills it there, the propertj- belongs to him on whose ground it was
killed. The property arising ratione soli. ... On the Norman Con-
quest, a new doctrine took place, and the right of pursuing and taking
all beasts of chase or venary, and such other animals as were accounted
game, was then held to belong to the king, or to such only as were
authorized under him." Again: "But if the king reserve to himself
the forests for his own exclusive diversion, so he granted from time to
time other tracts of land to his subjects under the name of chases or
parks, or gave them license to make such in their own parks. And, by
the common law, no one is at liberty to take or kill any beast of chase
but such as hath an ancient chase or park." In Enc. Britannica we
298 STATE V. HOETON. [CHAP. IV.
read that the chases or parks were much the same, except that the
parks were enclosed, having a tendency to make the game contained
therein more completely and exclusively the property of the owner.
Anyone who entered them was a trespasser, and in shooting the game
therein, his act can be likened to that of the case put by Foster, East,
and Lord Hale, where one wantonlj' shot another's chicken. He was
engaged in the effort to destroy another's property, and the act could
well be considered malum in se. But not so here. We hasifi— aever
transplanted to this countrj- either the Saxon or Norman theorj' as to
the right to take and appropriate p-amp TTpre. it is considered the
pf^|-,o.4y r.t- tho ,.apt^ ov,.opf, pQy|^ppo \j^ tjin /|oc.p ^f hpPS^
' 1 1, is said m Ooolej- on Torts: "As regards beasts of chase, the
English law is that if a hunter shoots and captures a beast on the land
of another, the property is in him as in the owner of the land. Under
the civil law, the property passed to the captor. And such is believed
to be the recognized rule in America, even where the capture has been
effected by means of a trespass on another's land." State v. House,
65 N. C. 315.
The act of the defendant, therefore, was not in the effort to destroy
anothur'ii piupoiLy, out was strictly malum prohibitum. Btate v. NTines,
93 N. 0. 493, and Staie v. iJorse}-, 118 Ind. 167,~are cases apparently
opposed to our present decision, but neither is really so. In State v.
Vines the sport was imminentl}' dangerous, amounting to recklessness ;
and in State v. Dorsey the element of criminal negligence was also
present, and in this case a State statute governing the construction was
given much weight. Neither the one case nor the other required anj- crit-
ical examination of the doctrine as sometimes stated, that an uninten-
tional homicide, occasioned when in the commission of an unlawful act,
is manslaughter. The verdict in the case before us negatives both the
elements of guilt (present in these two cases), declaring that the act
was not in itself dangerous and that the defendant was not negligent.
Again, it has been called to our attention that courts of the highest
authority have declared that the distinction between malum prohibitum,
and m,alum in se is unsound, and has now entirely disappeared. Our
own court so held in Sharp v. Farmer, 20 N. C. 255, and decisions to
the same effect have been made several times since. Said Ruflin, C.
J., in Sharp v. Farmer : " The distinction, between an act malum in se
and one malum, prohibitum was never sound and is entirely^ disregarded,
for the law would be false to itself if it allowed a party through its tri-
bunals to derive advantage from a contract made against the intent and
express provisions of the law." It vnll be noted that this decision was
on a case involving the validity of a contract, and the principle there
established is undoubtedly correct. The fact, however, that the judge
who delivered the opinion uses the words " was never sound," and that
other opinions to the same effect use the words " has disappeared,"
shows that the distinction has existed; and it existed too at a time
when this feature in the law of homicide was established. And we are
SECT. ILJ state V. HORTOK. 299
well assured that because the courts, in administering the law on the
civil side of the docket, have come to the conclusion that a principle
once established is unsound and should be rejected, this should not have
the effect of changing the character of an act from innocence to guilt,
which had its status fixed when the distinction was recognized and
enforced.
It was further suggested that the homicide was one of the very results
which the statute was designed to prevent, and to excuse the defendant
would be contrary to the policy of the act. But this can hardly be
seriously maintained. It will be noted that it was not the owner of the
land who was killed, but the defendant's comrade in the hunt ; and of a
certainty, if our Legislature thought that conduct like that of the de-
fendant was dangerous and the statute was designed to protect human
life, some other penalty would have been imposed than a fine of " not
less than five dollars and not more than ten." It is more reasonable to
conclude that the act in its purpose was designed to prevent and sup-
press petty trespasses and annoyances, such as leaving open gates,
throwing down fences, treading over crops, etc.
The special verdict having established that the act of the defendant
was entirely accidental, it is a relief that we can declare him innocent
in accordance with accepted doctrine, and that in the case at, bar the
law can be administered in mercy as well as justice. Quoting again
from that eminent judge and humane and enlightened man. Sir Michael
Foster : ' ' And where the rigor of law bordereth upon injustice, mercy
should, if possible, interpose in the administration. It is not the part
of the judges to be perpetually hunting after forfeitures, where the
heart is free from guilt. They are ministers appointed by the Crown
for the ends of public justice, and should have written on their hearts
the solemn engagement His Majesty is under to cause law and justice
in mercy to be executed in all his judgments." We know that in this
spirit the judge below dealt with the defendant and his cause ; for
though the judgment of His Honor impelled him to the conclusion of
guilt, he imposed the lightest punishment permissible for the offence.
There was error in holding the defendant guilt3-, and, on the facts
declared, a verdict of not guilty should be directed and the defendant
discharged.
Eeversed.
Walker, J., concurs in result only.
300 COMMONWEALTH V. MINK. [CHAP. IT.
COMMONWEALTH v. MINK.
SnPRESiE Judicial Court of Massachusetts. 1877.
[Reported 123 Massachusetts, 422.]
Indictment for the murder of Charles Ricker at Lowell, in the county
of Middlesex, on August 31 , 1876. Trial before Ames and Morton, JJ.,
who allowed a bill of exceptions in substance as follows : —
It was proved that Charles Ricker came to his death bj- a shot from
d, pistol in the hand of the defendant. The defendant introduced evi-
dence tending to show that she had been engaged to be married to
Ricker ; that an interview was had between them at her room, in the
course of which he expressed his intention to break off the engagement
and abandon her entirelj' ; that she thereupon went to h£r_trunfe, took
a pistol from it, and attempted to use it upon herself, with the intentfoli"'
01 takfng her own life ; that Ricker then seized her to prevent her from
accomplishing that purpose, and a struggle ensued between them ; and
that in the struggle the pistol was accidentally discharged, and in that
waj' the fatal wound inflicted upon him.
The jurv were instructed on this point as follows: "If j'ou believe
the defendant's stor}-, and that she did put the pistol to her head with
the intention of committing suicide, she was about to do a criminal
and unlawful act, and that which she had no right to do. It is true,
undoubtedl}-, that suicide cannot be punished b}' anj- proceeding of the
courts, for the reason that the person who kills himself has placed him-
self bej'ond the reach of justice, and nothing can be done. But the
law, nevertheless, recognizes suicide_as a rriminnl fiiot, aniLthe attempt
at suicide is also criminal. It would be the dut}- of any bystander who"
saw such an attempt about to be made, as a matter of mere humanit}',
to interfere and try to prevent it. _And the rule is, that if a homiy.ide-
is produced by the doing of an unlawful act, although the killing .wna
.^he last thing that the person about to doit_had jn his mind, it •^ronlrl
.be an uniawiui Kiiimg. and the person would incur the responsibility
which attaches to the crime of manslaughter.
" Then you are to inquire, among other things, and if you reach that
part of the case. Did this woman attempt to commit suicide in the pres-
ence of Ricker ? and, if she did, I shall have to instruct you that he would
have a riglit to interfere and try to prevent it by force. He would have
a perfect right, and I think T might go further and say that it would be
his duty, to take the pistol away from her if he possibly could, and to
use force for that purpose. If then, in the course of the struggle on
his part to get possession of the pistol to prevent the person from com-
mitting suicide, the pistol went off accidentally, and he lost his life in
that waj', it would be a case of manslaughter, and it would not be one
of those accidents which would excuse the defendant from being held
criminally accountable.
SECT. IL] commonwealth V. MINK. 301
" Did she get into su6h a condition of despondency and disappoint-
ment that she was trying to commit suicide, and was about to do so?
I^-tkat was }iei: condition, if she was making that attempt, and he inter-
fprpd__t.r» pi-pvpnt. it and ^ot jniiiredTiy"^ ani'iiln[il,H.1 iXm'Mrfp. jJUhc
pistol, it would be ma.nslanghteri" The J
! jury returned a verdict of guilty
of manslaughter ; and the defendant alleged exceptions.
Grat, C. J.^ The life of every human being is under the protection '
of the law, and cannot be lawfully taken by himself, or bj' another with
his consent, except by legal authoritj'. By the common law of Eng-
land, suicide was nonsidprf.d a. t;rime against the laws of ftod and iT|a\i-
tUe lands and ChaLlels oi the criminal were forfeited to the King, his
body had an ignominious burial in the highway, juid he was deemed a
murderer of himself and a felon, felo de se. Hales v. Petit, Plowd. 253,
261; 3 Inst. 54; 1 Hale P. C. 411-417; 2 Hale P. C. 62 ; 1 Hawk,
c. 27 ; 4 Bl. Com. 95, 189, 190. " He who kills another upon his desire
or command is, in the judgment of the law, as much a murderer as if
he had done it merely of his own head." 1 Hawk. c. 27, s. 6. One
who persuades another to kill himself, and is present when he does so,
is guilty of murder as a principal in the second degree ; and if two
mutually agree to kill themselves together, and the means employed to
produce death take effect upon one only, the survivor is guilty of the
murder of the one who dies. Bac. Max. reg. 15 ; Rex v. Dyson, Russ.
& Ry. 523 ; Regina v. Alison, 8 Car. & P. 418. One who encourages
another to commit suicide, but is not present at the act which causes
the death, is an accessory before the fact, and at common law escaped
punishment only because his principal could not be first tried and con-
victed. Russell's case, 1 Moody, 356 ; Regina v. Leddington, 9 Car.
& P. 79. Andan_attempt to ('omtnit, sni<^id" is hfld in riii;];^ '"'^'^ ^'"i be
punishable as a misdemeanor. Regina v. Doodj-, 6 Cox C. C. 463 ;
Regina v. Burgess, Leigh & Cavep258 ; s. c. 9 Cox C. C. 247.
Suicide has not ceased to be unlawful and criminal in this Common-
wealth by the simple repeal of the Colonj' Act of 1660 by the St. of
1823, c. 143, which (hke the corresponding St. of 4 G. IV. c. 52, enacted
by the British Parliament within a j'ear before) maj- well have had its
origin in consideration for the feelings of innocent surviving relatives ;
nor by the briefer directions as to the form of coroner's inquests in the
Rev. Sts. c. 140, s. 8, and the Gen. Sts. c. 175, s. 9, which in this, as in
most other matters, have not repeated at length the forms of legal pro-
ceedings set forth in the statutes codified ; nor by the fact that the
Legislature, having in the general revisions of the statutes measured
the degree of punishment for attempts to commit offences by the punisli
^ ment prescribed for each offence if actually committed, has, intentionally
or inadvertently, left the attempt to commit suicide without punishment,
because the completed act would not be punished in any manner. Rev.
Sts. c. 133, s, 12 ; Gen. Sts. c. 168, s. 8 ; Commonwealth v. Dennis,
1 Arguments of counsel and part of the opinion are omitted.
302 NEGLIGENCE. [CHAP. IV.
105 Mass. 162. After all these changes in the statutes, the point decided
in Bowen's case was ruled in the same waj- bj' Chief Justice Bigelovv
and Justices Dewej-, Metcalf, and Chapman, in a case which has not
been reported. Commonwealth v. Pratt, Berkshire, 1862.
Since it has been provided by statute that " any crime punishable by
death or imprisonment in the state prison is a felony, and no other
crime shall be so considered," it may well be that suicide is not techni-
cally a felony in this Commonwealth. Gen. Sts. c. 168, s. 1 ; St. 1852,
c. 37, s. 1. But being_jinlaffiful and criminal p'^ r"nJ'"'>v iv y°j ftrj
attempt to commit it is likewise unlaw<'"i anr" ^'■ji^iTij^i Every one has
the same right iM duty to interpose to save a life from being so unlaw-
fully and criminall}- taken that he would have to defeat an attempt
unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV.
46, pi. 10 ; Marler v. Ayliflfe, Cro. Jac. 134 ; 2 Eol. Ab. 559 ; 1 Hawk,
c. 60, s. 23. An^ it is nnt d'TutH thst finy p"?ii ■! ini'iii) !i| i1".inc: or
attempting to do an act which is unlawful and criminal, jtills another.
^though not intending his death, is guilty of criminal homicide, and, at
^the least, of manslaughter.
The only doubt that we have entertained in this case is, whether the
act of the defendant, in attempting to kill herself, was not so malicious,
in the legal sense, as to make the killing of another person, in the
attempt to carry out her purpose, murder, and whether, the instructions
given to the jury were not therefore too favorable to the defendant.
deceptions overruled.
SECTION in.
2%e mens rear
Negligence.
Foster, Crown Law, 262. , Itjs not sufficient that the act upon which
death ensuethJasjawful or innocent, it ffiu'st be done in a propel manfief
and with_due-CautLcm-ta-pi:£geiit mischief Parents7 master, and otBET"
SECT. III.] NEGLIGENCE. 303
persons having authoritj' in for o domeatico, va&y give reasonable correc-
tion to those under their care ; and if death ensueth without their fault,
it will be no more than accidental death. But if the correction exceedeth
the bounds of due moderation, either in the measure of it or in the instru-
ment made use of for that purpose, itwill be eitlier murder or manslaughter
according to the circumstances of the case. If with a cudgel or other
thing not likely to kill, though improper for the purpose of correction,
manslaughter. If with a dangerous weapon likely to kill or maim, due
regard being always had to the age and strength of the party, murder.
This rule touching due caution ought to be well considered by all
persons following their lawful occupations, especially such from whence
danger may probably arise.
Workmen throw stones, rubbish, or other things from an house in the
ordinary course of their business, by which a person underneath hap-
peneth to be killed. If thej' look out and give timely warning beforehand
to those below, it will be accidental death. If without such caution, it
will amount to manslaughter at least. It was a lawful act, but done in
an improper manner.
I need not state more cases by way of illustration under this head ;
these are suflScient. But I cannot pass over one reported by Kelj-ng
(Kel. 41), because I think it an extremely hard case, and of very exten-
sive influence. A man found a pistol in the street, which he had reason
to believe was not loaded, having tried it with the rammer ; he carried
it home and showed it to his wife ; and she standing before him he
pulled up the cock, and touched the trigger. The pistol went off and
killed the woman. This was ruled manslaughter.
It appeareth that the learned editor '^ was not satisfied with the judg-
ment. It is one of the points he in the preface to the report recom-
mendeth to farther consideration.
Admitting that the judgment was strictly legal, it was, to say no
better of it, summum jus.
The law in these cases dothnotrequire the utmost caution that can
be useT; it is sufficient tHat a reasoagl^lp pri^'"?^!^"- .what is usual and
"~ordinarv in~tlie'^ifee cases, be~{-,g,lr^ In the case just mentioned of
"workmen throwing rubbish from buildings, the- ordinary caution of look-
ing out and giving warning by outcry from above will excuse, though
doubtless a better and more effectual warning might have been given.
But this excuseth, because it is what is usually given, and bath been
found by long experience, in the ordinary course of things, to answer
the end. The man in the case under consideration examined the pistol
in the common way ; perhaps the rammer, which he had not tried before,
was too short and deceived him. But having used the ordinary caution,
found to have been eflfectual in the like cases, he ought to have beeu
excused.
1 Chief Justice Holt.
304 EEGINA V. CHAMBERLAIN. [CHAP. IV.
I have been the longer upon this case, because accidents of this
lamentable kind may be the lot of the wisest and the best of manlsind,
and most commonly fall among the nearest friends and relations ; and
in such a case the forfeiture of goods, rigorously exacted, would be
heaping affliction upon the head of the afflicted, and galling an heart
alreadj' wounded past cure. It would even aggravate the loss of a
brot.her, a parent, a child, or wife, if such a loss under such circum-
stances is capable of aggravation.
I once upon the circuit tried a man for the death of his wife by the
like accident. Upon a Sunday morning the man and his wife went a
mile or two from home with some neighbors to take a dinner at the
house of their common friend. He carried his gun with him, hoping
to meet with some diversion by the way ; but before he went to dinner
he discharged it, and set it up in a private place in his friend's house.
After dinner he went to church, and in the evening returned home with
his wife and neighbors, bringing his gun with him, which was carried
into the room where his wife was, she having brought it part of the way.
He taking it up touched the trigger, and the gun went off and killed his
wife, whom he dearly loved. It came out in evidence that, while the
man was at church, a person belonging to the family privately took the
gun, charged it and went after some game ; but before the service at
church was ended returned it loaded to the place whence he took it,
and where the defendant, who was ignorant of all that had passed,
found it, to all appearance as he left it. I did not inquire whether the
poor man had examined the gun before he carried it home ; but being
of opinion upon the whole evidence, that he had reasonable grounds to
believe that it was not loaded, I directed the jury, that if they were of
the same opinion they should acquit him. And he was acquitted.
REGINA V. CHAMBERLAIN.
"Hertford Assizes. 1867.
[Reported 10 Oox C. C. 486.]
Indictment for manslaughter.
The prisoner had resided for many years in Hertford, carrying on the
business of a herbalist, and he was also what was called a " quack doc-
tor." The deceased woman had for some years a tumor on her shoulder,
and in March, 1866, she consulted the prisonet, who gave her first a
mercurial ointment, to which no objection was taken. After this, how-
ever, it was said he gave her a different ointment, which was arsenical,
and this it was suggested had caused her death by being absorbed into
the system. The case for the prosecution was that she became worse
after she used this ointment, that is to say, in August, 1866 ; that she
SECT. III.] EEGINA V. CHAMBERLAIN. 305
I
suffered from arsenical symptoms ; and that her death, which happeued
in Septeinber, was owing to this cause. It was not disputed that she
died with the symptoms of arsenic, nor that there was arsenic in the
ointment she used ; the real question in the case was wither there was
'' culpable negligence " oST the part oTThe prisoner in giving it without
dtro-preeaotionS^ Thalfbeing the question in the case, it turned a good
dSSTIipon the' medical evidence as to the use of arsenic in ointments.
As to this Dr. Taylor admitted that it was used upon the Continent,
and that it had been used in this country until within the last thii-ty
years, when he said it was discovered that it was absorbed into the sys-
tem, and it was discontinued in this country, though it still was used
upon the Continent. The foreign practitioners, he said, were a little
more given to a bold system in cases apparently hopeless, and a little
more disposed to what he called " heroic" treatment — that is to say,
treatment in which the medical practitioner for the sake of the patient
runs some risk — than our English practitioners, who, he intimated,
were rather more cautious in such cases. Another pouifcon_which the
case turned was as to the prisona);-Hot havir\g^ warned the deceased (jf
^KeTiecessarj' effect of the arsenic when absorbed into the system. It
did not appear tbat he had given any particular directions beyond tell-
ing her to "rub some of the ointment in ;" and the woman, naturally
thinking that the more she rubbed the better, had rubbed and rubbed
until she had absorbed so much of the poison that she died ; and the
prisoner had sold her another box without, as it appeared, making any
observation as to the effect of the first.
Parry, Serjt., for the prisoner, contended that it was a case of a
mere blunder or error, and not a case of negligence so culpable as to
be criminal.
Blackburn, J., to the jury. If the prisoner by culpable negligence
lia.d (lansed the death of the deceased woman, he was guilty of man-
slaughter; but t^■" '^ifir'^ ^^'^*- that death had occurred through uTlstake
or misfortune would not be enough, or no medical man would UTS safe .
Tiiere must, however, be competent knowledge and care in dealing with
a dangerous drug, and if the man either was ignorant of the nature of
the drug he used or was guilty of gross want of care in its use, there
would be criminal culpability. In the one case there would be culpable
rashness in using so dangerous a drug in ignorance of its operation ; in
the other case there would be culpable want of care or culpable care-
lessness in the use of the drug ; and in either case that would be culpa-
ble and criminal negligence, which would justify a conviction, supposing
the jury were satisfied that the death arose from the arsenic. The first
question was, whether the death was caused bj' the arsenic administered
by the prisoner ; upon which, however, he thought the evidence very
strong. The real question would be whether there was culpable negli-
gence, which resolved itself into the two questions he had explained.
He could not define the nature of " culpable negligence" otherwise than
as he hfld described it. It was a question for the jury, for it was a
306 BEGIN A «. SALMON. [CHAP. IV.
question of degree. It was a question of more or less, and it could not
be defined. All the direction he could give them was that if theprisoncr
administered the arsenic without knowing or taking^ tae pams to lind out
"Whai lts"etfect would bgj or if knowing this, he g^ve it to the patieat4fi
"ije used without giving her adequatedirections aslQJts use, there WQjild
m'eiCliyr'-vtew oFthe caseMPFcinpabie iTegiigence, and the prisoner ojiaht
57 by convictgSTiKrrtr otherwise, there would not be~suoh negligence,
an^he prisoner ought to be acquitted. The most serious part of the
case was in the apparent absence of caution or directions to the woman
as to the use of the arsenical ointment, the effect of which, as was well
known, was that it would be absorbed into the s^'stem so as to cause
death. It was said that foreign doctors used it, but if so it might be
presunjed that they watched its use with cai-e. It appeared to him that
a medical man who should administer such a drug or allow a patient to
apply it without taking any care to observe its effects or guard against
them, would be gravely wanting in due care. Whether under the eir-
-cumstances it a,mounted to culpable negligence was, he repealed* for
t^ejury^ """^^ "Not guilty . '
REGINA V. SALMON.
Ceown Case Reserved. 1880.
[Reported 14 Cox C. C. 494.]
Case reserved for the opinion of this court by Lord Coleridge, C. J.,
at the Summer Assizes at Wells, 1880.
The three prisoners were tried for the manslaughter of William Wells,
a little boy of ten years old. The prisoners went into a field, and each
fired a shot from a rifle at a target. One of the shots killed the deceased,
who was at the time in a tree in his father's garden, distant about four
hundred yards from the spot where the shot was fired. ■ The rifle was
sighted for nine hundred and fifty yards, and would probablj- be deadl}'
at a mile. It did not appear which one of the prisoners fired the fatal
shot.^
No counsel appeared to argue on behalf of the prisoners.
Norris for the prosecution. The prisoner who fired the fatal shot
was clearly guilty of manslaughter, but the evidence of his identity not
being clear, the rule that all persons engaged in a common enterprise
are jointl}' liable will apply. All the prisoners went into the field for
a common purpose, rifle practice ; and it was their duty to take all
proper precautions to prevent any danger to other persons. The plan
attached to the case shows that they fired across three highways, and
1 Ace. Keg V. Macleod, 12 Cox C. C. 534; State v. Hardister, 38 Ark. 605. — Ed.
2 This statement of the case is condensed from the report of Lord Coleridge.
— Ed.
SECT. III.] KEGINA V. NICHOLLS. 307
that they were flring too near to the neighboring gardens, in one of
which the deceased hoy was.
LoKD Coleridge, C. J. I am of opinion that the conviction was
right and ought to be affirmed. If a person does a thing which in itself
is dangerous, and without taking proper precautions i" |,iitiV'^'^^^''^?"S''''
arising, and if he so does it and Itills a person, it is a criminal act as
againstthatpej^m^ That would make it clearly manslaughter as
regSFds the prisoner wjwee shot killed the boy. It follows as the result
of the_^ culpable negligence of this one, that each of the prisoneja .ig
aaagerable for the acts of the others, they all being engaged in one
common pursuit,,.^ J
iJiELD, J. -I am of the same opinion.. At first I thought it was ne- ' :
cessary to show some duty on the part of the prisoners as regards the
boy, but I am now satisfied that there was a duty on the part of the
prisoners towards the public generally' not to use an instrument likely
to cause deatt without taking due and proper precautions to prevent
injury to the public. Looking at the character of the spot where the";
firing took place, there was sufficient evidence tliaT all three prisoners •
were guilty of culpable negligence under the circumstances.
Lopes, J., concurred.
Stephen, J. I am of opinion that all three prisoners were guilty of
manslaughter. The culpable omission of a duty which tends to preserve
life is homicide ; and it \^ ^f ^niy of every one to take proper precau-
tions jii_doing an act which may be dangerous to life. In this case the
firing of the rifle was a dangerous act, and all three prisoners were
jointly responsible for not taking proper precautions to prevent the
danger.
Watkin Williams, J., concurred. Conviction affirmed.
EEGINA V. NICHOLLS.
Stafford Assizes. 1875.
[Beported 13 Cox C. C. 75.]
Prisoner was indicted for the manslaughter of Charles Nicholls.
A. Young prosecuted.
The prisoner was the grandmother of the deceased, an infant -.af
tender years, said to have died from the neglect of the prisoner to
supply it with proper nourishment. Slie_,was a poor woman, and in
order to' earn her livelihood was out the greater part of the day. The
deceased was the child of the prisoner's daughter. The daughter was
dead, and therefore the prisoner took charge of the child, and while
away from home left it_to the sole care ojF a bov "f tiiup vpara The
cause of death was emacmtion, probably resulting from want of food.
308 KEGINA V. NICHOLLS. [CHAP. IV.
The facts will be found more particularly stated in the summing up of
the learned judge.
At the close of the case for the prosecution, Brett, J., asked what
was the neglect charged.
A. Young. Leaving the child in the sole custody of so young a boy
during many hours of the daj'.
Beett, J., to the jury. This woman is charged with manslaughter
under somewhat peculiar circumstances. She^^as the grandmother of
the deceased infant, and not bound hv law to take care of it. She
might have sent the child to the workhouse, but did not do so. If a
^rown up person chooses to undertake the charge of a human creature,
Ihelpless either from infancy, simplicity, lunacj^ or other infirmity, he is
bound to execute that charge without, at all events, wicked negligence ;
and if a person who has chosen to take charge of a helpless creature
lets it die bvwickpH nppjliggrmp. t.ha.tpersnn is guilty of manslaughter.
MerenpQrligeTin.e wif] jint, do ; there must be wiCKen nqg-ligp.nce. that is.
■^Iigence so great that j'ou must be of opinion that the prisoner had
a wicked mind, in tie sense that she was reckless and careless whether
the creature died or not. We must judge of all these things according
to tiJfcstate and condition of the persons concerned. Here was an old
woman left in a difHcult position. The child was probably illegitimate.
Its mother, who was the prisoner's daughter, liad died, and would not
probably have suckled it for some days before her death. The child
was small and weakly. It might, perhaps, have lived. "What, however,
was the prisoner to do ? It is said that she had, through her own mis-
conduct, fallen into bad circumstances ; that she was addicted to drink,
and th^t her furniture had been seized. She was out all day collecting
rags and bones. What ought she to have done with respect to the
iKliild ? The prosecution saj' that she ought to have sent it to the parish
authorities. Perhaps she ought. But she, like others, might be full of
prejudice, and dislike to send it there. So her omission to send it is
I not sufficient ; for, as I have pointed out, there must be wicked negli-
Vence on her part. Then she must go out to work. She could not find
any one else, for she had no means, so she got a son of nine 3'ears old
to look to the infant. She may have been very careless, but the ques-
tion is, was she wickedly careless ? She was in fault, for she ought not
to have been away so many iiours at a time ; and no doubt you will
think that it was that that caused the death of the child. The boy was
careless, but it appears ' thg,t the old woman certainly did have fnod-in
^jigjiouse. Suppose she told the boy to feed the bab3-, and left food
wherewith to feed it ? Still she would be careless, for she ought to
(lave returned home to see that he did so. It is verj- right that this
case should be inquired into, and that the neighbors should look into
it, but nevertheless it is right that we should consider the circumstances
of the prisoner in order to determine whether she has been guilty of
such carelessness as I have defined.
Verdict, Not guilt}/.
SECT. ni.J COMMONWEALTH V. PIERCE. 309
COMMONWEALTH v. PIERCE.
Supreme Judicial Court of Massachusetts. 1884.
[Reported 138 Mass. 165.]
Holmes, J. The defendant has been found guilty of manslaughter,
on evidence that he publicly practised as a physician, and, being called
to attend a sick woman, caused her, with her consent, to be kept iii
flannels saturated with kerosene for three days, more or less, by reason
of which she died. There was evidence that he had made similar appli-
cations with favorable results in other cases, but that in one the effect
had been to blister and burn the flesh as in the present case.
The main questions which have been argued before us are raised by
the fifth and sixth rulings requested on behalf of the defendant, but
refnsed by the court, and by the instructions given upon the same
matter. The fifth request was, shortly, that the defendant must have
" so much knowledge or probable information of the fatal tendency of
the prescription that [the death] may be reasonably presumed by the
jury to be the effect of obstinate, wilful rashness, and not of an honest
intent and expectation to cure." The seventh request assumes the law
to be as thus stated. The sixth request was as follows : "If the de-
fendant made the prescription with an honest purpose and intent to
cure the deceased, he is not guilty of this offence, however gross his
ignorance of the qualitj' and tendency of the remedy prescribed, or of
the nature of the disease, or of both." The eleventh request was sub-
stantially similar, except that it was confined to this indictment.
The court instructed the jury that "it is not necessary to show an
evil intent ; " that, " if by gross and reckless negligence he caused the
death, he is guilty of culpable homicide ; " that " the question is whether
the kerosene (if it was the cause of the death), either in its original
application, renewal, or continuance, was applied as the result of fool-
hardy presumption or gross negligence on the part of the defendant ; "
and that the defendant was "to be tried by no other or higher stand-
ard of skill or learning than that which he necessarily assumed in treat-
ing her ; that is, that he was able to do so without gross recklessness
or foolhardy presumption in undertaking it." In other words, that the
defendant's duty was not enhanced by any express or implied contract,
but that he was bound, at Jiis peril to,do no grossly reckless ac^_wl|en,
ir\,^^e absence of ap-y; emergency or other exceptional circumstances,
^jst^Btermeddledwith the4ifigseH-trf-aa«ther.
I'llB LlBffehdanl relieson the case of Commonwealth v. Thompson, 6
Mass. 134, from which his fifth request is quoted in terms. His argu-
ment is based on another quotation from the same opinion : " To con-
stitute manslaughter, the killing must have been a consequence of some
unlawful act. Now, there is no law which prohibits any man ivmn
prescribing for a sick person with his consent, if he honestly intends to
310 COMMONWEALTH V. PIEEOE. [CHAP. IV.
cure Ilim by his prescription." This language is ambiguous, and we
must begin by disposing of a doubt to which it might give rise. If it
meaus that the killing must be the consequence of an act which is un-
lawful for independent reasons apart from its likelihood to kill, it is
wrong. Such may once have been the law, but for a long time it has
been just as fully, and latterly, we may add, much more willingly, rec-
ognized that a man may commit rguider or mansla'ip;hi-.p|- hy Hmnnr
otherwise lawful "i^tfi rP'^'^^g^^Ti as thatTie may by doing acts unlawful
for independent reasons, from which death accidentallj' ensues. 3 Inst.
57 ; 1 Hale P. C. 472-477 ; 1 Hawk. P. C, c. 29, §§ 3, 4, 12 ; c. 31,
§§ 4-6 ; Foster, 262, 263 (Homicide, c. 1, § 4) ; 4 Bl Com. 192, 197 ;
1 East P. C. 260, and seq. ; Hull's case, Kelyng, 40, and cases cited
below.
But recklessness in a moral sense means a certain state of conscious-
ness with reference to the consequences of one's acts. No matter
whether defined as indifference to what those consequences 'may be, or
as a failure to consider their nature or probability as fully as the party
might and ought to have done, it is understood to depend on the actual
condition of the individual's mind with regard to consequences, as
distinguished from mere knowledge of present or past facts or circum-
stances, from which some one or everybody else might be led to antici-
pate or apprehend them if the supposed act were done. We have to
determine whether recklessness in this sense was necessary to make
the defendant guilty of felonious homicide, or whether his acts are to
be judged by the external standard of what would be morally reck-
less, under the circumstances known to him, in a man of reasonable
prudence.
More specifically, the questions raised by the foregoing requests and
rulings are whether an actual good intent and the expectation of good
results are an- absolute justification of acts, however foolhardj' they
may be if judged by the external standard supposed, and whether the
defendant's ignorance of the tendencies of kerosene administered as it
was will excuse the administration of it.
So far as civil liability is concerned, at least, it is very clear that
what we have called the external standard would be applied, and that,
if a man's conduct is such as would be reckless in a man of ordinary
prudence, it is reckless in him. Unless he can bring himself within
some broadly defined exception to general rules, the law deliberately
leaves his idiosyncrasies out of account, and peremptorily assumes that
he has as much capacity to judge and to foresee consequences as a man
of ordinary prudence would have in the same situation. In the language
of Tindal, C. J., " Instead, therefore, of saying that the liability for
negligence should be coextensive with the judgment of each individual,
which would be as variable as the length of the foot of each individual,
we ought_ratherjto adhere to the rule which requires in all cases a re-
gard to caution such as a man of ordinary prudence would observe."
"Iiaugiiaii V. Menlove, 3 Bing. IN. U. 4()j~-l75 ; p. 0';-f Ijc6t|ffift44.
SECT. 211.] COMMONWEALTH V. PIERCE. 311
If this is the rule adopted in regard to the redistribution -of losses,
which sound policy allows to rest where they fall in the absence of a
clear reason to the contrary, there would seem to be at least equal
reason for adopting it in the criminal law, which has for its immediate
object and task to establish a general standard, or at least general neg-
ative limits, of conduct for the community, in the interest of the safety
of all.
There is no denying, however, that Commonwealth v. Thompson,
although possibly distinguishable from the present case upon the evi-
dence, tends very strongly to limit criminal liability more narrowly
than the instructions' given. But it is to be observed that the court
did not intend to lay down any new law. They cited and meant to
follow the statement of Lord Hale, 1 P. C. 429, to the effect " that if a
physician, whether licensed or not, gives a person a potion, without
any intent of doing him any bodily hurt, but with intent to cure, or
prevent a disease, and, contrar}' to the expectation of the physician, it
kills him, he is not guilty of murder or manslaughter." 6 Mass. 141.
If this portion of the charge to the jurj' is reported accurately, which
seems uncertain (6 Mass. 134, n.), we think that the court fell into the
mistake of taking Lord Hale too literally. Lord Hale himself admitted
that other persons might make themselves liable by reckless conduct.
1 P. C. 472. We doubt if he meant to deny that a physician might do
so, as well as any one else. He has not been so understood in later
times. Rex v. Long, 4 C. & P. 423, 436 ; Webb's case, 2 Lewin, 196,
211. His testis simply an abridgment of 4 Inst. 251. Lord Coke
there cites the Mirror, c. 4, § 16, with seeming approval, in favor of
the liability. The case cited by Hale does not deny it. Fitz. Abr.
Coroue, pi. 163. Another case of the same reign seems to recognize it.
Y. B. 43 Edw. III. 33, pi. 38, where Thorp said that he had seen one
M. indicted for killing a man whom he had undertaken to cure, by want
of care. And a multitude of modern cases have settled the law accord-
ingly in England. Rex v. Williamson, 3 C. & P. 635 ; Tessymond's case,
1 Lewin, 169; Ferguson's case, 1 Lewin, 181; Rex v. Simpson, Will-
cock, Med. Prof., part 2, ccxxvii. ; Rex v. Long, 4 C. & P. 398; Rex
V. Long, 4 C. & P. 423 ; Rex v. Spiller, 5 C. & P. 333 ; Eex v. Senior,
1 Moody, 346 ; Webb's case, ubi supra ; s. c. 1 Mood. & Rob. 405 ;
Queen v. Spilling, 2 Mood. & Rob. 107 ; Regina v. Whitehead, 3 C. &
K. 202 ; Regina ■u. Crick, 1 F. & F. 519; Regina v. Crook, 1 F. & F.
521 ; Regina v. Markuss, 4 F. & F. 356 ; Regina v. Chamberlain, 10
Cox C. C. 486; Regina v. Macleod, 12 Cox C. C. 534. See also Ann
V. State, 11 Humph. 159; State v. Hardister, 38 Ark. 605; and the
Massachusetts cases cited below.
If a physician is not less liable for reckless conduct than other people,
it is clear, in the light of admitted principle and the later Massachusetts
cases, that the recklessness of the criminal no less than that of the civil
law must be tested by what we have called an external standard. In
dealing with a man who has no special training, the question whether
312 V COMMONWEALTH V. PIERCE. [CHAP. IV.
his act would be reckless in a man of ordinary prudence is evidently
equivalent to an inquirj' into the degree of danger which common expe-
rience shows to attend the act under the circumstances known to the
actor. The only difference is that the latter inquiry' is still more obvi-
ouslj' external to the estimate formed By the actor personally than the
former. But it is familiar law that an act causing death may be mur-
der, manslaughter, or misadventure, according to the degree of danger
attending it. If the danger is very great, as in the case of an assault
with a weapon found by the jury to be deadly, or an assault with hands
and feet upon a woman known to be exhausted by illness, it is murder. .
Commonwealth v. Drew, 4 Mass. 391, 396 ; Commonwealth v. Fox,
7 Gray, 685. The doctrine is elearl}' stated in 1 East P. C. 262.
The verj' meaning of the fiction of implied malice in such cases at
common law was, that a man might have to answer with his life for
consequences which he neither intended nor foresaw. To saj' that he
was presumed to have intended them, is merely to adopt another
fiction, and to disguise tlie truth. The truth was, that his failure or
inability to predict them was immaterial, if, under the circumstances
known to him, the court or jurj-, as the case might be, thought them
obvious.
As implied malice signifies the highest degree of danger, and makes
the act murder-; so, if the danger is less, but still not so remote that it
can be disregarded, the act will be called reckless, and will be man-
slaughter, as in the case of an ordinary assault with feet and hands, or
a weapon not dead!}', upon a well person. Cases of Drew and Fox,
iibi supra. Or firing a pistol into the highwaj', when it does not amount
to murder. Rex v. Burton, 1 Stra. 481. Or slinging a cask over the
highwaj' in a customary, but insufficient mode. Rigmaidon's case,
1 Lewin, 180. See Hull's case, ubi supra. Or careless driving. Rex
V. Timmins, 7 C. & P. 499; Regina v. Dalloway, 2 Cox C. C. 273;
Regina v. Swindall, 2 C. & K. 230.
If the principle which has thus been established both for murder and
manslaughter is adhered to, the defendant's intention to produce the
opposite result from that which came to pass leaves him in the same
position with regard to the present charge that he would have been in
if he had had no intention at all in the matter. We think that the
principle must be adhered to, where, as here, the assumption to act as
a physician was uncalled for bj* anj- sudden emergencj', and no excep-
tional circumstances are shown ; and that we cannot recognize a privi-
lege to do acts manifestly endangering human life, on the ground of
good intentions alone.
We have implied, however, in what we have said, and it is undoubt-
edly true, as a general proposition, that a inan's liability for hia a^tsja
determined by their tendency under the circumstances known to him,
and not by their tendency under all ttie circumstances actually atfecting
the result, iThftliiii 1i iiiiTirTTTnHfnaaMT'^ Ann it mir nr i-irrri Ti'hy thi
dangerous character of kerosene, or "the fatal tendency of the pre-
SECT. III.] COMMONWEALTH V. PIERCE. 313
scription," as it was put in the fifth request, is not one of the circum-
stances the defendant's knowledge or ignorance of which migh/t have a
most important bearing on his guilt or innocence.
But knowledge of the dangerous character of a thing is only the
equivalent of foresight of the way in which it will act. We admit that,
if the thing is generally supposed to be universally harmless, and only
a specialist would foresee that in a given case it would do damage, a
person who did not foresee it, and who had no warning, would not be
held liable for the harm. If men were held answerable for everything
they did which was dangerous in fact, they would be held for all their
acts from which harm in fact ensued. The use of the thing must be
dangerous according to common experience, at least to the extent that
there is a manifest and appreciable chance of harm from what is done,
in view either of the actor's knowledge or of his conscious ignorance.
And therefore, again, if the danger is due to the specific tendencies of
the individual thing, and is not characteristic of the class to which it
belongs, which seems to have been the view of the common law with
regard to bulls, for instance, a person to be made liable must have
notice of some past experience, or, as is commonly said, " of the qualitj'
of his beast." 1 Hale P. C. 430. But if the dangers are characteristic
of .the class according to common experience, then he who uses an arti-
cle of the class upon another cannot escape on the ground that he had
less than the common experience. Common experience is necessary to
the man of ordinary prudence, and 'a man who assumes to act a5~tfae
defendant did must have it at his peril. When the jury are asked
Wtrelhtir a, alick Ol a certain size was a deadly weapon, thej' are not
asked further whether the defendant knew that it was s6. It is enough
that he used and saw it such as it was. Commonwealth v. Drew, ubi
supra. See also Commonwealth v. Webster, 5 Cush. 295, 306. So as
to an assault and battery by the use of excessive force. Common-
wealth V. Eandall, 4 Gra}', 36. So here. The defendant knew that he
was using kerosene. The jury have found that it w.is applipH as the
result of toolharclj' presumption or gross negligence, and that is enough.
CommonwealLU V. SU'UUou, 114 Mass. 6&6, 3Ui3. maeed, if the de-
fendant had known the fatal tendency of the prescription, he would
have been perilously near the line of murder. Regina v. Packard,
C. & M. 236. It will not be necessary to invoke the authority of those
exceptional decisions in which it has been held, with regard to knowl-
edge of the circumstances, as distinguished from foresight of the con-
sequences of an act, that, when certain of the circumstances were
known, the party was bound at his peril to inquire as to the others,
although not of a nature to be necessarilj- inferred from what were
known. Commonwealth v. Hallett, 183 Mass. 452; Regina i;. Prince,
L. R. 2 C. C. 154 ; Commonwealth v. Farren, 9 Allen, 489.
The remaining questions may be disposed of more shortly. When
the defendant applied kerosene to the person of the deceased in a way
which the jury have found to have been reckless, or, in other words,
314 JOHNSON V. STATE. [CBAP. IV.
seriously and unreasonably endangering life according to common ex-
perience,' he did an act which his patient could not justify bj' her con-
sent, and which therefore was an assault notwithstanding that consent.
Commonwealth v. Collberg, 119 Mass. 350. See Commonwealth v.
Mink, 123 Mass. 422, 425. It is unneeessar3' ,to relj^ on the principle
of Commonwealth v. Stratton, uM supra, that fraud may destroy the
ieifect of consent, although evidently the consent in this case was based
[on the express or implied representations of the defendant concerning
his experience.
j As we have intimated above, an allegation that the defendant knew
I of the deadly tendency of the kerosene was not only unnecessary, but
I improper. Regina v. Packard, ubi supra. An allegation that the
kerosene was of a dangerous tendency is superfluous, although similar
allegations are often inserted in Indictments, it being enough to allege
the assault, and that death did in fact result from it. It would be
superfluous in the case of an assault with a staff, or where the death
resulted from assault combined with exposure. See Commonwealth v.
Macloon, 101 Mass. 1. See further the second count, for causing
death b}' exposure, in Stockdale's case, 2 Lewin, 220 ; Eegina v. Smith,
11 Cox C. C. 210. The instructions to the jury on the standard of skill
by which the defendant was to be tried, stated above, were as favorable
to him as he could ask.
The objection to evidence of the defendant's previous unfavorable
experience of the use of kerosene is not pressed. The admission of it
in rebuttal was a matter of discretion. Commonwealth v. Blair, 126
Mass. 40. Exceptions overruled.
JOHNSON V. STATE.
Supreme Court of Ohio. 1902.
[Reported 66 Ohio St. 59.]
Price, J. If the conceded facts are sufficient and the charge of the
trial court sound law to govern the jury in deciding on such facts, the
plaintiff in error may have been properly punished for very reprehensi-
ble conduct. That part of the charge contained in the statement of
the case as well as a subsequent paragraph which we will notice, were
equivalent to directing a verdict of conviction, inasmuch as there was
no dispute as to the facts. There was a verdict of conviction and
a sentence upon the verdict, which the circuit court sustained, and
thereby must have held that the chai'ge correctly stated the law of the
tiase.
The importahce of what is presented as an apparently new doctrine
in this state, as well as respect for the opinions of both the lower
courts, have been sufficient reasons for giving the questions involved
a careful consideration.
SECT. III.J JOHNSON V. STATE. 315
The indictment for manslaughter in this, case is in the short form
authorized by section 7217 of the Revised Statutes, and it charges that
" Noah Johnson . . . on the twentj'-flfth day of May in the year
of our Lord one thousand nine hundred and one, in the county of
Scioto, did unlawfully kill one Emory Barrows then and there being, I
contrary to the form of the statute," etc. |
Prior to the codification of the criminal statutes, manslaughter was
thus defined : " That if any person shall unlawfully kill another without
malice, either upon a sudden quarrel, or unintentionally while the slayer
is in the commission of some unlawful act, every such person shall be
deemed guilty of manslaughter, and on conviction thereof, be pun-
ished," etc. Vol. 1, S. & C. 403.
The statute on the subject now is section 6811, Revised Statutes,
which reads: "Whoever unlawfully kills another, except as provided
in the last three sections, is guilty of manslaughter, and shall be im-
prisoned," etc. The preceding sections define murder in the first and
second degrees. But the present section 9811 is not different in sub-
stance and meaning from the original section above quoted, and to
ascertain the elements of the crime of manslaughter we look to the
original as it stood before codification or revision. Therefore, to con-|
vict of manslaughter, it is incumbent upon the state to establish that I
the killing was done "either upon a sudden quarrel, or unintentionally |
while the slayer was (is) in the commission of some unlawful act."
It is clear from the facts and the instructions given the jury,
that Barrows was not killed by Johnson in a quarrel ; nor was t.hpi kill- ^
ing intentional. Hence, the latter clause 'of the definition of the crime
is~ttie one to which our investigation should be confined. The state
was required to show that while the killing was unintentional, it was
• done by Johnson while he was in the commission of some unlawful act ;
and the question arises, whether thp UPP'^'Pi''"*'- "^^^ "T ^.cts of the slaver,
though no breach of any law, may be suflBcient to constitute the unlaws
ful act designated in rhe statute. Ur, is tfie state required tn ahnw that
he was in the commission ot an act prohibited b}'^ law ?
3tt the time of this homicide there was even no ordinance of the >
village of Scioto regulating the speed or manner of riding bicycles upon
its streets. None appears in the record, and we therefore assume there
was no such ordinance. And it is not claimed that there was any stat-
ute then in force on that subject. What then is the proper construc-
tion of the clause " while in commission of some unlawful act " ? '
The construction which prevailed in the lower courts is found again
in a portion of the charge which we quote as the final admonition
to the jury: "Now, gentlemen, apply these principles to the case and
determine from the evidence introduced upon the trial whether the de-
fendant, Noah Johnson, at the time he struck and killed the decedent,
Emory Barrows, was riding his bicj'cle with gross negligence, and was
it such as an ordinarily reasonable and prudent person might and rea-
sonably ought to have foreseen would endanger the lives and safety of
316 JOHNSOX V. STATE. [CHAP. IV.
others, and be likely to produce fatal injuries ; and was such killing
the direct, natural, and proximate result of such negligence? If the
evidence satisfies j'ou bej^ond a reasonable doubt of all these matters,
then your verdict should be that the defendant is guilty of manslaughter
as he stands charged in the indictment ; otherwise you should acquit him.''
In this language the trial court told the jury that if the defendant's
conduct in the manner of riding the bicycle — its speed without signal
of a bell — was, in their judgment, grossly negligent, it was an unlaw-
ful act, and they might find that in such conduct he was committing an
unlawful act, and, if it resulted in the death of Barrows, the rider was
guilty of manslaughter. And it was left to the jury, and they were
directed to determine from the evidence whether or not the acts done
were grossly negligent and regardless of the life and safety of another.
If so, to convict.
We have no common law crimes in this state. We think such has
been the uniform understanding of the bar, and the opinion of both the
judicial and legislative departments of our commonwealth. Before the
trial of this case there was but one other case brought to our attention
where the proposition has been called in question. Weller v. The State
,:of Ohio, 10 Circ. Dec. 381 ; 19 C. C. E. 166.
f But this court has settled the commonly accepted rule in more than
one case. In SutclifTe v. The State, 18 Ohio, 469, 477, Justice Avery,
speaking for the court, says : "There is no common law crime in this
state, and we therefore look always to the statute to ascertain what is
the offence of the prisoner, and what is to be his punishment . . ."
Again on same page : " What is affirmed in this statute of manslaughter
of the character which this court is intended to reach, except that the
slayer must be in the commission at the time of some unlawful act ? "
Also on page 477 : " It is claimed for the plaintiff in error that there •
is no allegation in the count of the unlawful act designated in the stat-
ute. It was necessary to allege in the indictment that the person was
engaged in the commission of some unlawful act. And this allegation,
it appears to the court, is distinctly made in that part of the indictment
which charges the prisoner with an assault upon the person killed,
and unlawfully discharging and shooting oS at him a loaded gun.
This suflBciently declares an unlawful act . . ."
As before stated, our statute now provides for a shorter form of in-
dictment, but it does not dispense with the ingredients of manslaughter,
as defined in the former statute.
In Smith v. The State, 12 Ohio St. 466, 469, this court says : " It
must be borne in mind that we have no common law offences in this
state. "NTn an^ nr omlssJon. however hurtful or immoral in its tenden-
cies, is punishable as a crime in Ohio, unless such act or omission
Ts speciaHy pnj^inpd nr nrohibitcd br the otatuta-ia.w of the state. It
IS, therefore, idle to speculate upon the injurious consequences of per-
mitting such conduct to go unpunished, or to regret that our criminal
code has not the expansiveness of the common law."
SECT. III.] JOHNSON V. STATE. 317
The same statement of tiie law was again made in Mitchell v. The
State, 42 Ohio St. 383, and other decisions of this court.
We think the same rule abides in many, if not all the other states of
the Union whose legislatures have many codes or systems of statutory
crimes. It evidently is true of the federal government as settled by
repeated decisions of the Supreme Court of the United States. United
States V. Worrall, 2 U. S. (2 Dall.) 384 : United States v. Hudson and
Goodwin, 11 U. S. (7 Cranch), 32 ; Pennsylvania v. Bridge Co., 54 U.
S. (43 How.) 518, and later cases in that court. When our legisla-
ture first enacted statutes upon the subject of homicide and defining its
different degrees, it did, as to manslaughter, what the state suggests,
adopted almost literallj' the common law definition. Sutcliffe v. The
State, 18 Ohio, 469, supra. But when this definition was borrowed
and adopted by our legislature, it was adopted, not in part, but as
a whole, and the act committed when the unintentional killing occurs,
must be a violation of some prohibitory law. The very word " unlaw-
ful "in criminal jurisprudence means that and nothing less. Surely
the lefgslatiire did not int.endt.o adopt part of the commonjaffljojaacj'ip-
tttnToTthe offence as a statutory provision, and leave"Uie other part
to tpe expansivenefeS Of tne common law. X et, that is practically the
t'Ull!!Ll'UiJll6n whicti tbe lower courts must have placed upon our statute
against manslaughter. We assume that the facts show couduct grossly
negligent in character. There was no malice and no quarrel between
defendant and the deceased. The killing was unintentional. It was
inanslaughter nevertheless, if the slayer was then in commission of
some unlawful act. The jury were told that if in their judgment the
accused was guilty of gross negligence and a disregard for the lives
iind safety of others, the state was entitled to a verdict of manslaughter.
In considering this rather unusual, if not new construction of the law,
we must not forget a few elementarj' principles of the law of negligence.
It (negligence) ma}' consist of acts of omission as well as commission ;
and what may be mere ordinary negligence under one class of circum-
stances and conditions, may become gross negligence under other con-
ditions and circumstances. Negligence is the failure to exercise ordinary
care. Gross negligence may consist in failure to exercise any or very
slight care. There are other definitions, but these are sufficient now
for our purpose. So we may truly s&y that negligence differs only
in degree. With this, we cannot overlook what experience has taught
for many years, that what may seem ordinary negligence when con-
templated bj' one mind maj- be regarded bj' another as very gross neg-
ligence. The inferences drawn from the same facts bj- different minds
may often greatly differ. Hence, when we look to the case as it
appeared in the trial court, we see that, without anj- rule of conduct
prescribed bj' statute to govern the case, the rule for the first time was
to be established by the verdict of the jury and sentence of the court.
Up to that time the behavior of the defendant had violated no law.
It was for the jnrj' to say, under the instructions given, whether the
318 JOHNSON V. STATE. [CHAP. IV.
accused had been guilty of gross negligence. If so, although the kill-
ing was unintentional and free from malice, it was manslaughter. In
England, the home of the common law and where it attained its won-
derful growth, and from which we have borrowed to a large extent, it
became necessary and was permissible to build up, by the pen of law
writers and adjudged cases, a system of criminal jurisprudence, and
enforce it until parliament would occupy the ground and supplant it.
But that country, while so doing, was under no written constitution,
and ex post facto, or retroactive laws might be laid down hy the courts
or enacted b^' parliament. Not so in this country where we have a
written constitution prohibiting retroactive and ex post facto legisla-
tion. Weeks or months after the negligent acts involved in this case,
we. have the rule of conduct of the defendant passed upon and defined
by a verdict upon the all important and indispensable element of man-
slaughter based on the facts of the case. It is retroactive in its effect.
An act of the legislature attempting to so operate would be promptly
held unconstitutional. Can we sustain a construction of our statute
against manslaughter which will have the same effect?
In our judympnt the unlawful act, the commission of which prives
Cului' und cbaraeteFto tbe unintentional killing, is an act prohibited by
\i,\l. and ILal SUCll is the natural mpa.mng nt t.t\p. rerm ^r nlanse when
usod in tih<'--pOTRnce"orcriminal jurisprudeqpe.
Ani!>ttigf~oBservation is appropriate here : The uncertainty of the
common law. Some principles which are deemed common law in Ohio
are not so regarded in other states, and what some of them regard as
common law we do not recognize as such in Ohio. Therefore, the
wisdom of enacting a system of penal laws at the beginning of our
statehood, and of improving and expanding it as fast as conditions of
society required. The growth of such legislation is itself against the
holdings of the lower courts. What acts or omissions in early j-ears
were harmless, owing to the sparsity of population and character of
property and business then owned and cooducted, afterwards, as popu-
lation increased and business relations became diversified, became in-
jurious to others ; and in other respects the good order of society and
the protection of life and property demanded and received appropriate
legislation. That department of our state government has kept pace
with the wrongs, the vices, and immoralities of our social and industrial
life. It has gone farther, when occasion demanded, and has made
criminal many acts and omissions which before belonged to the field of
negligence, as witness, many provisions regarding the management of
railroads, factories, and mines, and other branches of business where
labor is employed. Many acts' or omissions to act, which before were
subject to the charge of negligence, are made penal by statute. And a
consideration of this course of legislation demonstrates that there is no
longer a necessity to turn to the common law to find what act or acts
it is unlawful to commit.
If the contention of the state in this case is tenable, it is not difficult
SECT. III.] BEGINA.V. EGAN. ' 319
to see how the criminal dockets in our courts will soon be flooded.
The gross negligence of one may unintentionally cause the death of
many. If such negligence is the commission of an unlawful act, the
killing of each of the slain becomes a separate crime of manslaughter.
And so it would proceed, and the cases multiply according to the judg-
ment of men, as to when the acts of others are or are not grossly negli-
gent.
The position is untenable, and we decide that the judgments of the
common pleas and circuit courts are erroneous and must be reversed,
and the facts of this case being conceded, as stated herein, the plaintiff
in error is discharged. Eeversed.
BuEKET, Davis, and Shadck, JJ., concur.
REGINA V. EGAN.
Crown Case Keserved, Victokia. 1897.
[Reported 23 Vic. L. R. 159.]
The prisoner was convicted at the April criipinal sittings of the
court of the manslaughter of her male child, aged about eleven months.
On the evening of the offence the prisoner had been drinking, and in
a more or less intoxicated condition took the child into bed,, with her^,
ove.rlay_it, gind thus caused its death by suffocation. The presiding
jiSdge, Hodges , J., directed the jury that if they believed this evidence
they should find the prisoner guilty. The prisoner was convicted.
Hodges, J., then reserved for consideration of the Full Court the
question whether his direction was right.
Madden, C. J., delivered the judgment of the Court [Madden, C. J.,
Hodges and Hood, JJ.]. We think that the proposition involved
in this case is too broad, and that, looking at all the circumstances,
the charge of manslaughter cannot be supported. It a woman has
made a resolution to kill her child, and, having allowed herseirto be-
come to some degree drunk, takes it to bed with her, knowing that
in a heavy sleep she will probably overlie the child — apparently in-
nocentlj', but at the same time with the intention to destroy the child —
then that is murder. If. being in the state I have mentinnfiri^ ghe,
knowing that she may nyrrhr thFrhildrmti. ^igtiiinrt th" "'il'nnpL or
disregarding xhe remonstrances or ner.frlends, takes the child to bed
with her and^Tryerlies il, kitting it. that is manslaughter. Bufthe i
evidence in this case is to the effect that the defendant had been/
drinking, and while under the influence of liquor and after taking the!
child to bed with her, by an unhappy mischance overlaj- it; this, in ^
our opinion, is not sufficient to sustain a charge of manslaughter.
320 MOESE V. STATE. [CHAP. IV,
SECTION IV.
Ooncurrenoe of Offence and Quilty Mind.
MOESE y. STATE.
Supreme Court of Errors of Connecticut. 1825.
[Reported 6 Connecticut, 9.]
This was an information against the plaintiff in error, for a violation
of the statute " concerning the students of Yale College," passed in
May, 1822.^ The information alleged that the defendant, on the 15th
of January, 1824, gave credit to Washington Van Zandt, then a student
of Yale College, and under the age of twentj'-one years, for suppers,
wine and other liquors, to the amount of seven dollars, without the
knowledge of the parent or guardian of Van Zandt, and without the
knowledge or consent of the officers of Yale College, or either of them.
I On the trial before the countj- court the defendant claimed that if
I credit was given to Van Zandt by any one, it was given by Stephen
Northam, who was the servant and bar-keeper of the defendant, against
his express directions ; and that the defendant could not be responsible
ci'iminally for such act of Northam^ The court .chars^p.d the jury th.it
if they should find that the defejida-nt hnd i^gpntfrl to Northam's act in
■"■jving credit to Van Zandt. after the ci:edit_wiLa-2i££n^ % r"" ^'"^ I1ir°
as if the defendant had i)reYiousiva.iitaorTzed the giving; of such credit ,
and that the defendant in that case would be liable as principal, the
same as if he had been present, advising or consenting to the giving of
such credit.^
The jury found the defendant guilty ; who thereupon filed a bill of
.1 The first section of this act is in these words: " That no person or persons shall
give credit to any student of Yale College, being a minor, without the consent, in
writinp, of his parent or guardian, or of such officer or officers of the college as may
be authorized, by the government thereof, to act in ^uch cases, except for washing or
medical aid." The 2d section inflicts a penalty Irom $20 to $300 for a violation of the
law.
2 Only so much of the case as relates to this point is given. — Ed.
SECT. IV.] STATE V. MOORE. 321
exceptions, and brought a writ of error ; which was reserved for the
advice of the Supreme Court of Errors.
HosMEE, C. J. From the motion it is fairly to be inferred that no
credit was given to Van Zandt b}' the defendant ; but by Northam, his
bar-keeper, only, without the knowledge or consent of Morse, and
against his express directions. In the performance of this act. Nor-
tham was not the defendant's agent. He was not authorized to give
■^he credit, eitK^T'expressly or in the usual course of bis business ; but
-was prohibited from doing it. Notwithstanding this, which the court
below impliedly admitted, the jury were charged that if the defendant
subsequently assented to the acts of Northam he ratified them and
made them his own. This was an unquestionable error. In the law of
•contracts, a posterior recognition, in many cases, is equivalent to a
precedent comujd,IK^T"BnE^ it. is not so in respect of crimes. The ds-^
J^jIffffirT^responsiDle for his own acts, and for the acts of others_done
by his express or implied-ComHiand, ,bat to crimes the maxim Omnis
ratihahitio retrotrahitur et mandate equiparatur is inapplicable.
In cases admitting of accessories, a subsequent assent merely would
mot render a person an accessor}'. Judgment to be reversed.
STATE V. MOORE.
Superior Court of Judicature of New Hampshire. 1841.
[Reported 12 New Hampshire, 42.]
Indictment for breaking and entering tjie house of Isaac Paddleford,
at LymaiiTm the night time, on the 19th day of November, 1 840. „ with
intent to steal, and stealing therefrom certain pieces of money.
It appeared in evidencethat the prisoner went to the house, which
is a pubhc house, and asked for, and obtained lodging for the night,
and that he took the money from a box in a desk in the bar-room, in
the course of the night.
The jury were instructed that upon this indictment the prisoner
might be convicted of burglary, of entering in the night time and steal-
ing, or of larceny ; that if the door of the bar-room were shut, and ttie
prisoner left his own room in the night time, and opened the door of
the bar-room, or any other door in his way thereto, except his own
-door, and stole the money, he was guilty of burglary; but that if he
left his own room in the night, and stole the money from the bar-room.
322 STATE V. MOOEE. [CHAP. IV.
■without opening any door on his way the"reto, except his own door, he
was guilty of entering in the night time and stealing.
The jury found the prisoner guilty of entering in the night time and
stealing.
The counsel for the prisoner contended that under this indictment
the prisoner could not be convicted of the offence of which he was
found guiltj'.
He also contended that the prisoner, being a guest, and having
entered the house with the assent of the owner, if guilty at all upon
this evidence, was guilty of larceny only ; and he moved to set aside
the verdict, and for a new trial, for the reasons aforesaid.
Gove, Attorne3'-General, for the State.
Qoodall, for the prisoner.
Gilchrist, J.^ It is said that, as the prisoner was lawfully in the
house, he cannot be convicted of the offence of entering in the night
time with intent to steal.
It is clear that the prisoner had a legal authority to enter the house,
without any special permission for that purpose from the owner or
landlord. If an innkeeper, or other victualler, hangs out a sign, and
opens his house for travellers, it is an implied engagement to entertain
all persons who travel that waj' ; and upon this universal assumpsit an
action on the case will lie against him for damages, if he, without good
reason, refuses to admit a traveller. 3 Bl. Com. 166. And an indict-
ment at common law lies against an innkeeper if he refuses to receive
a guest, he having at that time room in his house. If the traveller
conducts properly, he is bound to receive him, at whatever hour of the
night he may arrive. Eex v. Ivens, 7 C. & P. 213.
An innkeeper, holding out his inn " as a place of accommodation
for travellers, cannot prohibit persons who come under that character,
in a proper manner, and at suitable times, from entering, so long as
he has the means of accommodation for them." Markham v. Brown,
8 N. H. Eep. 528. As he has authority to enter the house, so he may
enter anj' of the common public rooms. Markham v. Brown. Ths
bar-room of an inn is, from universal custom, the most public room in
the house ; and whether a traveller mav, without permission, enter
any of the private rooms or not, he has clearly a right to enter the
bar-room.
If, after having made an entry into the house by authority of law, he
commit a trespass, he may be held civilly responsible as a trespasser
ab initio. This principle has always been recognized since the decision
of The Six Carpenters' Case, 8 Coke, 290.
The prisoner, therefore, had a right to enter the inn, and the bar-
room ; and the~question afisSg; whether the larceny committed in the
'^ar-room can relate back, and give a character to^the BTitiTjSialhe
house, so as to make \t crirnina.i, ana_j;ae_prigpner punishable for it.
\ Part only of the opinion is given.
SECT. IV.] STATE V. MOOKE. 323
upon rp.aarminpj aip^ilar tn that irhirhi in n nivil aftinn, Trniild rrnrlflri
jiim 1jff.^ljr«s a t.rrnpti'irrr ah I'n/ftinn. Except the inference that maj'
lawfully be made" from the act of^larcen}-, there is no evidence that he
entered with any illegal purpose, or a felonious intent.
Where the law invests a person with authority to do an act, the con
sequences of an abuse of that authority by the party should be seven
enough to deter all persons from such an abuse. Tint |^gg thin '' pnlir
of the law " ever been extended to criminal cases ? W^arp nnt, a-
thatrit has^-^t-rs~True that. Ill' urU(Jt' to ascertain the intent of the
accused, the law often regards the nature of the act committed. But
this is generally such an act as could not have been committed with
any other than a criminal purpose. Thus, the act of secretly taking
the property of another, neeessarilj- raises the presumption that the
partj- intended to steal, and this presumption stands until explained
by other evidence. In an indictment for breaking, etc., with intent to
commit a felony, the actual commission is so strong a presumptive
evidence that the law has adopted it, and admits it to be equivalent to
a charge of the intent in the indictment. But where one lawfuUj'
enters a house, it b}- no means follows that because he steals, while
there, he entered with that purpose. T)ip_grv!^nf stealinc; is evidepce
f ^ ti'T' intent to steal ; but is hardly sufBcient to rebut the presumption
that where be lawfully entered, he entered for a lawful purpose. To
"TjoldnthatTwr a lawl'ui entry, a party could be punislied,' Because, after
such entry, he does an unlawful act, would be to find him guilty of a
crime by construction ; a result which the law, in its endeavors always
to ascertain the real intention of the accused, invariably, in theory
avoids, and which has seldom, in modern times, happened in practice.
A case is put by Lord Hale, the reasoning of which is analogous to
that we have used in this case. " It is not a burglarious breaking and
entry, if a guest at an inn open his own chamber door, and takes and
carries away his host's goods, for he has a right to open his own door,
and so not a burglarious breaking." 1 Hale P. C. 553, 554.
If a burglary could not be committed because the party had a right
to open his own door, notwithstanding the subsequent larceny, the
same principle would seem to be applicable here, where the prisoner
had a right to enter the house, and where, by parity of reasoning,
v,;o t^.^)^o^>^.-,or.t ]j^,[-cenY would not mak^ >iia "Hpfinal entry nnlay^ul.
"For "these reasons, the judgment of the court is that the verdict be
set aside and a
Ifew trial granted.
324 STATE V. ASHER. [CHAP. IV.
STATE V. ASHER.
Supreme Court of Arkansas. 1887.
[Reported 50 Arkansas, 427.]
At the May term, 1887, of the Phillips Circuit Court, appellees were
indicted for a violation of section 1645 of Mansfield's Digest, — i. e.,
obtaining money under false pretences ; Asher as principal and Fitz-
patrick as accessory. It is charged in the indictment that on the 17th
April, 1885, Asher applied to one J. P. Moore to purchase six mules ;
that he represented himself as being the absolute owner of the east half
of lot 251, in the city of Helena; that it was free from incumbrance ;
that he could give a first lien on same ; that he produced a deed of con-
veyance from L. A. Fitzpatrick, reciting the full payment of the pur-
t'hase-monej', and offered to secure the payment of the purchase-money
of the mules by creating a first lien on said lot ; that Moore sold him
the mules on a credit to expire Nov. 1, 1885, and took a deed of trust
on the lot to secure the purchase-money of the mules ; that the deed of
trust was executed by Asher on the 17th, and was filed for record on
the 18th, day of April, 1885 ; that the sale of the mules was made on
the faith of the security afltorded by a first lien on the east half of said
lot.
It is further charged that at the time Asher made these representa-
tions he had already executed to said Fitzpatrick a deed of trust upon
said east half of said lot, to secure the purchase-money of same, which
was more than the value of the lot ; that said lot was not free from
incumbrance ; and that Asher falsely made the representation that he
could give a first lien on said half-lot to deprive Moore of his property ;
that Fitzpatrick's deed of trust was filed for record on the 17th daj- ol
April, 1885. Fitzpatrick is indicted jointly with him as accessory.
At the November term, 1887, of the court, the defendant demurred
tothe^indictment ; the jjenmrrer was sustained, and the State appeals.
CocKRiLL, 0. J. (after stating the facts as above 'feet forth). To con-
stitute an offence within the meaning of section 1645, Mansfield's Digest,
something of value must be obtained by means of a false pretence with
the intent to defraud. To obtain goods with the intent to defrandj^s
nntpnnnorh. Th must hp gr^compiistied bV 0. l'a;teg"pretencer
"Eythe t.prmi=i qf tlie statute the pretence must be false. Andthe doc-
ti'inpjindniiht^^fllY ia, that, if it ia nnt falpp, though believed to be SO by
TTifTpprsnn prnplnying it^ it is in/iiffip.iani. 2 Bish. Cr. Law, S. 417. The
false pretence charged in this case is Asher's representation that the
mortgage, upon the security of which he got the mules from Moore,
was the first lien on the land. If the representation is true, there is no
foundation for this prosecution, however reprehensible Asher's motive
may have been, because the false pretence would not be established.
Now, construing all the allegations of the indictment together, is it shown
SKCT. IV.] STATE V. ASHER. 325
that the representation was false ? It is charged that Asher had previ-
ously executed a mortgage to his co-defendant, Fitzpatrick, for the full
value of the land and that it was the prior lieu ; but it is also charged
that Fitzpatrick counselled Asher to make the representation that the
land was free from incumbrance and aided him in obtaining the mules
from Moore on the faith of it. The demurrer admits that these allega-
tions are true. Being true, the legal conclusion is that Fitzpatrick
waived the priority of his lien and is estopped from asserting it sgainst
Moore." Scott v. Urbison, 21 Ark. 202 ; Gill v. Hardin, 48 Ark7412';
SKTeids V. Smith, 37 Id. 47.
Asher's representation that Moore's mnrtggge^wns thp. prior 1ipn was
th'Breiore true.I~ Moore got just what he bargained for, according to the
-allegations of the indictment, and he has not, therefore, been injured in
any way. The statutory offence has not been committed. Morgan
V. State, 42 Ark. 131. It is not, as counsel for the State argues, an
attempt to have an offence condoned by repairing the injury done in its
commission. There has been no crimina.\ offence.
Moore might nave been injuied by the transaction if Fitzpatrick's
mortgage-note had been negotiated according to the law merchant and
assigned to an innocent holder for value before maturity. But there is
no allegation of the existence of either of these facts, and there is no
presumption that that state of facts exists. People v. Stone, 11 Wheat.
182-190.
AfHrm.^
326 m'naghten's case. [chap.
CHAPTER V.
CULPABILITY: MODIFYING CIRCUMSTANCES.
SECTION L
Insanity.
M'NAGHTEN'S CASE.
Answer of the Judges to the House of Lords. 1843.
^Reported 10 Clark Sf Finnelly, 200.]
The prisoner had been indicted for the murder of Edward Drum-
mond.^ The prisoner pleaded '• Not guilty." Evidence having been
given of the fact of the shooting of Mr. Drummond, and of his death
in consequence thereof, witnesses were called on the part of the pris-
oner to prove that he was not, at the time of committing the act, in
a sound state of mind. ^
Lord Chief Justice Tindal (in his charge). The question to b»
determined is, whether at the time the act in question was committed
the prisoner had or had not the use of his understanding, so as t?
know that he was doing a wrong or wicked act. U the jurors shoul(/
be of opinion that thp pvispnpr was npt ap^^fihlp^ a^the time he com'
•gifted it, thatje TYg^p vinlnting thgUwa both of God andman. thea
he would be entitled to a verdict in hislavor : but If, "on the contrary,
they were of opinion that when he committed the act he was in »
sound state of mind, then their verdict must be against him.
Verdict, Not guilty, on the ground of insanity.
This verdict, and the question of the nature and extent of the un-
soundness of mind which would excuse the commission of a felony of
this sort having been made the subject of debate in the House of
Lords, it was determined to take the opinion of the judges on the
law governing such cases. Accordingly the judges attended the
House of Lords ; when (no argument having been had) questions of
law were propounded to them.
Lord Chief Justice Tindal. My Lords, her Majesty's judges
(with the exception of Mr. Justice Maule, who has stated his opin-
ion to your Lordships), in answering the questions proposed to them
by your Lordships' House, think it right, in the first place, to state
1 The statement of facts in tliia ease has been abridged.
SECT. I.] M'NAGHTEN'S CASE. 327
that they have forborne entering into any particular discussion upon
these questions, from the extreme and almost insuperable difficulty of
applying those answers to cases in which the facts are not brought
judicially before them. The facts of each particular case must of
necessity present themselves with endless variety, and with every
shade of difference in each case : and as it is their duty to declare the
law upon each particular case, on facts proved before them, and after
hearing argument of counsel thereon, they deem it at once impracti-
cable, and at the same time dangerous to the administration of justice,
if it were practicable, to attempt to make minute applications of the
principles involved in the answers given by them to yoar Lordships'
questions.
They have therefore confined their answers to the statement of that
which they hold to be the law upon the abstract questions proposed
by your Lordships ; and as they deem it unnecessary, in this par-
ticular case, to deliver their opinions seriatim, and as all concur in
the same opinion, they desire me to express such their unanimous
opinion to your Lordships.
The first question proposed by your Lordships is this : " What is
the law respecting alleged crimes committed by persons afflicted with
insane delusion in respect of one or more particular subjects or per-
sons ; as, for instance, where at the time of the commission of the
alleged crime the^^Mp|j|Jinew he was acting contrary to law, but did
'the act eomplainal^Pwith a view, under the influence of insane delu-
sion, 6f redressing or revenging some supposed grievance or injury,
or of producing some supposed public benefit?"
In answer to which question, assuming that your Lordships' in-
quiries are confined to those persons who labor under such partial
delusions only, and are not in other respects insane, we are of opinion
that, nntwit,V|ijtjji.ading the party accused did the ant domplained of
with a view, under tllf ^"fl"''"''^ "f insane rlelnaion. of redressing or
rpvpno-ino; spTTiP. snpposAfl prrifiva.nce Or injury, or of producing some
public benefit, he is nevertheless Dunis><f)h1p annprdin^ to the nature
' of the crime committed, if he knew at the time of committing such
crime_jhat he was anting- nont.-^ry in U:w. Iiy which expre.saion we
understand your Lordships to mean the law of the land.
Your Lordships are pleased to inquire of us, secondly : " What are
the proper questions to be submitted to the jury, where a person al- 1
leged to be afflicted with insane delusion respecting one or morej
particular subjects or persons is charged with the commission of a
crime (murder, for example), and insanity is set up as a defence?"
And, thirdly : " In what terms ought the question to be left to the
jury as to the prisoner's state of mind at the time when the act was
committed ? " And as these two questions appear to us to be more
conveniently answered together, we have to submit our opinion to
DC, that the jurors ought to be told in all cases that every man is to
be presumed to be sane, and to possess a sufficient degree of reason
328 m'naghten's case. [chap. v.
to be responsible for his crimes, until the contrary be proved to their
satisfaction; and tha^_ta-estaMish— a. defence on the p-rnimd of in-
sanity, it must be clearly proved that, at t'^' fa''Tig_of the committing
of the act, the nartv accusedwaslaboring nnder sn^n a^jTeT^ecrTif
' 'reaaoa. from disease of the mmd, as not to know the nature and
"qwthty ol Lhe act he was doingX^or^if he did knowTt, ttiat De"^[iH'not
•JmSw he was doing what was wrong. ^ The mode of putting the
latter part ot the question to the jury on these occasions has gener-
ally been, whether the accused at the time of doing the act, knew
the difference between right and wrong : which mode, though rarely,
if ever, leading to any mistake with the jury, is not, as we conceive,
so accurate, when put generally and in the abstract, as when put with
reference to the party's knowledge of right and wrong in respect to
the very act with which he is charged. If the question were to be
put as to the knowledge of the accused solely and exclusively with
reference to the law of the land, it might tend to confound the jury,
by inducing them to believe that an actual knowledge of the law of
the land was essential in order to lead to a conviction , whereas the
law is administered upon the principle that every one must be taken
conclusively to know it, without proof that he does know it. If the
accused was conscious that the act was one which he ought not to do,
and if that act was at the same time contrary to the law of the land,
he is punishable ; and tlie usual course therefore has been to leave
the question to the jury, whether the party accused had a sufficient
degree of reason to know that he was doing an act that was wrong ;
and this course we think is correct, accompanied with such observa-
tions and explanations as the circumstances of each particular case
may require.
The fourth question which your Lordships have proposed to us is.
i this : "If a person under an insane delusion as to existing facts,
commits an offence in consequence thereof, is he thereby excused?"
To which question the answer must of course depend on the nature
of the delusion ; but making the satme assumption as we did before,
namely, that he laTw^s iindpr-smA pavrifil dpIiTRTfiri?! flflly, ind i". not
in, other respects insane, we think£he must be considerpd in the same
1 " I think that any one wOuld fall within the description in question who was
deprived by disease affecting the mind of the power of passing a rational judgment on
the moral character of the act which he meant to do. aiijipose, for instance, that bv
' reason of disease of the brain a man's mind is filled witli delusions which, if true,
would not justify or excuse his proposed act, but which in themselves are so wild and
astonishing as to make it impossible for him to reason about them calmly, or to
reason calmly on matters connected with them. Suppose, too, that the succession of
insane thoughts of one kind and another is so rapid as to confuse him ; and finally,
suppose that his will is weakened by his disease, that he is unequal to the effort of
calm sustained thought upon any subject, and especially upon subjects connected with
his delusion ; can he.be said to know or have a capacity of knowing that the act which
he proposes to do is wrong ? I should say he could not." 2 Stephen Hist. Crim.
Law, 164. — Ed
SKCT. I.] REGINA V. HA.YNBS. 329
situation as to responsibility ao if tho facta. "^'tTi rpappnt, fi^ -nLbiah- the
(felusionexists were real.^ For example, if under the influence of his
delusion he supposes another man to be in the act of attempting to
take away his life, and he kills that man, as he supposes, in self-
' defence, he would be exempt from punishment. If his delusion was
that the deceased had inflicted a serious injury to his character and
fortune, and he killed him in revenge for such supposed injury, he
would be liable to punishment.'
EEGINA V. HAYNES.
Winchester Assizes. 1859.
[Reported I Foster §• Finlayson, 666.]
The prisoner, a soldier, was charged with the murder of Mary
MacGowan, at the camp at Aldershott.
The deceased was an " unfortunate woman" with whom the prisoner
had been intimate, and was on the most friendly terms up to the
moment of the commission of the offence. No motive was assigned
for theperpetration of the act ; and general evidence was gi^en tiat
the prisoner, while In Canada, having seduced a young woman under
a promise of marriage, which he had been unable to fulfil by reason
of his regiment having been ordered home, his mind had been much
affected by the circumstance.^
Br AM WELL, B., to the jury. As to the defence of insanity set up
for the prisoner, I will read you what the law is as stated by the judges
in answer to questions put to them by the House of Lords. {Having
done so.) It has been uj-ged for the prisoner that you should acquit
him on the ground that, it being impossible to assign any motive for
the perpetration of the offence, he must have been acting under what
is called a powerful and iixeajgtible influence or homicidal tendency.
But I must remark as to that that the circumstance of an acL being
apparently motiveless is not a ground trom wnich'yuu can safely infer
1 The answer to the fifth question is omitted. Maulb, J. ilelivfered a separate
opinion, which he prefaced by stating that he felt great difficulty in answering the
questions : first, because they did not aj)pear to arise out of a particular case, which
might explain or limit the generality of their terms ; secondly, because he had heard
no argument on the subject of the questions ; and thirdly, from a fear that the an-
swers might embarrass the administration of justice, when they should be cited in
criminal trials. In reply to the first question he said that " to render a person irre-
sponsible for crime on account of unsoundness of mind, the unsoundness should be
such as renders him incapable of knowing right from wrong." In reply to the
second and third questions, he said that the matters referred to in them were entirely
within the discretion of the judge trying the case. To the fourth question he gave
the same answer as to the first. ■ — Ed.
' Part of the case, relating to another point, is omitted.
330
COMMONWEALTH V. EOGBES.
[chap. V.
tihppTiRtfinpp nf rnph nn infliipn"" Motives exist unknown and innu-
^nierable which might prompt the act. A morbid and restless (but
resistible) thirst for blood would itself be a motive urging to snch a
deed for its own relief ; but if an influence be so powerful as to be
termed irresistible, so much the more reason is there why we should
not withdraw any of the safeguards tending to counteract it. There
are three powerful restraints existing, all tending to the assistance of
the person who is suffering under such an influence, — ■ the restraint of
religion, the restraint of conscience, and the restraint of law. But if
the influence itself be held a legal excuse, rendering the crime dispun-
ishable, you at once withdraw a most powerful restraint, — ■ that for-
bidding and punishing its perpetration. "We TnnstJ.hprefore retnrn to
the simple question_you have to deteriqineT^ did the prisonei-knnw
thy ua,ture oFlhe act he was doing ; and did he know that he was
dolna whai-wiliiUViiuiJw!' Uuiliy. /Sentence, deattc
The prisoner was reprieved.
COMMONWEALTH v. KOGEES.
Supreme Judicial Court of Massachusetts. 1844.
[Reported 7 Metcalf, 500.]
The defendant was indicted for the murder of Charles Lincoln,
Junior, warden of the state prison, on the 15th of June, 1843.^
The evidence was full and uncontradicted that the defendant, at
the time alleged in the indictment, was a prisoner in the state prison,
and then and there killed the warden of the prison by stabbing him in
the neck with a knife. The sole^roiad-an-_g^fi]xabe--itef5iii!lant'&
counsp] plippd bin dpfpiiBft-sLaa t,hnt. 1ip wag ir^po»^ yrhrn h° finiTl'^H
th^. hmnip.idi;_^ and most of the evidence, on both sides, related to this
single point. The superintendents of several insane hospitals were
witnesses in the case, and their testimony tended strongly to prove
that the defendant, at the time of the homicide, was laboring under
that species of insanity which is hereinafter commented on by the
chief justice in the charge of the court to the jury.
The opinion of the court on the law of the case was given in the
following charge to the jury by
Shaw, C. J. In_oi:d£iUia_cQastitBte-a,j;iTme, a person must ha^e
mtelligence and_j3padty^nouglrT;r1trg;v^aZSiminjl^^ and pnr-
posej^jjafdyf his reason and mental powers areeitheno deticisnt-thnt
Eelias no will, no conscience or controlling mental power, or if
through the overwhelming violence of mental disease his intellectual
1 Part of the case, not involving a question of insanity, is omitted.
SECT. I.] COMMONWEALTH V. EOGERS. 331
power is for the time obliterated, he is not a responsible moral agent,
and is not punishable for criminal acts.
But these are extremes easily distinguished, and not to be mistaken.
The difficulty lies between these extremes, in the cases of partial insan-
ity, where the mind may be clouded and weakened, but not incapable
of remembering, reasoning, and judging, or so perverted by insane
delusion as to act under false impressions and influences. In these
cases, the rule of law, as we understand it, is this : A_aiaji. is hqL to
be_excused from responsibility, if he has capacity and reason sufficient
'to enable him to distinguish between right and wrong as to the par-
rfculai' act he Is Lheu dOkuL — a Knowiedsre and consciousness that the
act he is doing is wrong and criminal, and will subject him to punish-
ment. In order to be responsible, he must have sufficient power of
memory to recollect the relation in which he stanfls to others, and in
which others stand to him ; that the act he is doing is contrary to the
plain dictates of justice and right, injurious to others, and a violation
of the dictates of duty.
On the contrary, although he may be laboring under partial insanity,
if he still understands the nature and character of his act, and its con-
sequences ; if he has a knowledge that it is wrong and criminal, and a
mental power sufficient to apply that knowledge to his own case, and
to know that, if he does the act he will do wrong and receive pun-
ishment, — such partial insanity is not sufficient to exempt him from
responsibility for criminal acts.
If, then, it is proved, to the satisfaction of the jury, that the mind of
the accused was in a diseased and unsound state, the question will be
whether the disease existed to so high a degree that for the time being
it overwhelmed the reason, conscience, and judgment, arid whether
the prisoner, in committing the homicide, acted from an irresistible
and uncontrollable impulse. If so, then the act was not the act of
a voluntary agent, but the involuntary act of the body, without the
concurrence of a mind directing it.
The character of the mental disease relied upon to excuse the accused
in this case is partial insanity, consisting of melancholy, accompanied
by delusion. The conduct may be in many respects regular, the mind |
acute, and the conduct apparently governed by rules of propriety, and
at the same time there may be insane delusion by which the mind is
perverted. The most common of these cases is that of monomania, when
the mind broods over one idea and cannot be reasoned out of it. This
may operate as an excuse for a criminal act in one of two modes :
1. Either the delusion is such that the person under its influence has a
real and firm belief of some fact, not true in itself, but which, if it
were truepwouia"excuse his act,^ as where the belier is tnat tne party
killed L<id uu' iinmildlatu 'U'coT^n upon his life, and under that belief
the insane man kills in supposed self-defence. A common instance is
where he fully believes that the act he is doing is done by the immedi-
ate command of God, and he acts under the delusive but sincere belief
332 COMMONWEALTH V. EOGEES. [CHAP. V.
that what he is doing is by the command of a superior power which
supersedes all human laws, and the laws of nature. 2. Or this state
of delusion indicates to an experienced person that the mind is in a
diseased state ; that the known tendency of that diseased state of the
mind is to break out into sudden paroxysms of violence, venting itself
in homicide or other violent acts towards friend or foe indiscriminately ;
so that, although there were no previous indications of violence, yet
the subsequent act, connecting itself with the previous symptoms and
indications, will enable an experienced person to say that the outbreak
was of such a character that for the time being it must have overborne
memory and reason ; that the act was the, result of the disease and
not of a mind capable of choosing ; in short, that it was the result of
uncontrollablfl impplaoj and not of a person acted upon by motives,
and governed by tte will.
The questions, then, in the present case, will be these : 1. Was there
such a delusion and hallucination? 2. Did the accused act under a
false but sincere belief that the warden had a design to shut him up,
andj under that pretext, destroy his life ; and did he take this means
to prevent it? 3. Are the facts of such a character, taken in connec-
tion with the opinions of tlie professional witnesses, as to induce the
jury to believe that the accused had been laboring for several days
under monomania, attended with delusion ; and did this indicate such,
a diseased state of the mind that the act of killing the warden was to
be considered as an outbreak or paroxysm of disease, which for the
time being overwhelmed and superseded reason and judgment, so that
the accused was not an accountable agent?
If such was the case, the accused is entitled to an acquittal ; other-
wise, as the evidence proves beyond all doubt the fact of killing,
without provocation, by the use of a deadly weapon, and attended with
circumstances of violence, cruelty, and barbarity, he must undoubtedly
be convicted of wilful murder.
The ordinary presumption is that a person is of sound mind until
the contrary appears ; and in order to shield one from criminal respon-
sibility, the presumption must be rebutted by proof of the contrary,
satisfactory to the jury. Such proof may arise, either out of the evi-
dence offered by the prosecutor to establish the case against the accused,
or from distinct evidence, offered on his part ; in either case, it must
be sufficient to establish the fact of insanity ; otherwise, the presump-
tion will stand.
The jury, after being in consultation several hours, came into court,
and asked instructions upon these two questions : " Must the jury be
satisfied, beyond a doubt, of the insanity of the prisoner, to entitle
him to an acquittal ? And what degree of insanity will amount to a
justification of the offence?"
In answer to the first of these questions, the chief justice repeated
his former remarks on the same point, and added that if the prepon- _
SECT. I.] STATU V. KIOHARDS. 333
derance of the evidence ygg i" favr»r nf tha ;nco»i;tj ^f ^v.^ p^,-p„,yp,.
tTiejury would be authorize^o find him insane. In answer to the
Second question, the chief jujliuu added duLKing to the instructions
which he had previously given.
The jury afterwards returned a verdict of " Not guilty, by reason of
insanity." ^
STATE V. EICHARDS.
SuPERioK CouKT, Connecticut. 1873.
[Reported 39 Connecticut, 591.]
Information for burning a barn ; brought to the Superior Court for
Windham County and tried to the jury, at its August term, 1873, on
the plea of not guilty, before Seymour, J.
The defence was that the prisoner had not sufHcient mental capacitj'
to be criminally responsible for the act. The charge of the judge,
which sufficiently states the facts of the case, was as follows : —
Seymour, J. The evidence seems ample to warrant you in finding
that the burning complained of was caused b^' the prisoner. Your
attention has been turned mainly to the question whether the act was
done with the felonious intent charged, and this question depends
mainly upon another, whether the accused has sufHcient mental capa
city to warrant us in imputing to him a felonious intent.
That he is considerably below par in intellect is apparent to us all
This is indicated by his countenance and general appearance.
The same thing is indicated bj' his extraordinar3' conduct at th(
fire. As the flames were bursting out he was seen on all fours crawl
ing back from under the burning barn, with no clothing upon hia
except his shirt and trousers. The day was excessively- cold. He
remained some half-hour, thus scantily clothed, gazing stupidly at the
blaze,- until ordered into the house. All this took place in broad day
light, in plain view of Mr. Gallup's house.
But itja—tiadoubtedly tras.-Ag the attorney for the state contends
that mere inferiority gf intellect is no answer to the prosecution. Wt
are, therefore, called upon in this case to decide an interesting and
difficult question, to wit, whether the accused has suflicient mind to
be held responsible as a criminal.
1 "To punish a homicide, committed by the insane victim of such delusion, and
under its resistless influence,- would be punishing for what every other man in the same
condition would ever do, in defiance of all penal consequences ; and, therefore, such
punishment would be useless and inconsistent with the preventive aim of all criminal
jurisprudence." — Robertson, J., in Smith v. Com., 1 Duv. 224.
' ' Whether passion or insanity was the ruling force and controlling agency which
led to the homicide, — in other words, whether the defendant's act was the insane act
of an unsound mind, or the outburst of violent, reckless, and uncontrolled passion, in
a mind not diseased, — is the practical question which the jury should be told to deter-
mine." — Dillon, C. J., in State v, Felter, 25 Iowa, 67- — Ed.
334 STATE V. KICHAEDS. [CHAP. V.
He is not a mere Idiot, nor does he appear to be a lunatic. He
suffers from want of minH raf.hpr thaji-frnm rlprgncrnmnnf- nr rlnliTtfinn,
atlgTEe~question is whetherJhfi_gaat»Q£pjnind is such as to entitle him
to acquiEtal on the ground ofwhat_in law isLJacmed demg^tiZ
This inquiry is attended with inherent difficulties. Our knowledge
of our own minds is imperfect : our knowledge of the precise mental
condition of another is necessaril)' still more imperfect. We as triers
are obliged to rel}' upon the evidence furnished us by witnesses whose
means of knowledge are limited, and who find great difficulty in com-
municating to us, on a subject of this nature, what they do know.
Our principal embarrassment arises, however, from the want of a
[definite measure of mental capacity. Eminent judges and learned
commentators have attempted to furnish rules and tests for the guid-
ance of triers in cases of this kind, but upon examination these rules
and testa turn out to be imperfect and unsatisfactory.
It was formerly thought that the jury might properly convict if the
accused had any sense of right and wrong, or if he was aware that
punishment would follow the commission of an offence.
But children of very tender years have some sense of right and
wrong, and fully understand that punishment will follow transgression.
Such children are subjected by their parents to discipline, and are by
gentle punishments restrained from wrong-doing ; but our sense of
humanity would be greatlj' shocked at the thought of subjecting chil-
dren to the penalties of statute law because some sense of right and
wrong and fear of punishment had been developed in them.
So, again, it is often said in the books that a person is to be deemed
responsible for crime if he understands the consequences and effects of
the act laid to his charge. This is undoubtedly and obviously true if
he has such understanding and appreciation of consequences as per-
lain to other men. But if he has less of it than is common to men
ill general, how much less must it be to escape responsibility?
1 think the accused had some knowledge of the consequences of his
acts. He probably knew that by igniting a match and throwing it
into a hay-mow a fire would be kindled and that the barn would
thereby be consumed. He perhaps also had some appreciation of the
loss and destruction of property which would ensue.
But I am not willing to say that some knowledge of consequences,
however faint and imperfect, is sufficient to warrant you in convictr
ing the prisoner. I can give you no precise rule, but I think it
I clear that if the prisoner's perception of consequences and effects
was only such as is common to children of tender years he ought to
be acquitted.
And this leads me to refer to the rule adopted by an eminent Eng-
lish judge. Lord Hale. He reasoned that, inasmuch as children
under fourteen years of age are prima facie incapable of crime, im-
beciles ought not to be held responsible criminally unless of capacity
equal to that of ordinary children of that age.
SECT. I.] STATE V. EICHAEDS. 335
If this test be adopted, the prisoner will upon the testimony be en-
titled to an acquittal. The princi{)al witnesses for the prosecution say
that he is inferior in intellect to children of ten years of age, and sev-
eral very intelligent witnesses for the defence testify that they are
acquainted with many children of six years who are his superiors in
mental capacity.
I am inclined to recommend Lord Hale's rule to your adoption,
not however without qualifications which I think it important to
observe.
And first, this test, like all others which I know of, is imperfect.
Probably no two of us have the same idea of the capacity of children
of fourteen years of age ; and then there is this further difficulty, that
there can be no accurate comparison in detail between the healthy and
properly balanced, though immature, mind of a child, and the un-
healthy, abnormal, and shrivelled intellect of an imbecile. The com-
parison therefore is onl)' of the general result in their respective
appreciation of right and wrong and of consequences and effects.
This further consideration ought also to be borne in mind : that
though in modern times persons under fourteen are seldom subjected
to the penalties of the criminal code, yet in law children between seven
and fourteen maj' be subjects of punishment if they are shown to be
of sufficient capacity to commit crimes. In applying Lord Hale's
rule therefore, the child to be taken as the standard ought not to be
one who has had superior advantages of education, but should rather
be one in humble life, with onh' ordinary training.
And after all, gentlemen, you see that I can furnish you with no
definite measure of mental capacity to applj' to the prisoner.^ The_
whole matter must be submitted to your sound judgment. Yon wjK
say whether the prisoner has such knowledge of right and wrong, an(J'.
^uuh apprnuiatiuii Ot Lhe consequence and effects of his acts, a.s ^fp.nb«
'aTproper subject of punisbmant. Opinions on this subject have been
expressed by most of the witnesses who have testified. These opinionii
depend for their value mainly upon the facts with which they arc;
connected. You have the advantage ■ of being able to compare with
each other all the facts which have been brought to your notice bear-
ing upon the prisoner's mental condition. You will look carefully a';
all these facts. The history of the prisoner's life is somewhat signifi-
cant. From early childhood it has been spent in almhouses, sub-
jected to constant constraint. In the most ordinary acts of his life he
has been governed bj' the superior will of others to whose care he
has been committed. He has, it appears, been seldom left to the
free guidance of his own judgment. When so left, he seems to have
acted without forecast, under the pressure of immediate wants and
impulses.
If you acquit the prisoner on the ground of want of mental capacity
you will so say in j'our verdict, in order that the prisoner may in that
event have the benefit under our statute of a home where he will be
336 FLANAGAN V. PEOPLE. [CHAP. V.
kindlj' cared for, but kept under such restraints as to prevent his
doiug injury to the persons or propert}- of others.
The jury acquitted the prisoner, stating in their verdict that the
acquittal was on the ground of want of mental capacitj'.^
FLANAGAN v. PEOPLE.
Court of Appeals or New York. 1873.
[Reported 52 New York, 467.]
Andrews, J. The judge, among other things, charged the jury that,
" to establish a defence on the ground of insanity, it must be clearly
proven that, at the time of committing the act (the subject of the in-
dictment), the party accused was laboring under such a defect of reason
Ifrom disease of the mind as not to know the nature and quality of the
[act he was doing; and, if he did know it, that he did not know he
was doing wrong ; " and to this part of the charge the prisoner, by his
'counsel, excepted.
The part of the charge excepted to was in the language employed
by TiNDAL, C. J., in McNaghten's Case, 10 Clarke & Fin. 210, in the
response of the English judges to the questions put to them by the
House of Lords as to what instructions should be given to the jury, on
a trial of a prisoner charged with crime, when the insane delusion of
the prisoner, at the time of the commission of the alleged act, was
interposed as a defence.
All the judges, except one, concurred in the opinion of Tindal, C. J.,
and the case is of the highest authority ; and the rule declared in it has
been adhered to by the English courts.
Maule, J., gave a separate opinion, in which he declared that, to
render a person irresponsible for crime on account of unsoundness of
mind, the unsoundness should, according to the law, as it has long been
understood and held, be such as to render him incapable of knowing
right from wrong.
In the case of The People v. Bodine, 4 Denio, 9, the language of
Tindal, C. J., in the McNaghten Case, was quoted and approved ; and
Beardsley, J., said : " Where insanity is interposed as a defence to an
indictment for an alleged crime, the inquiry is always brought down
to the single question of a capacity to distinguish between right and
wrong at the time the act was done."
The rule was reaffirmed in the case of Willis v. The People, 32 N. Y.,
717, and it" must be regarded as the settled law of this State, that the
test of responsibility for criminal acts, where unsoundness of mind is
interposed as a defence, is the capacity of the defendant to distinguisii
» See Wartena v. State, 105 InJ. 445, 5 N. E. iiO. — xuD.
SECT. I,'' PARSONS V. STATE. 337
between right and wrong at the time of and with respect to the act
which is the subject of the inquiry.
We_are_asked in this case to introduce a new element into the ml^
of criminal responsibility in cases of alleged insanity, and to hold that
tlfe puwer of choosing right from wrong is as essential to legal respon-
-as-iiie "capacity ofTistinguishing between them ; and that the
"ot tiie tormer is consistent with tne presence of the latter.
The argument proceeds upon the theory that there is a form of
insanity in which the faculties are so disordered and deranged that a
man, though he perceives the moral quality of his acts, is unable to
control them, and is urged by some mysterious pressure to the com-
mission of acts, the consequences of which he anticipates but cannot
avoid.
Whatever medical or scientific authority there may. be for this view,
it has not been accepted by courts of law.
The vagueness and uncertaint)- of the inquiry which would be opened,
und the manifest danger of introducing the limitation claimed into the
rule of responsibility in cases of crime, may well cause courts to pause
l)efore assenting to it.
Indulgence in evil passions weakens the restraining power of the
will and conscience ; and the rule suggested would be the cover for the
commission of crime and its justification. Tj^ejinctrinr that Oi prinfiififil
ant may be excused upon the notion of an irresistible impulse to com-
mit it, where the offender has the aoility to aiscover nis legal ana nigral
•—flutymrespect to it, has no place in the law. Rolfe, B., in Rogers v.
Allunt, where, on ttie trial of an indictment for poisoning, the defend-
ant was alleged to have acted under some moral influence which he
could not resist, said : " Every crime was committed under an influence
of such a description ; and the object of the law was to compel people
to control these influences."
Judgment affirmed.
PARSONS V. STATE.
Supreme Court of Alabama. 1886.
[Reported 81 Ala. 577.]
SoMEEViLLE, J.^ In this case the defendants have been convicted of
the murder of Bennett Parsons, by shooting liim with a gun, one of the
defendants being the wife and the other the daughter of the deceased.
The defence set up in the trial was the plea of insanit}', the evidence
tending to show that the daughter was an idiot, and the mother and
wife a lunatic, subject to insane delusions, and that the killing on her
part was the offspring and product of those delusions.
1 Part only of the opinion is given. The dissenting opinion of Stone, C. J., is
omitted.
338 PARSONS V. STATE. [CHAP. V.
The rulings of the court raise some questions of no less difficult}'
than of interest, for, as observed by a distinguished American judge,
"of all medico-legal questions, those connected with insanity are the
most difficult and perplexing." (Per Dillon, C. J., in State v. Felter,
25 Iowa, 67.) It has become of late a matter of comment among intel-
ligent men, including the most advanced thinkers in the medical and
legal professions, that the deliverances of the law courts on this branch
of our jurisprudence have not heretofore been at all satisfactory, either
in the soundness of their theories, or in their practical application.
The earliest English decisions, striving to establish rules and tests on
the subject, including alike the legal rules of criminal and civil respon-
sibility, and the supposed tests of the existence of the disease of insanity
itself, are now admitted to have been deplorably erroneous, and, to say
nothing of their vacillating character, have long since been abandoned.
The views of the ablest of the old text writers and sages of the law
were equally confused and uncertain in the treatment of these subjects,
Sind they are now entirelj' exploded. Time was in the history of our
laws that the veriest lunatic was debarred from pleading his providen-
tial affliction as a defence to his contracts. It was said, in justification
of so absurd a rule, that no one could be permitted to stultify himself
by pleading his own disability. So great a jurist as Lord Coke, in his
attempted classification of madmen, laid down the legal rule of criminal
responsibility to be that one should " wholly have lost his memory and
understanding ; " as to which Mr. Erskine, when defending Hadfield
for shooting the king, in the jear 1800, justly observed : ''No such
madman ever existed in the world." After this great and historical
case, the existence of delusion promised for a while to become the
sole fest of insanity, and acting under the duress of such delusion was
recognized in effect as the legal rule of responsibility. Lord Kenyon,
after ordering a verdict of acquittal in that case, declared with empha-
sis that there was " no doubt on earth " the law was correctly stated in
the argument of counsel. But, as it was soon discovered that insanity
often existed without delusions, as well as delusions without insanity,
this view was also abandoned. Lord Hale had before declared that the
rule of responsibility was measured by the mental capacity possessed
by a child fourteen j-ears of age ; and Mr. Justice Tracj', and other
judges, had ventured to decide that, to be non-punishable for alleged
acts of crime, "a man must be totally deprived of his understanding
and memory, so as not to know what he was doing, no more than an
infant, a brute, or a wild beast." (Arnold's Case,, 16 How. St. Tr.
764.) All these rules have necessarilj- been discarded in modern times
in the light of the new scientific knowledge acquired by a more thor-
ough study of the disease of insanit}-. In Belhngham's Case, decided
in 1812 by Lord Mansfield at the Old Bailey (Coll. on Lun. 630), the
test was held to consist in a knowledge that murder, the crime there
committed, was "against the laws of God and nature," thus meaning
an ability to distinguish between right and wrong in the abstract.
SECT. I.J PAllSONS V. STATE. 339
This rule was not adhered to, but seems to have been modified so as to
malce the test rather a knowledge of right and wrong as applied to the
particular act. (Lawson on Insanit}', 231, § 7 e« seq). The great lead-
ing case on the subject in England is McNaghten's Case, decided in
1843 before the English House of Lords, 10 CI. & F. 200 ; s. c, 2 Law-
son's Cr. Def. 150. It was decided by the judges in that case that, in
order to entitle the accused to acquittal, it must be clearh' proved that,
at the time of committing the offence, he was laboring under such a
defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing, or, if he did, not to know that what he
was doing was wrong. This rule is commonly supposed to have here-
tofore been adopted by this court, and has been followed by the general
current of American adjudications. Boswell v. The State, 63 Ala. 307 ;
s. c. 35 Amer. Eep. 20 ; s. c. 2 Lawson's Cr. Def. 352 ; McAllister v-
State, 17 Ala. 434 ; Lawson on Insanity, 219-221 ,231.
In view of these conflicting decisions, and of the new light thrown
on the disease of insanity by the discoveries of modern psychological
medicine, the courts of the country may well hesitate before blindly
following in the unsteady footsteps found upon the old sandstones of
our common law jurisprudence a century ago. The trial court, with
prudent propriety, followed the previous decisions of this court, the cor-
vectness of which, as to this subject, we are now requested to review.
We do not hesitate to say that we re-open the discussion of this
subject with no little reluctance, having long hesitated to disturb our
past decisions on this branch of the law. Nothing could induce us to
do so except an imperious sense of duty, which has been excited by
a protracted investigation and study, impressing our rainds with the
conviction that the law of insanity as declared by the courts on many
points, and especiall}' the rule of criminal accountability, and the as-
sumed tests of disease to that extent which confers legal irresponsi-
bility, have not kept pace with the progress of thought and discovery
in the present advanced stages of medical science. Though science
has led the way, the courts of England have declined to follow, as
shown by their adherence to the rulings in McNaghten's Case, em-
phasized by the strange declaration made by the Lord Chancellor of
England, in the House of Lords, on so late a day as March 11, 1862,
that "the introduction of medical opinions and medical theories into
this subject has proceeded upon the vicious principle of considering
insanity as a disease 1 "
It is not surprising that this state of affairs has elicited from a
learned law writer, who treats of this subject, the humiliating declara-
tion that, under the influence of these ancient theories, " the memorials
of our jurisprudence are written all over with cases in which those
who are now understood to have been insane have been executed as
criminals.'' 1 Bish. Cr. Law (7th ed.) § 390. There is good reason,
both for this fact and for the existence of unsatisfactory rules on tliis
•subject. In what we say we do not intend to give countenance to ao-
340 PAKSONS V. STATE. [CHAP. V.
quittals of criminals, frequent examples of which have been witnessed
in modern times, based on the doctrine of moral or emotional insanity,
unconnected with mental disease, which is not yet suflSciently supported
by psychology, or recognized by law as an excuse for crime. Boswell's
case, supra; 1 Whar. Cr. Law (9th ed.), § 43.
In ancient times lunatics were not regarded as "unfortunate suffer-
ers from disease, but rather as subjects of demoniacal possession, or as
self-made victims of evil passions." They were not cared for humanely
in asylums and hospitals, but were incarcerated in jails, punished with
chains and stripes, and often sentenced to death by burning or the
gibbet. When put on their trial, the issue before the court then was
not as now. If acquitted, they could only be turned loose on the com-
munity to repeat their crimes without molestation or restraiiit. They
could not be committed to hospitals, as .at the present day, to be kept
in custody, cared for by medical attention, and often cured. It was not
until the beginning of the present century that the progress of Christian
civilization asserted itself by the exposure of the then existing bar-
barities, and that the outcry of philanthropists succeeded in eliciting
an investigation of the British Parliament looking to their suppression.
Up to that period the medical treatment of the insane is known to have
been conducted upon a basis of ignorance, inhumanity, and empiricism.
Amer. C3'clop8edia, vol. ix. (1874), title. Insanity. Being punished for
wickedness, rather than treated for disease, this is not surprising. The
exposure of these evils not onl}' led to the establishment of that mos
beneficent of modern civilized charities, the Hospital and Asylum for
the Insane, but also furnished hitherto unequalled opportunities to the
medical profession of investigating and treating insanity on the path-
ological basis of its being a disease of the mind. Under these new
and more favorable conditions the medical jurisprudence of insanity
has assumed an entirely new phase. The nature and exciting causes of
the disease have been thoroughly studied and more fully comprehended.
The result is that the "right and wrong test," as it is sometimes called,
which, it must be remembered, itself originated with the medical pro-
fession, in the mere dawn of the scientific knowledge of insanity, has
been condemned by the great current of modern medical authorities,
who believe it to be "founded on an ignorant and imperfect view of
the disease." Encyc. Brit. vol. xv. (9th ed.), title. Insanity.
The question then presented seems to be whether an old rule of
legal responsibility shall be adhered to based on theories of physicians
promulgated a hundred years ago, which refuse to recognize an}- evi-
dence of insanity except the single test of mental capacity to dis-
tinguish right and wrong, or whether the courts will recognize as a
possible fact, if capable of proof by clear and satisfactory testimonj',
the doctrine, now alleged bj' those of the medical profession who have
made insanity a special subject of investigation, that the old test is
wrong, and that there is no single test by which the existence of the
disease, to that degree which exempts from punishment, can in every
SECT. I.] PARSONS V. STATE. 341
case be infallibly detected. The inqiiirj' must not be unduly obstructed
by the doctrine of stare decisis, for the life of the common law system
and the hope of its permanency consist largely in its power of adap-
tation to new scientific discoveries, and the requirements of an ever
advancing civilization. There is inherent in it the vital principle of
juridical evolution, which preserves itself by a constant struggle for
approximation to the highest practical wisdom. It is not like the laws
of the Medes and Persians, which could not be changed. In establish-
ing any new rule, we should strive, however, to have proper regard for
two opposite aspects of the subject, lest, in the words of Lord Hale,
"on one side there be a kind of inhumanity towards the defects of
human nature ; or, on the other, too great indulgence to great crimes."
It is everywhere admitted, and as to this there can be no doubt,
that an idiot, lunatic, or other person of diseased mind, who is afflicted
to such extent as not to know whether he is doing right or wrong, is
not punishable for anj' act which he may do while in that state.
Can the courts justly saj', however, that the only test or rule of
responsibilit}' in criminal cases is the power to distinguish right from
wrong, whether in the abstract, or as applied to the particular case ?
Or may there not be insane persons of a diseased brain, who, while
capable of perceiving the difference between right and wrong, are, as
matter of fact, so far under the duress of such disease as to destroj' the
power to choose between right and wrong? Will the courts assume as
a fact, not to be rebutted by an}- amount of evidence, or any new dis-
coveries of medical science, that there is, and can be, no such state of
the mind as that described by a writer on psychological medicine, as
one " in which the reason has lost its empire over the passions, and the
actions b}' which they are manifested, to such a degree that the indi-
vidual can neither repress the former, nor abstain from the latter" ?
Dean's Med. Jur. 497.
Much confusion can be avoided in the discussion of this subject h\
separating the dutj' of the jury from that of the court in the trial of a
case of this character. The province of the jury is to determine facts,
that of the court to state the law. The rule in McNaghten's Case arro-
gates to the court, in legal effect, the right to assert, as matter of law,
the following propositions : —
1. That there is but a. single test of the existence of that degree of
insanity, such as confers irresponsibility for crime.
2. That there does not exist an}' case of such insanity in which that
single test — the capacity to distinguish right from wrong — does not
appear.
3. That all other evidences of alleged insanity, supposed by physicians
and experts to indicate a destruction of the freedom of the human will
and the irresistible duress of one's actions, do not destroy his mental
capacity to entertain a criminal intent.
The whole difficulty, as justly said by the Supreme Judicial Court of
New Hampshire, is that "courts have undertaken to declare that to
342 , PARSONS V. STATE. [CHAP. V.
be law which is matter of fact." " If" observes the same court, " the
tests of insanitj- are matters of law, the practice of allowing experts
to testify what the3- are should be discontinued ; if they are matters
of fact, the judge should no longer testify without being sworn as a
witness, and showing himself to be qualified to testify as an expert."
State V. Pike, 49 N. H. 399.
We first consider what is the proper legal rule of responsibility in
criminal cases.-
No one can deny that there must be two constituent elements of legal
responsibility in the commission of every crime, and no rule can be just
and reasonable which fails to recognize either of them : (1) capacity
of intellectual discrimination ; and (2) freedom of will. Mr. Wharton,
after recognizing this fundamental and obvious principle, observes :
"If there be either incapacitj- to distinguish between right and wrong
as to the particular act, or delusion as to the act, or inability to refrain
from doing the act, there is no responsibility." 1 Whar. Cr. Law (9th
ed.), § 33. Says Mr. Bishop, in discussing this subject: "There can-
not be, and there is not, in any locality, or age, a law punishing men
for what they cannot avoid." 1 Bish. Cr. Law (7th ed.), § 3835.
If, therefore, it be true, as matter of fact, that the disease of insanity
can, in its action on the human brain through a shattered nervous
organization, or in any other mode, so aflfect the mind as to subvert
the freedom of the will, and thereby destroy the power of the victim to
choose between the right and wrong, although he perceive it, — by which
we mean the power of volition to adhere in action to the right and abstain
from the wrong, — is such a one criminally responsible for an act done
under the influence of such controlling disease ? We clearly think not ;
and such we believe to be the just, reasonable, and humane rule towards
which all the modern authorities in this country, legislation in England,
and the laws of other civilized countries of the world, are gradually, but
surely tending, as we shall further on attempt more fully to show.
We next consider the question as to the probable existence of such a
disease, and the test of its presence in a given case.
It will not do for the courts to dogmatically deny the possible exist-
ence of such a disease, or its pathological and psj'chical effects, because
this is a matter of evidence, not of law, or judicial cognizance. Its
existence, and effect on the mind and conduct of the patient, is a ques-
tion of fact to be proved, just as much as the possible existence of
cholera or yellow fever formerly was before these diseases became the
subjects of common knowledge, or the effects of delirium from fever, or
intoxication from opium and alcoholic stimulants would be. The courts
could, with just as much propriety years ago, have denied the existence
of the Copernican system of the universe, the eflScacy of steam and
electricity as a motive power, or the possibility of communication in a
few moments between the continents of Europe and America by the
magnetic telegraph, or that of the instantaneous transmission of the
human voice from one distant city to another by the use of the tele-
SECT. I."] PAKSONS V. STATE, 343
phone. These are scientific facts, first discovered by experts before
becoming matters of common knowledge. So, in like manner, must be
every other unknown scientific fact, in whatever profession or depart-
ment of knowledge. The existence of such a cerebral disease as that
which we have described is earnestly alleged by the superintendents of.
insane hospitals and other experts who constantly have experimental
dealings with the insane, and they are permitted every day to so testify
before juries. The truth of their testimony — or what is the same thing,
the existence or non-existence of such a disease of the mind — in/ each
particular case, is necessarily a matter for the determination of the jury
from the evidence.
So it is equally obvious that the courts cannot, upon any sound prin-
ciple, undertake to saj' what are the invariable or infallible tests of such
disease. The attempt has been repeatedly made, and has proved a
confessed failure in practice. " Such a test," says Mr. Bishop, " has
never been found, not because those who have searched for it have not
been able and diligent, but because it does not exist." 1 Bish. Cr. Law
(7th ed.), § 381. In this conclusion, Dr. Eay, in his learned work on
the Medical Jurisprudence of Insanity, fully concurs. Bay's Med. Jur.
Ins. p. 39. The symptoms and causes of insanity are so variable, and
its pathology so complex, that no two cases may be just alike. " The
fact of its existence," says Dr. Ray, " is never established by any single
diagnostic symptom, but by the whole body of symptoms, no particular
one of which is present in every case." Ray's Med. Jur. of Ins. § 24.
Its exciting causes being moral, psychical, and physical are the especial
subjects of specialists' study. What effect may be exerted on the given
patient by age, sex, occupation, the seasons, personal surroundings,
hereditary transmission, and other causes is the subject of evidence
based on investigation, diagnosis, observation, and experiment. Pecu-
Uar opportunities, never before enjoyed in the history of our race, are
offered in the present age for the ascertainment of these facts, by the
establishment of asylums for the custody and treatment of the insane,
which Christian benevolence and statesmanship have substituted for
jails and gibbets. The testimony of these experts — differ as they may
in many doubtful cases — would seem to be the best which can be
obtained, however unsatisfactory it may be in some respects.
In the present state of our law, under the rule in McNaghten's
Case, we are confronted with this practical difficulty, which itself demon-
strates the defects of the rule. The courts in effect charge the juries,
as matter of law, that no such mental disease exists as that often
testified to by medical writers, superintendents of insane hospitals, and
other experts, — that there can be as matter of scientific fact no cere-
bral defect, congenital or acquired, which destroys the patient's power
of self-control, his libertj' of will and action, provided only he retains
a mental consciousness of right and wrong. The experts are immedi-
ately put under oath, and tell the juries just the contrary, as matter of
evidence ; asserting that no one of ordinary, intelligence can spend an
344 PARSONS V. STATE. [CHAP. V.
hour in the wards of an insane asylum without discovering such cases,
and in fact that " the whole management of such asylums presupposes
a knowledge of right and wrong on the part of their inmates." Guy &
F. on Forensic Med. 220. The result in practice, we repeat, is that
.the courts charge one way, and the jury, following an alleged higher
law of humanitj', find another in harmony with the evidence.
In Bucknill on Criminal Lunacy, p. 59, it is asserted as " the result
of observation and experience, that in all lunatics and in the most
degraded idiots, whenever manifestations of any mental action can be
educed, the feeling of right and wrong may be proved to exist."
" With regard to this test," says Dr. Russell Reynolds, in his work
on "The Scientific Value of the Legal Tests of Insanity," p. 34
(London, 1872), "I may say, and most emphatically, that it is utterly
untrustworthy, because untrue to the obvious facts of Nature."
In the learned treatise of Drs. Bucknill and Tuke on " Psychological
Medicine," p. 269 (4th ed. London, 1879), the legal tests of respon-
sibility are discussed, and the adherence of the courts to the right and
wrong test is deplored as unfortunate, the true principle being stated to
be " whether, in consequence of congenital defect or acquired disease,
the power of self-control is absent altogether, or is so far wanting as to
render the individual irresponsible." It is observed by the authors :
"As has again and again been shown, the unconsciousness of right
and wrong is one thing, and the powerlessness through cerebral defect
or disease to do right is another. To confound them in an asj'lum
would have the effect of transferring a considerable number of the
inmates thence to the treadmill or the gallows."
Dr. Peter Bryce, Superintendent of the Alabama Insane Hospital for
more than a quarter-century past, alluding to the moral and disciplinar}^
treatment to which the insane inmates are subjected, observes : " They
are dealt with in this institution, as far as it is practicable to do so, as
rational beings ; and it seldom happens that we meet with an insane
person who cannot be made to discern, to some feeble extent, his duties
to himself and others, and his true relations to societj'." Sixteenth
Annual Rep. Ala. Insane Hosp. (1876), p. 22; Biennial Rep. (1886),
pp. 12-18.
Other distinguished writers on the medical jurisprudence of insanity
have expressed like views, with comparative unanimity. And nowhere
do we find the rule more emphatically condemned than by those who
have the practical care and treatment of the insane in the various
lunatic asylums of every civilized country. A notable instance is found
in the following resolution unanimously passed at the annual meeting
of the British Association of medical oflacers of Asylums and Hospitals
for the insane, held in London, July 14, 1864, where there were present
fifty- four medical officers : —
" Resolved, That so much of the legal test of the mental condition of
an alleged criminal lunatic as renders him a responsible agent, because
he knows the difference between right and wrong, is inconsistent with
SECT. I.] PARSONS V. STATE. 345
the fact, well known to every member of this meeting, that the power
of distinguishing between right and wrong exists very frequently in
those who are undoubtedly insane, and is often associated with dan-
gerous and uncontrollable delusions." Judicial Aspects of Insanity
(Ordronaux, 1877), 423-424.
These testimonials as to a scientific fact are recognized by intelligent
men in the affairs of every-day business, and are constantly acted on
by juries. They cannot be silently ignored by judges. Whether estab-
lished or not, there is certainly respectable evidence tending to establish
it, and this is all the courts can require.
Nor are the modern law writers silent in their disapproval of the
alleged test under discussion. It meets with the criticism or condem-
nation of the most respectable and advanced in thought among them,
the tendency being to incorporate in the legal rule of responsibility
" not only the knowledge of good and evil, but the power to choose the
one, and refrain from the other." Browne's Med. Jur. of Insanity,
§§ 13 et seq., § 18 ; Ray's Med. Jur. §§ 16-19 ; Whart. & Stilles' Med.
Jur. § 59; 1 Whart. Cr. Law (9th ed.), §§ 33, 43, 45; 1 Bish. Cr.
Law (7th ed.), § 386 et seq.; Judicial Aspects of Insanity (Ordronaux),
419 ; I.Green. Ev. § 372 ; 1 Steph. Hist. Cr. Law, § 168 ; Amer. Law
Rev. vol. iv. (1869-70), 236 et seq.
The following practicable suggestion is made in the able treatise
of Balfour Browne above alluded to; "In a case of alleged insanity,
then," he says, " if the individual suffering from enfeeblement of intel-
lect, delusion, or any other form of mental aberration, was looked upon
as, to the extent of this delusion, under the influence of duress (the
dire duress of disease) , and in so far incapacitated to choose the good
and eschew the evil, in so far, it seems to us," he continues, " would
the requirements of the law be fulfilled ; and in that way it would afford
an opening, by the evidence of experts, for the proof of the amount of
self-duress in each individual case and thus alone can the criterion of
law and the criterion of the inductive science of medical psychology
be tnade to coincide." Med. Jur. of Ins. (Browne), § 18.
This, in our judgment, is the practical solution of the difHculty before
us, as it preserves to the courts and the juries, respectively, a harmo-
nious field for the full assertion of their time-honored functions.
So great, it may be added, are the embarrassments growing out of
the old rule, as expounded by the judges in the House of English Lords,
that, in March, 1874, a bill was brought before the House of Commons,
supposed to have been drafted by the Jearned counsel for the Queen,
Mr. Fitzjames Stephen, which introduced into the old rule the new
element of an absence of the power of self-control, produced by diseases
affecting the mind ; and this proposed alteration of the law was cordially
recommended by the late Chief Justice Cockburn, his only objection
being that the principle was proposed to be limited to the case of homi-
cide. 1 Whart. Cr. Law (9th ed.), § 45, p. 66, note 1 ; Browne's Med
Jur. of lusan. § 10, note 1.
346 PAKSONS V. STATE. [CHAP. V.
There are many well considered cases which support these views.'
The law of Scotland is in accord with the English law on this subject,
as might well be expected. The Criminal Code of Germany, however,
contains the following provision, which is said to have been the formu-
lated result of a very able discussion both by the physicians and lawyers
of that country: "There is no criminal act when the actor at the
time of the offence is in a state of unconsciousness, or morbid disturb-
ance of the mind, through which the free determination of his will is
excluded." Encyc. Brit. (9th ed.), vol. ix. p. 112 ; citing Crim. Code of
Germany (§ 51, E. G. B.).
The Code of France provides : " There can be no ci'ime or offence if
the accused was in a state of madness at the time of the act." For
some time the French tribunals were inclined to interpret this law in
such a manner as to follow in substance the law of England. But that
construction has been abandoned, and the modem view of the medical
profession is now adopted in that country.
It is no satisfactor}' objection to say that the rule above' announced
by us is of difficult application. The rule in McNaghten's Case, supra,
is equall3' obnoxious to a like criticism. The difficulty does not lie in
the rule, but is inherent in the subject of insanitj' itself. The practical
trouble is for the courts to determine in what particular cases the party
on trial is to be transferred from the categor3' of sane to that of insane
criminals, — where, in other words, the border line of punishability is
adjudged to be passed. But, as has been said in reference to an every-
day fact of Nature, no one can saj' where twilight ends or begins, but
there is ample distinction nevertheless between day and night. We
think we can safely rely in this matter upon the intelligence of our
juries, guided by the testimony of men who liave practically made a
study of the disease of insanity, and enlightened by a conscientious
desire, on the one hand, to enforce the criminal laws of the land, and
on the other, not to deal harshly with any unfortunate victim of a
diseased mind, acting without the light of reason, or the power of
volition.
It is almost needless to add that where one does not act under the
duress of a diseased mind, or insane delusion, but from motives of
anger, revenge, or other passion, he cannot claim to be shielded from
punishment for crime on the ground of insanity. Insanity proper is
more or less a mental derangement, coexisting often, it is true, with a
disturbance of the emotions, affections, and other moral powers. A
mere moral, or emotional insanity, so-called, unconnected with disease
of the mind, or irresistible impulse resulting from mere moral obliquity,
or wicked propensities and habits, is not recognized as a defence to
crime in our courts. 1 Whar. Cr. Law (9th ed.), § 46 ; Boswell v. State,
63 Ala. 307, 35 Amer. Rep. 20 ; Ford v. State, 71 Ala. 385.
The charges refused by the court raise the question as to how faf
1 The consideration of certain authorities on the subject is omitted.
•SECT. I.] PARSONS V. STATE. 347
one acting under the influence of an insane delusion is to be exempted
from criminal accountabilitj'. The evidence tended to show that one of
the defendants, Mrs. Nanc}' J. Parsons, acted under the influence of
an insane delusion that the deceased, whom she assisted in killing,
possessed supernaturalkpower to afflict her with disease, and to take
her life by some " supernatural trick ; " that by means of such power
the decea,sed had caused defendant to be in bad health for a long
time, and that she acted under the belief that she was in great danger
of the loss of her life from the conduct of deceased operating by means
of such supernatural power.
The rule in McNaghten's Case, as decided by the English judges, and
supposed to have been adopted by the court, is that the defence of
insane delusion can be allowed to prevail in a criminal case only when
the imaginary state of facts would, if real, justify or excuse the act ;
or, in the language of the English judges themselves, the defendant
" must be considered in the same situation as to responsibility, as if
the facts with respect to which the delusion exists were real." Boswell's
case, 63 Ala. 307. It is apparent, from what we have said, that this
rule cannot be correct as applied to all cases of this nature, even limiting
it, as done by the English judges, to cases where one "labors under
partial delusion, and is not in other respects insane." McNaghten's
€ase, 10 CI. & F. 200 ; s. c. 2 Lawson's Cr. Def. 150. It holds a par-
tially insane person as responsible as if he were entirely sane, and it
ignores the possibility of crime being committed under the duress of an
insane delusion, operating upon a human mind, the integrity of which
lis destroyed or impaired by disease, except, perhaps, in cases where
the imaginary state of facts, if real, would excuse or justify the act
done under their influence. Fields' Med. Leg. Guide, 101-104 ; GuV
& F. on Forensic Med. 220. If the rule declared by the English judges
be correct, it necessarily follows that the only possible instance o£
excusable homicide in cases of delusional insanity would be where the
delusion, if real, would have been such as to create, in the mind of a
reasonable man, a just apprehension of imminent peril to life or limb.
The personal fear, or timid cowardice of the insane man, although
•created by disease acting through a prostrated nervous organization,
would not excuse undue precipitation of action on his part. Nothing
would justify assailing his supposed adversary except an overt act, or
demonstration on the part of the latter, such as, if the imaginary facts
were real, would under like circumstances have justified a man perfectly
sane in shooting or killing. If he dare fail to reason on the supposed
facts embodied in the delusion, as perfectly as a sane man could do on a
like state of realities, he receives no mercy at the hands of the law. It
exacts of him the last pound of flesh. It would follow also, under this
rule, that the partially insane man, afflicted with delusions, would no
more be excusable than a sane man would be, if, perchance, it was by
his fault the diflSculty was provoked, whether by word or deed ; or, if,
in fine, he may have been so negligent as not to have declined combat,
348 PARSONS V. STATE. [CHAP. V.
when he could do so safely without increasing his peril of life or limb.
If this has been the law heretofore, it is time it should be so no longer.
It is not only opposed to the known facts of modern medical science,
but it is a hard and unjust rule to be applied to the unfortunate and
providential victims of disease. It seems to b€ little less than inhu-
mane, and its strict enforcement would probablj' transfer a large per-
centage of the inmates of our Insane Hospital from that institution to
hard labor in the mines or the penitentiary. Its fallacy consists in the
assumption that no other phase of delusion proceeding from a diseased
brain can so destroy the volition of an insane person as to render him
powerless to do what he knows to be right, or to avoid doing what
he may know to be wrong. This inquiry, as we have said, and here
repeat, is a question of fact for the determination of the jury in each
particular case. It is not a matter of law to be decided by the courts.
We think it sufficient if the insane delusion — • by which we mean the
delusion proceeding from a diseased mind — sincerely exists at the time
of committing the alleged crime, and the defendant believing it to be
real, is so influenced by it as either to render him incapable of perceiv-
ing the true nature and quality of the act done, by reason of the depra-
vation of the reasoning faculty, or so subverts his will as to destro}' his
free agency by rendering him powerless to resist by reason of the duress
of the disease. In such a case, in other words, there must exist either
one of two conditions : (1) such mental defect as to render the defend-
ant unable to distinguish between right and wrong in relation to the
particular act ; (2) the overmastering of defendant's will in consequence
of the insane delusion under the influence of which he acts, produced
by disease of the mind or brain. Rex v. Hadfleld, 37 How. St. Tr.
1282 ; s. c, 2 Lawson's Cr. Def 201 ; Roberts v. State, 3 Ga. 310 ; Com.
V. Rogers, 7 Met. 500; State v. Windsor, 5 Harr. 512; Buswell on
Insan. §§ 434, 440 ; Amer. Law Review, vol. iv. (1869-70) pp. 236-252.
In conclusion of this branch of the subject, that we maj^ not be mis-
understood, we think it follows very clearly from what we have said
that the inquiries to be submitted to the jury, then, in every criminal
trial where the defence of insanity is interposed, are these : —
1. Was the defendant at the time of the commission of the alleged
crime, as matter of fact, afflicted with a disease of the mind, so as to be
either idiotic, or otherwise insane ?
2. If such be the case, did he know right from wrong as applied to
the particular act in question? If he did not have such knowledge, he
is not legally responsible.
3. If he did have such knowledge, he may nevertheless not be legally
responsible if the two following conditions concur :
(1) If, by reason of the duress of such mental disease, he had so far
lost the power to choose between the right and wrong, and to avoid doinf
the act in question, as that his free agency was at the time destroyed.
(2) And if, at the same time, the alleged crime was so connected
with such mental disease, in the relation of cause and effect, as to have
been the product of it solely.
SECT. 1.] PARSONS V. STATE. 349
The rule announced in Boswell's Case, 63 Ala. 308, supra, as stated
in the fourth head note, is in conflict with the foregoing conclusions,
and to that extent is declared incorrect, and is not supported by the
opinion in that case, otherwise than by dictum.
We adhere, however, to the rule declared by this court in Boswell's
case, suprai and followed in Ford's Case, 71 Ala. 385, holding that
when insanity is set up as a defence in a criminal case, it must be
established to the satisfaction of the jury by a pi'eponderance of the
evidence ; and a reasonable doubt of the defendant's sanity, raised by
all the evidence, does not authorize an acquittal.
The judgment is reversed, and the cause remanded. In the mean-
while the prisoners will be held in custody until discharged by due
process of law.
Stone, C. J., dissents in part.
' Note on the Test of Insanity. The test of insanity laid down by the judges
in McNaghten's Case, supra (usually known as "the knowledge of right and wrong
test"), prevails in many jurisdictions, and "irresistible impulse" is held not to be
such insanity as will excuse from crime. U. S. v. Shults, 6 McLean, 121 ; U. S. v.
Young, 25 F. R. 710 ; People v. Hoiu, 62 Cal. 120; U. S. v. Guiteau, 10 F. R. 161
(D. C.) } Brinkley v. State, 58 Ga. 296 ; State v. Mowry, 37 Kas. 369, 15 Pac. 282;
State V. Scott, 41 Minn. "365 (but see State v. Shippey, 10 Minn. 223 ; State v. Erb,
74 Mo. 199 ; Flanagan v. People, 52 N. Y. 467 (sup-a) ; State u. Brandon, 8 Jones, 463 ;
State V. Murray, 11 Or. 413, 5 Pac. 55 ; Leache v. State, 22 Tex. App. 279, 3 S. W. 539
(seifibU). See Andersen v. State, 43 Conn. 514.
Other jurisdictions, starting with the same "right and'wrong" test, hold the view
that the test is satisfied and the defendant excused if he acted because of an irresistible
impulse, and not as a free agent. Com. v. Rogers, 7 Met. 500 (supra) ; Bovard v. State,
30 Miss. 600 ; Brown ti. Com., 78 Pa. 122.
Still other jurisdictions discard altogether the "right and wrong" test, and hold
that irresistible impulse is an excuse, though the knowledge of right and wrong existed.
State V. Windsor, 5 Harr. 512 ; Dacey v. People, 116 111. 555 ; Plake v. State, 121 Ind.
433 ; State v. Felter, 25 Iowa, 67 ; Smith v. Com., 1 Dur. 224 ; Blackburn v. State, 23
Ohio St. 146 ; Dejarnette v. Com., 75 Va. 867.
The doctrine of the Alabama and New Hampshire courts, that there is no legal
test of insanity, is stated in the case of Parsons v. State, 81 Ala. 577 (supra), follow.^
ing the opinion of Doe, J., in State v. Pike, 49 N. H. 399. See also People v. Finley,
38 Mich. 482.
350 EEGINA V. DOODY. [CHAP. V.
SECTION IL
Intoxication.
PEAESON'S CASE.
Carlisle Assizes. 1835.
[Reported 2 Leivin, 144.]
The prisoner was indicted for the murder of his wife.
It was proved that in a fit of drunkenness he had beaten her in a cruel
manner with a rake-shank, and that she died of the wounds and bruises
■which she received. His only defence was that he was drunk.
Park, J. Voluntary drunkenness js no excuse for ofime.
Ifa partx_be madeT!rff51Enbs_stratagem or the fraud of another he
i§jiot responsible.
iSo"3runkenness may be taken into consideration to explain the
probability of a party's intention in the case of violence committed
on sudden provocation.
EEGINA V. DOODY.
Stafford Assizes. 1854.
{Reported 6 Cox C. C. 463.]
The prisoner was indicted for unlawfully attempting to commit
suicide at Wolverhampton, on the 5th of March, 1854.
It appeared that the prisoner was at the George Inn, Wolverhamp-
ton, on the night of the 5th March, and about ten o'clock went to the
water-closet. He was soon afterwards found there, suspended to a
beam by a scarf tied round his neck. He was cut down, and anima-
tion restored. On being taken into custody and charged with the
offence, he stated that he had led a bad course of life, and had no
(money or friends. He now said in his defence that he had been-
drinking for nine days before, and did not know what he was doing.
There was some evidence to show^that^ although he was partially
intoxicated, he wa3_C|uite capable_Qf_taking care of himself.
"Nightman, J.", told the jury that tlfB'-etfeiiCg^cEarged constituted,,
beyond all doubt, a misdemeanor at common jajL.__J^he question for
them to consider was whether the pjisonerjiaji a min?~capa!ble of coii-
iimplating the act chSTggcl, and whl^iier lie clidi in fact7intend to take
aWa^hisTife! The prisoner alleged in his defence that he was drunk
at the time, which must be taken to mean that he had no deliberate
SECT. II. J I BEGINA V. DAVIS. 351
intention to destroy his life ; for the mere fact of drunkenness in this,
aa in other cases, is not, of itself^an excuse for the crime, but it is a
material fact in order to arrive^ at the conclusion whether or no the
prisoner really intended to destroy his life.
Verdict, Guilty. Sentence, three months' imprisonment.
EEGINA V. GAMLEN.
Bristol Assizes. 1858.
[Reported 1 Foster and Finlason, 90.]
Assault. The charge arose out of an affray at a fair, and there
seemed some ground for supposing that the prisoner acted under
apprehension of an assault upon himself. All concerned were drunk.
Ckowdek, J. Drunkenness is no excuse for crime ; but in consid-
ering whether the prisoner apprehended an assault on himself, you
may take into account the state in which he was. Not guilty.^
REGINA V. DAVIS.
Newcastle Assizes. 1881.
[Reported 14 Cox C. C. 563.]
William Davis, thirty-eight, laborer, was charged with feloniously
wounding his sister-in-law, Jane Davis, at Newcastle, on the 14th day
of January, with intent to murder her.
On the 14th day of January, 1881, the prisoner (who had been pre-
viously drinking heavily, but was then sober) made an attack upon
his sister-in-law, Mrs. Davis, threw her down, and attempted to cut
her throat with a knife. Ordinarily he was a very mild, quiet, peace-
able, well-behaved man, and on friendly terms with her. At the police
station he said : " The man ig_the-i»ooii told me to do it. I wilLhave.
to commit murder, as I niust~5e lianged." He was examined by two
■feedical men, who found him suffering from delirium tremens, result-
ing from over-indulgence in drink. According to Their evidence he
would know what he was doing, but his actions would not be under
his control. In their judgment neither fear of punishment nor legal
nor moral considerations would have deterred him ; nothing short of
actual physical restraint would have prevented him acting as he did.
He was disordered in his senses, and would not be able to distinguish
^ Ace. Maishall's Case, 1 Lewin C. C. 76. But see Com. u. Hawkins, 3 Gray,
463. — Ed
352 EEGINA V. DATIS. [OHAP. y.
between moral right and wrong at the time he committed the act.
Under proper care and treatment he recovered in a week, and was
then perfectly sensible.
For the defence it was submitted that he was of unsound mind at
the time of the commission of the act, and was not responsible for his
actions .
Stephen, J., to the jury. The prisoner at the bar is charged with
having feloniously wounded his sister-in-law, Jane Davis, on the 14th
day of January last, with intent to murder her. You will have to
consider whether he was in such a state of mind as to be thoroughly
responsible for his actions ; and with regard to that I must explain to
you what is the kind or degree of insanity which relieves a man from
responsibility. Nobody must suppose — and I hope no one will be led
for one moment to suppose — • that drunkenness is any kind of excuse
for crime. If this man had been raging drunk and had stabbed his
sister-in-law and killed her, he would have stood at the bar guilty of
murder beyond all doubt or question. But drunkenness is one thing,
and the diseases to which drunkenness leads arediffereifrtlTings ; and
ir a man by drunkenness brings on a state of disease which causes
such a degree of madness, even for a time, which would have relieved
him from responsibility if it had been caused in any other way, then
he would not be criminally responsible. In my opinion, in such a case
the man is a madman, and is to be treated as such, although his mad-
ness is only temporary. If you think he was so insane that if his
itiannit.ylwMippn prnrlnpprl hy nthsr causes he WOuld not be respoD-
sThTe forliiis actionsj tlipn t.hp mpi-p fni^t tiifif, it was causedloy drunlv-
enness will nntprpvpnt, jf. hnvinor t.iip offanf, Y{\\\fM "tJTPrwifip it would
li^j^ Imil, oT~pyciTsjng him from punishment. DrunkennessTs~no ex-
cuse, bui deTJrium tremens caused by drunkeniTfess may be an excuse
if you think it produces such a state of mind as would otherwise
relieve him from responsibility. A person may be both insane and
responsible for his actions, and the great test laid down in McNagli-
ten's Case (10 CI. & Fin. 200 ; 1 C. & K. 130 n.) was whether he did
or did not know at the time that the act he was committing was wrong.
If he did — even though he were mad — he must be responsible ; but if
his madness prevented that, then he was to be excused. As I under-
stand the law, any disease which so disturbs the mind that you cannot
think calmly and rationally of all the different reasons to which we
refer in considering the rigbtness or wrongness of an action, — any
disease which so disturbs the mind tliat you cannot perform that duty
with some moderate degree of calmness and reason, may be fairly said
to prevent a man from Icnowing that what he did was wrong. Deli-
rium t7-emens is not the primary but the secondary consequence of
drinking, and both the doctors agree that the prisoner was unable to
control his conduct, and that nothing short of actual physical restraint
would have deterred him from the commission of the act. If vou
think there was a distinct disease caused by drinking, but different
SECT. II.] PEOPLE V. EOGERS. 353
from drunkenness, and that by reason thereof he did not know that the
act was wrong, you will find a verdict of not guilty on the ground of
insanity ; but if you are not satisfied with that, you must find him
guilty either of stabbing with intent to murder or to do grievous bodily
harm.
The jury returned a verdict of not guilty on the ground of insanity.
The prisoner was ordered to be detained during Her Majesty's
pleasure.'
PEOPLE V. EOGERS.
CouKT OF Appeals of New York. 1858,
[Reported 18 New York, 9.]
Denio, J.^ The principal exception to the judge's charge which is
now relied on, relates to the consideration which should be given to
the proof that the prisoner was intoxicated at the time of the homi-
cide. The commissidn of crime is so often the attendant upon and
the consequence of drunkenness, that we should naturally expect the
law concerning it to be well defined. Accordingly we find it laid down
as early as the reign of Edward VI. (1548), that " if a person that is
drunk kills another, this shall be felony, and lie shall be hanged for it.
And yet he did it through ignorance, for when he was drunk he had
no understanding nor memory ; but inasmuch as that ignorance was
occasioned by his own act and folly, and he might have avoided it,
he shall not be privileged thereby." Plowden, 19. The same doc-
trine is laid down b}- Coke in the Institutes, where he calls a'drunk-
ard voluntarius dmmon, and declares that " whatever hurt or ill he
doeth, his drunkenness doth aggravate it." 3 Thomas's Coke, 46.
So in his Reports it is stated that "although he who is drunk is for
the time non compos mentis, yet his drunkenness does not extenuate
his act or offence, nor turn to his avail ; but it is a great oflTence in
itself, and therefore aggravates his offence, and doth not derogate
from the act which he did during that time, — and that as well in cases
touching his life, his lands, his goods, or any other thing that concerns
him." Beverley's Case, 4 Co. 125, a. Lord Bacon, in his " Maxims
of the Law," dedicated to Queen Elizabeth, asserts the doctrine thus :
" If a madman commit a felony, he shall not lose his life for it, be-
cause his infirmity came by the act of God ; but if a drunken man
commit a felony, he shall not be excused, because the imperfection
came bj' his own default." Male V. And that great and humane
■Judge, Sir Matthew Hale, in his " History of the Pleas of the
1 Ace. U. S. u. McGlue, 1 Curt. 1; Beasley v. State, 50 Ala. 149; Fisher v State, 64
Jnd. 435; Maconneheyi). State, 5 Ohio St. 77; State v. Robinson, 20 W. Va. 713. — Ed
" Parts only of the opinions are given.
354 PEOPLE V. EOGERS. [CHAP. V.
Crown," written nearly two hundred j'ears ago, does not countenance
any relaxation of the rule. "The third kind of dementia," he says,
"is that which is dementia affectata, namely, drunkenness. This
vice doth deprive men of the use of reason, and puts many men into
a perfect but temporarj' frenzy, and therefore, according to some
civilians, such a person committing homicide shall not be punished
simply for the crime of homicide, but shall suffer for his drunkenness,
answerable to the nature of the crime occasioned thereby, so that j-et
the primal cause of the punishment is rather the drunkenness than the
crime committed in it ; but hy the laws of England such a person
shall have no privilege hy his voluntarily contracted madness, but
shall have the same judgment as if he were in his right senses." He
states two exceptions to the rule : one where the intoxication is without
fault on his part, as where it is caused by drugs administered by an
unskilful physician ; and the other, where indulgence in habits of in-
temperance has produced permanent mental disease, which he calls
fixed frenzy. 1 Hale, 32. Coming down to more modern times, we
find the principle insisted upon by the enlightened Sir William Black-
stone. " The law of England," he says, " considering how easj- it is
to contract this excuse, and how weak an excuse it is (though real),
will not suffer any man thus to privilege one crime by another."
4 Com. 26. A few recent cases in the English courts will show the
consistency with which the rule has been followed down to our own
times. In Burrow's Case (Lewin's Cr. C. 75, a. d. 1823) the pris-
oner was indicted for a rape, and urged that he was in liquor. Hol-
ro3-d, J., addressed the jury as follows: "It is a maxim in law that
if a man gets himself intoxicated, he is answerable to the consequences,
and is not excusable on account of any crime he may commit when
infuriated by liquor, provided he was previousl}' in a fit state of
reason to know right from wrong. If, indeed, the infuriated state at
which he arrives should continue and become a lasting malad3', then
he is not answerable." A similar charge was given to the jury in the
next case in the same book, where drunkenness was urged upon the
trial of an indictment for burglary. Patrick Carroll was tried in 1835,
at the Central Criminal Court, before a judge of the King's Bench and
a judge of the Common Pleas, for the murder of Elizabeth Browning.
It appeared that shortly before the homicide the prisoner was very
drunk. His counsel, though he admitted that drunkenness could
not excuse from the commission of crime, 5'et submitted that in a
charge for murder, the material question being whether the act
was premeditated or done only with sudden heat and impulse, the
fact of the party being intoxicated was a proper circumstance to be
taken into consideration, and ho referred to a case before Holroyd,
J., reported in 2 Eussell on Crimes 8, Rex v. Grindley, where that
doctrine was laid down. Parke, J., in summing up, said: "Highly
as I respect that late excellent judge, I differ with him, and my brother
Littlodale [the associate] agrees with me. He once acted on that
SECT. II.} PEOPLE V. ROGEBS. 355
case, but afterwards retracted his opinion, and there is no doubt that
that case is not law. I think that there would be no safety for human
life if it were considered as law." The prisoner was convicted and
executed. 7 Carr. & Payne., 145. It would be easy to multiply
citations of modern cases upon this doctrine ; but it is unnecessary,
as they all agree upon the main proposition, namely, that mental
alienation, produced by drinking intoxicating liquors, furnishes no im-
munity for crime. Rex u. Meakin, 7 Carr. & Payne, 297, and Rex
V. Thomas, 7 id. 817, may be mentioned ; and in this country, The
United States v. Drew, 5 Mason C. C. R. 28, and The United States
V. McGlue, 1 Curtis C. C. R. 1, will be found to maintain the principle
upon the authority of Judge Story and Judge Curtis, of the Supreme
Court of the United States. These last two cases arfe interesting, not
only for stating the general principle, but for confirming the distinction
laid down so long ago by Sir Matthew Hale, that where mental
disease, or as he terms it a "fixed frenzy," is shown to be the result
of drunkenness, it is entitled to the same consideration as insanitj'
arising from any other cause. The first of them was a case of delirium
tremens, and Judge Story directed an acquittal on that account. In
the other the evidence left it doubtful whether the furious madness
exhibited by the prisoner was the result of present intoxication, or of
delirium supervening upon long habits of indulgence. This state of
the evidence led Judge Curtis to state the rule and the exception with
great force and clearness. In this state the eases of The People v.
Hammell and The People v. Robinson, reported in the second volume
of Judge Parker's Reports (pp. 223, 235), show the consistency with
which the doctrine has been adhered to in our criminal courts and in
the Supreme Court. The opinion in the last case contains a reference
to several authorities to the same effect in the other states of the
Union. Where a principle in law is found to be well established by a
series of authentic precedents, and especially where, as in this case,
there is no conflict of authority, it is unnecessary for the judges to
vindicate its wisdom or policy. It will, moreover, occur to every
mind that such a principle is absolutely essential to the protection of
life and property. In the forum of conscience there is no doubt con-
siderable difference between a murder deliberately planned and exe-
cuted by a person of unclouded intellect, and the reckless taking of
life by one infuriated by intoxication ; but human laws are based upon
considerations of policy, and look rather to the maintenance of per-
sonal security and social order than to an accurate discrimination as
to the moral qualities of individual conduct. But there is, in truth,
no injustice in holding a person responsible for his acts committed in
a state of voluntary intoxication. It is a duty which every one owes
to his fellow-men and to society, to say nothing of more solemn obli-
gations, to preserve, so far as it lies in his own power, the inestimable
gift of reason. If it is perverted or destroyed by fixed disease, though
brought on by his own vices, the law holds him not accountable. But
356 PEOPLE V. ROGEKS. [GHAT. V.
if by a voluntary act he temporarilj' casts off the restraints of reason
and conscience, no wrong is done him if he is considered answerable
for any injury which in that state he may do to others or to society.
Before proceeding to examine the judge's charge, it is necessary to
state one other principle connected with the subject of intoxication.
I am of the opinion that, in cases of homicide, the fact that the ac-
cused was under tlie influence of liquor may be given in evidence in
his behalf The effect which the evidence ought to have upon the
verdict will depend upon the other circumstances of the case. Thus,
in Rex v. Carroll, which was a case of murder b}' stabbing, there was
not, as the court considered, any provocation on the part of the de-
ceased, and it was held that the circumstance that the prisoner was
intoxicated was not at all material to be considered. Rex v. Meakin
was an indictment for stabbing with a fork, with intent to murder,
and it was shown that the prisoner was the worse for liquor. Alder-
son, Baron, instructed the jurj' that, with regard to the intention,
drunkenness might be adverted to according to the nature of the in-
strument used. " If," he said, "a man uses a stick, you would not
infer a malicious intent so strongly against him, if drunk when he
made an intemperate use of it, as you would if he had used a different
kind of weapon ; but where a dangerous instrument is used, which, if
used, must produce grievous bodily harm, drunkenness can have no
effect upon the consideration of the malicious intent of the party."
In Rex It. Thomas (for maliciouslj' stabbing), the person stabbed had
struck the prisoner twice with his fist, when the latter, being drunk,
stabbed him, and the jury were charged that drunkenness might be
taken into consideration in cases where what the law deems sufficient
provocation has been given, because tlie question in such cases is,
whether the fatal act is to be attributed to the passion of anger excited
by the previous provocation ; and that passion, it was said, is more
easily excitable in a person when in a state of intoxication than when
he is sober. So, it was added, where the question is whether words
have been uttered with a deliberate purpose, or are merely low and
idle expressions, the drunkenness of the person uttering them is proper
to be considered. But if there is really a previous determination to
resent a slight affront in a barbarous manner, the state of drunkenness
in which the prisoner was, ought not to be regarded, for it would fur-
nish no excuse.
It must generally happen, in homicides committed by drunken men,
that the condition of the prisoner would explain or give character to
some of his language, or some part of his conduct ; aud therefore I
am of opinion that it would never be correct to exclude the proof
altogether. That it would sometimes be right to advise tlie jury that
it ought to have no influence upon the case, is, I think, clear from
the foregoing authorities. In a case of lengthened premeditation, of
lying in wait, or where the death was by poisoning, or in the case of
wanton killing without any provocation, such an instruction would
jlaiuiy be proper.
SECT. II.J PEOPLE V. ROGERS. 357
Hakeis, J. No rule is more familiar than that intoxication is never
an excuse for crime. There is no judge who has been engaged in the
administration of criminal law, who has not had occasion to assert it.
Even where intent is a necessary ingredient in the crime charged, so
long as the offender is capable of conceiving a design, he will be pre-
sumed, in the absence of proof to the contrar}-, to have intended the
natural consequences of his own act. Thus, if a man, without provo-
cation, shoot another or cleave him down with an axe, no degree of
intoxication, short of that which shows that he was at the time utterly
incapable of acting from motive, will shield him from conviction. This
was, in substance, the doctrine which tlie jury received from the court
in this case. The defendant had strucli a blow with a deadly weapon,
which had resulted in immediate death. To this act the law, without
further proof, imputed guilty design. If the perpetrator would escape
the consequences of an act thus committed, it was incumbent on him
to show, either that he was incapable of entertaining such a purpose,
or that the act was committed under provocation. In respect to the
latter, there was nothing said by the court, nor any request to charge.
Had it been contended that the blow was struck in the heat of passion,
it might then have been proper to instruct the jury that, in determin-
ing this question, the intoxication of the defendant might well be con-
sidered. No such ground appears to have been taken by the counsel
for the defence. There was, indeed, some testimony tending to show
that the defendant had been struck before he committed the act for
which he was tried. But the weight of the testimony is clearly against
this thecfry of the case. • It was no doubt judicious, therefore, for the
defendant's counsel to refrain from asking the court to charge that
the intoxication of the defendant might be considered \>y the jurv in
determining whether the blow was struck in tlie heat of passion, or
with premeditated design. Had such a request been made, I think it
would have been the dutj' of the court so to charge ; though from the
state of the testimony, it is not likely that the result would have been
favorable to the defendant.
In the case now before us, there was no attempt to show that the
act of killing was committed under the impulse of sudden passion. All
that the court was requested to do was to instruct the jury that if they
•were satisfied that, by reason of intoxication, there was no intention or
motive to commit the crime of murder, they should convict the defend-
ant of manslaughter only. In refusing so to charge, there was no
error. If, by this request, the counsel for the defendant meant, as
the request seems to have been interpreted by the Supreme Court, tiiat
the jury sliould be instructed to take into consideration the intoxica-
tion of the defendant in determining the intent with which the homi-
cide was committed, the proposition is not law. It has never yet been
held that the crime of murder can be reduced to manslaughter by
showing that the perpetrator was drunk, when the same offence, if
committed by a sober man, would be murder. If, on tlie other hand,
358 CHOICE V. STATE. [CHAP. V.
it was intended that the court should instruct the jury that if, by reason
of intoxication, the defendant was so far deprived of his senses as to
be incapable of entertaining a purpose, or acting from design, the jury
were so instructed. This was enough, unless the counsel for the de-
fendant desired to have the jurj- decide whether the act was not com-
mitted in the heat of passion. In that case, his proposition must have
been verj- differently framed.
Judgment of the Supreme Court reversed, and that of the General
Sessions affirmed.
CHOICE V. STATE.
SupKEME Court of Georgia. 1860.
[Reported 31 Georgia, 424.]
Lumpkin, J.* The sixth error alleged in the motion for a new trial
is, because the judge failed to include in his charge to the jury the
law on the material facts proven in the evidence and insisted on in
the argument of counsel ; and especially in failing to charge the jury
whether the prisoner was or was not responsible for crime, if by rea-
son of the injury to his brain or otherwise (mark that expression !)he
was afflicted-with the disease called oinomania, and by reason of this
disease was irresistibly impelled, by a will not his own, to drink, and
after being so impelled did drink, and thus became insa,ne from
drink, and while thus insane he committed homicide. The court also
erred in not charging the jury that if they believed the prisoner had
suffered by injury, or otherwise (mark that again !), a pathological or
organic change in the brain, which produced the disease of oinomania,
and by this disease was irresistibly impelled to drink liquor, and from
the liquor thus drank became insane, and while thus insane killed
deceased, he was not guilty of murder.
Whether any one is born with an irresistible desire to drink, or
whether such thirst may be the result of accidental injury done to the
brain, is a theory not yet satisfactorily established. For myself, I
capitally doubt whether it ever can be. And if it were, how far this
crazy desire for liquor would excuse from crime, it is not for me to
say. That this controlling thirst for liquor may be acquired by the
force of habit, until it becomes a sort of second nature, in common
language, I entertain no doubt. Whether even a long course of in-
dulgence will produce a pathological or organic change in the brain, I
venture no opinion. Upon this proposition, however, I plant myself
immovably, and from it nothing can dislodge me but an Act of the
Legislature; namely, that neither moral nor legal n^onsibility can_b£
avoided_mJhiE_sEa.y.^ — Ihi£as-a--new_priiiciplfi_aought_to be ingrafted
' Part of the opinion only is given.
SECT, a,] STATE V. JOHNSON. 359
ufipn criminal jurisprudence. It is neitlier mnre nnr ?P!as ^|^an t.Tiig^
— ;.that a want of will and conscieflce to do right will constitute, an
excuse for the cpmmission of crime : and that, tnn, wTipfp tliia rlpfipj^^n^y
jn^wil] gnrl f.r.napTpnnp ia flip roaiilt r,t n ^^.r^rr nnri pnirnnyAyifig ^niHTir nf
jyrnnfr-dnipfr.- If this doctrine be true, — I speak it with all serious-
ness, — the devil is the most irresponsible being in the universe. For,
from his inveterate hostility to the Author of all good, no other crea-
ture has less power than Satan to do right. The burglar and the
pirate may indulge in robbing and murder until it is as hard for an
Ethiopian to change his skin as for them to cease to do evil, but the
inability of Satan to control his will, to do right, is far beyond theirs ;
and yet our faith assures us that the fate of Satan is unalterably and
eternally fixed in the prison-house of God's enemies. .The fact is,,
responsibility depends upon the possession of will, — not the power
(Tver it. _!Nor does the most desperate drunkai'd lOHy Ihy p6wer to
control his will, but he loses the desire to control it. No matter how
deep his degradation, the drunkard uses his will when he takes his
cup. It is for the pleasure of the relief of the draught, that he takes
it. His intellect, his appetite, and his will, all work rationally, if not
wisely, in his guilty indulgence. And were you to exonerate the ine-
briate from responsibility, you would do violence both to his conscious-
ness and to his conscience ; for he not only feels the self -prompted
use of every rational power involved in accountability, but he feels
also precisely what this new philosophy denies, — his solemn and
actual wrong-doing, in the very act of indulgence. Converse seriously
with the greatest drunkard this side of actual insanity, — just compose
him, so as to reach his clear, constant experience, — and he will confess
that he realizes the guilt, and therefore the responsibility of his con-
duct. A creature made responsible by God never loses his respon-
sibility save by some sort of insanity. There have always existed
amongst men a variety of cases wherein the will of the transgressor
is universally admitted to have little or no power to dictate a return to
virtue. But mankind have never, in any age of the world, exonerated
the party from responsibility, except where they were considered to
have lost rectitude of intellect by direct mental alienation.*
STATE V. JOHNSON.
Supreme Court or Errors of Connecticut. 1873.
[Reported 40 Connecticut, 136.]
Carpenter, J." The prisoner was indicted and on trial for murder
in the first degree. As the homicide was not perpetrated by means of
1 See accord Flaiiiga,n v. People, 86 N. Y. 564. — Ed.
' Part of the opinion only is given.
360 PEOPLE V. WALKER. [CHAP. V.
poison, or lying in wait, or in committing or attempting to commit any
of tlie crimes enumerated in the statute, he could only be convicted of
the higher offence by showing that it was a wilful, deliberate, and
premeditated killing. A deliberate intent to talie life is an essential
element of that offence. The existence of such an intent must be
shown as a fact. Implied malice is sufficient at common law to make
the offence murder, and under our statute to make it murder in the
second degree ; but to constitute^murder in the fii;st rlpo;i-pp^ fjfinal
malice must be proved! Upon this question the state of the prisoner's
'mind ib;"materTaL In behalf of the defence, insanity, inloxlcaUoii, or
any "other fact' which tends to prove that the prisoner was incapable of
deliberation, was competent evidence for the jury to weigh. Intoxica-
tion is admissible in such eases, not as an excuse for crime, not in
mitigation of punishment, but as tending to show that the less and not
the greater offence was in fact committed. I cite a few only of the
many authorities which sustain this position. Keenan v. The Com-
monwealth, 44 Pa. 55 ; Roberts v. The People, 19 Mich. 401 ; Pigman
V. The State, 14 Ohio, 555 ; State v. Garvey, 11 Minn. 154 ; Haile v.
The State, 11 Humph. 154 ; Shannahan v. The Commonwealth, 8 Bush
(Ky.), 463 ; Ray's Med. Jur. 5th ed. 566.'
PEOPLE V. WALKER.
Supreme Court of Michigan. 1878.
[^Reported 38 Michigan, 156.]
CooLET, J.' The defendant was convicted in the court below for
the larceny of a sum of money from one Martin. All the evidence in
the case tended to show that^if the defendant took the money wrong-
fully, it was while he was under the influence of liquor, and some of
it indicated that he was very drunk.
The circuit judge was requested to charge the jury, that, " even if
ithe jury should believe that defendant was intoxicated to such an
extent as to make him unconscious of what he was doing at the time
of the commission of the alleged offence, it is no excuse for him, and
they should not take it into consideration. A man jrho yo1iint'irHj:mit']
himself in condition to have no control of ^s actions must be held to
int'feTiST^Icoaseqaien£gs/[__T.his charge was given in reliance upon the
-general principle that drunkenness is no excuse for crime.
1 Ace. Hopt V. People, 104 U. S. 631; Oartwright v. State, 8 Lea, 376; Ferrell t).
State, 43 Tex. 503; State v. Robinson, 20 W. Va. 713.
The same principle wonld seem to apply where it is desired to show that by reason
of intoxication an intent to kill was absolutely lacking, and so to reduce the degree of
a homicide to manslaughter. Reg. u. Doherty, 16 Cox C. C. 306. — Ed.
» Part of the opinion only is given.
SECT. III.] ANONYMOUS. 361
While it is true that drunkenness cannot excuse crime, it is equally
true that when a certain intent is a necessary element in a crime, the
crime c_annot have been committed when the intent did not exist. In
larceny the crime does not consist in the wrongful taking of the prop-
erty, for that might be a mere trespass ; but it consists in the wrongful
taking with felonious intent ; and if the defendant, for any rea,sou
whatever, indulged no such intent, the crime cannot have been com-
mitted. This was fully explained by Mr. Justice Christiancy in Roberts
V. People, 19 Mich. 401, and is familiar law. See also Nichols v.
State, 8 Ohio St. 435 ; Regina v. Moore, 3 C. & K. 319.
The circuit court should be advised to set aside the verdict and
grant a new trial.
The other justices concurred.^
SECTION III.
Coercion.
ANONYMOUS.
Assizes. 1352.
[Reported Liber Assisnrum, 137 pi. 40.]
A WOMAN was arraigned for that she had feloniously stolen two
shillings' worth of bread. She said that she did it by command of him
who was at that time her husband. And the justices out of pity would
not accept her confession, but took a jury ; by which it was found
that she did it by coercion of her husband, in spite of herself. Where-
fore she was acquitted. And it was saidJJiat by command of a husband,
without other coercion, there shall be no sort of felony,^tc.'
' See to the same eflfect the following cases: People v. Blake, 65 Cal. 275 (forgery);
State V. Bell, 29 la. 316 (burglary); Roberts v. People, 19 Mich. 401 (assault with
intent to kill); Pigman v. State, 14 Ohio, 555 (passing counterfeit money). — Ed.
2 When a wife commits a clime in her husband's presence, the presumption is that
she acted by his coercion; and if so, she is excused. Reg. v. Price, 8 C. & P. 19; Com.
V. Eagan, 103 Mass. 71; State w. Williams, 65 N. C. 398. This presumption may,
however, be rebutted by proof that the wife did not act by the husband's coercion. U. S.
V. Terry, 42 F. E. 317; Seller v. People, 77 N. Y. 411; Uhl u. Com., 6 Gratt. 706;
Miller v. State, 25 Wis. 384. The land of a wife who left the country with her hus-
band was held not liable to confiscation under the " Absentee Act " in Martin v. Com.,
1 Mass. 387. — Ed.
362 m'geowthee's case. [chap. v.
ANONYMOUS.
Cambridge Assizes. 1664.
'[Reported Keli/ng, 31.]
It was propounded to all the judges : If a man and bis wife^go^
both together to commit a iimggjiariy, and both of them break a houie"
"iTfche n!ght,^!nd enter and steaT^ijods, what offence this was in the
wife ; and agreed by all, that it^a^o felony in thewife. for the
wife being together with the husband 'in the~act, the~Iaw supposeth
the wife doth it by coercion of the husband. And so it is in all larce-
ies ; but as to murder, if husband and wife ^th join in it, they are
oth equallyguilt^. Vid. 2 E. III. ; F. Corone, 160 ; 27 Ass. pi. 40 rF.
CoronerrraT^ouiton de Pace, 126, b ; and the case of the Earl of
Somerset and his lady, both equally found guilty of the murder of Sir
Thomas Overbury, by poisoning him in the Tower of London [2 How.
St. Tr. 951, 3 Co. Inst. 49].
^
M'GEOWTHEE'S CASE.
SuRKET Special AssIzes.^ 1746.
[Reported Foster C. L. 13.]
In the case of Alexander M'Growther, there was full evidence
touching his having been in the rebellion, and his acting as a lieu-
tenant in a regiment in the rebel army called the Duke of Perth's regi-
ment. The defence he relied on was that he was forced in.
And to that purpose he .called several witnesses, who in general
swore that on the 28th of August the person called Duke of Perth, and
the Lord Strathallan, with about twenty Highlanders, came to the town
where the prisoner lived ; that on the same day three several sum-
monses were sent out by the Duke, requiring his tenants to meet him,
and to conduct him over a moor in the neighborhood, called Luiny
Moor ; that upon the third summons the prisoner, who is a tenant to
the Duke, with about twelve of the tenants, appeared ; that then the
Duke proposed to them that they should take arms and follow him
into the rebellion ; that the prisoner and the rest refused to go ; where-
upon they were told that they should be forced, and cords were brought
by the Duke's party in order to bind them ; and that then the prisoner
and ten more went off, surrounded by the Duke's party.
These witnesses swore that the Duke of Perth threatened to burn the
1 Coram Lee, C. J., Wille.s, C. J., Wright and Foster, JJ., Reynolds and Olive, BB.
Keported also 18 How. St. Tr. 391. — Eo.
SECT. IIL] EBGINA V. DYKES. 363
honses and. to^drivR off the^attle of such of his t,p.na.ntH_as shofll^
fSiise to foliQwJym.
They all spake very extravagantly of the power lords in Scotland
exercise over their tenants, and of the obedience (even to the joining
in rebellion) which they expect from them.
Lord Chief Justice Lee, in summing up, observed to the jury that
there is not, nor ever was, any tenure which obligeth tenants to follow
their lords into rebellion. ,
And as to the matter of force, he said that the fear of having
houses burnt or goods spoiled, suppusmg IbaL tu liavti btiijtl Lhe'^ase of
""the prisoner, is no excuse inthe eye of the law for joining and marching
with rebels,.^ ' ~ '^
The only force that doth excuse is a forcp "pop ^^° pcar-n inr| pi-f^ «
ent fear of death ; and ^,his force a.nd fear must cnnf.innp. all the time |
-"liie party reflrams with the rebels. It is incumbent on every man, who
makes force his defence, to shew an actual force, and that he quitted
the service as soon as he could ; agreeably to the rule laid down in
Oldcastle's Case, that they joined j9?-o timore mortis, et recesserunt quam
cito potuerunt.
He then observed that the only force the prisoner pretends to was
on the 28th of August ; and that he continued with the rebels and bore
a commission in their army till the surrender of Carlisle, which was on
or about the 30th of December.
The jury without going from the bar found him guilty. But he was
not executed.
N. B. All the judges that were in town were- present, and concurred
in the points of law.
RE&INA V. DYKES.
Maidstone Assizes. 1885.
{Reported \5 Cox C C 771.]
In this case the two prisoners, who werehusbaad-and^wife, were
charged with highway robbery with violence.
The facts as proved in evidence clearly disclosed the felony charged
in the indictment, but as regards the female prisoner there was some
evidence to show that in what she had done, and in the violence which
she had used against the prosecutor, she was acting under the compul-
sion of her husband, and in fear of violence from him.
H. F. Dickens, for the prosecution.
O. L. Denman, for the defence, submitted, on the authority of Reg.
V. Torpey, 12 Cox C. C. 45, that there was no case to go to the jury
as against the wife. And upon the learned judge ruling that it wa3
for the jury to find whether upon tlie facts the wife had acted under
364
COMMONWEALTH V. DALEY.
/
[chap. v.
the coercion of her husband or not, addressed the jury for the defence ;
and, while admitting that the male prisoner must be convicted, urged
that the wife had really acted under the coercion of the husband.
The learned judge [Stephen, J.], in summing up, left the following
questions to the jury : —
1. Were the prisoners individually guilty or not guilty? This ques-
tion to be answered as if they were unmarried.
2. If botli are found guilty, then as a matter of fact did the wife
act under the compulsion of her husband?
"The jury found both prisoners guilty, but also found that the wife
and.
had acted under the cowg
^Upon this tindingwunsel for the defence claimed a jerdict of not
guilty in favor of the wife, quoting the case already cited, and also
Eeg. V, Woodward, 8 C. & P. 561.
After consideration the learned judge directed an' acquittal to be
entered for the jwife^^who was discharged.^
COMMONWEALTH v. DALEY.
SupEEMB Judicial Court op Massachusetts. 1888.
[Reported 148 Massachusetts, 11.]
C. Allen, J.^ When a married woman is indicted for a crime, and
it is contended in defence that she ought to be acquitted because she
acted under the coercion of her husband, the question of fact to be
determined is whether she really and in truth acted under such coercion,
or whether she acted of her own free -will and independently of any
coercion or control by him. To aid in determining this question of
fact, the InwjTnHgJJiat th°rf; iff n prpsumptioii^of sucli coercion from
KJaprggprifiP at t.hp t.imp nf thf\ nnmmfsCTrin r>r t.Iip prmiM ; I.Mi. yii, ^11111^-.-
tion, however, is not conclusive, and it may be rebutted. And in order
Ho raioc this piuuumptlon il is also established that the husband's pres-
ence need not be at the very spot, or in the same room, but it is:
sufficient if he was near enough for her to be under his immediate
coirtiul 01' iuflue
~^^2^o_exact rule applicable to all cases _canbe laid down as to what
degree of proximity will f^nnstitntp snph [^pgpTin<i, lii^i^Mjiljjti tlTrfr-rm».y
vary with the varvinj); ^ii-cnmsta.nces nf partW-n\ar cases. And where
1 See Rex ... Buncombe, 1 Cox C. C. 183; People v. Wright, 38 Mich. 744.
"A wife may be indicted together with her husband, and condemned to the pillory
with him for keeping a bawdy-house; for thiifis an offence as to the government of the
house, in which the wife has a principal share ; and also such an offence as may gener-
ally be presumed to be managed by the intrigues of her sex." 1 Hawk. P. C. ch. 1,
8. 12. See Reg. «. Williams, 10 Mod. 63; State u. Bentz, 11 Mo. 27 Ed.
2 Pait of llie opinion only is given.
SECT. IV. I EEGIN'A V. SMITH. 365
the wife did not act in the direct presence of her husband or under his
eye, it must usually be left to the jury to determine incidentally whether
his presence was sufficiently immediate or direct to raise the presump-
tion. But the ultimate question, after all, is whether she acted under
his coercion or control, or of her own free will independently of any
coercion or control by him ; and this is to be determined in view of
the presumption arising from his presence, and of the testimony or
circumstances tending to rebut it, if any such exist. Commonwealth
V. Bark, 11 Gray, 437; Commonwealth v. Gannon, 97 Mass. 547;
Commonwealth v. Welch, 97 Mass. 593 ; Commonwealth v. Eagan,
103 Mass. 71 ; Commonwealth v. Munsey, 112 Mass. 287; Common-
wealth V. Gormley, 133 Mass. 580 ; Commonwealth v. Flaherty, 140
Mass. 454 ; Commonwealth v. Hill, 145 Mass. 305, 307.»
SECTION IV.
Infancy : Incorporation.
1 Hawk. P. C. eh. 1, s. 14. Neither a son nor a servant are excused
the commission of any crime, whether capital or not capital, by the
command or coercion of the father or master.^
EEGINA V. SMITH.
SoMEKSET Assizes. 1845.
[Reported 1 Cox C. C. 260.]
Indictment for maliciously setting fire to a hayrick.
It appeared that the prisoner was a boy of the age of ten years.
There was no evidence of any malicious intention.
Erle, J. (to the jury). Where a child is under the age of seven
years, the law presumes himto be incapaoie of CominitlitiM a erimti ;
after thti age of fourteepTETirpresumed to be responsibleior his actions
as pntirply a.s if he were forty : but Detween the ages of seven and four-
teen, no presumption of law arises_at all, and thf t lyhiph is t.prmprl a
malicious^tent. — aT guilty knowledge thnt \\'r wi" ^oin^ wrong. —
ffltranSe'^proved by the evidence, and cannot be presumed from the
1 "Where a crime \s committed by a wife in the absence of her husband there is no
presumption of coercion, though roprcion in fact may be shown. Com. v. Tryon, 99
Mass. 442; State v. Collins, 1 McCord, 355; State v. Potter, 42 Vt. 495. — Ed.
2 See Com. v. Mead, 10 All. 398; State v. Learnard, 41 Vt. 585. — Ed.
366 , COMMONWEALTH V. NEW BEDFORD BRIDGE. [CHAP. V.
mere commissiou of the act. You are to determine from a review of
the evidence whether^it is satisfactorily proved that at the time he fired
tbgl'ick (It you should be of opmiou he did toe-ill. he had a guilty
knowledge that he was committing a crime. Mot-guilty.^
COMMONWEALTH v. PROPEIETORS OF NEW BEDFORD
BRIDGE.
Supreme Judicial Court op Massachusetts. 1854.
[Reported 2 Gray, 339.]
Indictment for a nuisance, occasioned by the erection and mainten-
ance of a bridge in and across the Acushnet,' a navigable river, flowing
between the city of New Bedford and the town of Fairhaven, and
thereby filling up and obstructing the navigation of the river. The
indictment was found at June term, 1852, of the Court of Common
Pleas.
At the trial in that court, before Btington, J., the defendants
admitted that they had erected and maintained a bridge across the
I Acushnet River ; that the bridge was so far an obstruction to the navi-
1 gation of the river, that its erection and maintenance could only be
justified under an act of the legislature ; and that, without such justifi-
cation, they would be subject to a prosecution of some kind. But they
contended that they were not liable to indictment.
The defendants gave in evidence their act of incorporation (St. 1796,
c. 19), under which they acted in maintaining their bridge.''
The presiding judge, "being of opinion that the several questions
of law are so important or doubtful as to require the opinion of the
Supreme Judicial Court," directed a verdict of guilty, and reported
the case, with the consent of the defendants, for the consideration of
this court.
BiGELOw, J. The indictment in the present case is for a nuisance.
The defendants contend that it cannot be maintained against them, on
the ground that a corporation, although liable to indictment for non-
feasance, or an omission to perform a legal duty or obligation, are not
' See ace. Reit-v. Owen, 4 C. & P. 236; Angelo v. People, 96 111. 209; State v. Fow-
ler, 52 la. 103; State v. Adams, 76 Mo. 3,55; State v. Doherty, 2 Overton, 80.
Criminal capacity in a child between seven and fourteen may be proved by evidence,
or may be inferred from the circumstances of the act. 4 Bl. Com. 23; Godfrey v. State,
31 Ala. 323; State v. Toney, 15 S. C. 409.
As to proof of criminal capacity, see Willet v. Com., 13 Bush, 230; Carr v. State,
24 Tex. App. 562.
As to the conclusive presumption that a boy under fourteen cannot he guilty of rape,
except as principal in the second degree, see Rex v. Eldershaw, 3 C. & P. 396; Com. v.
Green, 2 Pick. 380 {supra); Law v. Com., 75 Va. 885. — Ed.
2 Part of the case has been omitted.
SECT. IV.J COMMONWEALTH V. NEW BEDFORD BRIDGE. 367
amenable in this form of prosecution for a misfeasance, or the doiug
of any act unlawful in itself and injurious to the rights of others.
There are dicta in some of the early cases which sanction this broad
doctrine, and it has been thence copied into text writers, and adopted
to its full extent in a few modern decisions. But if it ever had any
foundation, it had its origin at a time when corporations were few in
number, and limited in their powers, and in the purposes for which
they were created. Experience has shown the necessity of essentially
modifying it ; and the tendency of the more recent cases in nnnr^fi of
the highest authority has been to extend the application of all legal
i^timtidltiti to corporations, and assimilate them, as far as possible, in their
'Te^al dULltJtJ and responsibilities, to individuals. To a certain ex^nt,
tlie rule contended for is founded in good sense and sound principle.
Corporations cannot be indicted for offences which derive their crimi-
nality from evil intention, or which consist in a violation of those social
duties which appertain to men and subjects. They r-gyn^^t bft Cl'''^y
nftrea.snn or felony, of perjury or offences a.p;ainst f^p ppranT]. /Rnt,
"^yond this, there is no good reason for their exemption from the con-
seqilfehces of llHla^fUland wrongful acts committed by their agents in
pursuance of authority derived from them. Such a rule would, in
many cases, preclude all adequate remedy, and render reparation for
an injury, committed by a corporation, impossible ; because it would
leave the only means of redress to be sought against irresponsible ser-
vants, instead of against those who truly committed the wrongful act
by commanding it to be done. There is no principle of law which
would thus furnish immunity to a corporation. If they commit a tres-
pass on private property, or obstruct a way to the special injury and
damage of an individual, no one can doubt their liability therefor. In
lilje manner, and for the same reason, if they do similar acts to the
inconvenience and annoyance of the public, they are responsible in
the form and mode appropriate to the prosecution and punishment of |
such offences. Angell & Ames on Corp. ss. 394-396 ; Maund v. Mon-
mouthshire Canal, 4 M. & G. 452, and 5 Scott N. E. 457 ', The Queen
V. Birmingham & Gloucester Railway, 3 Q. B. 223 ; The Queen v.
Great North of England Eailway, 9 Q. B. 315, and 2 Cox C. C. 70 ;
Eastern Counties Eailway v. Broom, 6 Ex. 314 ; The State y. Morris
& Essex Eailroad, 23 N. J. (3 Zab.) 360. If, therefore, the defend-
ants have been guilty of a nuisance, by obstructing unlawfully a navi-
gablo ctrcam, an iuJlcluJtinl ma^i well be maimaluml against ttfem. It
may-bH added Lhat the distinction between a uon-leaaa,TJce and a mis-
feasance is often one more of form than of substance. There are cases
where it would be difficult to say whether the offence consisted in the
doing of an unlawful act, or in the doing of a lawful act in an improper
manner. In the case at bar, it would be no great refinement to say
that the defendants are indicted for not constructing their draws in a
suitable manner, and thereby obstructing navigation, which would be
a non-feasance, and not for unlawfully placing obstructions in the
368 levett's case. [chap. v.
river, which would be a misfeasance. The difficulty in distinguishing
the character of these, offences strongly illustrates the absurdity of the
doctrine that a corporation are indictable for a non-feasance, but not
for a misfeasance. See 9 Q. B. 325.''
SECTION V.
Ignorance or Mistake.
1 Hale P. C. 42. Ignorance of the municipal law of the kingdom,
or of the penalty therebj' inflicted upon offenders, doth not excuse any
that is of the age of discretion and compos mentis from the penalty of
the breach of it ; because every person of the age of discretion and
f^^mnpOS m.entis JP tr-innrl tr. Irnnw <hn Uuc-p^»i n rl pi-panmi^rl kn I.H llli^
Ignorantia eorum guce quis scire tenetur n09i excusat.
But in some cas^s iynni-nrttin fnri< r},iih ciiTnao, for such an igno-
rance many times makes the act itself morally involuntarj' ; and in-
deed many of the cases of misfortune and casualty mentioned in the
former chapter are instances that fall in with this of ignorance : I shall
add but one or two more.
It is known in war that it is the greatest offence for a soldier to kill,
fcr so much as to assault his general ; suppose, then, the inferior officer
/sets his watch, or sentinels, and the general, to try the* vigilance or
/courage of his sentinels, comes upon them in the night in the posture
of an enemy (as some commanders have too rashl}- done), the sentinel
strikes, or shoots him, taking him to be an enemy ; his ignorance of
the person excuseth his offence.^
LEVETT'S CASE.
Newgate Sessions. 1638.
[Reported Croke Car. 538.]
Jones said that it was resolved by the Chief Justice Bkampton, him-
self, and the Recorder of London, at the last sessions at Newgate, in
the case of one William Levett, who was indicted of the homicide of
a woman called Frances Freeman, where it was found by special ver-
dict that the said Levett and bis wife being in the night in bed and
' As to the criminal liability of members of a corporation who take part in its crimi
nal acts, see Reg. v. By., 9 Q. B. 315, 327; People v. Englanrl, 27 Hiin, 139. — Ed.
2 Here follows a statement of Lsvett's Case, infra. — Ed.
SECT, v.] EEX V. BAILET. 369
asleep, one Martha Stapleton, their servant, having procured the said
Frances Freeman to help her about house-business, about twelve of
the clock at night going to the doors to let out the said Frances Free-
man, conceived she heard thieves at the doors offering to break them
open ; whereupon she, in fear, ran to her master and mistress, and
informed them she was in doubt that thieves were breaking open the
liouse-door. Upon that he arose suddenly and fetched a drawn rapier.
And the said Martha Stapleton, lest her master and mistress should
see the said Frances Freeman, hid her in the buttery. And the said
Levett and Helen his wife coming down, he with his sword searched
the entry for the thieves ; and she, the said Helen, espying in the
butterj' the said Frances Freeman, whom she knew. not, conceiving she
had been a thief, crying to her husband in great fear, said to him,
"Here they be that would undo us." Thereupon the said William
Levett, not knowing the said Frances to be there in the buttery, has-
tily entered therein with his drawn rapier, and being in the dark and
thrusting with his rapier before him, thrust the said Frances under
the left breast, giving to her a mortal wound, whereof she instantly
died ; and whetherit jKar^jaanslaug^er, they prayed the discretion of
the court." And it_ was resolved t.hat it. was not ; for he did it 'igno-
rantlv without intention of hurt tn tho said Frances ; and It was tiifere
so resolved.'
REX V. BAILEY.
Crown Case Reserved. 1800.
[Repmted Russell ^ Ryan, 1.]
The prisoner was tried before Lord Eldon, at the Admiralty Ses-
sions, December, 1799, on an indictment for wilfully and maliciously
shooting at Henry Truscott.^
It was insisted that the prisoner could not be found guilty of the
offence with which he was charged, because the Act of the 39 Geo. III.
c. 37, upon which (together with the statute relating to maliciously
shooting, 9 Geo. I. c. 22, " Black Act") the prisoner was indicted at
this Admiralty Sessions, and which act of the 39 Geo. III. is entitled
" An act for amending certain defects in the law respecting offences
committed on the high seas," only received the royal assent on the
10th of May, 1799, and the fact charged in the riicITclnTent happened
on the 2Vth of June, in th6 samti yeal', Whun Lhu pi'iaonor eBtild not^
""^now that any such act exlste(l_4his ship, W\k " Langley," being at
that time upon tbe coast of Africa.)
Lord Eldon told the jury that he was of opinion that he was, in
» See Regina v. Lynch, 1 Cox C. C. 361 ; McGehee v. State, 62 Miss. 772. — Ed.
' Part of the case is omitted.
370 ' REX V. HALL. [chap. V.
strict law, guiltY within, thr ritntiitfi, taken together, if the facts laid
were proved, though he could not then know that the act of the 39
Geo. III. c. 37 had passed ; and that his ignorance of that fact could jq.
no otberwiif; nffpft thn nasr .^an that it mlght-be-4ihu muuuij uf i't>com-
mending tiiiB_to-4t-muiciful o«Q§ideratiQn elsewbere should he be found
guilty.
On the first day of Hilary term, 1800, all the Judges (except Mr.
Justice Bdller) met at Lord Kenyon's chambers, and were of opinion
that it wouid be proper to apply for a pardon, on the ground that the
fact 'having been committed so short a time after the Act 39 Geo. III.
c. 37 was passed, that the prisoner could not have known of it.'
REX V. HALL.
Gloucester Assizes. 1828.
[Reported 3 Carnngton Sf Payne, 409.]
Indictment for robbing John Green, a gamekeeper of Lord Ducie,
of three hare wires knd a pheasant. It appeared that the prisoner had
set three wires in a field belonging to Lord Ducie, in one of which this
pheasant was caught, and that Green, the gamekeeper, seeing this,
took up the wires and pheasant and put them into his pocket ; and it
further appeared that the prisoner soon after this came up and said,
" Have you got my wires? " The gamekeeper replied that he had and
I a pheasant that was caught in one of them. The prisoner then asked
the gamekeeper to give the pheasant and wires up to him, which the
gamekeeper refused ; whereupon the prisoner lifted up a large stick
and threatened to beat the gamekeeper's brains out if he did not give
them up. The gamekeeper, fearing violence, did so.
Maclean, for the prosecution, contended that by law the prisoner
could have no property in either the wires or the pheasant, and as the
gamekeeper had seized them for the use of the lord of the manor,
under the statute 5 Anne c. 14, s. 4, it was a robbery to take them from
him by violence.
Vaughan, B. I shall leave it to the jury to say whether the prisoner
acted on an impression that the wires and pheasant were his property;
for however he might be liable to penalties for having them in hia
possession, yet iL the y1r•YJhin^^ tt^at, ho tr.r.v ttmr.^ nndar \bonafide
' "Although proclamation be not made in the county, every one is bound to take
notice of that which is done in parliament ; for as soon as the parliament hath con-
cluded anything, the law intends that every person hath notice thereof, for the parlia-
ment represents the body of the whole realm ; and therefore it is not requisite that
any proclamation be made, seeing the statute took effect before." — Thohpk, C. J., in
y. B. 39 Edw. III. 7 (translation of Coke, 4 lust. 26). See Brig Ann, 1 Gall. 62. — Ed.
SECT. V.J EEX V. ESOP. 371
impression that he was only getting back the possession of his own
properly, llltjie is uu uiwlWdi JUranM, ana T am 6t dBimatttlTaX the
prosecution must fail- Verdict, Not guiltii '
REX V. ESOP. \
Central Criminal Court. 1836.
[Reported 7 Carrington Sf Payne, 456.]
The prisoner was indicted for an unnaltural offence, committed on
board of an East India ship, lying at St. Katherine's Docks. It
appeared that he was a native of Bagdad.
Chambers, for the prisoner. In the country from which the priso-
ner comes it is not considered an offence ; and a person who comes
into this country and does an act, believing that it is a perfectly inno- :
cent one, cannot be convicted according to the law of TCngln.nd. AJ
party must kuovr that what he does is a crime. This is the principle
ffpun wnicn mtants, idiots, ana lunaxics are helci not to be answerable.
If a person is unconscious that he is doing a wrong act, or believes
that it is a right or innocent act, he is exonerated. Where one man
kills another under the persuasion that he is doing a good action, he is
not liable to punishment, for he knows not the distinction between
right and wrong, and upon that point is insane.
BosANQUET, J. I am clearly of opinion that this is pn lp{ji"i|'^°-
Vaughan, J. Where is the evidence that it is not a crime in the
prisoner's own country? But if it is not a crime there, that does
not amount to a defence here. Numbers have been most improperly
executed if it is a defence.
The prisoner, after the examination of some witnesses on his behalf,
from whose statements it appeared that the witnesses for the prosecu-
tion acted under the influence of spite and ill will, was found
Not guilty. '
1 " Ignorance of the law cannot excuse any person; but at the sajne-time, when the
question is with what intent a person takes, we cannot help looking into their state of
mind, as if a person take what he believes to be his own, it is impossible to say that he
is guilty of felony." — Coleridge, J., in Eeg. v. Reed, C. & M. 306. See Beg. v. Hem-
mings, 4 F. & F. 50; Com. v. Stebbins, 8 Gray, 492. — Ed.
^ Sea ace. Barronet's Case, 1 K & B. 1. — £l>.
372 ANONYMOUS. [chap. v.
ANONYMOUS,
Western Circuit. 17 — .
[Reported Foster O. L. {3d ed.) 439.]
A WIDOW WOMAN was indicted on tiie statute 9 and 10 W. III. c. 41,
foi' having in her custody divers pieces of canvas marked with his
Majesty's mark in the manner described in the Act, she not being a
person employed by the commissioners of the navy to make the same
for his Majesty's use.
The canvas was produced at the trial marked as charged in the
indictment, and was proved to the satisfaction of the court and jury
to be of that sort which is commonly made for the use of the navy
and to have been found in the defendant's custody.
The defendant did not attempt to show that she was within the
exception of the Act, as being a person employed to make canvas for
the use of the navy ; nor did she offer to produce any certificate from
any oflflcer of the Crown touching the occasion and reason of such
canvas coming into her possession.
Her defence was that when there happened to be in his Majesty's
stores a considerable quantity of old sails, no longer fit for that use,
it had been customary for the persons intrusted with the stores to
make a public sale of them in lots larger or smaller as best suited the
purpose of the buyers ; and that the canvas produced in evidence,
which happened to have been made up long since, some for table-linen
and some for sheeting, had been in common use in the defendant's
famih' a considerable time before her husband's death, and upon his
death came to the defendant, and had been used in the same j)ublic
manner by her to the time of the prosecution. This was proved by-
some of the family, and bj' the woman who had frequently washed the
linen.
This sort of evidence was strongly opposed by tlie counsel for the
Crown, who insisted that, as the Act allows of but one excuse, the
defendant, unless she can avail hferself of that, cannot resort to any
other ; for if the canvas was reall}- bought of the commissioners or of
persons acting under them, which is the only excuse pointed out by
the statute, why was no certificate of that matter taken at the time
of the purchase, since the fourth section of the Act admits of that
excuse, and the second section admits of no other ?
SECT, v.] EEGINA V. TINKLER. 373
But the judge [Foster, J.] was of opinion that, though the clause
of the statute which directs tlie sale of these things hath not pointed
out any other way for indemnifying the buyer than the certificate ; and
though the second section seems to exclude any other excuse for those
in whose custody they shall be found ; yet^till the circumstances at-
tending every case which may seem to fall within the Act ought to
be taken into~CDTiBiderg:tion llaJherfrlse a law calculated for~wise pur-
"poaes may, by loo rigid a construction of it, be made a handmaid to
oppression. There is no room to say that this canvas came into the
possession of the defendant by any act of her own. It was brought
into family use in the lifetime of her husband, and it continued so to
the time of his death ; and by act of law it came to her. Things of
this kind have been frequently exposed to public sale ; and though the
Act points out an expedient for the indemnity of the buyers, yet prob-
ably few buyers, especially where small quantities have been purchased
at one sale, have used the caution suggested to them by the Act. And
if the defendant's husband really bought this linen at a public sale, but
neglected to take a certificate, or did not preserve it, it would be con-
trary to natural justice, after this length of time, to punish her for his
neglect. He therefore thought the evidence given by the defendant
proper to be left to the jury, and directed them that if, upon the whole
of the evidence, they were of opinion that the defendant came to the
possession oi tne linen witnout any fraud or misbehavior on her part,
tlTPyghni^]^^ gfqnit. hpr; flnrl ghp wna apr|nit.t:prl .
REGINA V. TINKLER.
Norfolk Circuit. 1859.
[Reported 1 Foster S^ Finlason, 513.]
The prisoner was indicted, under the 9 Geo. IV., c. 31, s. 20, for
unlawfully taking one Sarah Thompson, she being then unmarried, and
under the age of sixteen years, out of the possession and against the
will of Jane Barnes, her lawful guardian.
It appeared that the prisoner, who was a widower, had married the
elder sister of Sarah Thompson, and up to the time of his wife's death,
Sarah Thompson, who was an orphan, had lived in the prisoner's
house. On that occasion, Mary Johnson, another married sister of
Sarah Thompson, caused her to be placed under the care of Jane
Barnes.
No improper motive was alleged against the prisoner, he having
asserted, as his reason for taking the child away, that he had promised
her father, on his deathbed, to take care of her.
The Chief Justice [Cockburn] told the jurj- that it was clear the
prisoner had no right to act as he had done in taking the child out of
374 EEGINA V. TOWSE. [CHAP. V.
Mrs. Barnes's custody. But inasmuch as no improper motive was
suggested on the part of the prosecution, it might very well be con-
cluded that the prisoner wished the child to live with him, and that
he meant to discharge the promise which he alleged he had made to
her father, and that he did not suppose he was breaking the law when
he took the child away. This being a criminal prosecution, if the jury
should_takp this view_Qf_the case, and be of gpiT'^Ti ^^"^ ^^'^ pi-Unnpy
hpnestly believed that he had a right to the custodj' of the child , then
•ullhuugh Ihg-prisoner was not legally iustilled, he would be entitled to
an acquittaT
The jury found the prisoner not guilty.
REaiNA V. TOWSE.
Exeter Assizes. 1879.
[Reported 14 Cox C. C. 327.]
Pkisoner was indicted for having, set fire to some furze growing on
a common at Culmstock.^ .
/It appeared from the evidence that persons living near the common
had occasionally burnt the furze to improve the growth of the grass,
although the existence of any right to do this was denied.
But the prisoner in this case denied having set the furze on fire
at all.
Bullen, for the defence, contended that even if it were proved that
the prisoner set the furze on fire she could not be found guilty if it
appeared that she bona fide believed she had a right to do so, whether
the right were a good one or not.
Lopes, J. If she set fire to the furze thinking she had a right to do
so that would not be a criminal offence. I shall leave two questions to
tne jury! 1. Did she set fire to the furze? 2. If yes, did she do it
wilfully and maliciously?
1 " Whosoever shall unlawfully and maliciously set fire to any . . . furze or fern,
wheresoever the same may be growing, shall be guilty of felony." 24 & 25 Vict. c. 97,
s. 16. — £ix
SECT, v.] COMMONWEALTH V. THOMPSON. 375
COMMONWEALTH v. THOMPSON.
Supreme Judicial Court op Massachusetts. 1863.
[Reported 6 Allen, 591.]
Indictment for adultery with Emeline B. Carlton.
At the trial in the Superior Court, before Rockwell, J., it appeared
that in November, 1861, the defendant was married to said Emeline,
and lived with her as his wife thereafter. The defendanL-Coatend^d
on the evidence which was offered-Lhat he then belieypfl hpr |£»Jtp a
widow, and that she^had no knowledge that her former husband was
atlve, tmd~teCT~notseen or tieard from him for eleven years rand he
asked the court to instruct the jurj' that if he married and cohabited
with her without any knowledge that she had a husband living, and
believing that she had no husband living, such cohabitation would not
amount to the criijne of adulterj^, even if her husband was not dead.
The judge refused to give these instructions, but instructed the jury
that if they were satisfied that the intercourse took place as alleged,
it would be adultery if the former husband was still living, although
the defendant had no knowledge or belief that he was alive ; and he
excluded tfie evidence which was offered. '
The jury returned a verdict of guilty, and the defendant alleged
exceptions.
G. F. Verry, for the defendant.
Foster, Attorney-General, for the Commonwealth.
Dewey, J. The court properly refused to rule that upon the mere
showing that the defendant married the said Emeline B. Carlton and
cohabited with her without any knowledge that she had a husband ,
living, and believing that she had no husband living, the defeudakit ,
could not be convicted of adultery, although she then had a legal hus-
band in full life.
The objection urged in behalf of the defendant, that to make any
act criminal there must be a criminal intent, will not screen the guilty
party under such circumstances. Commonwealth v. Mash, 7 Met.
474.
This would dispose of the case but for the facts which were oflFered
to be proved, that the husband had been absent from his wife for
eleven years preceding the time when the acts complained of took
place, and that his wife had not seen or heard of him during that
period, and had no knowledge that he was alive.
It is a well settled rule of law that, upon a person's leaving his home
for temporary purposes of business or pleasure, and not being heard
of or known to be living for the term of seven vears,-^±he presumption
arises of his- de^ath. 2 Stark. Ev. (4th Amer. ed.) 45§. Loring v.
Steineman, 1 Met. 211. Although this is merely a presumption au-
thorized by law, and may be controlled by evidence showing that the
376 STATE V. GOODENOW. [OHAP. V.
fact was otherwise, yet in reference to acts of other parties, and in
deciding whether they are criminal, this presumption is allowed to
have its proper effect. Thus in reference to the criminal intercourse
alleged to have taken place between Mrs. Carlton and the defendant,
supposing she had .been indicted for polygamy-, and the fact had ap-
peared of the absence of her husband for eleven years, she not knowing
him to be living during that time, this would constitute a legal defence
to the criminal charge. Gen. Sts. c. 165, § .5. We think this statute,
though not in terms applicable, to an indictment for adultery, recog-
nizes a rule that should operate as a legal defence to the charge of
adultery, when the alleged criminal acts are the marrj'ing and cohabit-
ing with a woman whose husband had been absent more than seven
years, and not known to the defendant to have been alive during that
period.
The proper instructions to the jury in a case like the present would
be, that if it appeared that the husband had absented himself from
his wife, and remained absent for the space of seven j-ears together,
a man who should, under the existence of such circumstances, and
!not knowing her husband to have been living within that time, in good
faith and in the belief that she had no husband, intermarry' with her
and cohabit with her as his wife, would not by such acts be criminallj'
punishable for adulter}', although it should subsequently appear that
the former husband was then living.
Exceptions sustained,}
STATE V. GOODENOW.
Supreme Judicial Court op Maine. 1876.
[Reported 65 Maine, 30.]
Peters, J.^ The respondents are jointly indicted for adultery, they ^
having cohabited as husband and wife while the female respondent
was lawfully married to another man who is still alive. The only
question found in the exceptions is, whether the evidence offered and
rejected should have been received. This was, that the lawful hus-
band had married again, and that the justice-of^tbe^eace who united
tlie resuondentsin matrimony advised tSem thatj_onJhat'Uuuuuut, the}
liaB the rigiiTto InXBiinarry , •grRTthat tSeyHSeiieved the~sta{ement to
b'e^rilii,and acted O^on it in good faith. It is urged for the respond-
ents that those facts would show that they acted without any gnilty
intent. It is undoubtedly true that the crime of adultery cannot be
1 On a new trial it appeared that Emeline B. Carlton had herself left her hushand,
of whom she had not thereafter heard for eleven years. As the exception in the stat-
ute (Gen. Stats, c. 165, § 5) did not cover the case, defendant was found guilty, and
the conviction upheld. 11 All. 23. — Eu.
2 The opinion only is given ; it sufficiently states the case.
S^CT. v.] STATE V. GOODENOW. 377
committed without a criminal: intent. But the intent may be inferred
from the criminality of the act itself. Lord Mansfield states the rule
thus : ' ' Where an act, in itself indifferent, becomes criminal if done
with a particular intent, there the intent must be proved and found ;
but where the act is in itself unlawful, the proof of justification or
excuse lies on the defendant ; and in failure thereof, the law implies
a criminal intent."
Here the accuse^_h«yg-hrtMttionally committed an act which is in
law. This cannot^xcuse them. Ignorance ol tue law iixcnses no
one. Besure, thismaxim, hke all others, has its exceptions. None
of the exceptions, however, can apply here. The law, which the re-
spondents are conclusively presumed to have known, as applicable to
their case, is well settled and free of all obscurity or doubt. It would
perhaps be more exact to say, they are bound as if they knew the
law. Late cases furnish some interesting discussions upon this sub-
ject. Cutter V. State, 36 New Jer. 125 ; United States v. Anthony,
1,1 Blatch. 200; United States v. Taintor, id. 374; 2 Green's
Crim. Law R. 218, 244, 275, 689 ; Black v. Ward, 27 Mich. 191 ;
s. c. 15 Amer. Law Reports, 162 and note, 171. The rule, though
productive of hardship in particular cases, is a sound and salutary
maxim of the law. Then the respondents say that they were misled
by the advice of the magistrate, of whom they took counsel concerning
their marital relations. But the gross ignorance of the magistrate
cannot excuse them. They were guilty of negligence and fault, to
take his advice. They were bound to know or ascertain the law and
the facts for themselves at their peril. A sufficient criminal intent is
conclusively presumed against them, in their failure to do so. The
facts offered in proof may mitigate, but cannot excuse, the offence
charged against them. There is no doubt that a person mifrht, f^nmmit:
an unlawful act, through mistake or afifii(ip"t| ""ri wHh jnnnp""*^ in-
tention, where there was no nep^lifrence or fanjt "t- want, nf nf^^yp, of ^nv
king on his part, and be legally excnsprl fny it,. But this case was far
from one of that kind. Here it was a criminal heedlessness on the
part of both of the respondents to do what was done bj- them. The
Massachusetts eases cited by the counsel for the state, go much further
than the facts of this case require us to go in the same direction, to
inculpate the respondents. Besides those cases, see also Common-
wealth V. Elwell, 2 Met. 190; Commonwealth v. Farren, 9 Allen,
489; Commonwealth v. Goodman, 97 Mass., 117; Commonwealth v.
lilmmons, 98 Mass. 6. We see no relief for the respondents except,
if the facts warrant it, through executive interposition.
JEkcepHons overruled.^
1 See U. S. V. Anthony, 11 Blatch. 200; U. S. v. Taintor, 11 piatch. 374; U. S. u.
Adams, 2 Dak. 305. — Ed.
378 THE BEIG WILLIAM GBAT. [CHAP. V.
SECTION VI.
Impossibility.
REGINA V. BAMBER.
Queen's Bench., 1843.
[Reported 5 Queen's Bench, 279.]
Lord Denman, C. J.' I think the defendant below is entitled to
judgment. Both the road which the defendant is charged with liabilit}'
to repair and the land over which it passes are washed awaj- by the
sea. Tto restore the road, as he is required to do, he must create a
part ifjihr tinrth ^nPiTT^^ do iioTTely much upon the argument that
toe ancient line of highwaj' has been i-emoved. But here all the mate-
rials of which a road could be made have been swept awaj' by the act
of God. Under those circumstances can the defendant be liable for
not repairing the road? We want an authority for such a proposition,
and none has been found.
THE BRIG WILLIAM GRAY.
Circuit Court of the United States. 1810.
[Reported 1 Paine, 16.]
Livingston, J. In defence of the libel filed against this vessel for
proceeding from the United States to the island of Antigua, contrary
to the act laying an embargo, and the first act in addition thereto, the
claimant alleges that while on a voyage from Alexandria to Boston,
she was driven by storms, tempests, stress of weather, and necessity,
out of her course, and forced to proceed to that island for her own
preservation and that of the cargo, and of the lives of the persons on
board.
Both the fact and the legal consequences deduced from it by the
appellant are denied by the counsel for the United States.
In looking at the testimony, it cannot be denied that there is every
reason to believe that the real destination of the William Gray was
Boston. Two witnesses swear to this fact positively, and she had actu-
ally arrived at Martha's Vineyard on that voyage. Why it was not
completed is very minutely accounted for. An attempt was made to
1 The opinion only is given ; it sufficiently states the ease.
£ECT. VI.] TILE BRia WILLIAM GRAY. 379
reach Boston, but the inclemency of the season, the frozen and muti-
lated condition of several of the hands, and the wrecked state of the
brig, are assigned as reasons for not being able to effect this purpose.
In this state of things it appears to have been unanimously thought
necessary for the preservation of life, and on the advice of the pilot, to
bear away for the West Indies, it being deemed impossible to return
to any port on the continent of America. What the pilot advised to be
done is a matter of fact, and may be proved as such by any witness.
Such advice or conduct on his part cannot be classed, as has been done,
with hearsay testimony. To this body of evidence the Court is desired
to oppose its own opinion as to the practicability of arriving at some
one or other port within the United States. It is certain that a story
may be so very improbable that although attested to by more than one
credible witness, no one would be, bound to believe it. But this is not
of that description, although it does appear to the Court somewhat
extraordinary that a vessel so near the continent, and in so high a lati-
tude, should not be able to make some part of it ; j-et, for aught it can
know to the contrary, vessels quite as near, if not nearer, may have
been blown off in the winter season, especially if in a shattered order,
to the West Indies. It would, therefore, be unpardonable in either a
jury or a Court, merely because a fact appears somewhat improbable,
to disregard the evidence establishing it, and to decide in conformity
with its own opinion, unassisted by that of professional men, in the face
of all the proofs in the cause.
In the judgment of this Court, then, the alleged necessity is suffl-
cien^y maje out. Whether it takes the case out of the staiuie is next
to be considered. Were this res Integra, the very able argument on
behalf of the United States would be entitled to the most respectful
consideration. It is perhaps to be lamented that judges ever permitted
themselves to make any exceptions to an act which the legislature
itself had not thought proper to incorporate within the body of it. The
latitude which has been assumed in this way has very much added to
the uncertainty of the written law of the land, and produced much liti-
gation, which a firm adherence to its letter would have prevented. But
it is too late for speculations of this kind. Their only use can be to
make Courts careful, and they cannot be too much so, never to depart,
under the idea of preventing a particular hardship, from the plain and
obvious meaning of the legislature. This restriction, which ever}' judge
should impose on himself, is not transcended when, in the interpreta-
tion of penal statutes, any principle is applied which is found in every
code of laws, divine or human, and has from time immemorial been
ingrafted into the common law of the country, from which our jurispru-
dence is borrowed. Where such rule^ or principles exist and liave
invariably and on all occasions governed Courts in the administration of
criminal justice, they become as much a part of the law, and are as
obhgatory on a Court as the statute which it ma}- be called on to ex- .
pound. Of this kind is the one of which the appellants now claim the
380 COMMONWEALTH V. BllOOKS. [CHAP. V.
benefit ; that the concurrence of the will in what is done, where it has
a choice, is the only thing that renders a human action culpable, or, in
other words, that to make a complete offence there must be both a will
and an act. This axiom, as it maj' be termed, is applied as well to
offences created by statute as to those which are such at common law.
The variety of cases in which this absence of will excuses those who
would otherwise be offenders have been mentioned in the course of the
argument, and among them we find that on which this defence pro-
ceeds, namely, an act which proceeds from compulsion and inevitable
necessity. Whether the legislature might not bj^ apt words punish an
act taking place under such circumstances is foreign from the present
inquirj' ; but where this is not done in terms, they are supposed to
know that, by the rules of the common law, it is always considered as
excepted, and therefore do not make the exception themselves. The
cases which have been produced hy the appellant are as strong and
conclusive as perhaps were ever submitted to a Court in support of any
proposition of law. If the necessity which leaves no alternative but
the violation of law to preserve life be allowed as an excuse for com-
"Tnitting what would otherwise be high treason, parricide, murder, or
any otner ot tne highef Climes, why should it not render venial an
"^offence which is only malum prohibitum, and the commission of which
"Is attended with no personal injury to another. The Court, therefore,
cannot but j'ield to the weight of so many authorities, especially, too,
when every decision accords with reason, common sense, and the feel-
ings of mankind, which are universal and indelible.
But is it so very clear that the law itself does not make the excep-
tion ? The Court is inclined to think that, on a fair comparison of the
different acts with each other, this will be found to be done. The leg-
islature, by some of the provisions of the enforcing law, as it is called,
certainly appear to have been of the same opinion.
The Court, therefore, thinks that the necessity which is proved to
have existed excused the payty from all guilt, and of course from the
forfeiture whieH~is sought ; anoTtia*— B«»e having accrued, it is not
among those cases which are referred for mitigation to the Secretary of
the Treasury.
The sentence of the District Court must accordingly be reversed.
COMMONWEALTH v. BROOKS.
Supreme Judicial Court op Massachusetts. 1868.
[Reported 99 Massachusetts, 434.]
Complaint for the violation of s. 34 of an ordinance of the city of
Boston relating to carriages, which section is printed in the margin.*
1 " No owner, driver, or other person having the care or ordering of any chaise,
carryall, hackney carriage, truck, cart, waggon, handcart, sleigh, sled, handsled, or any
SECT. Vl.] COMMONWEALTH V. BROOKS. 381
(Laws and Ordinances of Boston, ed. 1863, p. 106) in suffering the i
defendant's wagon to stop in South Marlcet Street in Boston more '
than twenty minutes.^
Geay, J. It is very clear that the defendant was not proved to have
violated the city ordinance on which he was prosecuted. No person
transgresses the ordinance, who does not voluntarily suffer his vehicle
to stop in the street for more than twenty minutes. The defendant,
indeed, drove into South Market Street more than twenty minutes
before four o'clock, and intended to remain in that street until four
o'clock. But he had the right to travel in the street, if he did not volun-
tarily suffer his vehicle to stop in it for the prohibited period. If he
had arrived on his stand more than twenty minutes before four o'clock
and voluntarily remained there with his wagon until that hour, or if he
had voluntarily stopped his wagon for more than twenty minutes at
any other place in the street, it would have been a violation of the
ordinance. So, perhaps, if he had stopped for more than twenty
minutes in all in two places near each other, in the execution of one
purpose. But it is unnecessary in this case to consider under wliat
circumstances repeated intermissions of travel, or time spent in driving
about the street without intention of moving onward towards a par-
ticular destination, might be treated as going to make up one stopping,
within the meaning of the ordinance ; for it appears that the defend-
ant, while driving his wagon through the street towards his stand, was
delaYed^by ttie crowcimg ot other veliicles whicn hp '''^"l" ""t f./-,|^r»l
fSFfiye or sis mic'toa, npri thnn rli.Mrp fi]^ aiid occupied his stand. He
dldnot voluntarily stop at all before arriving at his stand ; he did not
stop on his stand but fifteen minutes before four o'clock ; and after
four o'clock, being a marketman, engaged in bringing vegetables into
the city and selling them from his wagon at a stand occupied by him
witliin the established limits of the market, though in a public street,
he is admitted to have had a right, by virtue of the exception in the
ordinance, and of the St. of 1869, c. 211, to be and remain upon his
stand with his wagon. I^ew trial ordered.
other vehicle whatsoever, new or old, finished or unfinished, with or without a horsa
or horses, or other animal or animals harnessed thereto, shall suffer the same to stop
in any street, square, lane, or alley of this city more than five minutes, without some
proper person to take care of the same, or more than twenty minutes in any case ; and
any person so offending shall be liable to a fine of not less than three, nor more than
twenty dollars for each offence. But this section shall not apply to the carriages of
physicians while visiting the sick, or to the vehicles of market and provision men, who
may stand with the same, without the limits of Faneuil Hall Market, until eleven
o'clock in th$ forenoon, at such places in tlie city as the board of aldermen may desig-
nate, for the purpose of vending provisions."
^ The evidence is omitted.
382 EEGINA V. KEED. [CHAP.
SECTION VIL
Custom.
ANONYMOUS.
Common Pleas.
[Reported 2 Leon. 12.]
Manwood, J., said: When I was servant to Sir James Hales,
one of the Justices of the Common Pleas, one of his servants was
robbed at Gads Hill, within the Hundred of Gravesend in Kent, and be
sued the men of the Hundred upon this statute,^ and it seemed hard to
the inhabitants there that they should answer for the robberies done at
Gads Hill, because robberies are there so frequent that if they should
answer for all of them, that they should be utterly undone. And
Harris, Sergeant, was of counsel with the inhabitants of Gravesend,
and pleaded for them, that time out of mind, etc., felons had used to
rob at Gads Hill, and so prescribed, and afterwards by award they
were charged.
REGINA V. REED.
Sussex Assizes. 1871.
[Reported 12 Cox C. C. 1.]
The indictment stated that the defendants did unlawfully and inde-
cently expose their bodies and persons naked and uncovered in pres-
ence of divers of her Majesty's subjects, to tlieir great scandal, and to
the manifest corruption of their morals ; and, second count, that the
defendants on a certain public and common highway, in the parish
of Appledown, unlawfully and indecently did expose their bodies and
persons naked and uncovered in the presence of divers subjects then
and there being, and within sight and view of divers others passing and
repassing in the highway, to the common nuisance of the subjects of
the Queen.
The defendants pleaded not guilty.
1 Statute of Winchester, 13 Edw. 1.
SECT. VII.] EEGINA V. EEBD. 383
Hawkins, Q. C, and Grmitham, for the prosecution.
Willoughby and A. L. Smith, for the defendants.
Sawkins, in opening the case, cited Rex v. Crowden, 2 Camp..
N. P. C. 89, where a defendant was convicted of indecency in bathing
at Brighton, in view of houses recently erected. Although in the pres-
ent case it was not alleged that the bathing was within view of thu
houses, it was urged that, as it was on a public pathway, it was the
same case in point of principle.
It appeared that the bathing took place in the sea, at a spot about
two miles from Chichester, and half a mile from the nearest dwelling-
house, at the mouth of the Levant, a stream flowing from Chichester,
and where the water was deeper than elsewhere on that part of the coast.
The bathing-place was on a public footway from Chichester, on a bank
or sea-wall along the beach. The side of the bank next to the sea, as
it was a sea-wall, was not accessible as a place for dressing and un-
dressing, and so the bathers dressed and undressed on the land side of
the path. Hence they passed naked to and from the sea across the
path ; and it was proved that as many as eighteen or twenty women
passed along the footpath in the course of a day, and that sometimes
they had to turn back in order to avoid the bathers. The bathing took
place, not merely in the morning and evening, but in the afternoon, at
the time women were walking along the path. Moreover, as the bank
was five or six feet high, the bathers, when on the path, were seen at
some distance.
It was proved that bathing went on at the time women were passing,
and that sometimes they had to turn back. The pathway was, it was
stated, one of the most pleasant walks round Chichester, and a good
deal frequented by ladies, especially in that season of the j-ear when
bathing went on ; and the prosecutor, Mr. Stanford, whose house was
within half a mile of the bathing-place, stated that the bathers could be
seen from some of the windows of his house and from his garden. Rnt.
itjlifl noli iijipi ill liliiili I iimplrmitirijiiid brru ma,Ju Ulilil the pjiMWatfor
-Purchased the hpiiqe !\hny\ fwp y""^''" .ago, and it also appeared that
there was another house nearer than his, and that the inhabitants did
not complain, the nearest house being above a quarter of a mile from
the bathing-place. Further, it appeared that for more than half a
century bathing had taken place tliere without AYiy complaiht, and that
there had not been on the part of any of the defendants any exposure
beyond what was necessarily incident to bathing. Nevertheless, it
appeared that the pathway from which the bathing took place was one
of the most pleasant walks in the neighborhood of Chichester, and that
it was practically closed to females during the bathing season, which
was, of course, the finest portion of the year.
CoCKBURN, C. J. If the place where the bathing went on was a
place where persons could not bathe without indecent exposure, it was
a place where bathing ought not to go on. Undoubtedly, if it was a
place where people rarely passed, and where there was no necessity for
384 . BANKUS V. ■ STATE. [CHAP. T.
passing at all, it would be a material element in the case. But the
mere fact that bathing could not go on in the place without exposure
was not though to excuse the exposure, and was rather a reason why
the bathing ought not to go on. Upon these facts it was quite impos-
sible that the defendants could resist a conviction upon this indictment.
There was, it appeared, a public footway frequented in fine weather by
the inhabitants of Chichester, and which must be taken to be an ancient
and accustomed footway. Tf woe ^yyipnae^hiQ fr^ ^pf np q f.pQt£.mgT-y
riajht to bathe olnsp tn thp pnth in ouoh .a^jyay as to violate public
decency, and thus to be inconsistent with tlie use of the footway by any
/of the Queen's subjects, especially of the female sex. No one could
puppose that respectable women could frequent the footpath where men
were in the habit of bathing, and were constantly seen in a state of
nudity. It was clefir. tihPr°fr"'"i tlinl^ the nsage sr> to bflth") V-^ii'^y^r
long it might haveexiSted, coolrl not he upheld, and that those persons
' '^vhu thus exposeH~themse]v'>H npfn ^r— atiai l,n ^ii-^iublic footway were
liable Lo tie indicted for indefTpy There must, if the prosecution was
pressed, be a verdict of guilty upon this indictment, unless the facts as
thus shown in evidence could be altered.
It was not suggested for the defence that the facts could be altered.
MawMns, for the prosecution, stated that it was not desired to press
the prosecution, if protection for the future could be secured, and there-
upon it was agreed between the parties that bathing henceforth should
take place from a shed to be erected for the purpose, and on this
condition the jury were discharged.'
BANKUS V. STATE.
Supreme Court of Indiana. 1853.
[Reported i Ind. 114.]
Perkins, J. Indictment for a riot. Jury trial, conviction, motion
for a new trial overruled, and judgment against the defendants.
The bill of exceptions in the case states the substance of the evidence
given as follows: "Jesse Bankus, Lewis Simpson, William Woods,
and William McShirely, four of the defendants, were on trial, and three
witnesses were examined on the part of the state (one of whom was
engaged in the alleged riot with the defendants), whose testimony
tended to prove that on a certain evening, within a year before the
finding of said indictment, at the county of Henry, the above-named
defendants were at a certain place in said count}-, called Chicacro,
(there being no evidence to prove that they had assembled at said place
by previous concert or arrangement, for any purpose whatever, except
the facts that they were all present without any known business, and
1 Ace. Com. u. Perry, 139 Mass. 198.'
SECT. VII.] BANKUS V. STATE. 385
tliat they lived ia different parts of tlie neighborliood) ; tliat tiiore had
been an infair at the house of one Jacob Wise, in said Chicago, whose
house was situated on or near the public highway ; that the defendants,
with one exception, were young men, one of whom went to a neighbor-
ing house and borrowed a horn, with which they marched back and
forth along the highwa}', sometimes blowing said horn and singing
songs, but not vulgar ones, before the house of said Wise, and north
and south of it, and hallooed so that they could be heard near a mile
distant, as certain persons, not witnesses, had informed said Wise ; and
that they continued on the ground, Shus acting, till one or two o'clock
in the morning. But said witnesses all concurred in stating that the
defendants were all in good humor, and used no violence further than
above set forth ; that they had no guns or weapons of any kind, made
no threats or attempts at force of any kind; that the witnesses were
not in the least alarmed, and feared no danger of anj' kind, and were in
no way disturbed, except that Jacob Wise stated that he wont to bed
about nine o'clock, and was awakened occasionally by the hallooing in
the Yoad, and that i. pedler, yyho put up at the house of said Wise that
night (it being a public house), inquired if there were a lock and key
to the stable in which his horses were kept; and that said Wise, at the
instance of said pedler, locked the stable ; " which was all the testimony
given in the cause.
The question is, whether, upon the foregoing evidence, the jury were
authorized to find the defendants guilty of a riot.
The R. S. of 1843 enact, p. 973, that " if three or more persons shall
actuallj- do an unlawful act of violence, either with or without a common
cause or quarrel, or even do a lawful act in a violent and tumultuous
manner, they shall be deemed guilty of a riot." The R. S. of 1852,
vol. 2, p. 425, thus define a riot: " If three or more persons shall do
an act in a violent and tumultuous manner, they shall be deemed guilt}'
of a riot."
A great noise in the night-time, made by the human voice or by
blowing a trumpet, is a nuisance to those near whom it is made. The
making of such a noise, therefore, in the vicinity of inhabitants, is an
unlawful act; and, if made by three or more persons in concert, is, by
the statute of 1843, a riot. All these facts exist in the present case.
Here was a great noise, heard a mile, in the night-time, made with
human voices and a trumpet, in the vicinity of inhabitants. The re-
quirements of the statute for the making out of the offence are filled.
The noise was also made tumultuousl}-. The act itself involves tumul-
tuousness of manner in its performance. But it is said, here was no
alarm or fear. The statute defining the offence says nothing about
alarm or fear. In this case, however, it was only the witnesses who
were not alarmed. Others within the distance of the mile in which the
noise was heard, and who were not present to observe the actual con-
dition of things, may have been, and doubtless were, alarmed ; and the
pedler was afraid his horses would be stolen.
386 VICK V. STATE. [chap. V.
It is said. the rioters were in good humor. Very likely, as they were
permitted to carry on their operations without interruption. But with
what motive were they performing these good-humored acts? Not,
certainly, for the gratification of Wise and his family. They were giv-
ing them what is called a charivari, which Webster defines and explains
as follows: "A mock serenade of discordant music, kettles, tin-pans,
etc., designed to annoy and insult. It was at first directed against
widows who married a second time, at an advanced age, but is now
extended to other occasions of nocturnal annoj-anee and insult."
Again, it is urged that these defendants were but acting in accord-
ance with the custom of the countr3-. But a custom of violating the
criminal laws will not exempt such violation from punishment. In the
case of The State of Pennsylvania v. Lewis, et al., Add. K. 279, it
appeared that on the 6th of November, 1795, there was a wedding at
the house of one John Weston. The defendants in said case were
there without invitation, were civilly treated, and, in the evening, when
dancing commenced, began a disturbance in which, during the evening,
Weston was so seriously injured that, on the third day after, he died.
On the trial of the indictment against said defendants, Campbell, Pen-
tecost, and Brackenridge, in their argument, said, "These men did
nothing more than an usual frolic, according to the custom and
manners of this country. There was no intention of hurt, no de-
sign of mischief, in which the malice, which is a necessary ingredient of
murder, consists." But the argument did not prevail; and the Court
said, " If appearance of sport will exclude the presumption of malice,
sport will always be affected to cover a crime." The defendants were
convicted of murder in the second degree.
The case before us we regard as a plain, but not an aggravated^
one of riot, and the judgment below must be affirmed. The defendants
were fined but three dollars each. The judgment is affirmed with costs,
VICK V. STATE.
Court of Criminal Appeals of Texas. 1902.
[Reported 69 Southwestern Rep. 156 ]
Brooks, J.* Appellant was prosecuted under an information charging
the theft of a load of wood. Upon conviction, his punishment was
assessed at a fine of $5 and one hour's confinement in the county
jail. . . .
Appellant also complains that the court erred in not charging the
jury as to the custom of people to go into the pastures and take wood
from parties owning the pastures. There is no law authorizing thieving
by custom. This testimony was not admissible. . . .
The judgment is affirmed.
1 Only so much of the case as (^iscusses the defence of custom is given. Ed.
SECT. VII.] HENDRY V. STATE. 387
HENDRY V. STATE.
Supreme Court op Florida. 1897.
[Reported 39 Ma. 235.]
Mabbt, J. The plaintiff in error was indicted, tried and convicted
of the larceny of cows, the property of one Adam Mercer, and sentenced
to the penitentiary for one year. Two assignments of error are insisted
on for a reversal of the judgment ; the first being the rejection of cer-
tain testimony sought to be elicited by plaintiff in error from the wit-
ness, Ziba King, and the second, relating to the sufficiency of the
evidence to sustain the verdict.
Ziba King, testifying for the prosecution, stated that he ran a
butcher shop at Punta Gorda, and that some time in May, 1894,
defendant delivered to him at his butcher shop in DeSoto county
about nineteen head of cattle, and among them were six or seven in
the mark and brand of Adam Mercer ; that witness knew the mark and
brand of Mercer, and defendant stated at the time of the delivery of the
cattle that he was authorized to sell them. Witness bought the cattle
from defendant and paid him for seventeen head, most of which were
butchered. On cross-examination of this witness, after stating that he
had been extensively engaged in the cattle business for twentj'-five
j'ears, and was familiar with the rules and customs of stock men in De-
Soto county, the following question was propounded, viz. : You have
stated that you have been extensively engaged in the cattle business in
this count}' for twenty-five years, and that you are familiar with the
rules and customs of stock men, please state whether or not it has been
the custom among cattle owners of this county, during the time you
have been engaged in the cattle business, to drive to market and sell the
cattle- of their neighbors where they were on friendly terms with each
other, without any special authority for so doing, and with the under-
standing that they would be paid for by the men who drove them such
price as they could obtain for them in the market, with or without a
reasonable compensation for driving them ? " This question was ob-
jected to by the State Attorney and excluded by the court, and we
are of the opinion that there was no error in the ruling. The
question was on cross-examination of the state's first witness, and
was not in cross of any testimony brought out on direct examina-
tion by the state, but the objection was not based on this ground,
and it may be said to have been waived. The charge against the
defendant was for the larceny of the animals described in the in-
dictment, and this included not only a wrongful taking of the prop-
erty of another, but also that it was done animo furandi, or with the
intent to steal. There can, of course, be no legal custom to justify one
man in stealing the property of another, as such a custom would be
bad and contrary to law. Commonwealth v. Doane, 1 Gushing, .5. We
a88 HENDKY V. STATE. [OHAP. V.
do not understand that this legal proposition is questioned by counsel
for plaintiff in error, but it is insisted that the custom proposed to be
shown, if it existed, was proper as bearing upon the intent with which
the accused took the property, and that it would tend to show he did
not take it with a felonious purpose. It had not been shown that the
accused was a cattle owner residing in DeSoto county on friendly
terms with the owner of the cattle alleged to have been stolen, or was
in any way entitled to avail himself of the custom sought to be shown.
Subsequent testimony of the accused himself showed that he was not a
cattle owner, and was not in a situation to avail himself of such a cus-
tom, if it did exist. If it had been shown, or offered to be shown,
that the accused was a cattle owner, residing in DeSoto county, on
friendly' terms with the ownfr of the cattle in question, and that, under
such a custom offered to be shown, he had driven the cattle to market
and had sold them, but with the ihtention of accounting to the owner
for the purchase money, we do not intimate that the evidence of such a
custom would be improper. It might become pertinent and material
in such a case, but the accused in the present case was not shown to be
a stock owner, or in anj- proper way connected with such a custom, if
it existed, and there was no error in rejecting the proposed testimony.
We have entertained some misgivings as to the sufficiency of the
evidence to sustain the verdict, but after a careful examination have
concluded that it is of such a nature, when viewed in an unfavorable
light against the accused, as to sustain the conviction. The credi-
bilitj- of witnesses, in case of conflict, we leave to the settlement of
the jury ; nor can we say how much credence must be given to the
evidence of the accused where there is conflict or improbability of
statement. It is true, as contended by counsel for plaintiff in error,
that to constitute larceny, the taking must be with a felonious intent
at the time, and whether such intent existed is a question of fact to be
determined by the jury from all the facts of the case. The testimony
before us shows beyond dispute that the accused gathered the cattle of
Adam Mercer and drove tliem some thirty miles to a market and sold
them for money which he never accounted to the owner for, or offered
to make an}- account, and under all the facts of the case we are of the
opinion that the question of whether the accused took the cattle with
felonious purpose of converting them to his own use and profit, was
proper for the jury to settle, and as they determined it adversely
to him, the judgment will be affirmed.
SECT. I.] EEX V. RICHARDSON. 389
CHAPTER VI.
PARTIES IN CRIME.
SECTION I.
Who are Parties.
ANONYMOUS.
Old Bailky. 1723.
[Reported 8 Mod. 165.]
At the sessions in the Old Bailey held there on the ninth day of
April, in the ninth year of George the First, where some of the judges
of the Common Pleas were present, this case happened :
Two men were beating another man in the street in the night-time.
A stranger passing bj' at the same timesaid, "I am ashamed to see two
men beat one." Thereupon one of those who was beating the other ran
to the stranger in a furious manner, and with a knife which he held in his
right hand, gave him a deep wound, of which he died soon after. And
now both the others were indicted as principals for the said murder.
But the Judges were of opinion that, because it did not appear,tbat
one of them jjxt£mi©d--arH3«-i-n-jiTr3--tQ the person killed, Jie_couiElnfit_ be I
gatlty of his death, either as principal or accessorj'. It is true, they
were both doing~~an~- nirlaWful actj buFTBe death of the party did not
ensue upon that act.
REX V. RICHARDSON.
Old Bailey. 1785.
{Reported Leach {ith ed.) 387.]
At the Old Bailey, in .June Session 1785, Daniel Richardson and
Samuel Greenow were indicted before Mr. Justice Bcllek for a high-
way robbery on John Billings.
It appeared in evidence that the two prisoners accosted the prose-
cutor as he was walking along the street, by asking him in a peremp-
tory manner what money he had in his pocket ; that upon his replying
that he had only two-pence half-penny one of the prisoners immedi-
ately said to the other, " If he really lias no more do not take that,"
and turned as if with an intention to go away ; but the other prisoner
stopped the prosfecutor, and robbed him of the two-pence half-pennj',
which was all the money he had about him. But the prosecutor could
not ascertain which of thejn ,_it wa§^_that had usedthis"e3rpreBsionrnoi
whicfeTrfidieiff'had^'takenthe half-pence froraTiTs pocket. —
390 EEGINA V. SWINDALL. [CHAP. VI.
The Codkt. The point of law goes to the acquittal of both the
prisoners; for if two men assault another with intent to rob him, and
one of them, before any demand of money, or offer to take it be made,
repent of what he is doing, and desist from the prosecution of such
intent, he cannot be involved in the guilt of his companion who after-
wards takes the money ; for he changed his evil intention before the
act which completes the offence was committed. That pri8PBe£_there-
fore, whichever of the two it was who thus desisted, cannot ie-g-uilty
of the present charge ; and the prosecutor cannot ascertain who it was
that took the propel-ty. One of them is certainly guilty, but wMch of
-them personally does not appear. It is like the Ipswich Case, where
five men were indicted for murder ; and it appeared, on a special ver-
dict, that it was murder in one, but not in the other four ; but it did
not appear which of the five had given the blow which caused the
death, and the court thereupon said that, as the man could not be
clearly and positively ascertained, all of them must be discharged.
The two prisoners were accordingly acquitted.^
REGINA V. SWINDALL.
Stafford Assizes. 1846.
{^Reported 2 Carrington Sj- Kirwan, 230.]
Manslaughter. — The prisoners were indicted for the manslaughter
of one James Durose. The second count of the indictment charged
the prisoners with inciting each other to drive their carts and horses
at a furious and dangerous rate along a public road, and with driving
their carts and horses over the deceased at such furious and dangerous
rate, and thereby killing him. The third count charged iSwindall with
driving his cart over the deceased, and Osborne with being present,
aiding and assisting. The fourth count charged Osborne with driving
his cart over the deceased, and Swindall with being present, aiding
and assisting.
Upon the evidence it appeared that the prisoners were each driving
a cart and horse, on the evening of the 12th of August, 1845. The
first time they were seen that evening was at Draycott toll-gate, two
miles and a half from the place where the deceased was run over.
Swindall there paid the toll, not only for that night, but also for
having passed with Osborne through the same gate a daj' or two
before. They then appeared to be intoxicated. The next place at
which they were seen was Tean Bridge, over which they passed at a
gallop, the one cart close behind the other. A person there told them
to mind their driving ; this was 990 yards from the place where the
1 Ace. People v. Moody, 45 C»l. 289. - Ed.
SECT. I.] EEGINA V. SWINDALL. 391
deceased was killed. The next place where they were seen was forty-
seven yards beyond the place where the deceased was killed. The
carts were then going at a quick trot, one closely following the
other. At a turnpike-gate a quarter of a mile from the place where
the deceased was killed, Swindall, who appeared all along to have
been driving the first cart, told the toll-gate keeper, " We have driven
over an old man," and desired him to bring a light and look at the
name on the cart ; on which Osborne pushed on his cart, and told
Swindall to hold his bother, and they then started off at a quick pace.
They were subsequently seen at two other places, at one of which
Swindall said he had sold his concern to Osborne. It appeared that
the carts were loaded with pots from the potteries. The surgeon
proved that the deceased had a mark upon his body which would cor-
respond with the wheel of a cart, and also several other bruises, and,
although he could not a&y that both carts had passed over his body, it '
was possible that both might have done so.
Greaves, in opening the case to the jury, had submitted that it was
perfectly immaterial in point of law, whether one or both carts had
passed over the deceased. The prisoners were in companj', and had
concurred in jointly driving furiously along the road ; that that was
an unlawful act, and, as both had joined in it, each was responsible
for the consequences, though they might arise from the act of the
other. It was clear that they were either partners, master and ser-
vant, or at all events companions. If thej' had been in the same cart,
one holding the reins, the other the whip, it could not be doubted that
they would be both liable for the consequences ; and in efl'ect the case
was the same, for each was driving his own horse at a furious pace,
and encouraging the other to do the like.
At the close of the evidence for the prosecution, Allen, Serjt., for
the prisoners, submitted that the evidence only proved that one of
the prisoners had run over the deceased, and that the other was en-
titled to be acquitted.
Pollock, C. B. I think that that is not so. I think that Mr.
Oreaves is right in his law. If two persons are in this way inciting
«ach other to do an unlawful act, and one of them runs over a man,
whether he be the first or the last he is equally liable : the person who
runs over the man would be a principal in the first degree, and the j
other a principal in the second degree. '
Allen, Serjt. The prosecutor, at all events, is bound to elect upon
which count he will proceed.
Pollock, C. B. That is not so. I very well recollect that in
Regina v. Goode there were many modes of death specified, and that
it was also alleged that the deceased was killed by certain means to
the jurors unknown. When there is no evidence applicable to a par-
ticular count, that count must be abandoned ; but if there is evidence
to support a count, it must be submitted to the jury. In this case the
evidence goes to support all the counts.
392 EEGINA V. SWINDALL. , [CHAP. VI.
Allen, Serjt, addressed the ju'rj- for the prisoners.
Pollock, C. B., in summing up. The prisoners are charged with
contributing to the death of the deceased by their negligence and
improper conduct, and, if they did so, it matters not whether he was
deaf, or drunk, or negligent, or in part contributed to his own death ;
for in this consists a great distinction between civil and criminal pro-
ceedings. If two coaches run against each other, and the drivers of
both are to blame, neither of them has any remedy against the other
for damages. So, in order that one ship-owner maj- recover against
another for any damage done, he must be free from blame ; he cannot
recover from the other if he has contributed to his own injury, however
slight the contribution may be. But in the case of loss of life the
law takes a totally different view, — the converse of that proposition is
true ; for there each party is responsible for any blame that may
ensue, however large the share may be ; and so highly does the law
value human life that it admits of no justification wherever life has
been lost, and the carelessness or negligence of any one person has
contributed to the death of another person. Generally, Jt^maj' be laid
down jthat> where one by Jiis. negligence has. contjaJjuJs^Jo the death
of another he, is responsible ; therefore, you are to say, by your ver-
dict, whether j'ou are of opinion that the deceased came to his death
in consequence of the negligence of one or both of the prisoners.
A distinction has been taken between the prisoners : it is said that
the one who went first is responsible, but that the second is not.
If it is necessary that both should have run over the deceased, the
case is not without evidence that both did so. But it appears to
me that the law, as stated by Mr. Greaves, is perfectly correct.
Where two coaches, totally independent of each other, are proceeding in
the ordinary way along a road, one after the other, and the driver of the
first is guilty of negligence, the driver of the second, who had not the
same means of pulling up, may not be responsible. Bu^ when two
persons ar& driving together,, encouraging ^each_othfir— to drive" at a
dangerous pace, then, whether the injury is ,dQH6 by the one driving
"the'ftrST'or the second carriage, I am of opinion that in point of
law the other shares the guilt.*
Verdict, Gv,ilty.
Greaves and Kynnersley, for the prosecution.
Allen, Serjt., and G. H. Whalley, for the prisoners.
» See Reg. v. Salmon, 14 Cox C. 0. 494. —Eft
SECT. I.] REGINA V. CONEY. 393
. EEGINA V. CONEY.
Court for Crown Cases Rkserved. 1882.
[Reported 8 Q. B. D. 534.]
Cave, J.^ In this case I am of opinion that the direction to the jurj
was wrong, and consequentl3' that the conviction ought not to stand.
No dii'ection to a jury can, in my opinion, be regarded as right or
wrong without reference to the evidence before the jury ; for a direc-
tion which is sufficient under a certain state of 'facts may be mislead-
ing and wrong under another state of facts. It is important, therefore,
first to see what the offence was with which the prisoners were charged
and what was the evidence against them.
The prisoners were charged in one count with a common assault on
one Burke, and in another count with a like assault on one Mitchell.
The evidence was that on the 16th of June last, at the close of Ascot
races, Burke and Mitchell had engaged in a fight near the road from
Ascot to Maidenhead ; that a ring was formed with posts and ropes ;
that a large number of persons were present looking on, some of whom
were undoubtedly encouraging the fight ; that the men fought for some
time ; and that the three prisoners were seen in the crowd, but were not
seen to do anything, and there was no evidence how thej' got there or
how long they stayed there.
The chairman^of quarter sessions directed the jury in the words of
Russell on Crimes, vol. i. p. 818 : " There is no doubt that prize-fights
are illegal, indeed just as much so as that persons should go out to
fight with deadly weapons, and it is not at all material which party
strikes the first blow, and all persons who go to a prize-fight to see the
combatants strike each other, and who are present when they do so, are,
in point of law, guilty of an assault." And the chairman added, in
the words of Littledale, J., in Rex v. Murphy, 6 C & P. 103: "If
they were not casually passing by, but stayed at the place, they
encouraged it by their presence, although they did not say or do
anything."
By this direction I gather that the chairman laid down as matter of law,
first, that the actual fighters in a prize-fight are guilty of an assault ;
and, secondly, that if any person is shewn to have been present in the
crowd looking on at the fight, that is not merely evidence, but, if un-
explained, conclusive proof that he was aiding and abetting the assault.
That seems to be the natural meaning of the language used, and that,
from the finding of the jury, appears to me to be the sense in which
they understood it. They found a verdict of guilty against five of the
1 Concurring opinions were delivered by Stephen, Lopes, Nokth, and Haw-
kins, JJ , HuDDi.ESTON, B., Manistt and Denman, JJ., and dissenting opinions by
Mathew, J., Pollock, B., and Lord Coleridge, C. J.
/
394 ' EEGINA V. CONEY. [CHAP. VI.
prisoners who, I presume, were proved to have taken some active part,
or to have been there for the purpose of encouraging the fight ; and as
to the three prisoners in question, they found tliat they- were -giiilfcy of
an assault, and yet that they were nfit„aidiBg and abetting^'v^ich is to
my mind an inconsistent^finding. Indeed, on no other supposition can
-^understand the verdict, for the evidence against the three prisoners,
and especially against Gilliam, is quite consistent with their being
laborers working near or persons going quietly home from the races,
who, observing a crowd, went up to see what the matter was, and
finding it was a fight, sta5'ed some short time looking on.
For the defence it ■w'as first contended that inasmuch as Burke and
Mitchell had agreed to fight there was no assault. I am, however, of
opinion that this is not so. "With regard to an action for an assault,
in the case of Boulter v. Clarke, Buller's Nisi Prius, p. 16, it was held
bj- Parker, C. B., that it was no defence to allege that the plaintifi"
and defendant fought together by consent, the fighting itself being
unlawful, and in Matthew v. Ollerton, Comb. 218, it was held that if
one license another to beat him, such license is no defence, because it
is against the peace. So with regard to an indictment for an assault,
Patteson, J., in Rex v. Perkins, 4 C. & P. 537, speaking of a prize-
fight, says, if all these persons went out to see these men strike each
other, and were present when they did so, they are all in point of law
guilty of an assault. There is also the authorit}- of Coleridge, J., in
Reg. V. Lewis, 1 C. & K. 419, who sa}"S that whenever two persons go
out to strike each other, and do so, each is guiltj^ of an assault.
Reg. V. Orton, 39 L. T. 293, proves nothing against this view, for the
most that can be said of that case is that this point did not arise there.
Christopherson v. Bare, 11 Q. B. 473, has also nothing to do with this
point, all that was there decided being that a plea of leave and license
was not a good defence to an action for an assault, on the ground that
if that is a defence, it arises under the general issue, an assault by leave
and license being a contradiction in terms.
The true view is, I think, that a blow struck in anger, or which is
likelj- or is intended to do corporal hurt, is an assault, but that a, blow
struck in sport, and not likely nor intended to cause bodily liarra, is
not an assault, and that, an assault being a breach of the peace and
unlawful, the consent of the person struck is immaterial. If this view
is correct, a blow struck' in a prize-fight is clearly an assault ; but play-
ing with single-sticks or wrestling do not involv.e an assault ; nor does
boxing with gloves in the ordinary way, and not with the ferocity
and severe punishment to the boxers deposed to in Reg. v. Orton, 39
L. T. 293.
It was next contended that the chairman was wrong in directing the
jury in the words of Littledale, J., in Rex v. Murphy, 6 C. & P. 103,
that if the prisoners were not merely casuallj- passing by, but stayed at
the place, they encouraged it bj' their presence, although they did not
say or do anything.
SECT. I.] EEGINA V. CONEY. 395
Now it is a general rule in the case of principals in the second degree
that there must be participation in the act, and that, although a man is
present whilst a felony is being committed, if he talfes no part in it, and
does not act in concert with those who commit it, he will not be a
principal in the second degree merely because he does not endeavor
to prevent the felony, or apprehend the felon.
In 1 Hale, Pleas of the Crown, p. 439, it is said that to make an
abettor to a murder or a homicide principal to a felony there are regu-
larly two things requisite ; 1st, he must be present, 2d, he must be
aiding and abetting. If, says Hale, A. and B. be fighting and C, a
man of full age, comes by chance, and is a looker-on only, and assists
neither, he is not guilty of murder or homicide as principal in the
second degree.
So again in Foster's Crown Law, p. 350, it is said that " in order
to render a person an accomplice and a principal in felony, he must be
aiding and abetting at the fact, or ready to afford assistance if neces-
sary, and therefore if A. happeneth to be present at a murder, for
instance, and taketh no part in it, nor endeavoreth to prevent it, nor
apprehendeth the murderer, nor levyeth hue and cry after him, this
strange behavior of his, though highly criminal, will not of itself
render him either principal or accessory." "I would be here," he con-
tinues, " understood to speak of that kind of homicide, amounting in
construction of law to murder, which is usually committed openly and
before witnesses, for in the case of assassinations done in private, to
wliich witnesses who are not partakers in the guilt are very rarely ad-
mitted, the circumstances I have mentioned may be made use of against
A., as evidence of consent and concurrence on his part ; and in that
light should be left to the jury, if he be put upon his trial."
This.&e<»mo to me to. hit tho point. — WJi«r.©.^Kesence may ie-entirely I
accidental, it is not even evidenceof aiding __and abetting. Where |
P^^^^^*"'^JlI!li^I!:!l£!I:^'LP^^*''f!f!'^^ p'^'jjf];;^;^!-— '^t.n,t? mpre than
jvv i rl f^ p pff ij f n r- tHr j I iir*"' —
In accordance with the principles here laid down, Kelly, C. B., in
Eeg. V. Atldnson, 11 Cox, 330, a case of persons who were indicted foi
a serious riot, held, that the mere presence of a person among the riot
ers, even though he possessed the power, and failed to exercise it, ol
stopping the riot, did not render him liable on such a charge, and thai
in order to find any of the defendants guilty, the jury must be satisfied
that they had taken part in an assembly for an unlawful purpose, and
had helped, or encouraged, or incited the others in the prosecution "f
that purpose.
In Eex V. Borthwick, 1 Doug. 207, it is laid down that from mere i
presence the court cannot intend that the prisoner was aiding and
abetting.
In Rex V. Perkins, 4 C. & P. 537, Perkins and three others were
indicted for a riot, and an assault on Coates.
396 EEGINA V. CONEY. [CHAP. VI.
It appeared that a prize-fight was fought between Perkins anrt Coates,
and that of the other three defendants, one acted as Perkins's second,
another collected monej' for the combatants, while the third walked
round the ring and kept the people back. Mr. Justice Patteson said,
" It is proved that all the defendants were assisting in this breach
of the peace, and there is no doubt that persons who are present on
such an occasion, and taking an)' part in the matter, are equally guilt}'
as principals."
The foreman of the jury said that they doubted whether they could
find all the defendants guilty of an assault, whereupon Mr. Justice
Patteson said, " If all these persons went out to see these men strike
each other, and were present when they did, they are all in point of law
guilty of an assault. There is no distinction between those who concur
in the act and those who fight." Whereupon the jury convicted the
men of the riot, but acquitted them of the assault.
In that case there was ample evidence that the accused were guilty
of the assault, and the case did not require Patteson, J., to laj' down,
nor do I understand him as having laid down, that a mere on-looker is-
ipso facto guilty of an assault. On the contrarj-, I undei'stand him to
say, that to be guilty, they must not only be present, but must be
" taking part in the matter," as he expresses it in the one passage,
or, "concurring in the act," as he expresses it in the other.
In Reg. V. Young, 8 C. & P. 644, the prisoners were indicted for the
murder of Mirfln, who was killed in a duel by one Eliot. In summing
up, Vaughan, J., said, "There is no difficulty as to the law upon thia
subject. Principals in the first degree are those by whom the death
wound is inflicted. Principals in the second degree those who are
present at the time it is given, aiding and abetting, comforting and
assisting the persons actually engaged in the contest — mere presence
alone will not be sufficient to make a party an aider and abettor, but it
is essential that he should by his countenance and conduct in the pro
ceeding, being present, aid and assist the principals. If either of the
prisoners sustained the principal by his advice or presence, or if you
think he went down for the purpose of encouraging and forwarding
the unlawful conflict, although he did not do or saj' anything, yet, if
he was present and was assisting and encouraging when the pistol was-
fired, he will be guiltj- of the offence imputed by the indictment." In
that direction I entirely concur, but I believe if a similar direction
had been given in the present case, the prisoners would have been
acquitted.
, In Reg. V. Cuddy, 1 C. & K. 210, the prisoner was charged with aid-
ing and abetting Munro in the murder of Colonel Fawcett, whom Munro
had shot in a duel. Williams, J., in directing the jury in the presence
of RoLFE, B., said, " When two persons go out to fight a deliberate
duel, and death ensues, all persons who are present on that occasion,
encouraging or promoting that death, will be guilty of abetting the
principal offender."
SBCT. I.] KEGINA V. CONEY. 397
So far the decisions are uniform. There are, however, two which
inaj' seem to favor a different view of the law.
In Kex V. Bellingham, 2 C. & P. 234, Bellingham and Savage had
agreed to fight, and about 1000 persons were assembled to witness it.
Mr. Rogers, a pohce magistrate, being appUed to to prevent it, went
to the place and told them they should not fight. Skinner said they
should, and a scuffle ensued between him and Mr. Rogers, which ended
in a general tumult on the part of the mob, and the rescue of Skinner.
Bellingham, Savage, and Skinner were indicted for a riot, and for assault-
ing Mr. Rogers, and were convicted. In the course of his summing-up,
BuRROUGH, J., said, " By law, whatever is done in such an assembly
by one, all present are equally liable. These fights are unlawful as-
semblies, and every one going to them is guilt}' of an oflfence." These
obiter dicta appear to me to be no justification for the ruling of the
ohairman in the present case. Bdrrou&h, J., could not have intended
to saj' that all who were present for the purpose of seeing the fight
were ipso facto liable for the riot and assault upon the magistrate
which arose incidentally out of his trying to prevent the fight, and, if
he did not mean that, his remarks had no relation to the offence then
being tried, and were merely in the nature of a caution. Moreover,
taking the whole together, Burrough, J., seems to have referred to
people going to prize-fights for the purpose of encouraging them, and
not to mere on-lookers.
In Rex V. Murphy, 6 C. & P. 103, the prisoner was indicted for the
■murder of one Thompson. It was proved for- the prosecution that there
was a fight between Michael Murphy and the deceased, who died in
consequence of the blows he received, and that the prisoner acted as
one of the seconds. For the defence witnesses were called to shew
that though the prisoner was present, he did not act as second, and
that he did nothing, and did not even say anything. Mr. Justice
LiTTLEDALE told the jury that if the prisoner was at the fight encourag"
ing it by his presence, he was guiltj' of manslaughter, although he took
no active part in it, and, on his attention being drawn to the evidence
for the defence, his Lordship said, " I am of opinion that persons who
■are at a fight, in consequence of which death ensues, are all guilty of
manslaughter if the}' encouraged it bj' their presence — I mean, if they
remained present during the fight. I say that if they were not casually
passing by, but stayed at the place, thej' encouraged it bj' their pres-
ence, although they did not say or do an}'thing. If the death occuri'ed
from the fight, all persons encouraging it by their presence are guilty
■of manslaughter."
This summing-up unfortunately appears to me capable of being
understood in two different ways. It may mean either that mere pres-
ence unexplained is evidence of encouragement, and so of guilt, or that
mere presence unexplained is conclusive proof of encouragement, and
so of guilt. If the former is the corrert meaning, I ,concur in the law
398 COMMONWEALTH V. HADLET. [CHAP. VI.
SO laid down ; if the latter, I am unable to do so. It appears to me
that the passage tending to convey the latter view is that which was
read by the chairman in this case to the jury, and I cannot help think-
ing that the chairman believed himself, and meant to direct the jury,
and at any rate I fa9l_satisfie(i that the jury understood him to mean,
' that mere-presence-4m«sp]Steed;-was"cOTfiIuslye,^oof of «nG0»J"agEmM
^and so of guilt.; ^nd^it is on this ground I hold that tbis'coh^nction-
oiight not to stand. ~^' - -
COMMONWEALTH v. HADLEY.
Supreme Judicial Court of Massachusetts. 1846.
{Reported 11 Metcalf, 66.]
Shavt, C. J. The present case, which comes before the Court upon
ixceptions, presents a question of great importance affecting the admin-
ifstration of the license laws of this Commonwealth. The defendant
wa,s indicted upon the ss. 1 & 2 of c. 47 of the Revised Statutes, and
by a general verdict was convicted on both. Exceptions. were taken to
the directions of the judge before whom the indictment was tried in the
municipal court. It appears by the bill of exceptions that evidence
was introduced in support of the indictment tending to show sales of
spirituous liquors to be used in a certain shop, which sales were effected
therein by the defendant. On this proof the public prosecutor relied to
prove the sale by the defendant, as charged in the indictment.
The bill of exceptions then states that ' ' the defendant oflfered evi-
dence to show that the premises in which the sales were effected were
not leased to him ; that he was not the proprietor nor owner thereof ;
that he was merely a hired agent, having no interest in the profits, and
acting in the presence and under the control of his employer ; and he
contended that to support the indictment the government must show
that the spirituous liquor was to be used in his house or other building,
and that if the defendant was a mere bartender or hired agent he was
not liable under the statute." The judge declined so to direct the jury,
but directed them " that such evidence could not be a suflBcient defence
under the statute, and that if the jury believed that sales, were effected
by the defendant in the manner before stated, in thfi__house of another
as a hired agent or bartender, he was liable under the statute."
The court are of opinion" that these directions were~right. ' The evi-
dencV~fii'8t-offe.i«d. oalhe-parPlrtyf the prosecfltSf~COriBtitnted a primd
facie case to support the indictment. The Rev. Sts., c. 47, provide,
in s. 1, that no person shall presume to be a common seller of wine,
brandy, etc., unless first licensed as an innholdev or common victualler.
Section 2 provides, that if any person shall sell any spirituous liquor, to
SECT. I,] COMMONWEALTH V. HADLEY. 399
be used in or about his house or other buildings, without being duly
licensed, he shall forfeit, etc. , Any person incurs the penalty of the
first section who habitually sells to persons indiscriminately, although
he does not profess to be, or appear to exercise the vocation of, an
innholder or common victualler. Commonwealth v. Pearson, 3 Met.
449. Any person incurs the penalty of the second section by selling
any quantity, in a particular instance, to be used in his house. Com-
monwealth V. Thurlow, 24 Pick. 374. When, therefore, it was shown
that the defendant was making sales of the prohibited article, in a shop
adapted for the purpose, to be used on the premises, he was thereby
doing acts implying that he claimed and had possession a,nd control of
the article sold, and also that he had such actual and uncontrolled
possession, occupation, or use of the shop and place of sale and con-
sumption, as were necessary and sufficient to accomplish the act which
the law expressly prohibits. Unless, therefore, something further were
shown by way of justiScation or excuse the defendant must be con-
victed. The true question, therefore, is, whether the evidence oflfered
by the defendant, if it had been admitted, showing that the premises
were not his own, but that he acted as the agent and under the
authority of another person, without showing that such person was
licensed, would constitute such excuse or justification.
Then we are brought to the question of construction — if, indeed,
there be room for construction — of those words of the statute, "-any
person who shajl sell." It appears to us that one who oflfers an articfe"
foF'salerBituer upon the application of the purchaser or otherwise, and
who, when the offer is accepted, delivers the article in pursuance of4,he
c^er, does-^^-ael^ ''Ur-aaarke-a-'sale, aceording~EoTrlIeT)f3inary~sense and
meaning of that term. It would seem strange and contradictory to
maintain that one who sells goods on commission, or as the factor,
agent, or salesman of another, does not sell them. The argumen;
assumes that a sale must be construed to be a contract by which thtj
owner of property alienates it and transfers his title to another. Buu
this is a very limited view of the subject. It is not less a sale, and
even a valid sale, when made by the authority of the owner. So the
naked possession of property, however obtained, is some evidence of
title. The holder may make a sale de facto, which can only be defeated
by one having a higher title, and which may be ratified by the assent of
the owner. The statute prohibits all sales by unlicensed persons, as"
well sales de facto as sales by an owner, and therefore the case is
within the words of the statute.
But it is equally within the spirit of the statute. In construing an
act of the legislature, as in construing everj' other instrument, we are
to look at the entire act, and every provision and clause in it, in order
to ascertain the meaning and intent. And although the same latitude
of construction is not allowed in criminal , prosecutions as in civil suits,
still the subject-matter is not to be overlooked. The language of the
statute IS to be so construed, when it reasonably can be, as to promote
400 ■ COMMONWEALTH V. HADLET. [OHAP. VI.
rather than defeat the obvious purposes of the legislature. ISTow, in
reading this statute, it is impossible not to perceive that the plain and
governing purpose of the statute is to restrain and prevent the dis-
orders, breaches of the peace, riot, pauperism, and crime, which would
arise from the too free use and too easy mode of obtaining intoxicating
liquor in small quantities, and to accomplish this hy prohibiting the
indiscriminate sale of it by disorderly, unsuitable, and unlicensed per-
sons. The contemplated mischiefs arising from the actual sales would
not be less, although the conduct of tlie seller should also be unlawful
in other respects ; as when he has obtained the property' by finding,
and converted it to his own use, or taken it tortiously by an act of
trespass, or actually stolen it. Would a shop opened by an unlicensed
person for the indiscriminate sale of spirituous liquors be less a nui-
sance because it is also a receptacle of stolen goods, or because the liquor
actually sold in it has been stolen ? I shall not be understood to inti-
mate that stealing or receiving stolen goods, or goods obtained unlaw-
fully, would be punishable under this statute as a substantive offence,
but only that the actual sale of intoxicating liquor is not the less within
the mischiefs, and the express prohibition of the statute, because
the subject of the sale has come unlawfully to the possession of the
seller.
The construction contended for by the defendant, by which the
actual seller should exempt himself from the penalty of the law, by
showing that he sold for the use and benefit, and bj' the authority', of
another person, would let in all the mischiefs intended to be prevented
,{by the ptatute. A person residing out of the State, and beyond the
/jurisdiction of its laws, b}' taking the lease of shops, and employing
selling agents and barkeepers, might whoUj- defeat the salutary objects
Qf the law.
It is then urged, secondly, as an excuse for the defendant, that he
offered to show that he wa% a hired agent, having no interest in the
profits, and acting in the presence of and under the control of his
employer. As to his being an agent, the considerations already stated
apply to it. As to his acting in the presence of his employer, we think
that circumstance would make no difference if the defendant was the
ostensible actor in the sale ; because one who sells for another, although
in his presence, does yet sell, and the law fixes the penalty upon him
who does the act. We are to understand in the present case that the
sale was actually made bj- the defendant, otherwise he would not have
been convicted by the jury. If the employer should eatiatesaly or tacitly
command, direct, or instigatS" him to do it, both might bejiable ; for it
-is-a-,gBneral-rule of law, in cases of tort, that when two or more are
guilt}-, as actors or participators, of one and the same offence, each is
severally liable to the penalty, and either may be severally prosecuted
for it. But the command of the master will afford no justification or
excuse to the servant making the sale, because it is an unlawful com-
mand, which he is not bound to obey, and for the doing of which he
SECT. I.] COMMONWEALTH V. HADLEY. 401
can have no indemnity from the employer. These points are familiar,
and are well stated in the authorities cited in the argument. Thus it is
stated in 1 Bl. Com. 429, 430, '; if the_ servant, commit a trespass by the
command_or_eatif>nraffemeii L of his inasLer,'"the~mastSr shall be guilty
of=tE7though the servant is not thereby excused, for hejs only to obey
hra luiiBter iii" matters that are honest and lawKiI.'^ So in 2 Dane Ab.
Srt^rr^the comrnahd of "arsapwrtrrtCT aTi'inferior to commit a tort ex-
cuses the latter in no case but that of a wife. Such inferior, as servant,
is bound to perform only the lawful commands of his superior ; and the
inferior person must know, too, when he does an injury ; and if he has
to pay for it, he has no remedy against his master, except he deceives
him." Perkins v. Smith, Sayer, 40, and 1 Wils. 328.
Taken in connection with the established maxim that ignorance of
the law excuses no one from the penalties of its violation, it seems to
follow as a necessarj' consequence that a salesman or barkeeper cannot
excuse himself by showing that he did the act by the order or in the
presence of his employer. Whether if the owner, being on the spot,
should direct a wife, apprentice, or servant to draw or pour out the
liquor, or to deliver it, or even to receive payment for it, the subordi-
nate would be liable, is a question which we are not called upon to
decide, and which must depend much on the circumstances of particular
cases. It might give rise to a question of fact whether the act done by
the subordinate would amount to an actual sale. At all events, the
principal, being actively and ostensibly engaged in the transaction,
would be unquestionably amenable to the law ; and this consideration
would render the question of the liability of the subordinate of less
practical importance to the^ae execution of the law.
But where one acts a^an agent under a general authority to sell
for account of another, we are of opinion that sales of liquor made by
him are equally--0j)posed to the letter and spirit of the law as if he
were selling his own propertj*, on his o^n account, and for his own ,
profit. ^
It is urged, thirdly, as an argument against this view of the law, that ''
if correct, every barkeeper and salesman must himself be licensed, or
he would subject himself to the penalties of the law, which could not
have been contemplated by the legislature. But we think this is not a
sound conclusion from the premises. An innkeeper or retailer has a
lawful authority under his license to sell spirituous liquors, under cer-
tain restrictions, at a place designated. One maj' do lawful acts by an
agent, and the maxim qui facit per aliutn facit per se makes them, in
legal contemplation, his own ; and his license will authorize him to
employ persons under him, and will be their justification. This right
must, of course, have its reasonable limits. We do not mean to inti-
mate that one can make a general assignment of his license, because
the law contemplates a personal trust, but that he may authorize others
to act with and under him in executing the powers granted to him by
the license. All, therefore^th^ijxuagent-ac-badteepei— ha;s to do, in
402 PEOPLE V. PAEKS. [CHAP. VI.
order to secure, an immunity from the penalties of" the law , is not
to"olDtain a license himself, but^ to bg^ j£;ell„assured -that_hi§.. employer
has one.' * "
PEOPLE V. PAEKS.
Supreme Codet of Michigan. 1882.
[Reported 49 Michigan, 333.]
Campbell, J. Respondent was convicted under the statute of 1881,
making it a misdemeanor to sell intoxicating liquor to persons who
are in the habit of becoming intoxicated. The sale was not made by
I respondeat,, but by ^a. clerk. The court below held that the respon~dent
■was responsible for the knowledge of his clerk, as well as if he had
known the condition of the vendee himself.
The statute in question prohibits sales by means of clerks as well as
in person. Laws 1881, p. 355, s. 12. And a subsequent section (13)
makes violations of the statute misdemeanors, and punishable as such.
But it would be an unjust and inadmissible interpretation to construe
such a provision as covering anjthing but an act in which the will of
the respondent concurred in the sale. It,is -contrar-y^ to „ever3' rule of
law to hold a person criminallj' responsible f<jr an act in whieb^he has
taken no part. He can onlv be puhislied for what is his own wrong.
Section 2 clearlj- implies the necessity of criminal intent as an element
of the offence, and lays down certain rules of presumption involving
personal knowledge of the act done. It makes the act of sale to an
improper person presumptive evidence of such intent to violate the
law. The case comes within the decision in Faulks v. People, 39 Mich.
200. It cannot be permissible to give anj' other construction, which
■would violate the elementarj^ rules of Criminal responsibilit}'.
WhatevejjcijdL-liability-maji arise from the acts of a clerk, the jacim-
inal responsibility; must/aU on. the:actual wrong-doers, ■who have done
-TfTHeeh" connected with the violation of the law by some fault of their
own.
The conviction should be set aside and the casejismissed.
The other justices concurred.^
1 Part of the opinion, relating to another objection, is omitted.
See ace. State v. Bell, 5 Porter, 365; Com. v. Drew, 3 Cush. 279; State ». Bagbee,
22 Vt. 32. — Ed.
« But see People v. Roby, 62 Mich. 677. — £d.
SECT. I.] EEGINA V. TYRRELL. 403
EEGINA V. TYREELL.
Court for Crown Cases Reserved. 1893.
IReported 1894, 1 Q. B. 710.]
Case reserved by Mr. Cotnraissioner Kerr.
The defendant, Jane Tj'rrell, was on September 15, 1893, tried and
convicted at the Central Criminal Court on an indictment charging her,
in the first count, with having unlawfull}' aided and abetted, counselled,
and procured the commission b5' one Thomas Ford of the misdemeanor
of having unlawful carnal knowledge of her whilst she was between the
ages of thirteen and sixteen, against the form of the statute, etc. ; and,
in the second count, with having falsely, wickedly, and unlawfully' so-
licited and incited Thomas Ford to commit the same offence.
It was proved at the trial that the defendant did aid, abet, solicit,
and incite Thomas Ford to commit the misdemeanor made punishable
by s. 5 of the Criminal Law Amendment Act, 1885 (48 & 49 Vict.
c. 69).
The question for the opinion of the Court was, "Whether it is an
offence for a girl between the ages of thirteen and sixteen to aid and
abet a male person in the commission of the misdemeanor of having
unlawful carnal connection with her, or to solicit and incite a male
person to commit that misdemeanor."
Lord Coleridge, C. J. The Criminal Law Amendment Act, 1885,
was passed for the purpose of protecting women and girls against
themselves. At the time it was passed there was a discussion as to
what point should be fixed as the age of consent. That discussion
ended in a compromise, and the age of consent was fixed at sixteen.
With the object of protecting women and girls against themselves the
Act of Parliament has made illicit connection with a girl under that
age unlawful ; if a man wishes to have such illicit connection he must
wait until the girl is sixteen, otherwise he breaks the law ; but it isi
impossible to say that the Act, which is absolutely silent about aiding \
or abetting, or solicitimg or inciting, can have intended that the girls
for whose protection it was passed should be punishable under it for I
the offences committed upon themselves. I am of opinion that this]
conviction ought to be quashed.
Mathew, J.~~ I am of the same opinion. I do not see how it would
be possible to obtain convictions under the statute if the contention for
the Crown were adopted, because nearly ever}- section which deals
with offences in respect of women and girls would create an offence in
the woman or girl. Such a result cannot have been intended by the
legislature. There is no trace in the statute of any intention to treat
the woman or girl as criminal.
Geantham, Laweance, and Collins, JJ., concurred.
Conviction quashed.
404 COMMONWEALTH V. WILLARD. [CHAP. VI.
COMMONWEALTH v. WILLARD.
Supreme Judicial Court of Massachusetts. 1839.
[Reported 22 Pick. 476.] .
This was a writ of habeas corpus to the sheriff of this county, to
bring before the Court the body of George W. Eichardson.
It appeared, that Richardson was summoned as a witness before the
grand jury for the purpose of proving that one Gould had sold to him
spirituous liquors, in violation of St. 1838, c. 157, § 1 ; that he re-
fused to testify on the ground that, as such sale was made a misde-
meanor by the statute, his testimony might criminate himself and
subject him, as the purchaser, to prosecution at common law for
inducing Gould to commit a misdemeanor ; and that he was thereupon
committed to prison bj' order of the Court of Common Pleas for
contempt.
Shaw, C. J.^ . . . The witness objected to testifying on the ground
that as the selling of spirituous liquors, without being a physician or
lapothecary licensed for that purpose, was made a misdemeanor by
/the statute, to purchase of such person necessarily implied an induce-
ment held out to commit such misdemeanor, and that to induce another
to commit a misdemeanor is an offence punishable at common law, to
which the witness would be exposed. But the Court are^of opinion
that the witness^ would not be liable to any proseeuiiimi_a^_such^ pur-
chaser, and therefore would not crimmate himself ,o^ expose himself to
punishment. by such a purchase. No precedent and no authority has
"been shown for sucha prosecution, and no such prosecution has been
attempted within the knowledge of the Court, although a similar law
has been in force almost from the foundation of the government, and
thousands of prosecutions and convictions of sellers have been had
under it, most of which have been sustained by the testimonj' of buyers.
That such a prosecution is unprecedented, shows very strongly what
has been understood to be the law upon this subject.
It is difficult to draw any precise line of distinction between the
cases in which the law holds it a misdemeanor to counsel, entice, or
induce another to commit a crime, and where it does not. In general,
it has been considered as applying tc^ cases of felony, 1Ili6ugh~Trhas
"Been helH that it does not depend upon the mere I^al and technical
distinction between felony and misdemeanor. One consideration, how-
ever, is manifest in all the cases, and that is, that the offence proposed
to be committed by the counsel, advice or enticement of another, is of
a high and aggravated character, tending to breaches of the peace or
Other great disorder and violence, being what are usually considered
mala in se or criminal in themselves, in contradistinction to mala
^ Part of the opinion la omitted. — Ed.
SECT. I.J COMMONWEALTH V. WILLARD. 405
prohtbita, or acts otherwise indifferent than as they are restrained by
positive law. All the cases cited in support of the objection of the
witness are of this description.
Rex V. Higgins, 2 East, 5, was a case where the accused had so-
licited a servant to steal his master's goods, and it was held to be
a misdemeanor. The crime, if committed pursuant to such solicitation,
would have been a felony.
Eex V. Phillips, 6 East, 464, was a manifest attempt to provoke
another person by a letter to send a challenge to flght a duel. For
although the direct purpose of the letter of the defendant was to
induce the other party to send a challenge, which is technically a mis-
demeanor, yet the real object was to bring about a deed, which is a
high and aggravated breach of the public peace, and where it results
in the death of either party, is clearlj' murder. It was averred to be
done with an intent to do the party bodily harm and to break the
king's peace, and such intent was considered a material fact to be
averred and proved.
A case depending upon a similar principle in our own books is that I
of Commonwealth v. Harrington, 3 Pick. 26, in which it was held '
that to let a house to another, with an intent that it should be used
and occupied for the purpose of prostitution, with the fact that it was
so used, was a misdemeanor. The keeping of such a disorderly house
has long been considered a high and aggravated offence, criminal in
itself, tending to general disorder, breaches of the public peace, and of/
common nuisance to the community. It is in cases of this character
only, that the principle has been applied ; but we know of no case,
where an act, which, previous!}' to the statute, was lawful or indifferent,
is prohibited under a small specific penaltj', and where the soliciting or
inducing another to do the act, b}' which he may incur the penaltj', is
held to be itself punishable. Such a case perhaps may arise, under
peculiar circumstances, in which the principle of law, which in itself is
a highly salutary one, will apply ; but the Court are all of opinion
that it does not apply to the case of one who, by purchasing spirituous
liquor of an unlicensed person, does, as far as that act extends, induce
that other to sell in violation of the statute.
There is another view of the subject which we think has an im-
portant bearing on the question, if it is not indeed decisive. The
statute imposes a penalty upon any person who shall sell. But every
sale implies a purchaser ; there must be a purchaser as well as a seller,
and this must have been known and understood by the legislature.
Now, if it were intended that the purchaser should be subject to any
penalty, it is to be presumed that it would have been declared in the
statute, either by imposing a penalty on the buj-er in terms, or bj' ex-
tending the penal consequences of the prohibited act, to all persons
aiding, counselling, or encouraging the principal offender. There being
no such provision in the statute, there is a strong implication that
none such was intended by the legislature.
406 COMMONWEALTH V. KOSTENBAUDEK. [CHAP. VI.
Oideieri, tliat the prisoner be remanded to the custody of the sheriff
to abide the order of the Court of Common Pleas under which he
stands committed.
COMMONWEALTH v. KOSTENBAUDER.
SoPREME CouKT OF Pennsylvania. 1886.
[Reported 20 Atlantic Reporter, 995.]
Certiorari to Court of Quarter Sessions, Lehigh County.
Kostenbauder, Houck, and Schweitzer induced Boehmer, a saloon-
keeper, to give them liquor on Sunday. Later Boehmer was sued for a
violation of the law, in which proceeding Kostenbauder, Houck, and
Schweitzer appear as witnesses against him. Boehmer, then alleging
that there had been a full understanding between the three to propure
from him the liquor and then proceed against him in order that they
might get the share coming to the informer in such cases, made an
information against Kostenbauder, Houck, and Schweitzer, and had
them arrested for conspirac}'. Upon return of the prosecution to the
Court of Quarter Sessions an indictment was drawn and presented to
the grand jury, which returned "a true bill," whereupon the defen-
dants moved to quash the bill of indictment, on the ground that it did
not charge an indictable offence. The court held that no indictable
offence was charged, and quashed the indictment. The following is a
copy of the opinion of the Quarter Sessions : —
"Albright, P.J. If the law provided for the punishment of the
man who, on Sundaj', buys or drinks, at a licensed public house, intox-
icating liquor, then these defendants could be held to answer this indict-
ment ; but, inasmuch as the man who buys or drinks the liquor is not
punishable, therefore the defendants cannot be held liable for conspiracy
to procure beer on Sunday from the saloon-keepers named in the indict-
ment. The law imposes the penalty on him who sells liquor on Sun-
day, or who, being a licensed public-house keeper, permits it to be
drank on his premises on that day. The real offence charged in this
indictment is the conspiracy by these three defendants to induce the
saloon-keeper to sell or give them drinks on Sunday. The further alle-
gations, that drink was obtained ; that it was the intention of getting
the informer's share of the penalties ; and that suits were brought for
the penalties, — add no strength to the charge. It was not unlawful
to accept the drink, nor to sue for the penalties. Counsel for the Com-
monwealth and for defendants agree that this is, in point of law, the
correct view of the question. It is impossible to hold that persons are
guilty in law for conspiring to do an act, where the act imputed is such
SECT. I.] COMMONWEALTH V. KOSTENBAUDER. 407
that if the intention had been consummated no offence would have
been committed. If, is not alleged that the defendants by furnishing
a stock of liquor, oi by any other means, instigated or furthered tlie
illegal act of selling or giving away on Sunday, nor that the}- conspired
by force or threats to coerce the saloon-keepers to sell. The latter were
free agents. They sold or gave away the beer because they chose to do
so. Where there is a confederacy, but nothing more thah solicitations
to an intelligent free agent to commit a crime, it is not indictable
unless it is made so bj- statute. 2 Whart. Crim. Law (8th ed.), § 2691.
Chief Justice Gibson, in Shannon v. Com., 14 Pa. 226, said that if
confederacy constituted conspiracy, without regard to the quality of
the act to be done, a party might incur the guilt of it by having agreed
to be the passive subject of a batterj'. Accordingly these defendants
would not have been indictable if they had combined and agreed to-
gether to go to the prosecutor's house and solicit and induce him to
beat them. They are not indictable for having conspired to induce
him to give to them drinks on Sunday. Counsel for the Commonwealth
rel}' principally upon the case of Hazen v. Com., 23 Pa. 355. It is
asserted that it was there' held that Hazen and three others had been
properly convicted upon an indictment charging that they had con-
spired to solicit, induce, and procure the officers of a bank to violate a
statute which made it a penal offence to issue notes of banks of other
states, of a denomination less than five dollars. The statute gave
the informer the one-half of the money penalty. But the counts upon
which Hazen and his co-defendants were convicted charged more than
the mere conspiracy to procure the bank officers to issue the forbidden
notes. It was also charged, and found, that one of them had depos-
ited in the bank large sums of monej', not for lawful business, and
drew them by checks for unequal sums, and required the checks to be
paid in bank-notes of less than $5, and that the defendants had threat-
ened to bring penal actions unless the^' were paid $3,250 ; that it was
the purpose of the conspiracy to compel the bank officers unjustly and
unlawfully to pay large sums of money for the corrupt gain of the
•defendants. The Supreme Court said that they were left to infer that
such ' large sums of money ' were to be obtained by some other means
than a fair prosecution of the offending bank officers ; that it was
charged that the money was to be drawn from the victims by com-
pounding the offences ; that it had been found as a fact that the object
of the defendants was not the detection and suppression of crime, but
the promotion of their own corrupt gain ; that the defendants sought
to extort 'hush money' for suppressing the evidence of guilt. The
court -also said that those who induced a violation of the law for the
purpose of compounding the offence and making gain by defeating
public justice were guilty of a gross wrong. In this case it is not
averred that the defendants offered to settle or compound the offences,
nor that they obtained any part of the informer's share of the penal-
ties, nor even that the suits against the saloon-keepers were prosecuted
408 COMMONWEALTH V. KOSTENBAUDEE. [CHAP. TI.
to judgment. In that reference it is simplj' alleged that the defen-
dants, and others acting with them, have caused writs of summons to be
issued by the aldermen for the penalt}' of $50 in each case. The deci-
sion of the question presented in Hazen v. Com. does not warrant a
ruling that this indictment can be sustained, nor has any authority for
such a conclusion been found. The motion to quash must be sustained.
If counsel for the Commonwealth desire to obtain the decision of the
Supreme Court upon this question, Lt is probable that this court, upon
application of the district attorney-, will make an order that the defen-
dants be held under bail until such decision has been obtained. They
are now under recogiiizaiiee for their appearance at the next term.
How, December 26, 1885, the indictment is quashed ; the recognizance
of defendants to remain in force unless discharged by order of the
court."
J. Marshall Wright, Dist. Atty., Henninger & De Walt, and M J.
Ziichtenwalner, for the Commonwealth.
John C. Merrill and Charles R. James, for Kostenbauder and
Houck.
W. J. Stein, for Schweitzer.
Per Curiam. The judgment of the court below is affirmed by a
divided court.
SECT. II.] MEMORANDUM. ' 409
SECTION 11.
Innocent Agents.
MEMORANDUM.
[Reported Kelyng, 52.]
My Brother Twisden shewed me a report which he had of a charge
given by Justice Jones to the grand jury at the King's Bench Bar in
Michaelmas Term, 9 Car. I., in which he said that poisoning another
was murder at common law. And the statute of 1 Ed. VI. was but
declaratory of the common law, and an aflBrmation of it. He cited
Vaux and Ridley's Case. If one drinks poison by the provocation or
persuasion of another, and dieth of it, this is murder in the person that
persuaded it. And he took this difference : If A. give poison to J. S.
to give to J. D., and J. S., knowing it to be poison, give it to J. D.
who taketh it in the absence of J. S. and dieth of it, in this case J. S.
who gave it to J. D., is principal, and A., who gave the poison to J. S.
and was absent when it was taken, is but accessory before the fact.
But if A. buyeth poison for J. S., and J. S. in the absence of A. taketh
it, and dieth of it, in this case A., though he be absent, yet he is prin-
cipal. So it is if, A. giveth poison to B. to give unto C, and B., not
knowing it to be poison, but believing it to be a good medicine, giveth
it to C. who dieth of it ; in this case. A., who is absent, is principal,
or else a man should be murdered and there should be no principal.
For B., who knew nothing of the poison is in no fault, though he gave
it to C. So if A. puts a sword into the hand of a madman, and bids
him kill B. with it, and then A. goeth away, and the madman kills B.
with the sword as A. commanded him, this is murder in A. though
absent, and he is principal ; for it is no crime in the madman who did
the fact, by reason of his madness. And he said this case was lately
before himself and Baron Trevor at the Assizes at Hereford. A woman
after she had two daughters by her husband, eloped from him and lived
with another man. And afterwards one of her daughters came to
her, and she asked her how doth your father, to which her daughter ■
answered, that he had a cold, to which his wife replied, here is a good
powder for him, give it him in his posset ; and on this the daughter
carried home the powder, and told all this that her mother had said to
her, and to her other sister, who in her absence gave the powder to
her father in his posset, of which he died. And he said that, upon
conference with all the judges, it was resolved that the wife was prin-
cipal in the murder, and also the man with whom she ran away, he
being proved to be advising in the poison ; but the two daughters were /
in no fault, they both being ignorant of the poison. And accordingly./
the man was hanged, and the mother burnt.
410 EEGINA V. BANNEK. [CHAP fl.
REGINA V. BANNEN.
Crown Case Reserved. 1844.
[Reported 2 Moody, 309.]
The prisoner was tried before Mr. Baron Gurney, at the Spring
Assizes for the county of Warwick, 1844, on an indictment for feloni-
ously malting a die, which would impress the figure, stamp, and
apparent resemblance of the obverse side of a shilling.
Second count, for feloniously beginning to malte such a die.
Third count, for feloniously making a die which was intended to
impress the figure, stamp, and apparent resemblance of the obverse
side of a shilling.
It was proved by Charles Frederick Carter, a die-sinker at Birming-
ham, that the prisoner applied to him to sink two dies for counters for
two whist clubs, one at Exeter and the other at Blandford, stating
that it was their practice to play with counters with one side resem-
bling coins, and that they wished to have counters stamped by dies,
to be made in pursuance of the following directions : —
Four dies for whist counters ; obverse, head of Queen Victoria, as in
the shilling coin; reverse, Blandford whist club, established 1800.
Obverse, one shilling, as in coin, with wreath, etc. ; reverse, Exeter
whist club, established in 1800. The obverse to be as much a facsimile
as can be ; the letters on the reverse to vary in size ; all the dies to be
the same size, and fit either collar.
When Mr. Carter considered these directions, it occurred to him that
there. was something very suspicious in them, and he applied to the
agent of the mint at Birmingham, and communicated the order to him.
The agent sent to the officers of the mint in London for instructions,
and Mr. Carter was by them directed to execute the prisoner's order.
He proceeded ; a long correspondence took place on account of the
work not being executed within the time expected. In the course of
the correspondence, the prisoner desired to have the obverse of one of
the pieces and the obverse of the other finished first, and they were
so. When they were finished, they formed a die for the coining of a
shilling, and an impression made by the dies was produced in court.
Mr. Serjt. Adams, for the prisoner, objected that the prisoner could
not be convicted, as he had not himself done anything in the construc-
tion of the die, and that he was not answerable in this form of charge
for the act of Carter ; that Carter having acted under the instructions
of the mint, no felony whatever had been committed ; and JJiat-the ,
prisoner should have been Indicted for a misdemeanor, in inciting
.Carter to commit a felony.
The learned judge reserved the point for the opinion of the judges.
The jury found the prisoner guilty.
SECT. 11.] EJSGINA V. BAXNEN. 411
This case was argued in Easter term, 1844, before all the judges
except CoLEKiDGE, J., and Madle, J.
Whitehurst, for the prisoner. The prisoner did not commit the offence
as charged in the indictment. The statute 2 W. IV., c. 34, s. 10, enacts
' tnat " if any person shall Icnowingly and without lawful authority (the
proof of which authority shall lie on the party accused) make, &c., or
begin to make, any puncheon, &c., die, &c.,such person shall be guilty
of felony." Here no person has without lawful authority made or begun
to make a die. The only person who has in fact made or begun to
make a die is Carter. Before Carter begins, he apphes to the mint.
He must be taken to have known the law, and applies to get their
authority to proceed. The officers of the mint gave him orders to pro-
ceed ; he therefore had lawful authority. If they had power to give
the authority, then there was no offence. If they had not, then Carter
is guilty of the felony as a principal, and the prisoner ought to have
been indicted as an accessory before the fact. If Carter was innocent,
the prisoner could not be an accessory, nor could he be a principal ; he
is not present ; and if another does the act for him in his absence, that
person must be altogether innocent ; to be innocent he must be igno •
rant of any wrong in what he is doing. Suppose a person knowingly
employs an ignorant agent to deliver a forged note ; the delivery is
his, because the agent is ignorant; so if a person employs an ignor-
ant agent to administer poison, that person may be said himself to
administer. . Carter here cannot be said to be ignorant. He knowa
the use to which the dies are applicable and the guilty purpose for which
they were intended by the prisoner. The dies are also made with the
knowledge of the mint. For these reasons Carter cannot be said to
be a mere ignorant agent of the prisoner, and therefore the prisonei
cannot be a principal felon.
Waddington, for the Crown. There is no doubt that, if Carter wan
guilty of felony, this indictment fails. But it is impossible to contend
that on these facts Carter was a felon. Perhaps, strictly speaking, n(i
one could have lawful authority to make coining instruments ; certainlj
not, if Carter had not.
[TiNDAL, C. J. The " having lawful authority " applies to the ofHcei?
and servants of the mint,.]
It is agreed that in one sense he did the act knowingly ; but mer(i
knowledge is not enough. The statute means guilty knowledge ; and
that is the distinction clearly pointed out in Foster's "Discourse on
Accomplices," p. 349, etc. To be a felon there must be a guilty knowl^
edge. The cases of the child or madman are well established. Now
Carter certainly knew whg>.liejT.a§_doingjJjut_had no intenti^^
felouyor fnrthering a felony ; and the authority and knowledge of the
mint would he clearly sufficient to make his knowledge innocent.
In Eex V. Palmer and Hudson, Russ. & Ry. 72, which is reported
with the judgment delivered by Rooke, J., 1 B. & P. New Rep. 97,
this distinction is carried out, and the case put of an uttering a forged
412 EEX V. BINGLET.. [CHAP, VI.
note by means of an agent ignorant of the forgery is stated to be law.
This has since been held to be law in Rex v. Giles, 1 Moody C. C. R.
166. The agent must be an innocent agent. The cases all turn on
the distinction of innocent knowledge or guilty knowledge. Carter_
■Kaa. clearly an innocent agent,... and _the^ prispner was.- therefo^e-the-
principal. ...^
"'"WTiitehurst, in reply. Here Carter, the agent, in fact does nothing
at all until he has the orders of the mint. He is, throughout, the agent
of the mint, not of the prisoner.
All the judges present, except Cresswell, J., thought Carter an
innocent agent, and held the conviction good.-'
SECTION in.
Joint Principals.
EEX V. BINGLEY.
Crown Case Reserved. 1821.
[Reported Russell Sf Ryan, 446.]
The three prisoners were . tried and convicted before Mr. Justice
.Richardson, at the Lent assizes for the county of Warwick, in the
year 1821, on an indictment the first count of which charged the
prisoners with forging and counterfeiting a £5 bank note, with intent
to defraud the Governor and Company of the Bank of England. The
third count charged them with falsely making, forging, and counter-
feiting, and causing and procuring to be falsely made, forged, and
counterfeited, and willingly acting and assisting in the false making,
forging, and counterfeiting, a promissory note, for the payment of
money, with the like intent. There were other counts for disposing
of, and putting away scienter, &c.
It appeared in evidence that Bingley and Button, and one George
Peacock, an accomplice, agreed to take, and did take a house in Bir-
mingham, for the purpose of carrying on therein the manufacture of
forged bank notes. The first operation was the purchasing of proper
paper, and the cutting of it into pieces of proper size ; after which it
was taken to the prisoner Batkin, a copper- plate printer, whose work-
shop was in a different part of Birmingham, to be by him printed, and
he accordinglj' struck off in blank all the printed part of the notes,
1 See ace. Reg. v. Clifford, 2 C. & K. 202; Reg. v. Bleasdale, 2 C. & K. 765; Gregory
V. State, 28 Ohio St. 510 ; State v. Leamard, 41 Vt. 585. And see Williamson v. State,
16 Ala. 431; Com. .-. Hill, 145 Mass. 305. — Ed.
S7,CT. III.J EEX V. BIXGLEY. 413
except the date line and the number. He also impressed on the paper
the wavy horizontal lines.
The blanks were then brought back to the house of Bingley, Button,
& Peacock, and there the water mark was introduced into the paper ;
after jvhi(Th_Rii;iglp.y, in the presence of Button and Peacock, impressed
the^di't'^ 1'"p a-ndJjlP nnmbpi-^ and. ,EXuJfeBh5aitea-''the signature .
Sometimes the date line and number were inserted Before the signa-
ture was inserted, and sometimes the signature before the date line
and number ; but in a certain class of notes (of which the note in the
indictment was one) the accomplice said that the signature was added
last.
The notes were then complete, although they underwent another
operation, that of pressing them between plain sheets of tin, in order
to make the surface smooth, before they were put into circulation.
Peacock, the accomplice, did not know that Batkin was employed to
print the blank notes, nor did it appear that Batkin ever was present
when Binglej' and Button filled up and completed the notes.
The accomplice stated that Bingley and Button were both present
when Bingley impressed the date line and number on that class of
notes of which the note stated in the indictment was one, but he said
he was not certain whether Bingley was present when Button after-
wards added the signature to the class of notes.
The prosecutors elected to proceed on the counts for forging.
Upon this evidence the learned judge left it to the jury whether
the three prisoners did concur and co-operate in the joint design of
forging the five-pound note mentioned in the indictment (among other
notes) with intent to put it into circulation, and whether they all did
perform their respective part in the execution of that design within
the county of Warwick. If so, the learned judge advised them to find
them all guilty of the forgery.
The learned judge further directed them to find whether the two
prisoners, Bingley and Button, were present when the note mentioned
in the indictment was completed by adding the date line and tlie
signature.
The jury found that all three concurred and co-operated in the de.
sign and execution of the forgery, each taking his own part, within
the county. Thoy also found that Bingley and Button acted together
in completing the notes, and therefore found all three guilty on the
counts for forging.
The learned judge passed sentence on the prisoners ; but respited
their execution, in order to submit to the judges the following ques-
tions : —
First, Bo the acts of parliament which relate to the forging, &c.,
and causing to be forged, &c., and acting and assisting in the forging,
&c., of promissory notes apply to Bank of England notes, which,
although they are undoubtedly promissory notes, are the subject of
distinct legislative provisions?
414 COMMONWEALTH V. LOWEET. [CHAP. VI.
Secondly, Upon the evidence and the finding of the jurj', was this
a joint offence of forging in the three prisoners, or at least in the two
prisoners, Bingley and Button?*
In Easter term, 1821, the judges met and considered this case. They
held that the conviction was right as to all the prisoners : the jndcres^
were _of opinion that; as each- of the priannpi-g aptpd in (^otnplgf.ing^
some part of the Jorgery, ,anjJ,.ja4)JJrsjjancg,^„the cptnrnonL£laa*.each
was a"priMipg.liaiie focgeivy, j-^wOJid, that although the prisoia'e'i' Ka.tkia
was ngt present when the.j3«.ta, was completed by tiie'BigTra*a«e.^e
was equally guilty with the others.
.rj'istW' *«*'jaita»j»<«'-nKr,-it,
COMMONWEALTH v. LOWREY.
SuPEKMB Judicial Court or Massachusetts. 1893.
[Reported 158 Mass. 18.]
Holmes, J.* The mairuqaifiation-ibt us ia whether Jhfire^was any
evidence of a crixoiaalbraafcin-g and entering. The jury were warranted
in-Hndlng that, in pursuance of a preconcerted scheme, the defendant
Johnson, making a pretence of a wish to purchase an article, got the
night clerk of the Theodore Metcalf Company to let him into the com-
pany's shop at about midnight ; that while the night clerk was in the
cellar getting the article, Johnson unbolted the door which had been
rebolted behind him after his admission, and let in the defendant
Lowrey, who concealed himself and remained behind when Johnson
left, and afterwards broke open the draw, etc. The court seems to-
have required the jur^' to find that Lowrey opened the door as a con-
dition to their finding him guilty.
It was not_necessary Jjja,t Lowrey should have to.uched_ttie^ door if he
procured himself to be let in by an accomplice and entered with feloni-
ous int^htT' He Tinight have been convicted, even if the hand which he
TTiia9e"iise of was innocent, as in case of a servant or constable. Le
' Mott's case, J. Kel. 42 ; Farre & Chadwick's case, J. Kel. 43 ; Gassy
& Cotter's case, J. Kel. 62 ; Hawkins's case, 2 East P. C. 485 ; Row-
land V. Commonwealth, 82 Penn. St. 306, 323 ; Johnston v. Common-
wealth, 85 Penn. St. 54, 64 ; State v. Rowe, 98 N. C. 629 ; State v,
Johnson, Phil. (N. C.) 186; Nicholls «. State, 68 Wis. 416, 421,422;
Clarke w.XIommon wealth, 25 Grat. 908, 913. The accomplice inside
the house is guilty of the same offence. Cornwall's case, 2 Strange,
881; 1 Hale, P. C. 553 ; 4 Bl. Com. 227; Rex v. Jordan, 7 C. & P.
432 ; Cooper v. State, 69 Ga. 761 ; Ray v. State, 66 Ala. 281, 282 r
Breese v. State, 12 Ohio St. 146.
The argument for the defendants assumes that the door was not even
latched, and speaks of the defendants as having been invited into the
1 Part of the opinion is omitted. — En
SECT. IV.] EEX V. SKERRIT. 415
shop. In fact, the door would seem to have been bolted, and if there
can be said to be any invitation to enter a closed and bolted shop at
midnight, the invitation does not extend to thieves when let in by their
accomplices.
SECTION IV.
Principals in the Second Degree.
ANONYMOUS.
Exchequer Chamber.
[Repm-ted Y. B. 13 Hen. VII. 10, pi. 7.]
A WOMAN brought an appeal for the death of her husband against
two, and alleged that one of the appellees held her husband and com-
manded the other to kill hira, by reason of which the other struck him
to the heart so that he died at once.
And it was held by all the justices in the Exchequer Chamber that
both are principals, because both are parties to the blow. Quod nota.
REX V. SKERRIT.
Berkshire Assizes. 1826.
[Reported 2 C.^P. 427.]
The prisoners were jointly indicted for uttering a counterfeit shilling
having another counterfeit shilling in their possession.
It was proved that the prisoner, Eliza Skerrit, went into the shop of
James George, and there purchased a loaf, for which she tendered a
counterfeit shilling in paj'ment; he secured her, but no more counter-,
feit money was found on her. The other prisoner, who had come with
her, and was waiting at the shop-door, then i-an away, but was imme-
diately secured, and fourteen other bad shillings were found on her,'
wrapped in gauze paper. ^
Carrington, for the prisoners, objected, 2dlj-, that the complete
offence was not proved against either of the prisoners ; as the one who
uttered the piece of mone}- had no other counterfeit coin in her posses-
sion, and the other who had the coin, was not guilty of any uttering. It
might be said tha,t the one who stayed outside the shop was guilty of
a joint uttering with the other who was in it ; like the case of two
thieves, one inside the shop and the other outside ; but the case of the
^ Only so much of the case as discusses the joint uttering is given. — Ed.
416 COMMONWEALTH V. KNAPP. [cHAP. VI.
thieves differed from the present in this respect, viz. that the thief outside
might be there to co-operate by the removal of the stolen property or
the like. Now the prisoner, Priseilla Skerrit, bj- staying outside the
shop, could not by possibility be considered as aiding her sister in the
act of paying for a loaf inside the shop. And in the case of 'Eex v.
Else, Russ. & Ry. 142, it was held that if one person utter a bad piece of
mone}', having no more, in conjunction with another, who had more bad
money but who was absent and did not utter, neither was guilty of this
offence : however, in that case the persons were much farther asunder
than the prisoners had been in the present.
Gaerow, B. With regard to the second objection, I thinkjhatjhe
two pnsoufiES-coffliftg-togettrei'-tQ.the shopj^_and-thje_Qiie^aving outside,
theyTnust b^th^be takarttobe jointly- guilty of thfi-utlenng ; andTt^wtll
Be" for the_ Jury to say whether the possession of -the -rei»aiBing_ pieces
of "Bad money wa,s not joint. . .
"" Verdict, Gruilty.
COMMONWEALTH v. KNAPP.
Supreme Judicial Court op Massachusetts. 1830.
[Reported 9 Pickering, 496 ]
John Francis Knapp was indicted as principal, together with
Joseph Jenkins Knapp and George Crowninshield as accessories, in
the murder of Joseph White of Salem, which was perpetrated on the
6th of April, 1830. The indictment alleged that Richard Crownin-
shield also was a principal, and that he had committed suicide. The
parties indicted were tried separately.-'
The evidence in the case tended to prove that Richard Crowninshield
alone entered the house of White and there perpetrated the murder,
and that the prisoner was in a street about 300 feet distant from the
house, aiding and abetting.
Putnam, J., delivered the opinion of the court. By the most ancient
common law, as it was generally understood, those persons only were
considered as principals in murder who actually killed the man, and
those who were present, aiding and abetting, were considered as ac-
cessories. So that if he who gave the mortal blow were not convicted,
he who was present and aiding, being only an accessory, could not be
put upon his trial. But the law was otherwise settled in the reign of
Henrj- IV. It was then adjudged that he who was present, aiding
and abetting him who actually killed, was to be considered as actually
killing, as much as if he himself had given the deadly blow.
[To the jury.] There isnoevidence^hiitjjifi_prie0ner---gav^ the
1 Part of the case, not involving the question of principal and accessory, is omitted.
— Ed.
SECT. IV.J COMMOlfwEALTH V. KNAPP. 417
mortal blows with_^is_aHii.Jiand ; but it is joontended on Jhe part of
tte government that he was present, aiding and abetting theperpe-
tratorT'at the time when lEe'crTme'was" committed. 'We'are therefore
'to consider whatTa~cts are'tiScessaryTo be proved to constitute him,
who is aiding and abetting, to be a principal in the murder ; or, in
other words, what, in the sense of the law, is meant by being present,
aiding and abetting.
It is laid down in Foster's Crown Law, 349, 350, Discourse 3, § 4,
that " when the law requireth the presence of the accomplice at the
perpetration of the fact, in order to render him a principal, it doth not
require a strict, actual, immediate presence, such a presence as would
make him an eye or ear witness of what passeth. Several persons set
out together, or in small parties, upon one common design, be it
murder or other felony, or for any other purpose unlawful in itself,
and each taketh the 'part assigned him; some to commit the fact,
■others to watch at proper distances and stations to prevent a surprise,
or to favor, if need be, the escape of those who are more immediately
■engaged. They are all, provided the fact be committed, in the e3e of
the law present at it ; for it was made a common cause with them ;
each man operated in his station at one and the same instant towards
the common end ; and the part each man took tended to give counte-
nance, encouragement, and protection to the whole gang, and to in-
sure the success of their common enterprise." In § 5, — "In order to
render a person an accojaplice. and-a principal in JJelpny, he must be
aiding and abetting at the fact, or ready tQ a^omZ-assistaiice if neces-
sHfyT" SoTTfTf-ftawiriris'^s P. C. c. 32, s. 7 (7th ed.) being present in
judgment of the law is equivalent to being actually present, for, says
Hawkins, " the hope of their immediate assistance encourages and
emboldens the murderer to commit the fact, which otherwise perhaps
he would not have dared to do, and makes them guilty in the same
degree [as principals] as if they had actually stood b}', with their
swords drawn, ready to second the villany." These principles have
been fully recognized by the very learned and distinguished chief jus-
tice of the Supreme Court of the United States, in 4 Cranch, 492.
The person charged as principal in the second degree must be
present ; and he must be aiding and abetting the murder. But if the
abettor, atJhe-tf^Hie of the osna-miagion of the crime, were^assenting to
thB-ffiwderT and in a situation whereTj^rgW^e^nrTer _some_ aid to
tli£j2eJ?5StMlaiKr-Pead3c:153Vvejt'"' if nece_ssatT^ a^cording__ to_ an_ ap-
pointment or agre&roent with him for that pur£Ose, he would, i^n the
judgment ^fjjie- law, be present and adding in the commission of the
criinei_J,t must therefore be proved that the ah'ettoi' was in a situation,
in which he might render his assistance, in some manner, to the com-
mission of the offence. It must be proved that he was in such a situ-
ation, by agreement with the perpetrator of the crime, or with his
previous knowledge, consenting to the crime, and for the purpose of
rendering aid and encouragement in the commission of it. It must
• 418 COMMONWEALTH V. KNAPP. [CHAP. VI.
also be proved that he was actually aiding and abetting the perpe-
trator at the time of the murder. But if the abettor were consenting
to the murder, and in a situation in which he might render any aid,
by arrangement with the perpetrator, for the purpose of aiding and
assisting him in the murder, then it would follow as a necessary legal
inference, that he was actually aiding and abetting at the commission
of the ■ crime. For the presence of the abettor under such circum-
stances must encourage and embolden the perpetrator to do the deed,
by giving him hopes of immediate assistance ; and this would in law
be considered as actually aiding and abetting him, although no fur-
ther assistance should be given. For it is clear that if a person is
present aiding and consenting to a murder ox other felony, that alone
is sufficient to charge him as a principal in the crime. And we have
seen that the presence by construction or judgment of the law is in
this respect equivalent to actual presence.
We do not, however, assent to the position whifih has been taken by
the counsel for the government, that if it should be proved that the
prisoner conspired with others to procure the murder to be committed,
it follows, as a legal presumption, that the prisoner aided in the actual
perpetration of the crime unless he can show the contrarjr to the jurj-.
The fact of the conspiracy being proved against the prisoner is to be
weighed as evidence in the case, having a tendency to prove that the
prisoner aided, but it is not in itself to be taken as a legal presump-
tion of his having aided unless disproved by him. It is a question of
evidence for the consideration of the jury.
If, however, the jury should be of opinion that the prisoner was one
of the conspirators, and in a situation in which he might have given
some* aid to the perpetrator at the time of the murder, then it would
follow, as a legal presumption, that he was there to carry into effect
the concerted crime ; and it would be for the prisoner to rebut the pre-
sumption, bj' showing to the jury that he was there for another pur-
pose unconnected with the conspiracy. We are all of opinion that
these are the principles of the law applicable to the case upon trial.''
1 Ace. Eex V. Owen, 1 Moody, 96; Rex v. Dyson, Euss. & Ey. 523 ; Thomas v.
State, 43 Ark. 149 ; Doan v. State, 26 Ind. 495 ; State v. Douglass, 34 La. Ann. 523;
State V. Jones, 83 N. C. 605. See Amos v. State, 83 Ala. 1. Conf. People v. "Wood-
ward, 45 Oal. 293; State v. Hildretli, 9 Ired. 440.
"If three thieves come to a man's house, and one forces and enters the house, and
the other two stand outside in the meantime, they shall all three be taken and con-
victed of this, whatever judgment you may think will be passed on the two.'' Spig-
ONBL, J., in Y. B. 30 & 31 Ed. I. p. 108. — Ed.
6ECT. lY.] BREESE V. STATE. 419
BREESE V. STATE.
StTPBEME Court op Ohio. 1861.
{Reported 12 Ohio State, 146.]
Peck, J.* Did the court err in that portion of its charge to the jury
"which is stated in the bill of exceptions ? The charge, which is copied
into the statement of the case, and which, on account of its leiigth, 1
do not propose to repeat here, was, substantially, that if the jury
should find, beyond a reasonable doubt, from the testimonj^, that the
defendant had agreed with others to commit the burglary, on the
night on which it was done, and that, as a part of said agreement,
and to facilitate the breaking and entry and lessen the chances of
detection, it was agreed that the defendant should on that night pro- 1
cure or decoy the owner, Whetstone, awaj* from the store in which he/
usually slept, to a party, aboui, a mile distant, and detain him there/
while the other confederates were to break and enter said store and
remove the goods, and that both parties did, in fact, perform their
respective parts of said agreement, that then the defendant was conV
structively present at the breaking and entry by his confederates, and
might be convicted as principal therein if all the other material allega-
gations were proved beyond a reasonable doubt.
We are free to say that this charge, if there was evidence tending to
prove it, is unexceptionable.
' ' Any parti fiipation in a general feloT'i""fl plan, ■pEa»aiAfM3-«a.»«h par-
ticipation be concerted, and there be a constructive presprif»^, jjj prinucrh
to make a man pWticipal irl thfe second degree." Wharton's C. L. 113,
anS^the 'cfee ullmi^ by Wharton to establish the rule shows what is
meant by a " constructive presence."
" If several act in concert to steal a man's goods, and he is induced by
fraud to trust one of them, in the presence of the others, with the pos-
session of such goods, and another of them entices him away, that
the man who has the goods may carry them off, all are guilty of the
felony." Rex v. Standley and others, Russ. and Ry. C. C. 305.
The defendant was, by the agreement, not only to procure Whet-
stone to go to the party " to give his confederates greater security
from detection while in the act of breaking into the store," but the
jury were required to find, as a part of the supposed case, that the
defendant " kept him there while his confederates were engaged in
breaking said store, and in concealing the fruits of said crime in pur-
suance of said previous confederacy."
The charge would therefore seem to fall within the well-known rule
stated in Archbold C. L. 10, " that persons are said to be present,
who are engaged in the same design with the one who actuallj' com«
1 Part of the opinion only is given.
420 , ' ACCESSOEIES. [CHAP. VI.
mits the offence, although not actually present at the commission of
it, yet are at such convenient distance as to be able to come to the
assistance of their associates if required, or to watch to prevent sur-
prise or the like."
Bishop, in section 460, vol. i. of his Treatise upon Criminal Law,
says: " If the will of such other one contributed to the act, the test to
determine whether the law deems him a principal rather than an acces-
sory is, whether he was so near, or otherwise so situated, as to make
his personal help, if required, to any degree available."
Th epart asaipfr^ed _by-Ab«i..affleemp.iii-,-tn t\\^, defendant — a constant
supervision jn:ex_Vyh£tstone while the bm-glary was effected —formed
an essential ^ct«ja£.. the plan of-thie-burglaiy agree(j upon, as much so
as' the rending of the shutter, or the forcing of Jie.jdoor. And the
defendantT'iimreTgse" ' 'Siipposed^ was constructively present at the
burglary, if Jones who, in the case from Russ. and Ry. supra, enticed
McLaughlin away, was constructively present at the subsequent aspor-
tation of McLaughlin's money by his confederates, Standley and
Webster.
So, in Hess v. The State, 5 Ohio 12, it is said : " And in general, if
several unite in one common design, to do some unlawful act, and each
takes the part assigned him, though all are not actually present, yet
all are present in the eye of the law ; " citing Foster, 450, 353 ; 1
Hale's P, C. 439 j 2 Starkie's Ev. 7.'
SECTION V.
Accessories.
2 Hawkins P. C. c. 29, s. 16. It seems to be agreed that those who
by hire, command, counsel, ot conspiracy, and it seems to be generally
holden that those who by showing an express liking, approbation, or
assent to another's felonious design of committing a felony, abet and
encourage him to commit it, but .aifi-aaJajL. absent when he actually
commits it that he could not be encouraged by the hopes of any imm?"
diate help ot assistance from them, are all of them accessories before
the fact, both to the felony intended and to all other felonies which
shall happen in and by the execution of it, if theydo__not_expressly
retract and countermand their_ encouragement before it_Ja_actiially
comniTtted. "^
-■ 2 Hawkins P. C. c. 29, ss. 26, 27, 34, 35. As to what kind of
receipt of a felon will make the receiver an accessory after the fact, it
seems agreed that generally any assistance whatever given to one
' See State v. Poynier, 36 La. Ann. 572 , State v. Hamilton, 13 Nev. 386. — Ed.
SECT, v.] REGIXA V. CLAYTON. 421
known to be a felon, in order to hinder his being apprehended or tried
or suffering the punishment to which he is condemned, is a sufficient
receipt for this purpose, — as where one assists him with a liorse to
ride away witli, or with money or victuals to support him in his escape ;
or where one harbors and conceals in his house a felon under pursuit, by
reason whereof the pursuers cannot find him ; and much more, where
one harbors in his house, and openly protects such a felon, by reason
whereof the pursuers dare not take him.^
Also I take it to be settled at this day that whoever rescues a felon
from an arrest for the felony, or voluntarily suffers him to escape, is
an accessory to the felony.
It seems agreed that the law hath such a regard to that duty, love,
and tenderness' which a ^jtife owes to her husband as not to make her
an accessory to felony by 'any" receipt whatsoever given to her husband.
Yet if she be any way guilty of procuring her husband to commit it,
it seems to make her an accessory before the fact in the same manner
as if she had been sole. Also, it seems agreed that no other relation
beside that of a wife to her husband will exempt the receiver of a felon
from bemg an accessory to the felony. From whence it follows that
if a master receive a servant, or a servant a master, or a brother a
brother, or even a husband a wife, they are accessories in the same
manner as if they had been mere strangers to one another.
It seems to be clearly agreed that a man shall never be construed
an accessory to a felony, in respect of the receipt of an offender, who
at the time of the receipt was not a felon, but afterwards becomes
such by matter subsequent, — as where one receives another who has
wounded a person dangerously, that happens to die after such receipt.'
EEGINA V. CLAYTON.
Shropshike Assizes. 1843.
[Reported 1 Carrington Sf Kirwan, 128]
Misdemeanor. — The prisoners were indicted for a misdemeanor in
having attempted to set fire to a certain malt-house, and were jointly
charged by the indictment with so attempting.
It appeared by the evidence that the prisoner Mary Mooney had
goneJa_bed.^n _hogx„and_a-h-alt-b&fore -tha,flra was discoyeJfi37^and
there was every reason, to suppose that_she_was-aot present at the time
when the firewas li^EiteHT'anTTheevidence. which was entirely circum-
stantial, tended to show that the prisoner Clayton lighted the fire only
Q few minutes before it was discovered. Declarations of the prisonei
' See Tully v. Com., 11 Bush, 154; Wren's Case, 26 Gratt. 952. —Ed.
< See Harrel v. State, 39 Miss. 702. — Ed.
422 . COMMONWEALTH V. PHILLIPS. [CHAP. VI.
Mary Mooney were proverl which tended to show that she knew before-
hand that the fire was to take place.
J. G. Phillimore, for the prisoners, submitted that there was no
case against the prisoner Mary Mooney on this indictment.
^ Greaves. All who take part in a misdemeanor are principals, and
/whatever will make a person an accessory before the fact in a felony
' makes him principal in a misdemeanor.
Williams, J. (in summing up). In misdemeanors and in treason,
all who take part in the crime are principals; and in this case it is not
necessary to prove that the prisoner Mary Mooney was present at the
time_when the prisoner Clayton attempted to set flre_to-th,e.malt-house ;
and if you are satisfied that she counselled arid encouraged Cla3'ton to
set fire to the malt-house, she may be convicted upon this Indictment.^
Verdict, Not guilty.
EEGINA V. BROWN.
Bristol Assizes. 1878.
[Reported 14 Cox C. C. 144.]
Frederick Brown was indicted for murder, his wife being also
indicted as an accessory before the fact. It was proved that the blo^,
which proved fatal, was struck within a few feet of where the wife was
standing.
Lord Coleridge, C. J., directed the acquittal of the female prisoner,
pointing out that she should have been indicted as a principal if any-
thing. An^cfessory-before- the fact must be Aljsent -at -the time when
the crime is committed, and the act must be done in consequence of
some counsel or procurement of his.
[ri-f
L
COMMONWEALTH v. PHILLIPS.
Supreme Judicial Court of Massachusetts. 1820.
[Reported 16 Massachusetts, 423.]
Indictment at the last March term in this county, charging one
Thomas Daniels as principal, and tiie defendant as accessory befbre
the fact, in burglary. The (jeath of Daniels was Alleged- in theJudict-
ment, ^nd the question was whether the prisoner Phillips cguld lawfully
be pjit-upoB-his-trlal.^
' Ace. Lasington's Case, Cro. Eliz. 750 (petty larceny); Booth's Case, Moore, 666
(forgery at common law); Rex v. Jaclsson, 1 Lev. 124 (perjury); U. S. v. Gooding, 12
Wlieat. 460 (fitting out vessel for slave trade); Sanders v. State, 18 Ark. 198 (obstruct-
ing highway) ; Stevens v. People, 67 111. 587 (keeping gaming-house). — Ed.
' Arguments of counsel are omitted.
SECT, v.] STARIN V. PEOPLE. 423
Parker, C. J., stated that the justices had carefully examined the
books upon the subject, and were unanimously of opinion that b£..the
common law an accessory cannot be pu_t_ on .hjs trial, but by his, own
consent, until the conYJction of the^^jiifiipal. - The reason of this rule
is~very plain. IfTKere is no principal there can be no accessory, and
the law presumes no one guilty until conviction. Statutes have made
a difference as to some lesser species of offences, but do not touch the
principle in capital cases. Our only doubt arose from the peculiar cir-
cumstance in this case, that the person charged as principal is dead,
and can never be tried. If he were alive and on trial, it is possible
he might establish his innocence, strong as the evidence has appeared
in support of his guilt. In such case the prisoner could not be found
guilty, for he could not have been accessory to the commission of the
crime as charged. The trial might have been stopped at the com-
mencement of it had our minds been then free from all doubt. But
us the prisoner has been put on his trial, he has a right to a verdict.
The jury accordingly, under the direction of the court, immediately
returned a verdict of acquittal, and the prisoner was discharged of this
indictment.'
STARIN V. PEOPLE.
Court of Appeals of New York. 1871.
{Reported 45 New York, 333. | ,
Chdrch, C. J.'' The plaintiff in error was indicted as accessory
before the fact to the crime of burglary in the first degree, committed
by four principals named in the indictment. At the Montgomery Oyer
and Terminer, held on the 13tb day of May, 1867, the prisoner hav-
ing been arraigned and plead not guilty to the indictment, the district
attorney moved the trial of the prisoner, who, by his counsel, objected
to proceeding with the trial until after the conviction of all the princi-
pals named In the indictment. The district attorney then admitted that
but one of the principals had been convicted, that one other was then
in jail, and the other two had not been arrested. The objection was
then overruled, and the decision excepted to.
Several other objections were raised and decided, but one of which
it is necessary to notice, and as to that the record is as follows : The
prisoner, by his counsel, then objected to being tried as accessory to
any other principal than the one who was convicted ; the court over-
ruled the objection, and the prisoner's counsel then and there duly
excepted.
' See ace. D. S. v. ^rane, 4 McLean, 317; Simmons v. State, 4 Ga. 465; Wliite-
head o. State, 4 Humpli. 278 : State o. Pybass, 4 Humph. 442. See Hatchett v. Com.,
76 Va. 925; Ogden v. State, 12 Wis. 53"5. — Ed.
* Part of the opinion only 13 given.
424 STAEIN V. PEOPLE. [cHAP. VI.
The jury were then impannelled, and the trial proceeded. If this
exception is available to the prisoner, it is fatal to the conviction and
judgment. An accessor}- may be tried, jointly wiih-the-pimcipaL but the
jury must first agree upon 11iftffl]Ht_nf' the principal,, wliile an acquittal
<jf-~ti^l^nncipa.\ n"ec^safiTy~acqjiiII&^«-a6<jess.Qry. Wharton's Crim.
EawTT 138. If J^e accessory is not tried jgith the principal, he cannot
be triedjntiL.,tJie. principal Jhas.,j3eeaJtEi£d_,and^convicted. People v.
'Bacon, 1 Park R., 246. Formerly, if a man was indicted as accessory
I in the same crime to two or more persons, he could not have been
arraigned until all the principals were convicted and attainted. Hale's
Pleas of the Crown, 623, chap. 47. And in order to try an accessory,
\ when only one of several principals had been convicted, it was necessary
\ to indict and arraign him as accessory to that one only. Id.
But the modern decisions have somewhat modified this rule, and the
weight of authority now is that an accessory may be tried and convicted
when one only of several principals named in the indictment has been
convicted. 1 Russell on Crimes, 38; Bishop's Crim. Law, § 611;
/Commonwealth v. Knapp, 10 Pick. 477.
But it is weU settled_.thaJLjja such a case the accessory must be
triejTand convicted as accessory to the convicted principal only, in the
same manner as though the convicted principal oilly w'as named in the
indictment. The authorities are uniform on this subject, and I have
been unable to find any decision against this position. Strops v. Com.,
7 Serg. & R. 491 ; 3 Greenl. Ev. § 52 ; People v. Bacon, 1 Park. 246 ;
1 Bishop's Crim. Law, 468.
This necessarily results from the rule that the guilt of the principal
can onl}' be shown by a judicial trial and conviction, and even then
it is not conclusive against the accessory. 10 Pick, supra. The as-
sociation of unconvicted principals with a convicted principal in the
indictment does not authorize the trial of an accessory to any but the
one convicted, any more than it would if those not convicted had not
been named. The ,decision^o£. tho cniirti therefore, overruling the
objection of the prisoner to bepiig tried as accessory to any but the
convicted principal, was clearly erroneous.
Mass. R. L. ch. 215, Sects. 3, 7. Whoever counsels, hires, or other-
wise procures a felony to be committed, may be indicted and convicted
as an accessor}' before the fact, either with the principal felon or after
his conviction ; or may be indicted and convicted of a substantive felonj-,
whether the principal felon has or has not been convicted, or is or is
not amenable to justice.
An accessory to a felony after the fact may be indicted, convicted,
and punished, whether the principal felon has or has not been previously
convicted, or is or is not amenable to justice.
Penal Code of New York, §§ 29, 32. A person concerned in the
commission of a crime, whether he diftctly commits the act constituting
SECT. TI.] EULOFF V. PEOPLE. 425
the offence, or aids and abets in its commission, and whether present
or absent; and a person who directl}- or indirectly counsels, commands,
induces, or procures another to commit a crime, is a principal.
An accessory to a felony may be indicted, tried, and convicted, . . .
whether the principal felon has or has not been previously convicted,
or is or is not amenable to justice, and although the principal has been
pardoned or otherwise discharged after conviction.
SECTION VI.
Acts done in pursuance of a common design.
4.SHT0N'S CASE.
King's Bench. 1698.
[Reported 12 Modern, 256.]
Holt, C. J. Two, three, or more are doing an unlawful act, as
abusing the passers-by in a street or highway, if one of them kill a
passer-by, it is murder in all; andsS^hatever migfthief one does, they
are_all_gijilty-o£-it.,; and it is lawful for any person to attack and suppress
<Heni7and command the king's peace ; and such attempt to suppress
is not a sufficient provocation to make killing manslaughter, or son
assault demesne a good plea in trespass against them.'
RULOFF V. PEOPLE.
Court of Appeals or New York. 1871.
[Reported 45 New York, 213.)
Allen, J.* The jury have, by their verdict, found that the homicida
was committed either by the accused in person or by some one acting
in concert with him in the Commission of a felony, and in the prosecu-
tion and furtherance of a common purpose and design.
It must be assumed, from the finding of the jury, that the prisonei
was one of the three persons who burglariously entered the store on the
night of the homicide ; that Merrick was killed by one of the burglars,
in pursuance of the common intent of all ; and that the accused either
fired the shot which caused the death, or was present, aiding and abet-
ting his confederates in the commission of the act. The presumption
from the evidence, assuroing that the witnesses and their statements
» See Reg. u. Jackson, 7 Cox C. C. 357 ; Reg. ■/. Salmon, 14 Cox C. C. 494,
tupra. — Ed.
2 Part of the opinion only is given.
426 EULOFF V. PEOPLE. [CHAP. VI.
are credible, as the jury seem to have believed, is, that the accused,
in person, committed the homicide; and it is not improbable that, had
the jury been left to pronounce upon his guilt or innocence upon that
theory alone, without the complications resulting fi-om the submission
of the questions touching his responsibility for the acts of any other
by whom the deed might have been perpetrated, the result would have
been the same. There were but three persons, other than the deceased
and his fellow-clerk, present. One of these was disabled and lying
upon the floor seriously wounded, and the other was in the grasp of
Merrick, the deceased, and was also wounded and injured. The third
came up the stairs and fired the pistol which caused the death, and he
alone of the three was uninjured and unwounded. The accused, when
arrested a day or two after the occurrence, bore no mark of injury upon
his person, and could not have been one of the two so badly' injured
in the encounter with the clerks. It follows that he was either not
present, and has, therefore, been wrongfully convicted, or his hand dis-
charged the pistol which caused the death of Merrick. But the jury
^ may have taken other views of the evidence under the charge, so that
/ the questions made upon the trial and presented by the writ of error,
;' upon the rules governing the liability of one to answer criminally for
the acts of others, cannot be passed by without consideration.
If the homicide was committed by one of several persons, in the
prosecution of an unlawful purpose or common design, in which the
combining parties had united, and for the effecting whereof they had
assembled, all were liable to answer criminally for the act, and, if the
homicide was murder, all were guilty of murder, assuming that it was
within the common purpose. All present at the time of committing
an off'ence are^ principals-^ although Ullly one "acts, if they are confeder-
ates, and engaged in a comrnpn design, of which the offence is a part.
1 Russ. on Crimes, 27, 29. The several persons^ concerned in this
offence were assembled tor the commission of a felony, and were
engaged in the actual perpetration of the offence; and the homicide
was committed upon one who was opposing them in the act, and in
rescuing and aiding the confederates to escape. To this conclusion the
jury must have come.
If there was .a-gengi-al TOfic^lition againj,t.aU_QppiQsgra, and to resist
to the utmost all atfempte to detain or hold in custody any of the
parties, all the persons present when the homicide was committed were
equally guilty with him who fired.tlie^fatal shot. 1 Russ. on Crimes,
29, 30. This general resolution of the confederates need not be proved
by direct evidence. It may be inferred from circumstances ; by the
number, aims, and behavior of the parties at or before the scene o(
action. Id. ; Fost. 353, 354 ; 2 Hawk. P. C. ch. 29, s. 8 ; Tyler's Case,
8 C. & P., 616. There was enough in this case to authorize the sub-
mission of the question to the jury. An express resolution against all
opposers can very seldom be proved by direct evidence ; but here every
circumstance tended strongly to prove it.
SECT. VI:J STATE V. ALLEN. 427
Some of the confederates, and perhaps all, were armed ; they actually
did resist all opposition with such weapons as they could successfully
use. When one was detained, being overcome by the opposition, the
others returned at the call of their comrade, and the only one in
condition to do so, deliberately shot Merrick, who was preventing the
escape of one of the confederates, and was cautioned by that confeder-
ate, when about to shoot, not to shoot him. The jury were authorized
to infer that this act was within the general purpose of the confederates.
They may have desisted from their larcenous attempts, and yet the full
purpose of the combination not have been carried out so long as one of
the party was detained and held a pi;isoner.^
STATE V. ALLEN.
SiJPEEME Court of Errors of Connecticut. 1879.
[Reported 47 Connecticuc, 121 ]
Beardslet, J.^ The court charged the jury as follows: "If the
jury shall find that Hamlin and Allen, at some time previous to the
homicide, made up their minds in concert to break the State prison
and escape therefrom at all hazard, and knowing that the enterprise
would be a dangerous one and expose them to be killed by the armed
night-watchman of the prison should they be discovered in making the
attempt, wilfully, deliberately, and premeditatedly determined to arm
themselves with deadly weapoils, and kill whatever watchman should
oppose them in their attempt ; and if the jur}- should further find that
in pursuance of such design they armed themselves with loaded revol-
vers to carry their original purpose into execution, and while engaged
in efforts to escape from the prison were discovered by the watchman
Shipman (the deceased), and in the scuffle which ensued he was wilfully
killed by Hamlin or Allen while they were acting in concert and in
pursuance of their original purpose so to do in just such an emergency
as they now found themselves in, — then Hamlin and Allen are botk
guilty of murder in the first degree. And in the opinion of the coui*
Allen would be guilty of murder in the first degree if, in the state ol
things just described, he in fact abandoned, just before the fatal shot
was fired by Hamlin, all furtlier attempt to escape from the prison, and
tlie infliction of further violence upon the person of Shipman, without
informing Hamlin by word or deed that he had so done, and Hamlin,
ignorant of the fact, shortly after fired the fatal shot, in pursuance of
and in accordance with the purpose of the parties down to the time of
the abandonment."
1 Ace. State v. Barrett, 40 Minn. 77 ; State v. Davis, 87 N. C. 514 ; State v.
Johnson, 7 Oi. 210. — Ed.
' Part of the opinion only is given.
428 STATE V. ALLEN. [GHAP. YI.
"We do not think that the objection made by the defence to this part
of the charge is well founded. Under such circumstances Allen's so-
called abandonment would be but an operation of the mind, — a secret
change of purpose. Doing nothing by word or deed to inform his co-
conspirator of such change of purpose, the reasonable inference would
be that he did not intend to inform him of it, and thus he would be
intentionally encouraging and stimulating him to the commission of the
homicide by his supposed co-operation with him. Such intent not to
inform Hamlin of his change of purpose would, under the circumstances,
be decisive of his guilt.
But the charge proceeds: "In other words, if during the fatal en-
counter with deadly weapons, in the state of things just described,
Allen suddenly abandoned Hamlin, abandoned the enterprise and went
to his cell, without saying a word to Hamlin to the efiect that he had
abandoned the enterprise, and Hamlin, supposing thai he was still
acting with him and that he had gone to his cell for an instrument to
carry on the encounter, fired the fatal shot, his abandonment under
such circumstances would be of no importance. A man cannot abandon
another under such circumstances and escape the consequences of the
aid he has rendered up to the time of the abandonment."
A majority of the court think that the jury may have been misled by
this part of the charge, and that therefore, especially in view of the
•^rave issues involved in the case, a new trial should be granted.
If Allen did in fact before the homicide withdraw from the conspir-
cy, abandon the attempt to escape, and with the knowledge of Hamlin
leave and go to his cell, Hamlin's misconstruction of his purpose in
leaving did not necessarily make his conduct of no importance.
Uatil the fatal shotJJa££B-w-a&-t^''hrcttS'psniteHticB. To avail himself
of it AHenTnust indeed have informed Hamhn of his change of pur-
pose, but such information might be by words or acts ; and if with the
intention of notifying Hamlin of his withdrawal from the conspiracy he
did acts which should have been effectual for that purpose, but which
did not produce upon the mind of Hamhn the effect which he intended,
and which they naturally should have produced, such acts were proper
for the jury to consider in determining the relation of Allen to the crime
which was afterwards committed.
Allen's act of leaving and going to his cell, if he did so, had some
significance in connection with the question of intention and notice,
and was therefore proper for the consideration of the jury. How much
weight was to be given to it would depend upon circumstances, such
as tlie situation of the parties and the opportunity for verbal or othei
notice,
A new trial is advised.
/
SECT. VI.1 STATE V. LDCAS. 429
STATE y. LUCAS.
Supreme Cooet of Io\va. 1880.
[Reported 55 Iowa, 321.)
Da?, J. — R. G. Edwards, on behalf of the State, testified in sub-
stance that he was night watchman for Hemmingway & Barclay's mill,
at Lansing ; that on the night of August 24, 1879, the defendant and
Wood assaulted and knocked him down, tied his hands and feet and
carried him into the mill, and that while the defendant went after a
sledge to open the safe in the mill, Wood took three dollars in silver
from his pocket. The evidence shows that the safe was blown open
on the same night. The defendant, on his own behalf, testified that
he had nothing to do with robbing Edwards, and was not at the mill
at all , that he rowed Wood and Harris in a skiff, from La Crosse to
Lansing, and landed near the mill about nine o'olock on the night of
the robbery , that Wood and Harris went up town and left him to
watch the boat ; that afterward they came down to the boat in a hurry
and directed him to row over to Wisconsin ; that on the way he saw
them dividing some silver money ; that when they reached the Wis-
consin shore they sunk the boat ; that on the way to La Crosse Wood
told him all that happened, and gave him two revolvers to carry.'
The court instructed the jury as follows ; " If you believe from all
the evidence that the defendant did not leave the boat after the arrival
at Lansing; yet if yon also believe that he had knowledge of the intent
of his associates to commit crime, either of robbery of the man
Edwards, or of robbing the safe in Barclay and Hemmingway's mill,
or any other crime, and rowed them ashore for such purpose, and \
waited in the boat for them during their absence in committing the
crime, then you will find the defendant guilty."
The doctrine of this instruction is that if the defendant knew of the /]
intent of his associates to rob the safe in Barclay & Hemmingway's' I
mill, and rowed them ashore for that purpose and awaited their return/
he is guilty of the robbery of Edwards. This doctrine is not correct. I
It is true the accessory is liable for all that ensues upon the execution ^
of the unlawful act contemplated ; as, if A commanded B to beat C,
and he beats him so that he dies, A is accessory to the murder. So if
A commanded B to burn the house of C, and in doing so the house of
D is also burnt, A is accessory to the burning of D's house. So, in
this case, if Lucas had knowledge of the intention to rob the safe, and
aided and abetted his associates in the commission of that offence, and
if, in furthering that purpose, a fatal assault had been made upon
Edwards, the defendant would have been accessory to the murder.
But. if the accessory order or advise one crime, and the principal
intentionallT'conrmit another";''as, fo£^ instance,, to burn a -house, and
instead of.tha,tJiacommit a larceny ;.or, to commit-a crime against A,
430 KEX V. HAWKINS. [CHAP. VI.
and instead of so doing he intentionally commit the same crime against
B, the accessory will not be answerable. See 1 Wharton's Criminal
Law, section 134, and authorities cited. ItJollows_that-tb«-defendant
cannot be convirted of ji robbery of Edwards, from-theuiierelactjhat
he-abetted hrslssociates ^in the' robbery vof_Barclaj;;^&_Hemmingway s
safe. If the intention of Lucas" was to abet", and' share in the proceeds
"of, any robbery that his associates might commit, a different rule
would apply. But this is not the thought of the instruction under
consideration. Our view of the law governing this case is sufficiently
indicated by the foregoing, without noticing consecutively the other
errors assigned and argued. Beversed.^
EEX V. HAWKINS.
Worcester Assizes. 1828.
[Beported S C.Sr P. 392.]
The indictment charged the prisoners, and a person named Williams
(who was not in custody), with robbing William Tucker.
It appeared that the prisoners were out poaching in the night in
company with Williams, and that Tucker, who was the game-keeper of
Mr. West, met them as he was going his rounds, when the whole party
set upon him and beat him till he was senseless ; and that, on his re-
covering, he missed his pocket-book and mone}*, and his gun. How-
ever, to connect some of the prisoners with the offence, an accomplice
was called, who stated that they all beat the game-keeper, and left him
lying on the ground ; a4id_that,-after.J;hey had gone some little distance,
Williams returnsiandJMihljgd him.
Park, J. It^ appears to me tbat^Williams isalone^gailty of this
rnhhory. T1^ appears that there was no common intent to steal the
keeper's property. They went out with a common intent to kill game,
and perhaps to resist the keepers ; but the whole intention of stealing
the property is confined to Williams alone. They must be acquitted of
the robbery. Verdict, Not Ouilty.
1 See Lamb v. People, 96 III. 73 ; People v. Knapp, 26 Mich. 112 ; Mercersmith «.
State, 8 Tex. App. 211 ; Watts v. State, 5 W. Va. 532. — Ed.
SECT. VI.] PEOPLE V. KEEKER. 431
PEOPLE V. KEEPER.
Supreme Court op Caliporkia. 1881.
[Reported 65 Cat. 232].
McKiNSTKT, J.* Counsel for defendant asked the court to charge
the jury : —
' ' If you believe from the evidence that the defendant James Keefer
was not present when the Chinaman Lee Yuen was killed by Chapman,
and did not aid and abet in the killing, and that defendant, at the time
or prior to the kiUing, had not conspired with Chapman to commit the
act, and that he had not advised and encouraged Chapman therein, and
that the killing was not done in pursuance of any conspiracy between
this defendant and Chapman to rob said Chinaman, and that this de-
fendant only assisted in throwing the dead body of the Chinaman into
the creek, then you are instructed that, under the indictment, you must
find the defendant not guilty."
It is to be regretted that the foregoing instruction was not given to
the jury. Of course, if defendant had done no act._whiGh--inTnte~Iittn
responsible fof^the murder^the mere fact that, he ^ded in^conpealing
fe^deadbody would render him Kable„pnly.-a8-aecessorv%.after the
.fgctT— an"o5ence of which he could not, bn fniipd guilty under an in-
dictment for" murder. However incredible the testimony of defendant.,
he was undohBtfifliy entitled to an instruction based upon the hypothesis
that his testimony was entirely true.
Assuming the testimony of defendant to be true, there was evidenct
tending to show that no robbery was committed or attempted. In
robberj"^, as in larceny, it must appear that the goods were taken animo
fitrandi ; and there was evidence tending to prove that his propertj'
was not taken from deceased lucri causa, or with intent to deprive him
of it permanent^. So also there was evidence tending to prove that
defendant was not personally present at the killing, ^.nd that the killing
was not done in pursuance of any agreement or understanding to which
defendant was a party, but that it was done by Chapman without the
knowledge, assent, or connivance of the defendant.
The testimony of defendant was to the effect that he did not advise
or encourage Chapman to follow and tie the deceased. But even if we
could he supposed to be justified in deciding the fact, in holding that
his conduct conclusively proved — notwithstanding his testimony to
the contrary — that he did encourage Chapman in his purpose to follow
and tie the deceased, such encouragement would not, of itself, make
him accessory to the killing; An accessory before the fact to a robbery
(or any other of the felonies mentioned in section 198 of the Penal
Code), although not present when the felony is perpetrated or at-
1 Part of the opinion is omitted. — Eu.
432 o SPIES V. PEOPLE. [chap. yi.
tempted, is guiltj' of a murder committed in tiie perpetration or attempt
to perpetrate the felony. People v. Majors, April 1, 1884. This is by
reason of the statute, and because the law "superadds the intent to kill
to the original felonious intent. People v. Dojell, 48 Cal. 94. One
who has onlj' advised or encouraged a misdemeanor, however, is not
necessarily responsible for a murder committed bj- his co-conspirator,
not in furtherance, but independent of the common design. 1 Whart.
^ Crim. Law, § 229 and note.
In the case at bar, if defendant simplj' encouraged the tying of the
deceased, — a misdemeanor which did not and probably could not cause
death or any serious injury, — as the killing by Chapman was neither
necessarily nor probably involved in the battery or false imprisonment,
nor incidental to it, but was an independent and malicious act with
which defendant had no connection, the jury were not authorized to
find defendant guilty of the murder, or of manslaughter. If the de-
ceased had been strangled bj^ the cords with which he had been care-
lessly or recklessly bound by Chapman, or had died in consequence of
exposure to the elements while tied, defendant might have been held
liable. But, if the testimony of defendant was true, — and, as we have
said, he was entitled to an instruction based upon the assumption that
the facts were' as he stated them to be, — the killing of deceased was
an independent act of Chapman, neither aided, advised, nor encouraged
by him, and not involved in nor incidental to any act by him aided,
advised, or encouraged. The court erred jn refusing the instruction.
SPIES V. PEOPLE.
SuPKEME Court of Illinois. 1887.
[Reported 122 111. 1.]
Magritoer, J.,^ delivered the opinion of the Court:
This case comes before us by writ of error to the Criminal Court of
Cook county. The writ has been made a supersedeas.
Plaintiffs in error were tried in the summer of 1886 for the murder
of Matthias J. Began, on May 4, 1886, in the city of Chicago, Cook
county, Illinois. On August 20, 1886, the jury returned a verdict
finding the defendants, August Spies, Michael Schwab, Samuel Fielden,
Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg,
guilty of murder, and fixing death as the penalty. By the same ver-
dict they also found Oscar W. Neebe guilty of murder and fixed the
penalty at imprisonment in the penitentiary for fifteen years.
Aljout the 1st day of May, 1886, the workingmen of Chicago and of
other industrial centres in the United States were greatly excited upon
the subject of inducing their employers to reduce the time during
1 Part of the opinion only is given. — Ed.
SECT. VI.J SPIES V. PEOPLE. 433
which they should be required to labor on each day to eight hours.
In the midst of the excitement growing out of this eight-hour move-
ment, as it was called, a meeting was held on the evening of May 4,
1886, at the Haymarket, on Randolph street, in the West division of
the city of Chicago. Tliis meeting was addressed by the defendants
Spies, Parsons, and Fielden. While the latter was making the clos-
ing speech,. and at some point of time between ten and half-past ten
o'clock in the evening, several companies of policemen, numbering one
hundred and eighty men, marched into the crowd from their station on
Desplaines street, and ordered the meeting to disperse. As' soon as
the order was given, some one threw among the policemen a dj-namite
bomb which struck Degan,-who was one of the police oflBcers, and
killed him. As the result of the throwing of the bomb and of the
firing of pistol shots, which immediately succeeded the throwing of the
bomb, six policemen besides Degan were killed, and sixty more were
seriously wounded.
It is undisputed that the bomb was thrown and that it caused the death
of Degan. It is conceded that no one of the convicted defendants
threw the bomb with his own hands. Plaintiffs in error are charged
with being accessories before the fact. There are sixty-nine counts in
the indictment. Some of the counts charge that the eight defendants
above named, being present, aided, abetted, and assisted in the throw-
ing of the bomb ; others, that, not being present, aiding, abetting or
assisting, they advised, encouraged, aided, and abetted such throwing.
Some of the counts charge that said defendants advised, encouraged,
aided, and abetted one Rudolph Sch'naubelt in the perpetration of the
crime ; others that they advised, encouraged, aided, and abetted an un-
known person in the perpetration thereof.
The Illinois statute upon this subject is as follows (chap. 38, div. 2,
sees. 2 and 3) :
" Sec. 2. An accessory is he who stands by, and aids, abets, or
assists, or who, not being present, aiding, abetting, or assisting, hath
advised, encouraged, aided, or abetted the perpetration of the crime.
He who thus aids, abets, assists, advises, or encourages shall be con-
sidered as principal, and punished accordingly.
" See. 3. Every such accessor}-, when a crime is committed within
or without this State, b^' his aid or procurement in this State, may be
indicted and convicted at the same time as the principal, or before, or
after his conviction, and whether the principal is convicted or amena-
ble to justice or not, and punished as principal."
This statute abolishes the dislinciiou between accessories before the
fact and principals ; by it all accessaries before the fact are made prin-
cipals. As the acts of the principal are thus made the acts of the ac-
cessory, the latter may be charged as having done tiie acts himself,
and may be indicted and punislied accordingly. Baxter v. People, 3
Gilm. 368; Dempsey v. People, 47 111. 323.
If, therefore, the defendants advised, encouraged, aided,' or abetted
434 SPIES V. PEOPLE. . [chap. VI.
Che killing of Degan, they are as guilty as though they took his life
with their own hands. If any of them stood by and aided, abetted, or
assisted iu the throwing of the bomb, those of them who did so are as
guilty as though they threw it themselves. ,
It is charged that the defendants formed 'a common purpose, and
were united in a common design to aid and encourage the murder of
the policemen among whom the bomb was thrown. If they combined
to accomplish such murder by concerted action, the ordinary law of
conspiracy is applicable, and the acts and declarations of one of them,
done in furtherance of the common design, are, in contemplation of
law, the acts and declarations of all. This prosecution, however, is
not for conspiracy as a substantive crime. Proof of conspiracy is only
proper so far as it may tend to show a common design to encourage
the murder charged against the prisoners. It may be Introduced for the
purpose of establishing the position of the members of the combination
as accessories to the crime of murder.
The questions which thus present themselves at the threshold of
the case are these : Did the defendants have a common purpose or
design to advise, encourage, aid, or abet the murder of the police? Did
thev combine together and with others with a view to carrying that
purpose or design into effect ? Did they or either or any of them do
such acts or make such declarations in furtherance of the common pur-
pose or design as did actually' have the effect of encouraging, aiding,
or abetting the crime in question ? . . .
It is apparent from this review of the evidence thht just such an at-
tack was made at the Haymarket as was contemplated and arranged for
by the conspiracy of Monday night. First, a bomb was thrown among
the policemen ; next, shots were fired into their ranks bj' armed men,
belonging to the organization heretofore described and who had been
gathered around the wagon during the evening. In the order of time,
the shooting occurred a few seconds after the bomb exploded. This
was the order in which the onset with the two different kinds o(
weapons was to be made, according to the terms of the conspiracj-.
The mode of attack as made corresponded with the mode of attack
as planned.
It is true that the plan adopted contemplated the throwing of a
bomb into each station and then shooting Jown the police, as they
sliould come out. This was to be done, however, not only at the-
North avenue station, but at the stations "in other parts of the city."
The Desplaines street station was a station 'n one of the "other
parts of the city," and was as much embraced within the scope of the
plan as the rest of the, stations. It was in sight of the speakers*
wagon, and only a short distance south of it. If a bomb had been
tiii'own into the station itself and the policemen had been shot down
while coming out, a part of the conspiracy would have been literally
executed just as it was agreed upon. It could make no difference iu
tlie guilt of those who were parties to the conspiracy that the maa
SECT. VI.J SPIES V. PEOPLE. 435
who threw the bomb and his confederatea who fired the shots waited,
before doing their work, until the policemen in the station had left it
and had advanced some three hundred feet north of it.
If A hire B to shoot C at the Sherman House in the city of Chicago
on a certain night, but B, seeing C enter the Tremont House on the
same night, shoots him there, A is none the less guilty of aiding,
abetting, advising, and encouraging the murder of C. If there is
a conspiracy to kill policemen at a station house, but the agents of the
conspiracj' kill the policemen a short distance away from the station
house, there is no such departure from the original design as to relieve
the conspirators of responsibility.
A plan for the perpetration of a crime or for the accomplishment of
any action, whether worthy or unworthy, can not always be executed
in exact accordance with the original conception. It must suffer some
change or modification in order to meet emergencies and unforeseen
contingencies. . . .
Zdnffg :
The jury were warranted in believing from the evidence that the
plaintiff in error, Louis Lingg, was a party to the Monday night
conspiracy. . . .
Here is a man, connected with a certain organization, engaged in
arming and drilling for a conflict with the police. He is experimenting
with dj'namite and in the construction of bombs under the direction of
armed members of that organization. He makes bomb shells, fills
them with dynamite, takes them to the meeting place of armed mem-
bers of that organization, puts them where access to them can be
easily had, using such precautions as such dangerous explosives natu-
rally require. At once, certain of these armed members, such as the
two large men of the Lehr und Wehr Verein already spoken of, come
forward and take bombs and go their several ways. In a little more
than an hour afterwards, one of these very bombs is thrown into a
crowd of policemen and explodes and kills one of them. Was not the
conduct of this man, who thus cooUj- and carefullj' prepared the
weapons for one definite class of men to use in the murder of another
definite class of men, marked by "deliberation," as that term is defined
in the authorities ?
It was a fair conclusion from the evidence that Lingg knew that the
bombs he was making would be thrown among the police. It was a
fair conclusion from the evidence that he intended the bombs he
placed in the hall-way to be used by the members of the International
groups, not onl3' in the interest of the general movement against the
police with which he was connected, but in the interest of the particu-
lar conspiracy that was concocted on Monday night.
Even if he did not know the name of the particular individual who
was to throw the bomb, he knew that it would be thrown by some
one belonging to the sections or groups already described, and this
436 SPIES V. PEOPLE. [chap. Vi.
was sufficient to affect Mm with the guilt of advising, encouraging, aid-
ing, or abetting the crime charged in the indictment.
He maj'' not have known what particular policeman would be killed,
whether Matthias J. Degan, or another. But when he opened the
loaded satchel at Neflf s Hall on Tuesday night, that act, viewed in the
light of all the antecedent, attendant, and subsequent occurrences, was
virtually a designation of the body or class of men who were to be
attacked. "When one of such class was killed, the guilt was the same
as though a person bearing a particular name had been pointed out as
the victim.
Even if he did not know that one of the bombs would be thrown on
that evening at a particular place called the Haymarket, it was suffi-
cient that he knew it was to be used at that point in the city, where
a collision should occur between the workingmen and the police.
Such a collision did occur at the Haymarket. . . .
Fielden :
There is evidence of a verj' distinct and positive character that
Fielden shot at the police. . . .
It is true that Degan was killed by the bomb that was thrown and
not by the shots that were fired. But the attack at the Haymarket
was a joint attack made by a number of persons with two different
kinds of weapons in pursuance of a previously arranged conspiracy.
When Fielden lent himself to the execution of that conspiracy by par-
ticipating in the joint attack, he was just as guilty of the murder
of Degan by reason of firing his pistol as though he had thrown the
bomb. If the man who threw the bomb and the twenty men whom
officer Hanley saw running into the alley had stood up together and
the one had thrown his bomb and the others had fired their shots all at
the same time into the ranks of the police, and one of the policemen
had at once fallen dead, would not each of the twenty men have been
as responsible as the bomb-thrower for the death of the man killed,
whether such death was caused by the bomb or by the shots ? All had
the murderous intent. All were using deadly weapons in pursuance of
a common design to destroy life. The conduct of Fielden at the Haj'-
mai'ket, considered in connection with his acts prior thereto and with
all the other facts, as herein set forth, certainly warranted the jury in
finding that he was one of the conspirators.
Parsons :
The jury were warranted in believing from the evidence that the
defendant Parsons was associated with the man who threw the bomb
and the men who fired the shots at the .Haymarket, in a conspiracy to
bring about a social revolution in Chicago by force on or about May 1.
1886, or, in other words, to destroy the police and militia on or about
that date with bombs and reivolvers or rifles. It is well settled that,
SECT. VI.] SPIES V. PEOPLE. 437
when the- fact of a conspiracy is once established, any act of one of the
conspirators in the prosecution of the enterprise is considered the act
of all. Nudd v. Burrows, 91 U. S. 426 ; 1 Wharton's Am. Crim. Law
(6th ed.), sec. 702; 3 Greenleaf on Evidence, sec. 94.
It makes no difference, that Parsons may not have been present in
the basement of Griefs Hall when the Mondaj' night conspiracj- was
planned. He belonged to the armed sections, whose representatives
entered into that conspiracy and was one' of the absent members, who
were to be informed of its provisions. One of those provisions was
the holding of a meeting at the Hay market. When he went to that
meeting in obedience to a summons from Rau, and tliere made an in-
cendiary speech, he joined the others in their execution of the con-
spiracy and thereby became a party to it. " Individuals who, though
not specifically parties to the killing, are present and consenting to the
assemblage, by whom it is perpetrated, are principals when the killing
is in pursuance of the common design." Wharton on Homicide (2d
ed.), sec. 201 ; Wharton's Am. Law of Homicide, 345, 346, etc. ;
Regina v. Jackson, 7 Cox, C. C. 357 ; Commonwealth v. Daley, 4
Pa. L. J. 150.
The plan adopted on Monday night was merely a specific mode of
carrj'ing out the more general conspiracy to which Parsons and those
present on Mondaj' night were all parties. The adoption of the Mon-
day night plot was the act of those who were co-conspirators with
Parsons. It was therefore his act. He had advised the use of bombs
and arms against the police on or about May 1. The men who met
Monday night merely indicated more specifically the time when and
places where and mode in which such bombs and arms should be used,
so as to be most effective. " A man may be guilty of a wrong which
he did not specifically intend, if it came naturally or even accidentally
from some other specific, or a general, evil purpose. When, therefore,
persons combine to do an unlawful thing, if the act of one proceeding
according to the common plan terminates in a criminal result, though
not the particular result meant, all are liable." 1 Bishop on Crim.
Law, 636, and cases cited.
" There might be no special malice against the party slain, nor delib-
erate intention to hurt him; but if the fact was committed in prose-
cution of the original purpose, which was unlawful, the whole party
will be involved in the guilt of him who gave the blow." (Foster,
p. 351, sec. 6.) " Where there is a conspiracy to accomplish an un-
lawful purpose, and the means are not specifically agreed upon or
understood, each conspirator becomes responsible for the means used
by any co-conspirator in the accomplishment of the purpose in which
they are all at the time engaged." State v. McCahill, 72 Iowa, 111.
He who enters into a combination or conspiracy to do such an un-
lawful act as will probably result in the unlawful taking of human life,
must be presumed to have understood the consequences which might
reasonably be expected to flow from carrying it into eflect, and also to
438 SPIES V. PEOPLE [chap. VI.
have assented to the doing of whatever would reasonably or probably
be necessary to accomplish the objects of the conspiracy', even to the
taking of life. 1 Wharton on Crim. Law (9th ed.), sec. 225 a ; Bren-
nan et al. v. The People, 15 111. 511 ; Hanna v. The People, 86 id. 243 ;
Lamb v. The People, 96 id. 74.,
Instruction.
' According to the theory of this instruction,* the defendants conspired
to excite certain classes to tumult, riot, use of weapons, and taking of
life, "as a means to carry their designs and purposes into effect."
The instruction does not specify what those designs and purposes are,
because thej- had been stated in the two preceding instructions to be
the bringing about of a social revolution and the destruction of the
authorities of the city. The ordinary workingman had two purposes
in view, first, to get an eight-hour day of labor, second, to keep the
police from interfering to protect non-union laborers against strikers.
The defendants in this case cared nothing about the eight-hour move-
ment or the contentions between union and non-union men. They
looked beyond to the social revolution. They sought to make use
of the excitement among the workingmen over the eight-hour move-
ment and over the attacks of police upon strikers, in order to create
riot and tumult and thus precipitate the social revolution. The stirring
up of riot and tumult was with them a means to an end. There is
testimony tending to support this view. The men who excited the
tamult and riot by print and speech may have had a different end in
view from that sought by the classes whom they so excited. But they
1 If these defendants, or any two or more of them, conspired together, with or not
with any other person or persons, to excite the people or classes of the people of thia
city to sedition, tumult, and riot, to use deadly weapons against and take the lives ol
other persons, as a means to carry their designs and purposes into effect, and in pur
suance of such conspiracy, and in furtherance of its objects, any of the persons so
conspiring, publicly, by print or speech, advised or encouraged the commission of
murder, without designating time, place, or occasion at which it should be done, and in
pursuance of, and induced by such advice or encouragement, murder was committed,
then all of such conspirators are guilty of such murder, whether the person who per-
petrated such murder can be identified or not. If such murder was committed in pur.
suance of such advice or encouragement, and was induced thereby, it does not matter
what change, if any, in the order or condition of society, or what, if any, advantage to
themselves or others the conspirators proposed as the result of their conspiracy ; nor
does it matter whether such advice and encouragement had been frequent and long-
continued or not, except in determining whether the perpetrator was or was not acting
iu pursuance of such advice or encouragement, and was or was not induced thereby to
commit the murder. If there was such conspiracy as in this instruction is recited,
such advice or encouragement was given, and murder committed in pursuance of and
induced thereby, then all such conspirators are guilty of murder. Nor does it matter
if there was such a conspiracy, how impracticable or impossible of success its end and
aims were, nor how foolish nor ill-arranged were the plans for its execution, except
as bearing upon the question whether there was or was not such conspiracy.
SECT. VI.] PEOPLE V. ELDER. , 4o9
were none the less responsible for murder that resulted from their aid
and encouragement.
If the defendants, as a means of bringing about tlie social revolution
and as a part of the larger conspiracy to effect such revolution, also
conspired to excite classes of workingmen in Chicago into sedition,
tumult, and riot and to the use of deadly weapons and the taking
of human life, and for the purpose of producing such tumult, riot, use
of weapons, and taking of life, advised and encouraged such classes by
newspaper articles and speeches to murder the authorities of the city,
and a murder of a policeman resulted from such advice and encourage-
ment, then defendants are responsible therefor.
Judgment affirmed.
PEOPLE V. ELDER.
Supreme Court op Michigan. 1894.
[Reported 100 Mich. 515.]
Hooker, J. Respondent appeals from a conviction of manslaugh-
ter. He was a bartender, and, in an altercatipn with the deceased,
struck him and knocked him down, whereupon one Nixon, a bystander,
kicked him, from which kick death resulted. The theory of the prosecu-
tion was that there was preconcert of action on the part of Nixon and
the respondent. The respondent denies this ; claiming thaJ_iifiL_had
Tinrpa.sfin t.n Rvpeet-^BjL-aggistance from Nixon, .or lo anticipate_his
i«terfiRi-ence, and that he didnot induce it. ' ""
■ In his charge to tlie"jurj', Lli« t?ial judge said, " On the part of the
defendant, I give you the instructions which I now read." This was
followed by the reading of several requests, in which the law was
stated correctly upon the subject. The fifth was as follows :
" If it shall appear to you from the evidence that Elder did not him-
self inflict the blow or do the injury which resulted in the death of
Lowden, and that Nixon, by his own motion, while the encounter
between Elder and Lowden was going on, rushed in, uninvited by Elder,
and inflicted the injuries which produced Lowden's death, then you
must acquit the prisoner."
To this the court added as follows :
"Unless you find that his assault upon Lowden contributed and pro-\
duced the conditions that deprived the deceased of the power of resist- y
ance, and enabled Nixon the better to inflict great bodily injury on the
deceased, if you find that the cause of death was the wounds or injury
he received on that occasion."
The requests upon the part of the respondent were followed by those
of the prosecution, twenty-two in number, most of which were given, and
which seem, to have concluded the charge. The first was as follows:
440 PEOPLE V. ELDER. [CHAP. VI.
"If yoij find that the respondent assaulted Lowden, and felled him
to the floor, putting the body of the deceased in such a position that
he was helpless to protect himself from Nixon, and rendered it possible
for Nixon to kick him, such act upon the respondent's part was unlaw-
ful ; and if decedent's death was caused by the defendant's act, the
kicking given by Nixon, or both combined, then they are equally guilty
of the death caused."
This request, and the addition to respondent's fifth request, were in
direct contradiction of the earlier requests given upon respondent's
part, wherein the jury were instructed that the respondent could not be
convicted if the death was caused hy acts of Nixon, for which respond-
ent was not responsible, and which he did not induce or anticipate.
The discussion of this subject, which appears to have been the impor-
tant point in the case, was left with the requests and the addition
which has been mentioned.
We fear that the jurors were misled by the first request of the prose-
cution, which in plain terms told them thej- might convict the respond-
ent if he had "assaulted Lowden and felled him to the floor, patting
his body in such a position that he was helpless to protect himself from
Nixon, and rendered it possible for Nixon to kick him," if such kick
caused death. Equally faulty was the implication contained in the
addition to respondent's fifth request, — that if respondent's assault
" deprived the deceased of the power of resistance, and enabled Nixon
the better to infiict great bodily injury on the deceased," a conviction
might follow.
The case of People v. Carter, 96 Mich. 583, which seems to have
been relied upon bv. the prosecution, was quite a different case from
this. In that case the respondent felled the deceased by a blow while
be was engaged in a fight with another, whereupon that other immedi-
ately kicked him. It was held that if the jury could find that the re-
spondent volunteered to aid another in his fight, for the purpose of
aiding him to whip the deceased, they were joint wrong-doers, respon-
sible for each other's acts. In this case the respondent's contention
was that he wasjKlt„a. volunteer in another's cause^^but that the other
^^urrtSefe3JjiJusrwWi«tit-lTis^request or expeetSfionT He was entitled
to'have his theorj- properly submitted to T:lrg'jury: —
The judgment must be reversed, and a new trial ordered.
The other Justices concurred.
SECT. VI.J STATE V. TAYLOE. 441
STATE V. TAYLOR.
Supreme Court of Vermont. 1896.
[Reported 70 Vt. 1.]
Indictment for an assault with intent to kill and murder. Trial by
jury at the May Term, 1895, "Windsor County, Taft, J., presiding.
Verdict and judgment of guilty, and sentence imposed at the respond-
ents' request. The respondents excepted.
MuNsoN, J.^ The alleged assault was committed upon Paul Tinkham,
constable of Rochester, and three persons acting under him, while they
were effecting an arrest of the respondents and two others, without a
warrant, on suspicion of felony.
We think there was also error in the instruction given as to the
liability of all for the act of one. The court charged in substance that
if the four persons whom the oflfleers were attempting to arrest were
acting together with a common purpose of resisting arrest, and any one
of the four shot an officer in the execution of that design and with an
intent to kill, and the other three were present, assisting in the assault,
all would be guilty of an assault with that intent. Assuming that the
charge as a whole was sufficient to require the finding of an actual in-
tent to take life on the part of one, it will be seen that the liability of
the others for an assault with intent to take life is made to depend
solelj' upon the illegality of the resistance. It is doubtless true that
if all were combined for an unlawful resistance to the officers, and an
officer had been killed by one of their number, aU would have been
guilty of the killing. But no one was killed ; and the liability of the
actual assailant, other than for a simple assault, depended upon the
existence of a specific intent to kill, ^e think the jury could not be
permitted to return a verdict of guilty of an assault with intent to mur-
der against all, on the merefinding_of_a common purpose to resist
arrest. It would doubtless be different_iLit.were found that they acted
upon a common understanding that they. would do whatever might be"
necessarv to avoid, arrest.
' Only so much of the case as discusses the guilt of the accomplices is given. — Ed.
442 CKIMES AGAINST THE PERSON. [OHAP. VII.
CHAPTER VII.
CRIMES AGAINST THE PERSON.
SECTION I.
General Prineiples.
1 Hale, Pleas of the Crown, 425. To make up the crime of homicide
or murder there must be these three concurring circumstances : —
I. Th^ party must be kUlgji. Anciently indeed a barbarous assault
with an inTenTIW muifter, so that the party was left for dead, but yet
recovered again, was adjudged murder and petit treason (15 E. 2, Coron.
383) ; but that holds not now, for the stroke without the death of the
party stricken, nor the death without the stroke or other violence
makes not the homicide or murder, for the death consummates the
crime. ...
Now what shall be said a killing and death within the year and
day? . . .
If a man, either by working upon the fancy of another or possibly by
harsh or unkind usage, puts another into such passion of grief or fear
that the party either dies suddenly, or contracts some disease whereof
be dies, though, as the circumstances of the case may be, this maj' be
murder or manslaughter in the sight of God, yet in foro humano it
cannot come under the judgment of felony, because no exterjialjct of
violence was offered whereof the common law can take notice, and
secret things belong to God ; and hence it was, that before the statute
of 1 Jac. cap. 12, witchcraft or fascination was not felon}', because it
wanted a trial, though some constitutions of the civil law make it
penal. . . .
There are several ways of killing : 1. B}' exposing a sick or weak per-
son or infant unto the cold to the intent to destroy him (2 E. 3, 18' b),
whereof he dieth. 2. By laying an impotent person abroad, so that he
may be exposed to and receive mortal harm ; as laying an infant in an
orchard and covering it with leaves, whereb}' a kite strikes it, and kills
it. 6 Eliz., Crompt. de Pace 24 ; Dalt. ch. 93. 3. By imprisoning a
man so strictly that he dies, and therefore where any dies in gaol, the
coroner ought to be sent for to enquire the manner of his death. 4. By
starving or famine. 5. By wounding or blows. 6. By poisoning. 7.
By laying noisome and poisonous filth at a man's door, to the intent by
SECT. I. J CKIMES AGAINST THE PEESON. 443
a poisonous air to poison him (Mr. Dalton, ch. 93, out of Mr. Coke's
reading) . 8. ^y strangling or suflfocation. Moriendi millefigurae.
A man infected with the plague, having a plague-sore running upon
him, goes abroad ; this is made felon}- b}' the statute of 1 Jac. cap. 31, but\
is now discontinued ; but what if such person goes abroad, to the intent j
to infect another, and another is thereby infected and dies ? Whether
this be not murder by the common law might be a question ; but if no
such intention evidently appears, though de facto by his conversation
another be infected, it is no felony by the common law, though it be a
great misdemeanor ; and the reasons are : 1. Because it is hard to dis-
cern whether the infection arise from the party or from the coptagion
of the air, — it is God's arrow ; and 2. Nature prompts everj- man, in what
condition soever, to preserve himself, whicb cannot be well without
mutual conversation. 3. Contagious diseases, as plague, pestilential
fevers, small-pox, &c., are common among mankind by the visitation ;
and the extension of capital punishments in cases of this nature would
multiply severe punishments too far, and give too great latitude and
loose to severe punishments.
II. The second consideration that is common both to murder and
manslaughter is, who shall be said a person, the killing of whom shall
be said murder or manslaughter.
If a woman be quick or great with child, if she takes or another gives
her an}' potion to make an abortion, or if a man strike her, whereby the
child within her is killed, it is not murder nor manslaughter bj- the law
of England, because it is not yet in rerum natura, though it be a grea
crime, and by the judicial law of Moses was punishable with death
nor can it legally be made known, whether it were killed or not. 22 B
3, Coron. 263. So it is, if after such child were born alive, and bap
tized, and after die of the stroke given to the mother, this is not homi
cide. I E. 3, 23 b, Coron. 146. ... If a man kills an alien enemj
within this kingdom, yet it is felony, unless it be in the heat of war, an/
in the actual exercise thereof.
III. The third inquiry is, whoshall_bg_said-«r^re^bft krlliHg, . . .
If there be an actual forcing of a man, as if A. by force take the am
of B. and the weaponTn-iis hand, and therewith stabs C. whereof h»
dies, this is murder in A. but B. is not guilty. Dalt. cap. 93, p. 242
Plowd. Com. 19 a. But if it be only a mora)! force, as by threatening„
duress, or imprisonment, &c., this excuset^aol-
1 Hawkins, Pleas of the Crown, ch. 16, sect. 2. Eape is an offence
in having unlawful and carnal knowledge of a woman by force and
against her will.
Ibid., ch. 19. Robbery is a felonious and violent taking away from
the person of another goods or money to any value, putting him in fear.
Ibid., ch. 15, sect. 1, 2. Such hurt of any part of a man's body
whereby he is rendered less able, in fighting, either to defend himself
or to annoy his adversary, is properly a maim. And therefore the cut-
444 EEGINA V. EENSHAW. [CHAP. VH.
ting oflf or disabling or weakening a man's hand or finger, or striking
out his eye or fore-tooth, or castrating him, are said to be maims ; but
the cutting off his ear or nose, &c., are not esteemed maims, because
they do not weaken, but only disfigure him.
Ibid., ch. 15, sect. 1, 2. An assault is an attempt, or offer, with
force and violence, to do a corporal hurt to another ; as by striking at
him with or without a weapon ; or presenting a gun at .him at such a
distance to which the gun will carry ; or pointing a pitchfork at him,
standing within the reach of it ; or by holding up one's fist at him ; or
by anj' other such-like act done in an angry, threatening manner : and
from hence it clearly follows that one charged with an assault and
battery may be found guilty of the former, and yet acquitted of the
latter. But every .batterj^ includes an assault ; therefore on an indict-
ment of assault and battery in which the assault is ill laid, if the de-
fendant be found guilty of the battery it is sufficient. Notwithstanding
many ancient opinions to the contrary, it seems agreed at this day that
no words whatsoever can amount to an assault.
It seems that any injurj^ whatsoever, be it never so siball, being
actually done to the person of a man in an angry, revengeful, rude, or
insolent manner, as by spitting in his face, or any way touching him in
anger, or violently jostling him out of the way, are batteries in the eye
of the law.
SECTION IL
Assault and Battery.
EEGINA V. EENSHAW.
Sussex Assizes. 1847.
[Repm-ted 2 Cox C. C. 285.]
Mabia Renshaw was indicted for a misdemeanor. The indictment
contained also a count for a common assault.'^
Attree, for the prosecution, stated that the prisoner, having been
delivered of [a bastard] child ten days before, on the 26th of June left
the child, swathed in a large piece of flannel at the bottom of a dr3'
ditch, in a field in the parish of Bexhill, and then herself departed to
Hastings, a place ten miles distant, where she was afterwards found.
There was a pathway in the field by the ditch, and a lane separated
from the ditch by a hedge, neither of which was much frequented
The child was found alive.
The facts having been proved —
1 Only so much of the case as inyolves the qaestion of assault is given. — Ed.
SECT. II.] COMMONWEALTH V. WHITE. 445
Parke, B. (to the jurj-). There were no marks of violence on the
child, and it does not appear, in the result, that the child actually
experienced any injury or inconvenience, as it was providentially
found soon after it was exposed ; and therefore, although it is said in
some of the books that an exposure to the inclemency of the weather
may amount to an assault, yet if that be so at all, it can only be
when the person exposed suffers a hurt or injury of some kind or other
from the exposure.
COMMONWEALTH v. WHITE.
Supreme Judicial Court of Massachusetts. 1872.
[Reported 110 Massachusetts, 407.]
Complaint to a trial justice, alleging that the defendant " with force
and arms in and upon the body of Timothy Harrington an assault did
make, and him did then and there threaten to shoot with a gun, which
he then and there pointed and aimed at said Harrington."
At the trial, on appeal, in the Superior Court, before Pitman J., the
Commonwealth introduced evidence tending to show that the defend-
ant was driving in a wagon along a highway, which Harrington, one
Sullivan, and others were repairing ; that Sullivan called out to the
defendant to drive in the middle of the road ; that the defendant made
an offensive reply ; that thereupon Sullivan came toward the defend-
ant and asked him what he meant ; that Sullivan and Harrington were
about fifteen feet from the defendant, who was moving along all the
time ; that the defendant took up a double-barrel gun which he had in
the wagon, pointed it towards Sullivan and Harrington, took aim at
them, and said, " I have got something here that will pick the eyes
of you." This was all the evidence of declarations or threats- of the
defendant at the time of the alleged assault.
Sullivan testified that he had no fear and did not suppose the de-
fendant was going to do any harm ; but there was evidence tending to
show that Harrington was put in fear. The defendant testified that
the gun was not loaded.
The defendant asked the judge to rule that the complaint could
not be sustained because the Commonwealth had failed to prove the
offence as alleged in the complaint; but the judge refused so to rule,
and ruled that it was not necessary to prove a threat to shoot as set
forth in the complaint.
The defendant also asked the judge to instruct the jurj' "that the
facts testified to did not constitute an assault ; that at the time, the
defendant must have had an intention to do some bodily harm to Har-
rington and the present ability to carrj' his intention into execution ;
and that tlie whole evidence would not warrant the juiy in finding a
4-1G PEOPLE V. MOORE. [CHAP. VII.
verdict against the defendant." But the judge refused so to instruct
the jury, and instructed them " that an assault is any unlawful physical
force partly or fully put in motion, which creates a reasonable appre-
hension of immediate physical injury; and -that if the defendant,
within shooting distance, menacingly pointed at Harrington a gun,
which Harrington had reasonable cause to believe was loaded, and
Harrington was actually put in fear of immediate bodily injury there-
from, and the circumstances of the case were such as ordinarily to
induce such fear in the mind of a reasonable man, that then an assault^
was committed, whether the gun was in fact loaded or not." The jury
returned a verdict of guiltj-, and the defendant alleged exceptions.
Wells, J.^ The instructions required the jury to find that the acts
of the defendant were done " menacingly ; " that Harrington had
reasonable cause to believe the gun pointed at him was loaded, and
was actually put in fear of immediate bodil}' injury therefrom ; and
that the circumstances were such as ordinarilj' to induce such fear in
tlie mind of a reasonable man.
Instructions in accordance with the second ruling prayed for would
have required the jury also to find that the defendant had an intentiom
to do some bodily harm and the present ability to carry his intention
into execution. Taking both these conditions literally', it is difficult to
see how an assault could be committed without a battery resulting.
It is not the secret intent of the assaulting party nor the undisclosed
fact of his ability or inability to commit a battery, that is material ; but
what his conduct and the attending circumstances denote at the time
to the partj' assaulted. If to him they indicate an attack, he is justi-
fied in resorting to defensive action. The same rule applies to the
proof necessary to sustain a criminal complaint for an assault. It i»
the outward demonstration that constitutes the mischief which is pun-
ished as a breach of the peace." Exceptions overruled.
PEOPLE V. MOORE.
Supreme Coukt of New York. 1888.
^Reported 50 Hun, 356.]
Landon, J.° The material facts are not in dispute. The main ques-
tions are whether the conceded facts show that the defendant com-
1 Arguments of counsel and part of the opinion are omitted.
'^ Ace. State v, Shepard, 10 la. 126 ; State «. Smith, 2 Humph, 457. Contra,
Chapman «. State, 78 Ala. 463 ; State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Or.
SCO; and see a learned note, 2 Green Cr. L. Rep. 271. — Ed.
' Only so much of the opinion is given as involrea the question of assault.
SECT. II.] PEOPLE V. MOORE. 447
mitted an assault upon the complainant, and if so, whether the assault
was justifiable.
The defendant was in the employ of the Burden Ore and Iron
Companj-. This company owns a large tract of land in Livingston,
Columbia county, and has, in the development of its business, created
upon its lands, the so-called village of Burden. This consists of the
company's offices, shops, sixt}- or sevent}' tenement-houses, occupied
b}- its servants and their families, a public store, schoolhouse and
chapel. A ppst-offlce is established there. An open road or street,
wholly upon the company's lands, leads from the public highwaj-' to
the village. The tenement-houses of the village are in rows upon both
sides of the village streets. All these streets and roads are open, and
to every appearance are public highways. The company, however,
retains title to the land, and the public authorities have not claimed
or assumed any authoritj' over them.
The complainant Snyder was a peddler of milk and vegetables and
had customers for his supplies in this village. The company desired
him to discontinue his traffic in the village, and to give it to another
person. It notified him that the village and its streets were its private
propert}', and that he must not sell milk there any more. He refused
to discontinue. The company directed the defendant to keep him out
of the village, but to use no more force than was necessar}' for the
purpose, and to be careful not to do him personal injury. The defend-
ant, in pursuance of this direction, assisted bj' one Ahlers, on the 14th
day of March, 1887, intercepted Snj'der upon the road leading from
'the public highway to the village. Snyder was alone, was seated in
his sleigh driving his team of horses on his way to deliver milk to his
customers, and especially some apples which had been ordered bj' one
of them. The defendant told Snyder he was trespassing and that he
had orders to stop him. Snyder attempted to drive on. The defend-
ant then seized the lines in front of Snj-der's hands, told Ahlers to
take the horses by the heads and turn them around, which Ahlers
immediately did, the defendant at the same time remarking that "the
easiest way is the best way." When the team and sleigh, with Snydei
in it, had been turned around, defendant barred the passage towards
the village with an iron pipe. Snj'der thereupon drove awaj'.
Defendant urges that this was no assault, for the reason that there
was no intention to hurt Snyder ; and that he did not lay his hands
upon him. It is plain, however, that the force which he applied to
the horses and sleigh just as effectually touched the person of Snj-der,
as if he had taken him by his ears or shoulders and turned him right
about face. The horses and sleigh were the instruments with which he
directed and augmented his personal and physical force against, and
upon the body of Snyder. Snyder did receive bodilj' harm. One
receives bodily harm, in a legal sense, when another touches his person
against his will with physical force, intentionally hostile and aggressive,
or projects such force against his person. Here, for the moment, Sny-
448 PEOPLE ?). jaOOEE, [chap. VII.
der was deprived by the defendant of his own control of his own person ;
and he was controlled, intimidated, and coerced by the hostile, aggres-
sive physical force of the defendant. The offer to prove that bodily
harm was not intended was made in the face of the defendant's testi-
mony that he intended to do just what he did do. The obvious purpose
was to prove that there was no intention to wound or bruise the
defendant, or cause him phjsical pain. So long as this was not
claimed or proved on the part of the prosecution, disproof of it was
properly rejected for the reason that such disproof would have raised
or suggested a false and immaterial issue, tending possibly to the
miscarriage of justice.
We assume that if Snyder was a trespasser the assault was justifi-
able, for no more force was used than was reasonably necessary to
eject him from the premises ; but he was not a trespasser. The streets
leading to and about this village were made and opened by the Burden
Iron and Ore Companj' for such public use as was incident to the
wants, convenience, and happiness of the people residing there. To
the extent of this public use the company subjected its private property
to the law which regulates public rights. Munn v. Illinois, 94 U. S.,
1 13. No doubt it can depopulate its village and restore its lands to
the solitude of its exclusive private dominion ; but as long as it enjoys
the benefits of public association and communication it must accept
the burdens necessarily and properly incident to them. By reserving
the legal title to the thoroughfares of its village, it does not reserve
autocratic powers over the people residing along them. To prevent
the members of its community from buying supplies of Snyder, or of
anj' ti'adesman not nominated by the company, would be to introduce
a condition of vassalage inconsistent with our free institutions. If
these families may buy of Snyder, then he may deliver his wares to
them, and use for the purpose the appropriate thoroughfares. The
assault was, therefore, not justifiable.
SECT. III.] COMMONWEALTH V. BUBKB. 449
SECTION in
Mape.
COMMONWEALTH v. BURKE
StTPRKME Judicial Codut of Massachusetts. 1870.
[Reported 105 Massachusetts, 376.]
Gray, J. — The defendant has been indicted and convicted for aiding
and assisting Dennis Green in committing a rape upon Joanna Caton.
The single exception taken at the trial was to the refusal of the presid-
ing judge to rule that the evidence introduced was not sufficient to
warrant a verdict of guilty. The instructions given were not objected
to, and are not reported in the bill of exceptions. The only question
before us therefore is, whether, under any instructions applicable to ,
the case, the evidence would support a conviction.
That evidence, which it is unnecessary to state in detail, was sufficient
to authorize the jury to find that Green, with the aid and assistance of
this defendant, had carnal intercourse with Mrs. Caton, without her
previous assent, and while she was, as Green and the defendant both
knew, so drunk as to be utterly senseless and incapable of consenting,
and with such force as was necessary to effect the purpose.
All the statutes of England and of Massachusetts, and all the text-
books of authority which have undertaken to define the crime of rape,
have defined it as the having carnal knowledge of a woman by force
and against her will. The crime consists in the enforcement of a
woman without her consent. The simple question, expressed in the
briefest form, is. Was the woman willing or unwilling? The earlier and
more weight}' authorities show that the words " against her will," in
the standard definitions, mean exactly the same thing as " without her
consent ; " and that the distinction between these phrases, as applied
to this crime, which has been suggested in some modern books, ig
unfounded.
450 COMMONWEALTH V. BURKE. [CHAP. VII.
The most ancient statute upon the subject is that of Westm. I. c. 13,
making rape (which had been a felony at common law) a misdemeanor,
and declaring that no man should " ravish a maiden within age, neither
by her own consent, nor without her consent, nor a wife, or maiden of
full age, nor other woman, against her will," on penaltj' of fine and
imprisonment, either at the suit of a party or of the king. The St. of
Westm. II. c. 34, ten years later, made rape felony again, and provided
that if a man should " ravish a woman, married, maiden, or other
woman, where she did not consent, neither before nor after," he should
be punished with death, at the appeal of the party ; " and likewise,
where a man ravisheth a woman, married lady, maiden, or other woman,
with force, although she consent afterwards," he should have a similar
sentence upon prosecution in behalf of the ting.
It is manifest upon the face of the Statutes of Westminster, and is
recognized in the oldest commentaries and cases, that the words " with-
out her consent" and "against her will" were used synonymously;
and that the second of those statutes was intended to change the
punishment only, and not the definition of the crime, upon any indict-
ment for rape — leaving the words " against her will," as used in the
first statute, an accurate part of the description. Mirror, c. 1, § 12 ;
c. 3, § 21 ; c. 5, § 5 ; 30 & 31 Edw. I. 529-532 ; 22 Edw. IV. 22 ;
Staunf. P. C. 24 a. Coke treats the two phrases as equivalent ; for he
saj's : " Eape is felony bj^ the common law declared by parliament, for
the unlawful and carnal knowledge and abuse of any woman above the
age of ten years against her will, or of a woman child under the age of
ten years with her will or against her will ; " although in the latter case
the words of the St. of Westm. I. (as we have alreadj' seen) were
" neither by her own consent, nor without her consent." 3 Inst. 60.
Coke elsewhere repeatedly defines rape as "the carnal knowledge of a
woman by force and against her will." Co. Lit. 123 b; 2 Inst. 180. A
similar definition is given by Hale, Hawkins, Comyn, Blackstone, East,
and Starkie, who wrote while the Statutes of Westminster were in force ;
as well as by the text-writers of most reputation since the St. of 9 Geo.
IV. c. 31, repealed the earlier statutes, and, assuming the definition of
the crime to be well established, provided simply that " every person
convicted of the crime of rape shall suffer death as a felon." 1 Hale P.
C. 628 ; 1 Hawk. c. 41 ; Com. Dig. Justices, S. 2 ; 4 Bl. Com. 210 ;
1 East P. C. 434 ; Stark. Crim. PI. (2d ed.) 77, 431 ; 1 Kussell on
Crimes (2d Am. ed.), 556, (7th Am. ed.) 675 ; 3 Chit. Crim. Law, 810 ;
Archb. Crim. PI. (10th ed.) 481 ; 1 Gabbett Crim. Law, 831. There
is authority for holding that it is not even necessary that an indictment,
which alleges that the defendant "feloniously did ravish and carnally
know" a woman, should add the words " against her will." 1 Hale P.
C. 632 ; Harman v. Commonwealth, 12 S. & R. 69 ; Commonwealth
V. Fogerty, 8 Gray, 489. However that may be, the oflSce of those
words, if inserted, is simply to negative the woman's previous consent
Stark. Crim. PI. 431 note.
SECT. III.] COMMONWEALTH V. BUEKE. 451
In the leading modern English case of The Queen v. Camplin, the
great majority of the English judges held that a man who gave intoxi-
cating liquor to a girl of thirteen, for the purpose, as the jury found,
" of exciting her, not with the intention of rendering her insensible,
and then having sexual connection with her," and made her quite
drunk, and, while she was in a state of insensibility, took advantage of
it, and ravished her, was guilty of rape. It appears indeed by the
judgment delivered by Patteson, J., in passing sentence, as reported in
1 Cox Grim. Gas. 220, and 1 C. & K. 746, as well by the contem-
poraneous notes of Parke, B., printed in a note to 1 Denison, 92, and
of Alderson, B., as read by him in The Queen v. Page, 2 Cox
Grim. Gas. 133, that the (decision was influenced by its having been
proved at the trial that, before the girl became insensible, the man
had attempted to procure her consent, and had failed. But it further
appears by those notes that Lord Denman, G. J., Parke, B., and Pat-
teson, J., thought that the violation of any woman without her con-
sent, while she was in a state of insensibility and had no power over
her will, by a man knowing at the time that she was in that state,
was a rape, whether such state was caused by him or not ; for example,
as Alderson, B., adds, " in the case of a woman insensibly drunk in
the streets, not made so by the prisoner." And in the course of the
argument this able judge himself said that it might be considered
against the general presumable will ,of a woman, that a man should
have unlawful connection with her. The later decisions have estab-
lished the rule in England that unlawful and forcible connection with a
woman in a state of unconsciousness at the time, whether that state
has been produced by the act of the prisoner or not, is presumed to be
without her consent, and is rape. The Queen v. Eyan, 2 Cox Grim.
Gas. 115 ; Anon, bj' Willes, J., 8 Cox Grim. Gas. 134 ; Regina v.
Fletcher, ib. 131 ; s. c. Bell, 63 ; Regina v. Jones, 4 Law Times
(n. s.) 154 ; The Queen v. Fletcher, Law Rep. 1 G. G. 39 ; s. c. 1.0
Cox Grim. Gas. 248 ; The Queen v. Barrow, Law Rep. 1 G. G. 156 ;
s. 0. 11 Cox Grim. Gas. 191. Although in Regina v. Fletcher, vbi
supra, Lord Campbell, C. J. (ignoring the old authorities and the
repealing St. of 9 Geo. IV.) unnecessarily and erroneously assumed
that the St. of Westm. II. was still in force ; that it defined the crime
of rape ; and that there was a difference between the expressions
" against her will" and "without her consent," in the definitions of
this crime, — none of the other cases in England have been put upon
that ground, and their judicial value is not impaired by his inaccuracies.
The earliest statute of Massachusetts upon the subject was passed in
1642, and, like the English Statutes of Westminster, used " without
consent" as synonymous with " against her will," as is apparent upon
reading its provisions, which were as follows : 1st " If any man shall
unlawfully have carnal copulation with any woman child under ten
years old, he shall be put to death, Whether it were with or without the
girl's consent." 2d "If any man shall forcibly and without consent
452 COMMONWEALTH V. BURKE. [CHAP. VII.
ravish any maid or woman that is lawfully married or contracted, he
shall be put to death." 3d "If any man shall ravish any maid or
single woman, committing carnal copulation with her by force, against
her will, that is above the age of ten years, he shall be either punished
with death, or with some other grievous punishment, according to cir-
cumstances, at the discretion of the judges." 2 Mass. Col. Rec. 21.
Without dwelling upon the language of the first of these provisions,
which related to the abuse of female children, it is manifest that in tlie
second and third, both of which related to the crime of rape, strictly so
called, and differed only in the degree of punishment, depending lipon
the question whether the woman was or was not married or engaged to
be married, the legislature used the words ".without consent," in the
second provision, as precisely equivalent to " against her will," in the
third. The later revisions of the statute have abolished the difference
in punishment, and therefore omitted the second provision, and thus
made the definition of rape in all cases the ravishing and carnally
knowing a woman " b3' force and against her will." Mass. Col. Laws
(ed. 1660), 9, (ed. 1672) 15 ; Mass. Prov. Laws, 1692-93 (4 W. & M.)
c. 19, § 11 ; 1697 (9 W. III.) c. 18 ; (State ed.) 56, 296 ; St. 1805, c.
97, § 1 ; Rev. Sts. c. 125, § 18; Gen. Sts. c. 160, § 26. But they
cannot upon any proper rule of construction of a series of statutes in
pari tnateria, be taken to have changed the description of the offence.
Commonwealth v. Sugland, 4 Gray, 7 ; Commonwealth v. Bailey, 13
Allen, 541, 545.
We are therefore unanimously of opinion that the crime, which the
evidence in this case tended to prove, of a man's having carnal inter-
course with a woman, without her consent, while she was, as he
knew, wholl}' insensible so as to be incapable of consenting, and with
such force as was necessary to accomplish the purpose, was rape. If
it were otherwise, any woman in a state of utter stupefaction, whether
caused by drunkenness, sudden disease, the blow of a third person, or
drugs which she had been persuaded to take even bj' the defendant
himself, would be unprotected from personal dishonor. The law is not
open to such a reproach.-' Exceptions overruled.
1 Ace. Reg. V. Champlin, 1 Den. C. C. 89 ; Eeg. v. Fletcher, 8 Cox C. C. 131 (cf -
Reg. V. Fletcher, 10 Cox C. C. 248); Reg. v. Mayers, 12 Cox C. C. 311 ; Reg. v. Bar-
ratt, 12 Cox C. 0. 498. But see a learned note on the subject, 1 Green Cr., L. Eep.
318. — Ed.
SECT. IV.J MURDER. 453
SECTION IV.
Murder.
1 Hawkins, Pleas of the Crown, ch. 13, Sects. 1, 2. The word
"murder" anciently signified only the private killing of a man, for
which, by force of a law introduced by King Canute for the preser-
vation of his Danes, the town or hundred where the fact was done was
to be amerced to the king, unless they could prove that the person slain
were an Englishman (which proof was called Engleschire), or could
produce the offender, etc. And in those days the open wilful killing
of a man through anger or malice, etc., was not called murder, but
voluntar}' homicide.
But the said law concerning Engleschire having, been abolished by
14 Edw. III. c. 4. the^krHiTrg-e'f-aHj^EHgli.shman or Jpreigner through
malice prepense, whether committed openly or secretly, was by de-
-^rees catted-THurder ; and 13 Rich. 11. c. 1, which res trai-ns- the -
king's pardon in certain cases, does in the preamble, under the general
name of murder, include all such homicide as shall not be pardoned
without special words ; and, in the body of the Act, expresses the
same by " murder, or kilUng by await, assault, or malice prepensed."
And doubtless the makers of 23 Hen. VIII. c. 1, which excluded all
wilful murder of malice prepense from the benefit of the clerg3', in-
tended to include open, as well as private, homicide within the word
murder.
23 Hen. VIII. ch. 1, Sect. 3. Be it enactted by the King our sover-
eign lord, and the lords spiritual and temporal, and the commons, in this
present parliament assembled, and by authority of the same. That no
person nqr_j)e£saas, which hereafter shall happen to be found guilty
after the laws of this land, for anj' manner of petit treason, or for ajLY
wilful murder of malice prepensed, or for robbing of any churches,
•chapels, or other lioly places, or for^robbing of any person or persons
in their dwelling-houses, or dwelling-place, the owner or dweller in the
same house, his wife, his children, or servants then being within, and
put in fear and dread hy the same, or for robbing of any person or
persons in or near about the highways, or for wilful burning of any
dwelling-houses, or barns wherein any grain or corn shall happen to
be, nor any person or persons being found guilty of any abetment, pro-
curement, helping, maintaining, or counselling, of or to any such petii
treasons, murders, or felonies, shall from henceforth be admitted to the
benefit of his or tjigir clergy, but utterly he excluded Jjiereof. and
suffer death in such manner and form as they should have done for
any of the causes or offences abovesaid if thej^ were no clerks ; such
as be within holy orders, that is to saj', of the orders of sub-deacon or
ahnve^ only except.
454 KEX V. TOMSON. [CHAP. VII.
YONG'S CASE.
Queen's Bench. 1587.
{Reported i Coke, 40 a.]
In this case it was held per totam curiam that if, upon an affray, the
constable and others in his assistance come to suppress the affray and
preserve the peace, and in executing their oflSce ther£flHglaMg_or_an^-
of his asaistantsis killed, it is rnur^er. in Jaw, althougli_thg„murderer
knew not the party Ihatwaa^ki-lleArAmLalthough thp, affray was sudden ;
because the constable and his assistants came by authorityoT law to
keep the peace, and prevent the danger which might ensue by the
breach of it ; and therefore the law will adjudge it rtiurder, and that
the jBurder^iJiad. malice prepensejJjecgjjse-iSISiiOi^imself agaSst~the
justice of the realm. So if the sheriff or any of his bailiffs or other
officers is°MlleaTn executing the process of the law, or in doing their
dutj', it is murder ; the same law of a watchman, who is killed in the
execution of his office.
EEX V. TOMSON.
Old Bailet. 166-.
[Reported Kelyng, 66.]
At the sessions in the Old Bailey holden after Hilary Term, Caroli
Secundi, Thomas Tomson was indicted for murdering of Allen Dawes,
and the jury found a special verdict to this effect, viz., that the day,
year, and place in the indictment mentioned, Thomas Tomson, the
prisoner, and his wife were fighting in the house of the said Allen
Dawes, who was killed, and the said Allen Dawes, seeing them fight-
ing, came in and endeavored to part them, and thereupon the said
Tomson thrust away the said Dawes, and threw him down upon a piece
of iron, which was a bar in a chimney which kept up the fire, and by
that one of the ribs of the said Dawes was broken, gf which he died ;
and if the court judge this murder, they find so, or if manslaughter,
then thej' find so.
And I put this case to my Lord Chief Justice, Baron Hales and my
brother, and some other of my brethren, and we all agreed, as it is
resolved in Young's case, Co. 4. Report, and also in Mackally's case,
Co. 9. Report, that if upon a sudden affray, a constable or watchman,
or any that Come in aid of them, who endeavor to part them, are killed,
this is murder ; and we hold likewise that if no constable or watchman
be there, if any other person come to part them, and he be killed, this
is murder ; for every one in such case is bound to aid and preserve the
SECT. IV.] geey's case. 455
king's peace. But in all those cases it is necessary that the party who
was fighting and killed him that came to part them, did know or had
notice given that thej^ came for that purpose. As for the constable or
other person who eometh to part them, to charge them in the king's
name to keep the king's peace, by which they have notice of their
intents ; for otherwise if two are fighting, and a stranger runs in with
intent to part them, yet the party who is fighting may think he
eometh in aid of the other with whom he is fighting, unless some such
notice be given as aforesaid, that he was a constable and came to part
them : and that appeareth by Mackally's case before cited, where in case
of an arrest by a sergeant, it is necessary, to make it murder, that tlie
sergeant tell him that he doth arrest, for else if he doth say nothing,
but fall upon the man and be killed by him, this is but manslaughter,
unless it appear that the person arrested did know him to be a sergeant,
and that he came to arrest him ; for as the case is there put, if one
seeing the sheriff or a sergeant whom he knoweth hath a warrant to
arrest him, and to prevent it before the officer come so near as to let
him know he doth arrest him, he shoots again at him, and kills him,
this is murder; and in the principal case, though the jury find that
Dawes came to part the man and wife, yet it doth not appear whether
it is found that Tomson knew his intent, nor that Dawes spake an}'
words whereby he might understand his intention, as charging them to
keep the king's peace, etc., and so we held it to be only manslaughter,
which in law is properly chance-medley, that is, where one man upon a
sudden occasion kills another without maUce in fact, or malice implied
by law.
GREY'S CASE.
Old Bailet. 1666.
[Reported Kelyng, 64.]
John Gbet being indicted for the murder of William Golding, the
jury found a special verdict to this effect, viz. ; We find that the day,
year, and place in the indictment mentioned John Grey, the prisoner, was
a blacksmith, and that William Golding, thej2e£soa-ktlte*rwa-s-iri»-sefc.
rant, and that Grey his master commanded him to mend certain stamps,
being part belonging to his trade, which he neglected to do ; and the
said Grey, hi§ master, after coming in asked him the said Golding,
why he had not done it, and then the said Grey told the said Golding,
that if he would not serve him, he should serve in Bridewell, to which
the said Golding replied, that he had as good serve in Bridewell as
serve the said Grey his master ; whereupon the said Grey, wilhout any
other provocation, struck the said Golding -with- a .^ar of iron, which
the said GrejTEerT had in his hand7upon which he and Golding were
456 grey's case. [chap. vii.
working at the anvil, and with the said blow he broke his skull, of
which he died; and ,if this _be_jnui!der^ etc. This case was found
speciallj' by the desire of mjTBrother Wj'lde, and I showed the special
verdict to all my Brethren, Judges of the King's Bench, and to my
Lord Bridgman, Chief Justice of the Common Pleas. And we were all
oropmionjthat-thi-s— was murder. For^if a father,_.aiasiac:fcX!iLgphool-
master will corrgfitJ]ia„cJtiild, servant, ,pr__sctiolar, they must do it with
Sueh-tbings as are fit for correction,3pd-not-with ■■Su^inslEriiments as
niaj- probably kill tEem. For otherwise, under pretence of correction,
a ^pa*eBt-iBigbt" kilT his child, or a master his servant, or a school-
master his scholar, and a bar of iron is no instrument for correction.
It is all one as if he had run him through with a sword ; and my
Brother Morton said he remembered a case at Oxford Assizes before
Justice Jones, then Judge of Assize, where a smith being chiding
with his servant, upon some cross ans^ver given by his servant, he
having a piece of hot iron in his hand run it into his servant's belly,
and it was judged murder, and the party executed. And my Lord
Bridgman said, that in his circuit there was a woman indicted for
murdering her child, and it appeared upon the evidence that she kicked
her and stamped upon her bell}', and he judged it murder. And my
Brother Twisden said he ruled such a case formerly in Gloucester Cir-
cuity for a piece of iron or a sword or a great cudgel, with which a
man probablj' may be slain, are not instruments of correction. And
thMvefore, when.ajaaster strikes his servant willingly with such things
as tKnigp^pj^ if fjpaih pnane, thft la wahgll judge it-tnglippj-vrpjwnsp ; and
therefore the statute of 5 H. IV. c. 5, which enacts that if any one does
cut out the tongue, or put out the eyes of any of the king's subjects of
malice prepense, it shall be felony. If a man do cut out the tongue of
another man voluntarilj', the law judgeth it of malice prepense. And
so where one man killeth another without anj' provocation, the law
judgeth it malice prepense ; and in the L. Morley's case in this book, it
was resolved by all the judges, that words are no provocation to lessen
the offence from being murder, if one man kill another upon ill words
given to him. But if a parent, master, or schoolmaster, correct his
child, servant, or scholar, with such things as are usual and fit for
correction, and they happen to die, Poulton de Pace, p. 120, saith this
is by misadventure, and cites for authority, Keilway, 108, a, b, &
136, a. But that book which puts this case in Keilway is 136, a, saith
that if a master correct his servant, or lord his villain, and by force of
that correction he dieth, although he did not intend to kill him, yet this
is felony, because they ought to govern themselves in their correction
in such ways that such a misadventure might not happen. And I
suppose, because the word misadventure is there used, therefore Poul-
ton concludeth (it may be truly) that it is but misadventure.
And in this principal case, upon certificate [by] many persons of
good commendation of the general esteem that Grey had, I did certifle
the King that though in strictnMs.o£law Jj^s offence was murder, yet it
SECT. IV.J REGINA V. SEllNlS. 457
was attended with such circumstances as might render the person an
object of his Majesty's grace and pardon, he having a very good report
among all his own company of his own trade, and of all his neighbors ;
and upon this the King was pleased to grant him his pardon.
REGINA V. SERN:^.
Central Criminal Court. 1887.
[Reported 16 Cox C. C. 311.]
The prisoners Leon Seme and John Henry Goldfinch were indicted
for the murder of a boy, Sjaak Seme, the son of the prisoner Leon
Seme, it being alleged that they wilfully^ set on fire a house and shop,
No. 274 Strand, London, by which act the death of the boy had been
caused.
It appeared that the prisoner Serne with his wife, two daughters, and
two sons were living at the house in question ; and that Serne, at the
time he was living there, in midsummer, 1887, was in a state of pecu-
niary embarrassment, and had put into the premises furniture and
other goods of but very little value, which at the time o^ the fire were
not of greater value than £30. It also appeared that previously to the
fire the prisoner Serne had insured the life of the boy Sjaak Serne,
who was imbecile, and on the first day of September, 1887, had in- 1
sured his stock at 274 Strand, for £500, his furniture for £100, and!
his rent for another £100 ; and that on the 17th of the same month the
premises were burnt down.
Evidence was given on behalf of the prosecution that fires were seen
breaking out in several parts of the premises at the same time, soon
after the prisoners had been seen in the shop together, two fires being
in the lower part of the house and two above, on the floor whence
escape could be made -on to the roof of the adjoining house, and in
which part were 'the prisoners, and the wife, and two daughters of
Serne, who escaped ; that on the premises were a quantity of tissue
transparencies for advertising purposes, which were of a most inflam-
mable character ; and that on the site of one of the fires was found a
great quantity of these transparencies close to other inflammable ma-
terials ; that the prisoner Seme, his wife and daughters, were rescued
from the roof of the adjoining house, the other prisoner being rescued
from a window in the front of the house, but that the boys were burnt
to death, the body of the one being 'found on the floor near the win-
dow from which the prisoner Serne, his wife, and daughters had
escaped, the body of the other being found at the basement of the
premises.
458 EEGIXA V. SEENE. [CHAP. VII,
Stephen, J. Gentlemen, it is now my duty to direct your attention
to the law and the facts into which you have to .inquire. The two
prisoners are indicted for the wilful murder of the boy Sjaak Serne, a
lad of about fourteen years of age ; and it is necessary that I should
explain to you, to a certain extent, the law of England with 'regard to
the crime of wilful murder, inasmuch as you have heard something said
about constructive murder. Now that phrase, gentlemen, has no legal
meaning wtratHVCT: Tllsrg~Tras^'mlfd"7murd£iiIS[cc.QrdijJg to tSg^plain
roeamng ofthe^Jgjfli, or there'vra^ -no- murder at all in the present case.
The definition of murder is unlawful homicide with rnalice aforethought,
and the words " malice aforethought " are technical. You must not,
therefore, construe them or suppose that they can be construed by
ordinary rules of language. The words have to be construed according
to a long series of decided cases, which have given them meanings dif-
ferent from those which might be supposed. One of those meanings is,
the killing of another person by an act done with an intent to commit a
felony. Another meaning is, an act done with the knowledge that the
act will probably cause the death of some person. Now it is such an
act as the last which is alleged to have been done in this case ; and if
you think that either or both of these men in the dock killed this boy,
either by an act done with intent to commit a felonj-, that is to say, the
setting of the house on fire in order to cheat the insurance company, or
b}^ conduct which to their knowledge was likely to cause death and
(was therefore eminently dangerous in itself, — in either of these cases
i the prisoners are guilty of wilful murder in the plain meaning of the
' word. I will say a word or two upon one part of this definition, because
it is capable of being applied very harshly in certain cases, and also
because, though I take the law as I find it, I very much doubt whether
the definition which I have given, although it is the common definition,
is not somewhat too wide. Now when it is said that murder means
killing a man by an act done in the commission of a felony, the mere
words cover a case like this, that is to say, a case where a man gives
another a push with an intention of stealing his watch, and the person
so pushed, having a weak heart or some other internal disorder, dies.
To take another very old illustration, it was said that if a man shot at
a fowl with intent to steal it and accidentally killed a man, he was to be
accounted guilty of murder, because the act was done in the commis-
sion of a felony. I very much doubt, however, whether that is really
the law, or whether the Court for the Consideration of Crown Cases
Reserved would hold it to be so. The present case, however, is not
such as I have cited, nor an3-thing like them. In my opinion the defi-
nition of the law which makes it m\irder to kill bj- an act done in the
commission of a felony might and ought to be narrowed, while that part
of the law under which the Crown in this case claim to have proved a.
case of murder is maintained. I think that, instead of saying that
any act done with intent to commit a felony and which causes death
amounts to murder, it would be reasonably to saj' that anj' act known
SECT. IV.] REGINA V. SERN& 459
to-ha^angemusJoJiEa-and likely, in itself to cause death, done for the {
purpose of committing a felony, which caused death, should be murder.
— As-an -ittttstratiotrof "this, suppose -that a man, intending to commit a
rape upon a woman, but without the least wish to kill her, squeezed
her by the throat to overpower her, and in so doing killed her ; that
would be murder. I think that ever}- one would saj', in a case like that,
that when a person began doing wicked acts for his own base purposes,
he risked his own life as well as that of others. That kind of crime
does not differ in any serious degree from one committed by using a
deadly weapon, such as a bludgeon, a pistol, or a knife. If a man once
begins attacking the human body in such a way, he must take the con-
sequences if he goes further than he intended wheii he began. That
I take to be the true meaning of the law on the subject. In the present
case, gentlemen, j'ou have a man sleeping in a house with his wife,
his two daughters, his two sons, and a servant, and you are asked to
believe that this man, witli all these people under his protection, delib-
erately set fire to the house in three or four different places and thereby
burnt two of them to death. It is alleged that he arranged matters
in such a way that any person of the most common intelligence must
have known perfectly well that he.,;Was_jDlacing^,ali,JthQse .people... in
deadl}' risk. It appears to me that- if that-were reallj' done, it matters
vei'v littlelndeed whether the prisoners hoped the people would escape
nr irhrth"!- th,^j;iiifHii(ilrir-t If "a person chose, lorsome wicked purpose
of his own, to sink a boat at sea, and thereby caused the deaths of the
occupants, it matters nothing whether at the time of committing the
act he hoped that the people would be picked up by a passing vessel.
He is as much guiltj' of murder, if the people are drowned, as if he had
flung every person into the water with his own hand. Therefore, gentle-
men, if Serne and Goldfinch set fire to this house when the familj- were
in it, and if the boys were by that act stifled or burnt to death, then
the prisoners are as much guilty of murder as if they had stabbed the
children. I will also add, for my own part, that I think, in so saying,
the law of England lays down a rule of broad, plain common-sense.
Treat a murderer how j'ou will, award him what punishment you
choose, it is your duty, gentlemen, if you think him really guilty of
murder, to say so. That is the law of the land, and I have no doubt
in my mind with regard to it. There was a case tried in this court
which you will no doubt remember, and which will illustrate my mean-
ing. It was the Clerkenwell explosion case in 1868, when a man
named Barrett was charged with causing the death of several persons
by an explosion which was intended to release one or two men from
custody ; and I am sure that no one can say tryly that Barrett was not
justly hanged. "With regard to the facts in the present case, the very
horror of the crime, if crime it was, the abomination of it, is a reason
for your taking the most extreme care in the case, and for not imputing
to the prisoners anything which is not clearly proved. God forbid that
I should, by what I saj-, produce on j'our minds, eten in the smallest
460 STATE V. SMITH. [CHAP. VII.
degree, anj- feeling against the prisoners. You must see, gentlemen,
tliat the evidence leaves no reasonable doubt upon 3'our minds ; but
j-ou will fail in the performance of your duty if, being satisfied with
the evidence, j'ou do not convict one or both the prisoners of wilful
murder, and it is wilful murder of which they are accused. [The
learned judge then proceeded to review the evidence. In the result
the jury found a verdict of not guilty in respect to each of the
prisoners.] Verdict, not guilty.
STATE V. SMITH.
Court of Appeals of South Cabolina. 1847.
[Reported 2 Strobhart, 77.]
James Carter, on horseback, overtook a large and noisy crowd of
men and women on foot. The prisoner, one of the crowd, fired a
pistol, apparently at Carter, but did not hit him. The bullet sfriic&-and
killedriaTiegroTjoywho was sitting on a fence beside the road, unseen
by the crowd.^
The prisoner was found guilty of murder, and appealed, on the
grounds annexed : —
1. That his Honor, the presiding Judge, misdirected the jury in his
1 charge, by stating the law to be " that if the prisoner shot at Carter,
designing some serious injury, as the falling from his horse, it is
i murder."
2. That his Honor charged the jury that " if the prisoner shot at
i Carter without intending to kill or hurt him, it is manslaughter."
3. That his Honor charged the jury that " they might find the
prisoner guilty of murder or manslaughter, or not guilty."
4. That the verdict was contrary to law and evidence.
Miller., for the motion.
Mclver, Solicitor, contra.
Evans, J. delivered the opinion of the court.
The jury having found the prisoner guilty of murder, there is no
necessity to inquire whether he could have been convicted of man-
slaughter on this indictment. The first ground is, therefore, the only
one necessary to be considered. The proposition presented bj' that
ground is whether, supposing the prisoner " shot at Carter, designing
to do him some serious injury, as the falling from his horse," he is
guilty of the crime of murder. It is not denied that this question is
the same as if he had killed Carter instead of the negro, for if one
design to kill A. but by accident kills B. his crime is the same as if
he had executed his intended purpose. It will be murder, or man-
1 This statement is condensed from that of the reporter.
SECT. IV.] COMMONWEALTH V. WEBSTER. 461
slaughter, or self-defence, according to the circumstances. It is very
clear that the intent with which an act is done very often gives char- /
acter to the crime, but there is a legal conclusion drawn from the facts!
of the case, entirely independent of the intent of the party. Thus it is
said in 2d Starkie Ev. 950, that "where the defence is that the death
was occasioned by accident, the nature of the act which produced the
death, and the real motive and intention of the prisoner, are the proper
subjects of evidence, but the conclusion as to the quality of the offence,
as founded upon such facts, is a question of law." The whole doctrine
of constructive malice is founded on the same principle. If the act
which produced the death be attended with such circumstances as are ■,
the ordinary symptoms of a wicked, depraved, and malignant spirit, the I
law from these circumstances will imply malice, without reference to )
what was passing in the prisoner's mind at the time he committed the /
act. If one were to fire a loaded gun into a crowd, or throw a piece of
heavj' timber from the top of a house into a street filled with people,
the law would infer malice from the wickedness of the act ; so also the
law will impl}' that the prisone.r intended the natural and probable conse-
quences of his own act ; as, in the case of shooting a gun into a crowd,
the law will imply, from the wantonness of the act, that he intended to
kill some one, although it might have been done in sport. If the
prisoner's object had been nothing more than to make Carter's horse
throw him, and he had used such means onlj' as were appropriate to
that end, then there would be some reason for applying to his case the
distinction that where the intention was to commit onlj' a trespass or
a misdemeanor, an-accMental killing woliild'^be onl^rinansTaughter. But
ift~-ihig case- the arct done "indicated an intention to kilT? it was calcu-
lated-^tor-pradTroe""that effect, and nb'^ otherT death was the probable
■consequence, and did result from it, and I am of opinion there was no
error in the charge of the Circuit Judge, that if the prisoner shot at
Carter the crime was murder, although the prisoner may have designed
only to do Carter " some serious injury, as the falling from his horse.''
The motion is therefore dismissed.
RiCHABDSON, J., O'Neall, J., Wardlaw, J., Frost, J., and Withers,
J., concurred. Motion dismissed.
COMMONWEALTH v. WEBSTER.
Supreme Judicial Coukt op Massachusetts. 1850.
[Reported 5 Cush. 296.]
The defendant, professor of chemistry in the medical college in
Boston, attached to the university at Cambridge, was indicted in the
municipal court at the January term, 1850, for the murder of Dr. George
Parkman, at Boston, on the 23d of November, 1849. The indictment
having been transmitted to this court, as required bj^ the Rev. Sts.
462 COMMONWEALTH V. WEBSTER. [CHAP. VII.
c. 136, § 20, the defendant was tried at. the present term, before the
Chief Justice, and Justices Wilde, Dewey, and Mbtcalf.^
The government introduced evidence that Dr. George Parkman,
quite peculiar in person and manners, and very well known to most
persons in the city of Boston, left his home in Walnut Street, in Bos-
ton, in the forenoon of the 23d of November, 1849, in good health and
spirits ; and that he was traced through various streets of the city until
about a quarter before two.o'clockof that day, when he was seen going
towards and about to enter the medical college. That he did not return
to his home. That on the next day a very aqtive, particular, and ex-
tended search was commenced in Boston and the neighboring towns
and cities, and continued until the 30th of November ; and that large
rewards were offered for information about Dr. Parkman. That on the
30th of November, certain parts of a human bodj' were discovered in and
about the defendant's laboratory in the medical college ; and a great
number of fragments of human bones and certain blocks of mineral teeth,
imbedded in slag and cinders, together with small quantities of gold,
which had been melted, were found in an assay furnace of the laboratory.
That in consequence of some of these discoveries the defendant was ar-
rested on the evening of the 30th of November. That the parts of a
body so found resembled in every respect the corresponding portions
of the body of Dr. Parkman, and that among them all there were no
duplicate parts ; and that they were not the remains of a body which
had been dissected. That the artificial teeth found in the furnace were
made for Dr. Parkman by a dentist in Boston in 1846, and refitted to
his mouth by the same dentist a fortnight before his disappearance.
That the defendant was indebted to Dr. Parkman on certain notes,
and was pressed by him for payment ; that the defendant had said
that on the 23d of November, about nine o'clock in the morning, he
left word at Dr. Parkman's house that, if he would come to the medical
college at half-past one o'clock on that day, he would pay him ; and
that, as he said, he accordingly had an interview with Dr. Parkman at
half-past one o'clock on that day, at his laboratory in the medical col-
lege. That the defendant then had no means of paying, and that the
notes were afterwards found in his possession.
The opinion of the court on the law of the case was given in the
charge to the jury as follows : —
Shaw, C. J. Homicide, of which murder is the highest and most
criminal species, is of various degrees, according to circumstances.
The term, in the largest sense, is generic, embracing every mode by
which the life of one man is taken by the act of another. Homicide
may be lawful or unlawful ; it is lawful when done in lawful war upon
an enemy in battle ; it is lawful when done by an oflScer in the execu-
tion of justice upon a criminal, pursuant to a proper warrant. It may
also be justifiable, and of course lawful, in necessary self-defence. But
1 Part of the case is omitted. — Ed.
SECT. IV.] COMMONWEALTH V. WEBSTER. 463
it is not necessary to dwell on these distinctions ; it will be sufficient
to ask attention to the two species of criminal homicide, familiarly
known as murder and manslaughter.
In seeking for the sources of our law upon this subject, it is proper
to say, that whilst the statute law of the commonwealth declares (Rev.
Sts. c. 125, § 1) that " Every person who shall commit the crime of
murder shall suffer the punishment of death for the same," 3'et it no-
where defines the crimes of murder or manslaughter, with all their
minute and carefully-considered distinctions and qualifications. For
these, we resort to that great repository of rules, principles, and forms,
the common law. This we commonly designate as the common law of
England ; but it might now be properly called the common law of
Massachusetts. It was adopted when our ancestors first settled here,
by general consent. It was adopted and confirmed by an early act of
the provincial government, and was formally confirmed by the provis-
ion of the constitution (c. 6, art. 6) declaring that all the laws which
had theretofore been adopted, used, and approved, in the province or
state of Massachusetts bay, and usually practiced on in the courts of
law, should still remain and be in full force until altered or repealed by
the legislature. So far, therefore, as the rules and principles of the
common law are applicable to the administration of criminal law, and
have not been altered and modified by acts of the colonial or provincial
government, or by the state legislature, they have the same force and
effect as laws formally enacted.
By the existing law, as adopted and practiced on, unlawful homicide
is distinguished into murder and manslaughter.
Murder, in the sense in which it is now understood, is the killing of I
any person in the peace of the commonwealth, with malice afore- 1
thought, either express or implied by law. Malice, in this definition,
is used in a technical sense, including not only anger, hatred, and
revenge, but every other unlawful and unjustifiable motive. It^ is not
confined to ill-will towards one or more individual persons, but is in-
tended to denote an action fiowing from anj' wicked and corrupt
motive, a thing done malo animo, where the fact has been attended
with such circumstances as carry in them the plain indications of a
heart regardless of social duty, and fatally bent on mischief. And
therefore malice is implied from any deliberate or cruel act against
another, however sudden.
Manslaughter is the unlawful killing of another without malice ; and
may be either voluntary, as when the act is committed with a real
design and purpose to kill, but through the violence of sudden passion,
occasioned by some great provocation which, in tenderness for the
frailty of human nature, the law considers sufficient to palliate the
criminalitj' of the offence ; or involuntary, as when the death of another
is caused by some unlawful act, not accompanied by any intention to
take life. '
From these two definitions it will be at once perceived that the
464 COMMONWEALTH V. -WEBSTER. [CHAP. VII.
characteristic distinction between murder and manslaughter is malice,
express or implied. It therefore becomes necessary in every case of
homicide proved, and in order to an intelligent inquiry into the legal
character of the act, to ascertain with some precision the nature of legal
malice, and what evidence is requisite to establish its existence.
Upon this subject the rule, as deduced from the authorities, is that
the implication of malice arises in every case of intentional homicide ;
and, the fact of killing being first proved, all the circumstances of acci-
dent, necessity, or infirmity, are to be satisfactorily established by the
party charged, unless they arise out of the evidence produced against
him to prove the homicide and the circumstances attending it. If there
are, in fact, circumstances of justification, excuse, or palliation, such
proof will naturally indicate them. But where the fact of killing is
proved by satisfactory evidence, and there are no circumstances dis-
closed tending to show justification or excuse, there is nothing to rebut
the natural presumption of malice. This rule is founded on the plain
and obvious principle that a person must be presumed to intend to do
that which he voluntarily and wilfully does in fact do, and that he must
intend all the natural, probable, and usual consequences of his own
acts. Therefore, whe{Lj)ne^2EfilS*^^- a«satls- -anQther_violently with a
dangerous weapon likely i;a...^ill, and which does in fUct destroy the
life of the party assailed, the natural presumption is that he intended
death or other great bodily li^arm ; and, as there can be no presump-
tion of any proper motive or leWl excuse for such a cruel act, the con-
sequence follows that, injihe_a.hpft,nnp. aLsdi-pcnnf tn thp o,Qntrary^ there
is nothing to rebut the presumption of malice. On the other hand, if
death;^'1toTSgTrwTITully^n^EeiTHe37waij3fl^^ after provo-
cation given by the deceased, supposing that such provocation consisted
of aT)low oFan assaWtJ or other provocation on his part, which the law
deems adequate to excite sudden and angry passion and create heat of
blood, thisJactj;ebuJs.ihe--p?e&uEg£tion^^ ; but still, the homi-
cide being unlawful, because a man is bound to curb his passions, is
criminal, and is manslaughter.
In considering what is regarded as such adequate provocation, it is
a settled rule of law that no provocation by words only, however
opprobrious, will mitigate an intentional homicide so as to reduce it to
manslaughter. Therefore, if, upon provoking language given, the party
immediately revenges himself by the use of a dangerous and deadly
weapon likely to cause death, such as a pistol discharged at the person,
a heavj' bludgeon, an axe, or a knife, if death ensues, it is a homicide
not mitigated to manslaughter by the circumstances, and so is homicide
bj' malice aforethought within the true definition of murder. It is not
the less malice aforethought, within the meaning of the law, because
the act is done suddenly after the intention to commit the homicide
is formed ; it is sufHcient that the malicious intention precedes and
.accompanies the act of homicide. It is manifest, therefore, that the
Iwords "malice aforethought," in the description of murder, do not
SECT. IV.J HADLEY V. STATE. 465
imply deliberation, or the lapse of considerable time between the mali-
cious intent to take life and the actual execution of that intent, but
rather denote purpose and design in contradistinction to accident and
mischance.
In speaking of the use of a dangerous weapon, and the mode of using
it upon the person of another, I have spoken of it as indicating an in-
tention to kill him, or do him great bodily harm. The reason is this :
Where a man, without justification or excuse, causes the death of an-
other by the intentional use of a dangerous weapon likely to destroy
life, he is responsible for the consequences, upon the principle already
stated, that he is liable for the natural and probable consequences of
his act. Suppose, therefore, for the purpose of revenge, one fires a
pistol at another, regardless of consequences, intending to kill, maim,
or grievously wound him, as the case may be, without any definite inten-
tion to take his life ; yet, if that is the result, the law attributes the
same consequences to homicide so committed, as if done under an actual
and declared purpose to take the life of the part}' assailed. . . .
The true nature of manslaughter is that it is homicide mitigated out
of tenderness to the frailtj' of human nature. Every man, when as-
sailed with violence or great rudeness, is inspired with a sudden impulse
of anger, which puts him upon resistance before time for cool reflec-
tion ; and if, during that period, he attacks his assailant with a weapon
likely to endanger life, and death ensues, it is regarded as done through
heat of blood, or violence of anger, and not through malice, or that
cold-blooded desire of revenge which more properly constitutes the
feeling, emotion, or passion of malice.
The same rule applies to homicide in mutual combat, which is attrib-
uted to sudden and violent anger occasioned by the combat, and not to
malice. When two meet, not intending to quarrel, and angry words
suddenly arise, and a conflict springs up in which blows are given on
both sides, without much regard to who is the assailant, it is a mutual
combat. And if no unfair advantage is taken in the outset, and the oc-
casion is not sought for the purpose of gratifying malice, and one seizes
a weapon and strikes a deadly blow, it is regarded as homicide in heat
of blood ; and though not excusable, because a man is bound to control
his angry passions, yet it is not the higher offence of murder.
HADLEY V. STATE.
Supreme Court op Alabama. 1876.
[Reported 55 Alabama, 31.]
Stone, J.^ — Mr. Wharton, the able author of the works on Criminal
Law, and on Homicide, has contributed an article to the " Forum,"
April number, 1875, in which he attempts to show that there has been
' Tart of the opinion only is given.
466 HADLET V. STATE. [CHAP. VII.
a revolution in criminal law, in the matter of presumed malice. In
his work on Homicide, 2d ed., § 671, he asserts the same doctrine, and
says, " If it be said that the use of a weapon, likely to inflict a mortal
blow, implies, as a presumption of law, in its technical sense, a deadly
design, this is an error ; and a fortiori is it so when it is said the use
of such a weapon implies a malicious design."
Malipe4_jdesT^n7~-smd"-iiro'tivepa4ae,--as--a--iTii^^
They are inferred from facts and circumstances positivSIyproven. If
direct, positive proof of them were required, it could rarely be given.
Still, we know they exist ; and when sufficient facts are in evidence to
justify us in drawing such inference, we rest as securely in the convic-
tion as if it were forced upon us by positive proof The^meaSCTE-of
evidencej_ however, to justify such abiding conviction, must be very
f uIlT^— so full~as~tcrexclu'de^ery other reasonable hypothesisT" ' '
That every one must be held to intend the known consequences of
his intentional act, is a recognized canon of moral accountability, and
of municipal law. Malice, as an ingredient of murder, is but a formed
design, by a sane mind, to take life unlawfully, without such impending
danger, to be averted thereby, as will render it excusable, and with-
out such provocation as will repel the imputation of formed design.
Hence, when life is taken by the direct use of a deadly weapon, the
canon, stated above, comes to its aid ; and, if there be nothing else in
the transaction — no qoalttytng^oPexplanatory circumstance — the con-
clusion is irresistible that the killing was done pursuant to a formed
design, — in other words, with malice aforethought; for malice, in such
connection, is but the absence of impending peril to life or member,
which would excuse the homicide, and of sufficient provocation to repel
the imputation of its existence.
In Foster's Crown Law, it is said, " In every charge of murder, the
fact of killing being first proved, all the circumstances of accident,
necessity, or infirmity, are to be satisfactorily proved by the prisoner,
unless they arise out of the evidence produced against him ; for the law
presumeth the fact to have been founded in malice, until the contrary
appeareth ; and very right it is that the law should so presume." The
same doctrine is affirmed in all the older writers and adjudications on
criminal law.
Sir Wm. Blackstone (4 Com. 201) says: " We may take it for a
general rule that all homicide is malicious, and, of course, amounts
to murder, unless when justified, excused, or alleviated into man-
slaughter ; and all these circumstances of justification, excuse, or
alleviation, it is incumbent on the prisoner to make out to the satisfac-
tion of the court and jury."
In the case of Webster v. Commonwealth, 5 Cush. 206, the case
stood on the naked proof of the homicide, without any of the attendant
circumstances. Ch. J. Shaw declared the law as above quoted.
The case of People v. Schryver, 42 N. Y. 1, is a very careful and
full collection and collation of authorities, English and American, and
SECT. V.J DEGREES OF MUEDEE. 467
fully sustains the doctrine above declared. See also Tweedy v. State,
5 Iowa, 433 ; Silvus v. State, 22 Ohio St. 90. The case of Stokes v.
The People, 53 N. Y. 164, properly understood, is not materially
opposed to this view. The charge of the judge in that case invaded
the province of the jury ; and, in addition to this, the case was made to
turn materially on the statutes of New York. The charge in that case
went much bej'ond the principle above copied from the old authors.
The charge in the present case is precisely that which was given in
the case of Murphj' v. The State, 37 Ala. 142. In that case this court
held that the charge was free from error. We are unwilling .to depart
from that decision, and, in doing so, from an old landmark which has
for centuries withstood the test of time, and the combined wisdom of
jurists on both sides of the Atlantic. There is a lamentable and grow-
ing laxity in the administration of the criminal law, which is seen and
deplored by all good men. Life is not sufHciently cared for ; its
destruction not punished with sufficient severitj-. Until the reckless
and rash are taught, by firm judges and stern juries, that the slayer of
his brother can invoke the shield of self-defence only when, without
sufficient provocation from him, his life was in peril, or his body
exposed to grievous injury ; that homicide by him cannot be mitigated
to the lesser offence of manslaughter, unless the jury are convinced
that, the"k1fflTTg°was ulipfemeditaled, and the result of sudden passion,
excited by present injurj' more grievous" than words, we fear that the
calendar of bloody crimes is destined to know no diminution in its
numbers. The terrors of certain puni^iment are the only sure means
of restraining the evil-minded.
SECTION V.
Degrees of Murder.
Revised Laws of Massachusetts, ch. 207, Sect. 1. Murder com-
mitted with deliberately premeditated malice aforethought or with
extreme atrocity or cruelty, or in the commission or attempted com-
mission of a crime punishable with death or imprisonment for life, is
murder in the first degree. Murder which does not appear to he in the
first degree is murder in the second degree. The degree of murder
shall be found b}' the jurj'.
Penal Code of New York, Sects. 183, 184. The killing of a human
being, unless it is excusable or justifiable, is murder in the first degree
when committed either from a deliberate and premeditated design to
eflTect the death of the person killed, or of another; or by an act
imminently dangerous to others, and evincing a depraved mind, regard
468 LEIGHTON V. PEOPLE. [CHAP. VII.
less of human life, although without a premeditated design to effect the
death of any individual ; or without a design to effect death, by a
person engaged in the commission of, or in an attempt to commit a
felony, either upon or affecting the person killed or otherwise ; or when
perpetrated in committing the crime of arson in the first degree. Such
killing of a human being is murder in the second degree when com-
mitted with a design to effect the death of the person killed, or of
another, but without deliberation and premeditation.
LEIGHTON V. PEOPLE.
Court of Appeals of New York. 1882.
, [Reported 88 New York, 117.]
Ekror to the General Term of the Supreme Court in the first judicial
department, to review judgment entered upon an order made May 20,
1881, which affirmed a judgment of the Court .of Oyer and Terminer
of the County of New York, entered upon a verdict convicting the
plaintiff in error of the crime of murder in the first degree.
The material facts appear in the opinion.^
Danforth, J. At its close the prisoner's counsel " excepted to
all portions of the charge in reference to the question of the time
required for premeditation and deliberation." To bring the case within
the statutory definition of murder in the first degree it was necessary
that the crime should be " perpetrated from the deliberate and pre-
meditated design to effect the death of the person killed." Laws of
1873, chap. 644, § 5. An act co-existent with and inseparable from a
sudden impulse, although premeditated, could not be deemed deliberate,
as when under sudden and great provocation one instantly, although
intentionally, kills another. But the statute is not satisfied unless the
intention was deliberated upon. If the impulse is followed by refiec-
tion, that is deliberation ; hesitation even may imply deliberation ; so
may threats against another and selection of means with which to per-
petrate the deed. If, therefore, the killing is not the instant effect of
impulse, if there is hesitation or doubt to be overcome, a choice made
as the result of thought, however short the struggle between the inten-
tion and the act, it is sufl3cient to characterize the crime as deliberate
and premeditated murder.
The charge upon this point was most favorable to the prisoner.
After stating the statute (supra) the judge said : " There must therefore
be, in order to establish the crime of murder in the first degree, delibera-
tion and premeditation ; but there is no time prescribed within which
^ Only so much of the case as relates to the degree of the murder is given.
SECT. VLJ LOKD MOELY'S CASE. 469
these operations of the mind must occur; it is sufflcient if their exercise
was accomplished when the deed was done resulting in the death."
Again he said : "It is enough if there is„time.Jior the mind to think
upon, to consider the actofkHnng, to meditate upon it, to~weigfr" it,
and then Lo determilleTo do TI7' imtnediately after this follows that
portion of the charge to which the learned counsel for the appellant
directs our attention. "For example," said the judge, "if I, having
from any reason, it matters not what, an enmity toward another, should
start from this point and walk to the corner of Chambers Street, weigh
in my mind, deliberate upon, and premeditate a deadly assault upon
another, and at that corner, meeting there the person toward whom my
thoughts were directed; I struck the deadly blow, that would be suffl-
cient deliberation and sufflcient premeditation to perfect the crime of
murder in the first degree. It is enough that the mind operates in these
two respects to accomplish it and to present all the elements that are
necessary to establish murder in the first degree."
In this there was no error. Then followed a statement of the evi-
dence bearing upon the proposition just laid down. It has been recited
in the learned and elaborate opinion of the court below, its correctness
has not been denied by the appellant's counsel, and it need not be
repeated. It was in our opinion quite enough for submission to the
jury.
SECTION VI,
Manslaughter.
LOED MORLY'S CASE.
Resolution of the Judges. 1666.
[Reported Kelyng, 53.]
Memorandum, that upon Saturday the 28th of April, 1666, Ann. 18
Car. 2, all the judges of England, viz., myself J. K., Lord Chief Jus-
tice of the King's Bench ; Sir Orl. Bridgman, Lord Chief Justice of
the Common Pleas ; Sir Matthew Hales, Chief Baron of the Exchequer ;
my brother Atkins, Brother Twisden, Brother Tyrell, Brother Turner,
Brother Browne, Brother Windham, Brother Archer, Brother Rainsford,
and Brother Morton, met together at Serjeant's Inn in Fleet Street, to
consider of such things as might in point of law fall out in the trial of
the Lord Morly, who was on Monday to be tried ^y his peers for a
murder ; and we did all una voce resolve several things following : —
7.' Agreed, that no words, be they what they will, are in law such
a provocation as, if a man kill another for words only, will diminish the
1 Only the 7th and 8th resolutions are given.
470 huggett's case. [chap. vn.
oflFence of killing a man from murder to be manslaughter ; as suppose
one call another son of a whore, or give him the lie, and thereupon he
to whom the words are given, kill the other, this is murder. But if
upon ill words, both the parties suddenly fight, and one kiU the other,
this is but manslaughter, for it is a combat betwixt two upon a sudden
heat, which is the legal description of manslaughter ; and we were all
of opinion that the statute of 1 Jac. for stabbing a man not having first
struck, nor having any weapon drawn, was onlj' a declaration of the
common law, and made to prevent the inconveniencies of juries, who
were apt to believe that to be a provocation to extenuate a murder
which in law was not.
8. Agreed, that if upon words two men grow to anger, and afterwards
they suppress that anger, and then fall into other discourses, or have
other diversions for such a space of time as in reasonable intendment
their heat might be cooled, and some time after they draw one upon
another, and fight, and one is killed, this is murder, because being
attended with such circumstances as it is reasonably supposed to be a
deliberate act, and a premeditated revenge upon the first quarrel ; but
the circumstances of such an act being matter of fact, the jury are
judges of those circumstances.
HUGGETT'S CASE.
Crown Case Eeserved. 1666.
[Reported Kelyng, 59.]
At a gaol-delivery at Newgate, 25 April, 1666, 18 Car. 2, upon
an indictment of murder against Hopkin Huggett, a special verdict was
found to this effect : We find that John Berry, and two others with
him, the day and place in the inquisition, had de facto, but without war-
rant (for aught appears to us), impressed a man whose name is not yet
known, to serve in his Majesty's service in the wars against the Dutch
nation ; that thereupon, after the unknown man was impressed, he with
the said John Berry, went together quietly into Cloth-fair ; and the said
Hopkin Huggett and three others, walking together in the rounds in
Sinithfield, and seeing the said Berry and two others with the man im-
pressed, going into Cloth-fair, instantly pursued after them, and over-
taking Berry and the impressed man and the two other men, required
to see their warrant, and Berry showed them a paper which Hopkin
Huggett and the three others said was no warrant ; and immediately
the said H. Huggett and the three others drew their swords to rescue
the said man impressed, and did thrust at the said John Berry ; and
thereupon the said John Berry and the two others with him did draw
their swords and fight together ; and thereupon the said H. Huggett
did give the wound in the inquisition to the said John Berry, whereof
SECT. VI.J HUGGETT'S CASE. 471
he instantly died ; and if upon the whole matter, the said H. Hug-
gett be guilty of murder they find so ; if of manslaughter they find so,
&c. All the judges of England being met together, at Serjeant's Inn,
in Fleet Street, upon other occasions (and before that time having
copies of this special verdict sent unto them), after the other business
dispatched they were desired to give their opinions in this case,
whether they held it to be murder or manslaughter. And the Lord
Chief Justice Bridgman, Lord Chief Baron Hales, my brother Atkins,
Brother Tyrell, Brother Turner, Brother Browne, Brother Archer, and
Brother Eainsford, having had the notes of the special verdict three daj'S
before, delivered their opinion as then advised, but thej- said the}'
would not be bound by it : that this was no murder, but only man-
slaughter ; and they said that if a man be unduly arrested or restrained
of his liberty by three men, although he be quiet himself, and do not en-
deavor any rescue, yet this is a provocation to all other men of Eng-
land, not only his friends but strangers also, for common humanity sake,
as my Lord Bridgman said, to endeavor his rescue ; and if in such
endeavor of rescue they kill anj' one, this is no murder, but only man-
slaughter ; and mj' brother Browne seemed to rely on a case in Coke
12 Rep. p. 87, where divers men were playing at bowls, and two of
them fell out and quarrelled, one with another, and a third man who
had no quarrel, iu revenge of his friend struck the other with a bowl,
of which blow he died ; this was held to be only manslaughter. But
mj'self. Brother Twisden, Brother Windham, and Brother Morton,
were of another opinion ; and we held it to be a murder, because there
was (as we thought) no provocation at all. And if one man assiiult
another without provocation, and kill him, this is murder ; the law in
that case implying malice. And we find it was resolved by all the
judges in the Lord Morly's case that no words, be they what they
will, were such a provocation in law as, if upon them one kills another,
would diminish or lessen the ofience from being murder to be but man-
slaughter. As if one calleth another son of a whore, and giveth him
the lie, and upon those words the other kill him that gave the words ;
this, notwithstanding those words, is murder ; and we thought those
words were apter to provoke a man to kill another than the bare see-
ing a man to be unduly pressed when the party pressed willingly renders
himself. But we held that such a provocation as must take off the kill-
ing of a man from murder to be but manslaughter, must be some open
violence, or actual striving with, or striking one another ; and that
answers the case cited by my brother Browne. For there it must be
intended that the two men that fell out were actually fighting together ;
for if there passed onlj' words betwixt these two, and upon them, a
third person struck one of them with a bowl, and killed him, we held
that to be murder. And to this my Lord Bridgman and the other
judges agreed, and we thought the case in question to be much the
stronger, because the party himself who was impressed was quiet, and
made no resistance, and they who meddled were no frienSs of his, or
472 huggett's case. [chap. vii.
acquaintance, but were strangers, and did not so much as desire them
which had him in custody to let him go, but presently without more
ado, di;ew their swords at them, and ran at them. And we thought it
to be of dangerous consequence to give an}^ encouragement to private
men to take upon themselves to be the assertors of other men's liberties,
and to become patrons to rescue them from wrong ; especially in a na-
tion where good laws are for the punishment of all such injuries, and one
great end of law is to right men by peaceable means, and to dis-
countenance all endeavors to right themselves, much less other men by
force.
Secondly, we four were of opinion that if A. assault B. without any
provocation, and draw his sword at him, and run at him ; and then B.
to defend himself draw his sword, and they fight together. If A. kill
B. it is murder, and B. drawing his sword to defend himself shall
not lessen the offence of A. from being murder to be manslaughter
only ; and to this the other judges did (as I take it) agree, for it were
unreasonable that if one man draw upou another, and run at him with-
out any provocation that the other man should stand still, and not
defend himself, and it is also unreasonable that his endeavor to defend
himself should lessen the offence of him who set upon him without prov-
ocation.
But we four held that if two men be quarrelling, and actually fight-
ing together, and another man runneth in to aid one of them and kill the
other, this is but manslaughter, because there was an actual fighting
and striving with violence.
So we held, if such people who are called spirits take up a youth, or
other person to carry him away, and thereupon there is a tumult raised,
and several persons run in, and there is a man killed in the fraj-, this
is but manslaughter ; for there is an open affray, and actual force, which
is a sudden provocation, and so that death which ensueth is but man-
slaughter. But where people are at peace, there, if another man upon
suspicion that an injury is done to one of them, will assault and kill
him whom he thinketh did the injury, this is murder, so that we hold
nothing but an open affray or striving can be a provocation to any per-
son to meddle with an injury done to another, if in that meddling he
kill a man, to diminish or lessen the offence from murder to man-
slaughter.
Memorandum : After this difference I granted a certiorari to remove
the cause intothe King's Bench, to be argued there, and to receive a
final and legal determination ; and although all the judges of the court
were clearly of opinion that it was murder, yet it being in case of life,
we did not think it prudent to give him judgment of death, but admitted
him to his clergy ; and after he read, and was burnt in the hand,
we ordered him to lie in prison eleven months without bail, and after-
wards until he found sureties to be of the good behavior during his life.^
1 See on this point the correspondence between Seymour, Q. C., and others and
Blackburn, J , printed in note IX. to Stephen's Digest of Cr Law. — Ed.
SECT. VI.J KEX V. THOMPSON. 473
REGINA V. STEDMAN.
Old Bailey. 1704.
[Reported Foster Cr. L. 292.]
There being an affra^^ in the street,, one Stedman, a footsoldier, ran
hastily towards the combatants. A woman seeing him run in that
manner cried out, " You will not murder the man, will j'ou? " Stedman
replied, "What is that to j-ou, you bitch?" The woman thereupon
gave him a box on the ear, and Stedman struck her on the breast .with
the pommel of his sword. The woman then fled, and Stedman pursu-
ing her stabbed her in the back. Holt was at first of opinion, that this
was murder, a single box on the ear from a woman not being a suffi-
cient provocation to kill in this manner, after he had given her a blow
in return for the box on the ear ; and it was proposed to have the
matter found specially : but it afterwards appearing in the progress of
the trial, that the woman struck the soldier in the face with an iron
patten, and drew a great deal of blood, it was holden clearly to be no
more than manslaughter.
The smart of the man's wound, and the eflfusion of blood might pos-
sibly keep his indignation boiling to the moment of the fact.
FEAT'S CASE.
Old Bailey, coram Gould, J. 1785.
[Reported 1 East P. C. 236,]
"Where one, having had his pocket picked, seized the oflTender, and
being encouraged by a concourse of people, threw him into an adjoin-
ing pond by way of avenging the theft by ducking him, but without
any apparent intention of taking away his life, and the pickpocket was
drowned, this was ruled to be manslaughter only.
REX V. THOMPSON.
Ceown Case Reserved. 1825.
[Reported 1 Moody C. C. 80.]
The prisoner was tried before Mr. Baron Garrow at the Winter
Assizes at Maidstone, in the j-ear 1825, upon an indictment which
charged him, first, with maliciously stabbing and cutting Richard
474 BEX V. THOMPSON. [CHAP. VII.
Southerden, with intent to murder; secondly, with intent to disable
him ; and thirdly, with intent to do him some grievous bodily harm.
On the trial it appeared that the prisoner, who was a journeyman
shoemaker, on the 18th of November, 1824, applied to his master for
some money, who refused to give it to him till he finished his work ; on
his subsequently urging for money and his master refusing him, he
became abusive, upon which his master threatened to send for a con-
stable. The prisoner refused to finish his work, and said he would go
upstairs and pack up his tools, and said no constable should stop him ;
he came downstairs with his tools, and drew from the sleeve of his coat
a naked knife, and said he would do for the first bloody constable that
offered to stop him ; that he was ready to die, and would have a life
before he lost his own ; and then making a twisting or flourishing
motion with the knife, put it up his sleeve again, and left the shop.
The master then applied to Southerden, the constable, to take the
prisoner into custody ; he made no charge, but said " he suspected he
had tools of his, and was leaving his work undone ; " the constable said
he would take him if the master would give him charge of him ; they
then followed the prisoner to the yard of the Bull's Head Inn ; the pris-
oner was in a public privy there as if he had occasion there. The privy
had no door to it. The master said, "That is the man; I give you
in charge of him." The constable then said to the prisoner, " My good
fellow, your master gives me charge of you ; jou must go with me."
The prisoner, without saying anything, presented a knife to the con-
stable and stabbed him under the left breast ; he attempted to make a
second, third, and fourth blow, which the constable parried off with his
staff. The constable then aimed a blow at his head ; the prisoner then
ran away with tlie knife and was afterwards secured.
The surgeon described the wound as being two inches and a half in
length and one quarter of an inch deep, and inflicted with a sharp
instrument like the knife produced. The knife appeared to have struck
against one of the ribs and glanced ofl!". Had the point of the knife
insinuated itself between the ribs and entered the cavity of the chest,
death would have inevitably been the consequence ; if it had struck two
inches lower death would have ensued ; but the wound, as it happened,
was not considered dangerous.
The jury found the prisoner guilty, and sentence of death was passed
upon him ; but the learned judge respited the execution and submitted
the case for the consideration of the judges.
In Hilary term, 1825, all the judges (except Best, L. C. J., and
Alexander, L. C. B., who were absent) met and considered this case.
The majority of the judges, viz., Abbott, L. C. J., Graham, B., Baj'lej-,
J., Park, J., Garrow, B., Hullock, B., Littledale, J., and Gaselee, J.,
held that as the actual arrest would have been illegal, the attempt to
make it when the prisoner was in such a situation that he could not
get away, and when the waiting to give notice might have enabled the
constable to complete the arrest, was such a provocation as, if death
SECT. VI.J EBGINA V. WELSH. 475
had ensued, would have made the case manslaughter only, and that
therefore the conviction was wrong. Holrojd, J., and BuiTough, J.,
thought otherwise.
REGINA V. WELSH.
Central Ckiminal Court. 1869.
[Reported H Cox C. C. 336.]
Thb prisoner was indicted for that he feloniously and with malice
aforethought did kill and slay one Abraham.
Pater for the prosecution.
Ribton for the prisoner.
The prisoner had claimed a debt from the deceased, and had sum-
moned him to a police court where the claim was dismissed. The
prisoner went from the police office to a pnbhc-houBBT-diStaijt about a
mile, whither in a short time the deceased also came. " You have got
the better of me this time," said the prisoner to him. " Yes," answered
the deceased, pleasantly; "I thought I should." "But," said the
prisoner, " I'll have another summons out against j'ou about it." " I
am ready," replied the deceased, " to pay what any indifferent person
may say is due." " Not you," said the prisoner ; " j'ou don't mean to
pay anything." The deceased approached him and offered to drink
with him. The prisoner refused, saying, " I will not drink with such a
man as you." The deceased came near him. The prisoner said,
" Don't come near me," and advanced towards him. The deceased
retreated several paces. The prisoner came near him. The deceased
held out his hand again, until it was within a few inches of the pris-
oner's face, apparently to ward him off, and saj'ing at the same time,
" Words as j'ou like, but keep your hands off." The deceased struck
no blow. The prisoner closed with him, and forced him down on a
seat, and a few moments afterwards was seen almost upon him, in the
act of stabbing him in the abdomen with a clasp knife. The blow was
mortal, and the man died.
Ribton, for the prisoner, strove in cross-examination to elicit that
there was some blow or push by the deceased.
The principal witnesses, in answer to the learned judge, saidjjjat —
they saw no blow or even p]ish-4aytlrerdeegased ; but that, on the con-
trai V . it was the priaoaer who shoved or pushed the deceased down.
Ribton, in addressing the jury for the defence, submitted that the
question was not whether the provocation was or was not slight (as he
admitted it was), but whether or not in point of fact the prisoner
was under the influence of ung2y.erH«rbte-pa^sion at the time he struck
the blow.
Keating, J., however, said he should tell the jury that the question
476 EEGINA V. WELSH. [CHAP. VII.
■was, not merely whether there was passion^
reasonable provous
cited Foster's Crown Law, 295, to show that the law made
allowances for human passion, and he urged that upon the evidence
there was clearly an assault upon the person by the deceased in holding
his hand so near the prisoner's face, and that the probability was that
there was a blow, as the witnesses heard the prisoner say "Keep off,"
and did not see precisely what had happened in the brief interval
between that expression and the fatal blow.
Keating, J., in summing up the case to the jury, said: The pris-
oner is indicted for that he killed the deceased feloniouslj' and with
malice aforethought, that is to say intentionally, without such provo-
cation as would have excused, or such cause as might have justified,
the act. Malice aforethought means intention to' kill." "Whenever one
person kills another intentionally, he does it with malice aforethought.
In point of law, the intention signifies the malice. It is for him to
show that it was not so by showing sufficient provocation, which only
reduces the crime to manslaughter, because it tends to negative the
malice. But when that provocation does not appear, the malice afore-
thought implied in the intention remains. Bj' the law of England,
therefore, all intentional homicide is prima facie murder. It rests with
the party charged with and proved to have committed it to show, either
by evidence adduced for the purpose, or upon the facts as they appear,
that the homicide took place under such circumstances as to reduce the
crime from murder to manslaughter. Homicide^which-wauldJiS^^^''*'^
facie murder, may be committed under sucB"ciroumstances of provocS
tion-asHxrurake-ifr manslaughter, and show'fhat it was not -committed
with malice^aforetbonghf. The question, therefore, is — first, whether
there is evidence of any such provocation as could reduce the crime
from murder to manslaughter ; and, if there be anj' such evidence, then
it is for the jury whether it was such that they can attribute the act to
the violence of passion naturally arising therefrom, and likely to be
aroused thereby in the breast of a reasonable man. The law, therefore,
' is not, as was represented by the prisoner's counsel, that, if a man
'■commits the crime under the influehce of passion, it is mere man-
slaughter. The law is that there must exist such an amount qf-proiQ-
cation as wojild be excited by the circumstances in the mind of a
reasonable man, and so as to lead the jury to ascribe the acPttrthe
influence of that passion. When the law says that it allows for the
infirmity of human nature, it does not say that if a man, without suffi-
cient provocation, gives way to angry passion, and does not use his
reason to control it — the law does not say that an act of homicide,
intentionally committed under the influence of that passion, is excused
or reduced to manslaughter. The law * contemplates the case of a
reasonable man, and requires that the provocation shall be such as
that such a man might naturally be induced, in the anger of the
moment, to commit the act. Now, I am bound to say that I am unable
SECT. VI.] EEGINA. V. KOTHWELL. 477
to discover in the evidence in this case any provocation which would
suffice, or approach to such as would suffice, to reduce the crime to
manslaughter. It has been laid down that mere words or gestures will
not be sufficient. to-reduce^ the offence, and at all events the law is clear"
th§i.t the provocation riiast be serious. I have already said that I can
discover no proof of such provocation in the evidence. If you can
discover it, you can give effect to it ; but 3'ou are bound not to do so
unless satisfied that it was serious. It is urged that there was an
assault, and that it is probable there was a blow. That is for you to
consider. What I am bound to tell you is that in law it is necessary
that there should have been serious provocation in order to reduce the
crime to manslaughter, as, for instance, a blow, and a severe blow, —
something which might naturally cause an ordinary and reasonably
minded man to lose his self-control and commit such an act. I
endeavored to elicit whether there was anything like a blow hy the
deceased, but failed to do so. It does not appear that there was any-
thing bej'ond putting out his hand, which came near the prisoner's face.
There is no evidence of his doing anything else ; that is the evidence.
Upon the evidence it is for you to ascertain whether, taking the law as
I have laid it down, you can discover evidence of such a serious provo-
cation as would reduce the crime to manslaughter.
Guilty ; sentence, Death.
REGINA V. ROTHWELL.
Manchester Assizes. 1871.
[Reported 12 Cox C. C. 145.]
Christopher Rothwell was indicted for the wilful murder of his
wife, at Oldham, on the 2d of October.
Cottingham for the prosecution.
Torr for the defence.'
Blackburn, J., in summing up, said : A person who inflicted a
dangerous wound, that is to say, a wound of such a nature as he must
know to be dangerous, and death ensues, is guilty of murder; but
there may be such heat of blood and provocation as to reduce the
crime to manslaughter. A blow is such a provocation as will reduce
the crime of murder to that of manslaughter. Where, however, there
are no blows, there must be a provocation equal to blows : it must be
at least as great as blows. For instance, a man who discovers his wife
in adultery, and thereupon kills the adulterer, is only guilty of man-
slaughter. As a general rule of law, no provocation of words will
reduce the crime of murder to that of manslaugliter, but under special
1 The evidence is omitted. ,
478 MAHEE V. PEOPLE. [CHAP. VII.
circumstances there may be such a provocation of words as will have
that effect ; for instance, if a husband suddenlj' hearing from his wife
that she had committed adulter}-, and he having had no idea of such a
thing before, were thereupon to kill his wife, it might be manslaughter.
Now, in this case, words spoken by the deceased just previous to the
blows inflicted by the prisoner were these: "Aye; but I'll take no
more for thee, for I will have no more children of thee. I have
done it once, and I'll do it again." Now, what you will have to con-
sider is, would these words, which were spoken just previous to the
blows, amount to such a provocation as would in an ordinary man, not
in a man of violent or passionate disposition, provoke him in such a
way as to justify him in striking her as the prisoner did.
Guilty of manslaughter ; ten years penal servitude.
MAHEE V. PEOPLE.
Supreme Court op Michigan. 1862.
[Reported 10 Michigan, 212.]
Chkistianct, J.^ To give the homicide the legal character of murder,
all the authorities agree that it must have been perpetrated with malice
prepense or aforethought. This malice is just as essential an ingredient
of the offence as the act which causes the death ; without the concurrence
of both, the crime cannot exist ; and, as every man is presumed innocent
of the offence with which he is charged till he is proved to be guilty,
this presumption must applj' equallj' to both ingredients of the offence,
— to the malice as well as to the killing. Hence, though the principle
seems to have been sometimes overlooked, the burden of proof, as to
each, rests equally upon the prosecution, though the one may admit
and require more direct proof than the other ; malice, in most cases,
not being susceptible of direct proof, but to be established by infer-
ences more or less strong, to be drawn from the facts and circumstances
connected with the killing, and which indicate the disposition or state
of mind with which it was done. It is for the court to define the legal
import of the tefrm "malice aforethought," or, in other words, that state
or disposition of mind which constitutes it ; but the question whether
it existed or not, in the particular instance, would, upon principle, seem
to be as clearly a question of fact for the jury as any other fact in the
cause, and that they must give such weight to the various facts and
circumstances accompanying the act, or in any waj' bearing upon the
question, as in their judgment they deserve : and that the court have
no right to withdraw the question from the jury by assuming to draw
' Part of the opinioji only is given.
SECT. VI.j MAHEE V. PEOPLE. 479
the proper inferences from the whole or any part of the facts proved,
as presumption of law. If courts could do this, juries might be required
to find the fact of malice where they were satisfied from the whole
evidence it did not exist. I do not here speak of those cases in which
the death is caused in the attempt to commit some other offence, or in
illegal resistance to public officers, or other classes of cases which may
I'est upon peculiar grounds of public policy, and which may or may
not form an exception ; but of ordiijar}- cases, such as this would have
been had death ensued. It is not necessary here to enumerate all the
elements which enter into the legal definition of malice aforethought.
It is sufficient to say that, within the principle of all the recognized
definitions, the homicide must, in all ordinary cases, have been com-
mitted with some degree of coolness and deliberation, or, at least,
under circumstances in which ordinary men, or the average of men
recognized as peaceable citizens, would not be liable to have their
reason clouded or obscured by passion ; and the act must be prompted
by, or the circumstances indicate that it sprung from, a wicked,
depraved, or malignant mind, — a mind which even in its habitual con-
dition and when excited b.y no provocation which would be liable to
give undue control to passion in ordinary men, is cruel, wanton, or
malignant, reckless of human life, or regardless of social dutj'.
But if the act of killing, though intentional, be committed under the
influence of passion or in heat of blood, produced by an adequate or
reasonable provocation, and before a reasonable time has elapsed for
the blood to cool and reason to resume its habitual control, and is the
result of the temporarj' excitement bj' which the control of reason was
disturbed, rather than of any wickedness of heart or cruelty or reck-
lessness of disposition, — then the law, out of indulgence to the frailty
of human nature, or rather, in recognition of the laws upon which
human nature is constituted, very properly regards the oflFence as of a
less heinous character than murder, and gives it the designation of
manslaughter.
To what extent the passions must be aroused and the dominion of
reason disturbed to reduce the offence from murder to manslaughter,
the cases are by no means agreed ; and an^' rule which should embrace
all the cases that have been decided in reference to this point, would
come verj' near obliterating, if it did not entirely obliterate, all dis-
tinction between murder and manslaughter in such cases. We must
therefore endeavor to discover the principle upon which the question
is to be determined. It will not do to hold that reason should be
entirely dethroned, or overpowered by passion so as to destroy intelli-
gent volition. State v. Hill, 1 Dev. & Bat. 491 ; Haile v. State, 1 Swan,
248 ; Young v. State, 11 Humph. 200. Such a degree of mental dis-
turbance would be equivalent to utter insanity, and if the result of
adequate provocation, would render the perpetrator morally innocent.
But the law regards manslaughter as a high grade of offence, — as a
felony. On principle, therefore, the extent to which the passions are
480 MAHEE V. PEOPLE. [CHAP. VII.
required to be aroused and reason obscured must be considerably siiort
of this, and never beyond that degree within which ordinary men have
the power, and are therefore morally as well as legally bound, to
restrain their passions. It is only on the idea of a violation of this
clear duty, that the act can be held criminal. There are many cases
to be found in the books in which this consideration, plain as it would
seem to be in principle, appears to have been in a great measure over-
looked, and a course of reasoning adopted which could onlj' be justified
on the supposition that the question was between murder and excusable
homicide.
The principle involved in the question, and which I think clearly
deducible from the majority of well considered cases, would seem to
suggest, as the true general rule, that reason should, at the time of the
act, be disturbed or obscured by passion to an extent which might
render ordinary men, of fair average disposition, liable to act rashly
or without due deliberation or reflection, and from passion, rather than
judgment.
To the question what shall be considered in law a reasonable or
adequate provocation for such a state of mind, so as to give to a
homicide committed under its influence the character of manslaughter,
on principle, the answer, as a general rule, must be, anything the
natural tendency of which would be to produce such a state of mind
in ordinary men, and which the jury are satisfied did produce it in the
case before them, — not such a provocation as must, by the laws of the
human mind, produce such an effect with the certainty that physical
effects follow from physical causes ; for then the individual could hardly
be held morally accountable. Nor, on the other hand, must the pro-
vocation in every case be held sufficient or reasonable because such a
state of excitement has followed from it ; for then, by habitual and
long continued indulgence of evil passions, a bad man might acquire
a claim to mitigation which would not be available to better men, and
on account of that very wickedness of heart which, in itself, constitutes
an aggravation both in morals and in law.
In determining whether the provocation is sufficient or reasonable,
ordinary human nature, or the average of men recognized as men of
fair average mind and disposition, should be taken as the standard, —
unless, indeed, the person whose guilt is in question be shown to have
some peculiar weakness of mind or infirmity of temper, not arising from
wickedness of heart or cruelty of disposition.
It is doubtless, in' one sense, the province of the court to define what,
in law, will constitute a reasonable or adequate provocation, but not, I
think, in ordinary cases, to determine whether the pro^■ocation proved
in the particular case is sufficient or reasonable. This is essentially a
question of fact, and to be decided witli reference to the peculiar facts
of each particular case. As a general rule, the court, after informing
the jury to what extent the passions must be aroused and reason
obscured to render the homicide manslaughter, shoulil inform them
SECT. VI. 1 MAKER V. PEOPLE. 481
that the provocation must be one the tendency of which would be to
produce such a degree of excitement and disturbance in the minds of
ordinary men ; and if they should find such provocation from the facts
proved, and should further find that it did produce that effect in the
particular instance, and that the homicide was the result of such prov-
ocation, it would give it the character of manslaughter. Besides the
consideration that the question is essentially one of fact, jurors, from
the mode of their selection, coming from the various classes and occu-
pations of society, and conversant with the practical affairs of life, are,
in my opinion, much better qualified to judge of the suflacieney and
tendency of a given provocation, and much more likely to fix, with
some degree of accuracy, the standard of what constitutes the average
of ordinary human nature, than the judge whose habits and course of
life give him much less experience of the workings of passion in the
actual confiicts of life.
The judge, it is true, must, to some extent, assume to decide upon
the sufficiency of the alleged provocation when the question arises
upon the admission of testimony ; and when it is so clear as to admit
of no reasonable doubt, upon any theory, that the alleged provocation
could not have had unj- tendency to produce such state of mind in
ordinary men, he may properly exclude the evidence ; but, if the
alleged provocation be such as to admit of any reasonable doubt
whether it might not have had such tendency, it is much safer, I
think, and more in accordance with principle, to let the evidence go to
the jury under the proper instructions. As already intimated, the
question of the reasonableness or adequacy of the provocation must
depend upon the facts of each particular case. That can, with no
propriety, be called a rule (or a question) of law which must vary
with, and depend upon the almost infinite variety of facts presented by
the various cases as they arise. See Stark, on Ev., Amer. ed. 1860,
pp. 676 to 680. The law cannot with justice assume, by the light of
past decisions, to catalogue all the various facts and combinations of
facts which shall be held to constitute reasonable or adequate provoca-
tion. Scarcely two past cases can be found which are identical in all
their circumstances ; and there is no reason to hope for greater uni-
formity in future. Provocations will be given without reference to any
previous model, and the passions they excite will not consult the
precedents.
The same principles which govern as to the extent to which the
passions must be excited and reason disturbed apply with equal force
to the time during which its continuance may be recognized as a ground
for mitigating the homicide to the degree of manslaughter, or, in other
words, to the question of cooling time. This, like the provocation
itself, must depend upon the nature of man and the laws of the human
mind, as well as upon the nature and circumstances of the provocation,
tlie extent to which the passions have been aroused, and the fact
whether the injury inflicted by the provocation is more or less per-
482 MAKER V. PEOPLE. [CHAP. VII.
manent or irreparable. The passion excited by a blow received in a
sudden quarrel, though perhaps equally violent for the rooment, would
be likely much sooner to subside than if aroused by a rape committed
upon a sister or a daughter, or the discovery of an adulterous inter-
course with a wife ; and no two cases of the latter kind would be likely
to be identical in all their circumstances of provocation. No precise
time, therefore, in hours or minutes, can be laid down by the court, as
a rule of law, within which the passions must be held to have subsided
and reason to have resumed its control, without setting at defiance the
laws of man's nature, and ignoring the very principle on which prov-
ocation and passion are allowed to be shown at all, in mitigation of
the offence. The question is one of reasonable time, depending upon
all the circumstances of the particular case ; and whei'e the law has
not defined, and cannot without gross injustice define the precise timp
which shall be deemed reasonable, as it has with respect to notice or
the dishonor of commercial paper. In such case, where the law has
defined what shall be reasonable time, the question of such reasonable
time, the facts being found by the jurj-, is one of law for the court ;
but in all other cases it is a question of fact for the jury ; and the court
cannot take it from the jury by assuming to decide it as a question of
law, without confounding the respective provinces of the court and
jury. Stark. Ev., ed. of 1860, pp. 768, 769, 774, 775. In Eex v.
Howard, 6 C. & P., 157, and Rex v. Lynch, 5 C. & P. 324, this question
of reasonable cooling time was expressly held to be a question of fact
for the jury. And see Whart. Cr. L., 4th ed., §990 and cases cited.
I am aware there are manj' cases in which it has been held a question
of law ; but I can see no principle on which such a rule can rest. The
court should, I think, define to the jury the principles upon which the
question is to be decided, and leave them to determine whether the
time was reasonable under all the circumstances of the particular case.
I do not mean to say that the time may not be so great as to enable
the court to determine that it is sufllcient for the passion to have cooled,
or so to instruct the jury, without error ; but the case should be verj'
clear. And in cases of applications for a new trial, depending upon the
discretion of the court, the question may very properly be considered by
the court.
It remains only to apply these principles to the present case. The
proposed evidence, in connection with what had already been given,
would have tended strongly to show the commission of adultery by
Hunt with the prisoner's wife, within half an hour before the assault ;
that the prisoner saw them going to the woods together, under circum-
stances calculated strongly to impressupon his mind the belief of the
adulterous purpose ; that he followed after them to the woods ; that
Hunt and the prisoner's wife were, not long after, seen coming from
the woods, and that the prisoner followed them, and went in hot pursuit
after Hunt to the saloon, and was informed by a friend on the way
that they had committed adultery the day before in the woods. I can
SECT. VI. J MAHER V. PEOPLE. 483'
not resist the conviction that this would have, been sufficient evidence
of provocation to go to the jurj', and from which, when taken in con-
nection with the excitement and "great perspiration" exhibited on
entering the saloon, the hasty manner in which he approached and
fired the pistol at Hunt, it would have been competent for the jury to
find that the act was committed in consequence of the passion excited
by the provocation, and in a state of mind which, within the principle
already explained, would have given to the homicide, had death ensued,
the character of manslaughter only. In holding otherwise the court
below was doubtless guided by those cases in which courts have arbi-
trarily assumed to take the question from the jury, and to decide upon
the facts or some particular fact of the case, whether a sufficient
provocation had been shown, and what was a reasonable time for
cooling.
484 ANONYMOUS. [OHAP. VIII.
CHAPTER YIII.
LARCENY.
SECTION I.
What Property is the Subject of Larceny.
Bracton De Legibus, 150 b. Larceny is, according to the law, the
fraudulent taking of the property of another, with intent to steal, against
the will of the owner.'
ANONYMOUS.
Assizes. 1338.
[Reported Year Book, U 4- \2 Ed. III., 640.]
A FOEESTEE was indicted " that he feloniously cut down and carried
away trees." The justices would not arraign him, for the felling of trees
which are so annexed to the soil cannot be called a felony, even if a
stranger had done it. Besides, here perhaps he himself had the keeping
of them. But because it was possible that the trees were first of all
felled by the lord and then carried away by the forester, they questioned
the inquest, who said that he was the forester when he felled and car-
ried them away. Schaeshtille [J.], to the inquest: Did the forester
conceal the trees from the lord? The Inquest. We do not know.
Aldeburgh [J.]. Certainly we do not think it important whether he
concealed them or not ; but we adjudge that it is no felony, because
he was the keeper ; and a tree is part of the freehold.^
1 Furtum est secundum leges contraotatio rei alieuse fraudulenta, cum animo
furandi, invito illo domino cuius res ilia fuerit.
2 12 Lib. Abs., 32, S. C.
SECT. I.j REX V. WODY. 485
EEX V. WODY.
Exchequer Chamber. 1470.
[Reported Year Book, 10 Ed. IV., li, pi. 9, lO.J
One William Wodj' was indicted for that he feloniously took and
carried away six boxes, with charters and muniments concerning ttie
inheritance of John Culpepper and Nicholas C, etc., contained in the
boxes.
Sulyard. It seems that it is not felonj', for the sealed boxes shall
be called of the same nature as the charters contained in them,* while
the charters are concerning the inheritance, so that these things touch
the inheritance of the realtj', etc.
Nele. Every felony ought to be a loss of twelve pence ; but in
detinue of charters, or of sealed boxes with charters contained in them,
those in the Chancery do not say " ad valentiam" etc., for they cannot
be valued, and so it cannot be felony.
Collow. A man may recover damages in detinue if the charters are
burned.
All the justices of the one bench and of, the other were assembled in
the Exchequer Chamber.
Choke, J. It seems that it is not felonj' for two reasons : first, they
are so far real that it cannot be felon3'. For they are not chattels real,
but are real in themselves ; for if a man be attainted of felony, the king
shall not have his charters concerning his land, for the}' are real, but
he shall have his wardship, or term, for they are chattels real. Quod
fuit concessum per omnes justicios.
Yelvebton, J., said, that if a man has a franchise to have catdlla
felonum, etc., still he shall not have the charters concerning the land
of felons, etc.
MoYLE, J. The lord shall have the charters with the land, etc.
And it was held that if a man gives omnia bona et catalla sua, the
charters do not pass, therefore they are released, etc.
Choke, J. Tfie second reason is because they cannot be valued,
etc. ; for in detinue for charters one does not saj' ad valentiam, etc.,
ut supra, etc.
Littleton, J. The reason why those in the Chancery do not saj- ad
valentiam in the writs ut supra is only the precedent, etc. ; but 3'et
they are of value, for in detinue of charters, if the charters are lost or
burned, he shall recover in damages, having regard to the loss that he
has by the loss of the charters ; this, therefore, proves that they are of
value. And though the terms ad valentiam and ad dam,pmm are
different, yet thej' are of the same effect. ( Quod fuit negatum, etc.)
1 Upon this argument being urged in Reg. v. Powell, 5 Cox C. C. 397, Alderson,
B., aaid : " I suppose, then, that if a lion was stole in a cage, it would be said that the
cage Y/a&feroi natures." — Ei>.
486 ANONYMOUS. [CHAP. VIII.
And on an indictment for burglarj-, sc, for breaking a house, one should
not say quod /regit domum ad valenfiam, etc. ; and, sir, so at common
law wilful burning of a house was felony, and yet one should not say ad
valenfiam, etc.
Billing, C. J. Those are felonies of a different nature from rob-
bery, etc.
Littleton, J. Because charters concerning the inheritance are of
greater value than other things, therefore it is reason that as great
punishment should be inflicted for the taking of them as of other things,
etc. And, sir, in trespass quare pullos espervarios cepit, one should
state the price, but in tresp§igs quare parcum. fregit et damas, etc.,
one should not state the price, etc., for it is not the use in the
Chancery.
Bingham, J. In your case quare pullos espervarios in nido, etc.,
the plaintiff should state the price, for the propertj' in them is in him ;
for the nests are the plaintiff's, and so are those which are in the nests,
and besides cannot fly out of your possession, etc.
Nedham, J. Felony is only of such thing as the country may have
notice of the value of ; but here as to charters within the boxes they
cannot have notice, etc., of the value of them ; wherefore, etc.
Yelverton, J. Felony cannot be of anj^ goods except personal
chattels ; for a man cannot take mj' ward feloniously, for it is a chattel
real ; and it was held that a deer which is domesticated may be stolen,
and so when it is dead. And so of fishes taken in a pond, etc.
And then it was advised hy them all that this is not felony, wherefore
in the King's Bench the defendant was discharged, etc.
ANONYMOUS.
Opinion of the Justices. 1528.
[Reported Year Book, 19 Henry VIII., 2, pi. llf)
A QUESTION was propounded to all the Justices by the Chancellor. If
a man feloniouslj' steals peacocks which are tame and domesticated,
whether it is felony or not. And bj' Fitzherbert and Inglefield [JJ.]
it was said that it is not felony, because they are ferce naturae like
doves in a dove-cote ; and if the young of such doves ai-e stolen, it is
not felony. The same law of herons taken out of the nest, or of swans
taken, or of a buck, or hind, which are domesticated, or of hares taken
out of a garden which is surrounded with a wall, etc. The same law of
a mastiff, hound, or spaniel, or of a goshawk which is reclaimed ; for
they are properly things of pleasure rather than of profit. And so the
peacock is a bird more for pleasure than for profit, for often they
intentionally destroj^ all the j'oung except one.
SECT. I.] KEX V. SEABING. 487
Aud it was also agreed that apples taken out of the orchard which
were growing on the trees at the time of taking, or trees growing upon
the [soil?] at the time of taking, or grass cut and carried awaj', is not
felony, and even where they are taken with felonious intent, because
these things at the time of taking are parcel of the franktenement ; but
if my trees are cut down by me, or my grass growing on my land is
by me cut and severed, and afterward another with felonious intent
steals it, that is felony.
FiTZJAMES [C. J.] and the other justices said that peacocks are
commonly of the same nature as hens or capons, geese or ducks, and
the owner has property in them, and they have animum revertendi, and
they are not fowls of warren, like pheasant, partridge, conies, or
animals of that sort, for the taking of these with felonious intent
is not felony.
And in the end it was agreed by all the justices, that this taking of
peacocks was felony for the cause aforesaid. Quod N'ota.
REX V. SEARING.
Ceown Case Reserved. 1818.
[Beported Russell ^ Ryan, 350.]
The prisoner was tried before Mr. Baron Wood at the Lent Assizes
for Hertfordshire in the year 1818 for larceny in stealing " five live
tame ferrets confined in a certain hutch," of the price of fifteen shil-
lings, the property of Daniel Flower.
The jury found the prisoner guilty ; but on the authority of 2 East,
P. C. 614, where it is said that ferrets (among other things) are con-
sidered of so base a nature that no larceny can be committed of them,
the learned judge respited the judgment until the opinion of the judges
could be taken thereon.
It appeared in evidence that ferrets are valuable animals, and those
in question were sold by the prisoner for nine shillings.
In Easter term, 1818, the judges met and considered this case; they
were of opinion that ferrets (though tame and salable) could not be
the subject of larceny and that judgment ought to be arrested.
488 EEGINA V. CHEArOK. [CHAP. VIII.
EEGINA V. CHEAFOR.
Ceown Case Reserved. 1851.
[Reported 5 Cox C. C. 367.]
At the Quarter Sessions for the county of Nottingham, held at East
Retford, on the 7th of Julj-, 1851, the prisoner was indicted for felon-
iously stealing four tame pigeons, the property of John Mansell. The
pigeons, at the time they were taken b^' the prisoner, were in the prose-
cuto)-'s dove-cote, over a stable on his premises, being an ordinary
dove-cote, and having holes at the top for the ingress and the egress
of the pigeons, and having a door in the floor, which was kept locked.
The prisoner entered the dove-cote at twelve o'clock at night, breaking
open the door and taking away the pigeons. The prisoner's counsel
contended that the pigeons being at liberty at any time to go in and
out of the dove-cote, and therefore not reclaimed and in a state of con-
finement, were not the subjects of larceny. The chairman directed
the jurj- that, in his opinion, the view contended for by the prisoner's
counsel was correct, and that the pigeons were not properly the
subjects of larcenj-. The jury found the prisoner guilty of larceny ;
but judgment was postponed to ask the opinion of this court whether
the learned chairman's direction to the jury was right, and whether the
prisoner, under the facts stated, was properly convicted.
The case was not argued b3" counsel.
Lord Campbell, C. J., delivered the judgment of the court. After
reading the case, his Lordship said that thej' thought the direction of
the chairman was clearly wrong. Pigeons must, from the nature of
them, have free egress to the open air : and the question therefore was,
whether there could be a larcenj^ of tame pigeons. If not, neither
could there be larceny of chickens, ducks, or any poultry. "Whether
thej- were tame or not was a question for the jury. Luke's case (Rose.
Cr. Ev. 577) is said by Mr. Greaves i to have been determined on the
ground that the pigeons were reclaimed, not that they were shut up in
boxes. It had been mistakenly supposed that Baron Parke had
decided that pigeons were not the subjects of larceny unless strictly
confined ; there is no question that they are, even though they are
allowed the liberty of going to enjoy the air when they please.
Conviction affirmed.
1 The passage referred to is in 2 Russ. on Crimes, p. 83, as follows : " Where
pigeons were shut up in their boxes every night, and stolen out of such boxes during the
night, Parke, B., held it to be larceny." Upon which, in Mr. Greaves' edition, there
is the following note : " Luke's case, Rose. Cr. Evid. 577, and, ex relatione, Mr.
Granger. The case was determined on the ground that the pigeons were reclaimed ;
and not on the ground that they were shut up in their boxes at the time they were
taken." — Rbp.
SECT, I.] EEGINA V. WATTS. 489
REGINA V. WATTS.
, Ceown Case Reserved. 1854.
{Reported 6 Cox C. C. 304.]
The prisoner, William Mote Watts, was indicted at the Quartet
Sessions for the North Eiding of Yorkshire, on the 2d of June, 1853,
for stealing on the 3d day of May, 1853, a piece of paper, the property
of the prosecutor, Francis Patteson, and was convicted. The piece of
paper found to have been stolen had written upon it when taken by the
prisoner, as alleged in the indictment, an agreement between the prose-
cutor and the prisoner, signed by each of them. The agreement could
not be produced, but secondary evidence of it was received, from which
it appeared that the prisoner contracted thereby to build two cottages
for the prosecutor, for a sum specified, according to certain plans and
specifications, and the latter agreed to pay two instalments, being part
of the price agreed on, at certain stages of the works, and the remain-
der on completion ; and it was stipulated that any alterations that
might take place during the progress of the building should not affect
the contract, but should be decided upon by the employer and em-
ployed, previous to such alterations taking place. Under this instru-
ment the work was commenced and continued. At the time when it was
stolen by the prisoner, as alleged, the work was going on under it ;
nevertheless it was proved at the trial that when the agreement was
stolen the prisoner had been paid all the money which he was entitled to
under it, although there was money owing to him for extras and alter-
ations'. The agreement was unstamped. The counsel for the prisoner
objected at the close of the case for the prosecution, that from the
evidence it was clear that at the time the piece of paper referred to in the
indictment was taken by the prisoner, it was, in reaUty, a subsisting
and valid agreement, and therefore not the subject of larceny (as a
piece of paper only) at common law. The question for the opinion of
the court is, whether, under the circumstances above stated, the
prisoner could be lawfully convicted of feloniously stealing a piece of
paper, as charged in the indictment. No judgment was passed on the
prisoner, and he was discharged on recognizance of bail to appear and
receive judgment when required.
This case was before the court on the 12th November, 1853, and
was sent back to be restated, and an alteration was made in it to the
effect that the agreement was one which required a stamp.^
Lord Campbell. C. J. I am of opinion that this conviction is
wrong. I think that the prisoner could not, under the circumstances
stated, be indicted for stealing a piece of paper. If the agreement had
been stamped, it seems to be allowed, notwithstanding the ingenious
' The arffnments are omitted.
490 EEGINA V. WATTS. [CHAP. VIII.
argument of Mr. Price, that an indictment for stealing a piece of paper
could not be supported ; because then it would be what is commonly
called a chose in action, and by the common law larceny cannot be
committed of a chose in action. Strictlj- speaking, the instrument of
course is not a chose in action, but evidence of it, and tlie reason of
the common-law rule seems to be' that stealing the evidence of the right
does not interfere with the right itself ; jus non in tabulis ; the evidence
may be taken but the right still remains. At all events, whatever be
the reason of the rule, the common law is clear that for a chose in
action larceny cannot be supported ; and the legislature has repeatedly
recognized that rule by making special provision with regard to instru-
ments which are choses in action, and of which but for those enact-
ments larceny could not be committed. As to this not being a chose
in action, because all that was due had been paid upon it, it appears
that the agreement is still executory, and might be used by either side to
prove their rights. Then comes the objection as to its not being stamped ;
but though it is not stamped, I am of opinion that it is an agreement.
There is a very clear distinction between instruments which without a
stamp are wholly- void, and those which may be rendered available at
any moment by having a stamp impressed upon them. There are
many cases in which an unstamped agreement is considered evidence
of a right. "When the question arises at Nisi Prius, as soon as it
appears that the agreement was reduced into writing, parole evidence
is excluded, because the written instrument is the proper and only
evidence ; and Bradley v. Bardsley (14 M. & W. 873) is strong to
show that the court considers an unstamped agreement evidence of a
right. To an action on an agreement a plea that it was not stamped is
clearly bad, for the agreement ma}' be stamped even pending the trial,
and may then be given in evidence, as the stamping reflects back to the
period of the making of the instrument. I agree that we must look at
the state of the instrument at the time of the larceny committed ; but
it then had a potentialit}'^ of being rendered available, and it was
evidence of an agreement ; it was therefore evidence of a chose in
, action, and not the subject of larceny.
Pabke, B. I am of opinion that the conviction is right. There
is no doubt that at common law larcenj"^ cannot be committed of any
instrument which is the evidence of a chose in action ; but I think that
when this instrument was stolen it was not evidence of a chose in
action. Being unstamped, it was not available either in la^ or in
equity, and by the operation of the Stamp Act could not be used for
the purpose of showing a right. It was a piece of paper, and I differ
from Lord Campbell in thinking that the potentiality of converting a
chattel into evidence of a chose of action is sufficient to prevent it
from being the subject of larceny. Like the parchment on which a
deed is written, and which is nothing but a piece of parchment until
the instrument is perfected, this in its imperfect state was no evidence
of an agreement, but was a piece of paper only. Where a plaintifl' is
SECT. I.J EEGINA V. WATTS. 491
prevented from giving parole evidence of a written agreement, it is
because he had the power of giving better evidence of it by getting
the instrument stamped, and if he does not get it stamped, it is his own
fault. If the instrument is lost and he cannot get it stamped, then
still parole evidence of it is inadmissible. In the present case there-
fore, I think that that which was stolen was merely a piece of paper
capable of being converted, but not j-et actually converted into a valid
agreement, or the evidence of an agreement, and it is solely as evi-
dence of an agreement that the common law would prevent it from
being the subject of larceny.
Alderson, B. I agree with Lord Campbell that this was an agree-
ment at the time it was stolen. If the writing only becomes an agree-
ment at the time when it is stamped, how is it that you may declare
upon an unstamped agreement? If the agreement only dates from the
stamping, the cause of action does not arise until the time of stamping,
and, therefore, subsequently to the declaration. This seems to prove
that the thing has existence as an agreement, though without a stamp
it is not admissible in evidence. The reason why title-deeds and
chbses in action are not the subject of larceny, is because the parch-
ment is evidence of the title to land, and the written paper is evidence
of a right ; and, though the instrument is stolen, the right remains the
same. It has, however, no existence in point of law, as a piece of
paper or parchment merely, but is to be considered as part of the right
or title ; and the extent to which this is carried appears from the
passage in Lord Coke (3 Inst. 109), in which even the box containing
the charters is treated as part of the title also. The paper becomes
evidence of a right, and ceases to have anj' existence as anything
€lse.
Coleridge, J. I am of the same opinion with Lord Campbell and
my brother Alderson. It is admitted that if this agreement had been
stamped, it would not have supported a charge of stealing a piece of
paper, a higher character having been given it, and its character as a
piece of paper having been thereby absorbed ; and, though unstamped,
I think that is still the case. If the objection was taken at Nisi Prius,
the judge would look at the paper to see what its character was ; it
would then appear to have written on it an agreement ; and, but for
the Stamp Act, it would be the evidence and the only evidence of the
agreement ; and even, though rendered inadmissible by that Act, it has
the effect of excluding all parole evidence of that contract. It is true
that it is not in a condition in which it can be effectually sued upon ;
but it is capable of being rendered complete as evidence, by being
stamped ; and it would not acquire any new character by the stamp-
ing; it would still be the same evidence of a chose in action, rendered
admissible in evidence bj' reason of the stamp. As soon as the instru-
ment is signed it becomes an agreement, and it is onl}' because the
stamp laws interfere that it is prevented from being used in evidence.
The point is extremely subtle ; and one regrets that the fate of
492 EEGINA V. SHICKLE. [CHAP. VIII.
parties in a court of justice should depend upon distinctions so nice ;
but upon the best consideration which I can give to the case, it seems
to me that the conviction is wrong.
Maiile, J. I am of the same opinion. I think, indeed everybody
thinlis, that this is an unstamped agreement ; and if it is an agreement,
it is not the subject of larceny. "When one speaks of a piece of paper as
being an agreement, it means that the paper is evidence of the right ;
and as a right cannot be the subject of larceny, neither is the paper
which is evidence of it.
WiGHTMAN, J., and Ceesswell, J., concurred.
Plait, B. I, also, am of the same opinion. If an action were
brought upon this instrument, the declaration and all the pleadings
would describe It as an agreement ; and it becomes so, in my opinion,
as soon as it is signed by both parties, though not available in evi-
dence without the impression of a stamp. The mode of taking the
objection at Nisi Prius proves the same thing. The witness is asked
whether the agreement was not in writing ; and when he answers
" yes," and the instrument is produced, the judge looks at it, and
finding it to be an agreement (because upon no other ground could he
do so) , rejects it for want of a stamp. It would surely be strange to
hold that it was no agreement until it was stamped, when the necessity
for a stamp arises from its being an agreement. According to that
argument, if the instrument is stamped the prisoner must be acquitted ;
but if not stamped, convicted. But it seems to me that that would be
to bring a man within the reach of the criminal law by a side wind, and
a degree of subtlety consistent neither with law or justice.
Williams, J., and Martin, B., concurred.
Ckompton, J. I think there is sufficient proof that this was a sub-
sisting agreement ; and it wants stamping because it is an agreement.
Conviction reversed.
EEGINA V. SHICKLE.
Ckown Case Reserved. 1868.
[Reported L. R. 1 C. C. R. 158; 11 Cox C. C. 189.]
The following case was stated by Cockburn, C. J. : —
James Shickle was tried before me at the last assizes for the County
• of Suffolk on an indictment for larceny for stealing eleven tame
partridges.
There was no doubt that the prisoner had taken the birds animo
furandi, but a question arose whether the birds in question could be the
subject of larceny ; and the prisoner having been convicted, I reserved
the point for the consideration of the court.
SECT. I.j EEGINA V. SHICKLE. 493
The birds in question had been reared from eggs which had been
taken from the nest of a hen partridge, and which had been placed
under a common hen. They were about three weeks old, and could fly
a little. The hen had at first been kept under a coop in the prosecu-
tor's orchard, the young birds running in and out, as the brood of a
hen so confined are wont to do. The coop had however been removed
and the hen set at liberty, but the young birds still remained about the
place with the hen as her brood and slept under her wings at night.
It is well known that birds of a wild nature, reared under a common
hen, when in the course of nature they no longer require the protection
and assistance of the hen and leave her, betake themselves to the
woods or fields, and after a short time differ in no respect from birds
reared under a wild hen of their own species.
The birds in question were neither tame by nature nor reclaimed.
If they could be said to be tame at all it was only that their instinct
led them during their age of helplessness to remain with the hen. On
their attachment to the hen ceasing, the wild instincts of their nature
would return and would lead them to escape from the dominion and
neighborhood of man. On the other hand, from their instinctive at-
tachment to the hen that had reared them, and from their inability to
escape, they were practically in the power and dominion of the prose-
cutor. The question is whether, under the circumstances, there can be
such property in birds of this description as can be the subject-matter
of larceny.
Douglas, for the prisoner. These birds arefirce naturae, and unless
reclaimed are not the subject of larceny. The case finds that they
were not tame nor reclaimed ; that they were restrained by their in-
stinct only from betaking themselves to the woods or fields, not being
confined in any way. They could not therefore be the subject of
larceny.
No counsel appeared for the Crown.
BoviLL, C. J. I am of opinion that upon the facts stated, the ques-
tion asked of us must be answered in the aflSrmative, and that the
conviction is right. The case states- that " from their inability to es-
cape they were practically in the power and dominion of the prosecu-
tor." That is suflicient to decide the point. In Kegina v. Cory, 10 Cox
C. C. 23, the law on the subject is very clearlj' laid down by my brother
Channell. He there says, speaking of pheasants, hatched under cir-
cumstances similar to those here : " These pheasants, having been
hatched by hens and reared in a coop, were tame pheasants at the
time they were taken, whatever might be their destiny afterwards.
Being thus, the prosecutor had such a property in them that they would
become the subject of larceny, and the inquiry for stealing them
would be of precisely the same nattire as if the birds had been com-
mon fowls or any other poultrj', the character of the birds in no way
affecting the law of the case, but only the question of identity." In
that statement of the law we all concur. The question here is. Were
494 STATE V. TAYLOE. [CHAP. VIII.
these birds the subject of property? They were so when first hatched,
and they remained so at the time they were taken by the prisoner,
though it might be that at a later period they would become wild
and cease to have an owner. The prisoner therefore was rightly
convicted.
Chanotill, B., concurred.
Byles, J. I am of the same opinion. The usual cases of larceny
of animals are those of animals which being at first wild have become
tame and reclaimed. In this case the only difference is that the birds
here are tame and have been so from their birth, though they may be-
come wild at a future time.
Blackbubn and Lcsh, JJ., concurred.
Conviction affirmed}
STATE V. TAYLOR.
SuPKEME CouKT OP New Jersey. 1858.
[Reported 3 Dutcher, 117.]
Green, C. J.^ The indictment charges the defendant with stealing
" eighteen bushels of oysters, of the value of eighteen dollars, of the
goods and chattels of one George Hildreth." It is objected that 03'sters
being animals ferce naturae, there can be no property in them, unless
thej^ be dead or reclaimed, or tamed, or in the actual power or posses-
sion of the claimant ; and that the want of such averment is a fatal
defect in the indictment. 2 Bla. Com. 390, 392 ; Arch. C. P. 116 ; 3
Chitty's Cr. L., 947 ; Wharton's C. L. §§ 1754-55.
The principle, as applied to animais /erce naturm, is not questioned.
But oysters, though usually included in that description of animals,
do not come within the reason or operation of the rule. The owner
has the same absolute property in them that he has in inanimate things
or in domestic animals. Like domestic animals, they continue perpetu-
ally in his occupation, and will not stray from his house or person.
Unlike stmrnsls feroe natures, they do not require to be reclaimed and
made tame by art, industry, or education ; nor to be confined, in order
to be within the immediate power of the owner. If at liberty, thej-
have neither the inclination nor the power to escape. For the purposes
of the present inquiry, they are obviously more nearlj' assimilated to
tame animals than to wild ones, and, perhaps, more nearly to inanimate
objects than to animals of either description. The indictment could
not aver that the oysters were dead, for they would then be of no value ;
nor that they were reclaimed or tamed, for in this sense they were never
1 See also Begina v. Head, 1 F. & F. 350.
2 The opinion only is given ; it sufficiently states the case. Part of the opinion, not
involving any question of larceny, is omitted .
SECT. I.] STATE V. TAYLOR. 495
wild, aud were not capable of domestication ; nor that they were con-
fined, for that would be absurd. The only averment that could be
made is, that they had been gathered, or were in the actual possession
of the prosecutor, which certainly is not necessary in order to sustain
the indictment. Under our laws there may be property in 03'sters
growing naturally upon the land of another person, and which the
owner may have acquired by purchase. In regard to these, it would
not be averred that they had ever been gathered or been under the con-
trol of the owner or in his possession, actual or constructive, further than
inanimate objects are in the possession of the owner, upon the principle
that property in personal chattels draws after it the possession. The
indictment is not defective.
The more material question in the cause is whether, upon the case
stated, the oysters in question were the subject of larceny. Was the
law upon this point correctly stated in the charge to the jury? The
jury were instructed that if the same oysters which were planted by
Hildreth were unlawfully taken hy the defendant, with the intent to
steal them ; if the oysters so planted could be easily distinguished from
other oysters that grew in the sound ; if they were planted in a place
where oysters did not naturally grow ; if the place where they were
planted was marked and identified, so that the defendant and others
going into the sound for clams and oysters naturally growing there
could readily know that these oysters were planted and held as private
property, and were not natural oj'sters, or in or upon a natural oyster
bed, then the oysters were the subject of larceny, and the defendant
might be convicted. But if the jury believed that the oysters were
planted in or upon a natural bed, they should be considered as aban-
doned to the public, and not the property of Hildreth ; or, if the jury
believed that the planted oysters were not marked and identified, as
before stated, the defendant should be acquitted.
There is clearly nothing in the charge that conflicts with the well-
settled law of the State, as decided in Arnold v. Mundy, 1 Halst. 1,
namely, that arms of the, sea, including both the waters and the land
under the waters, for the purposes of navigation, fishing, and all other
uses of the water and its products are common to all the people of the
State. Nor is there anything in the charge in conflict with the princi-
ples which appear to have been adopted by the court in the earlier case
of Shepard and Layton v. Leverson, Penn. 391. The facts in evidence
clearlj' distinguish the present case from that of Shepard and Layton v.
Leverson. In that case it was not shown that the oysters taken bj^ the
defendant were the identical oysters planted by the plaintiff ; nor was
there any mode by which the oysters of the plaintiff" could be identified.
Neither of those difficulties exists in the present case.
The 03'sters in question had once been the property of Hildreth. The
onl}' question is, whether the planting of these oysters in a public
sound, where all the inhabitants have a common right of fishery, was
necessarily an abandonment., or a return of the property to the common
496 STATE V. TAYLOR. [CHAP. VIII.
Stock. There was clearly no intention on the part of the owner to
abandon his property ; on the contrarj', thej- were gathered and planted
expressly for the benefit of the owner. If an abandonment is to be
presumed, it will be a legal intendment directly against the truth of the
case. The casting of propert}' into the sea, with the intention of re-
claiming it, is not an abandonment. " He," says Domat, " who finds
a thing that is abandoned, that is, of which he who was master of it,
quits and relinquishes the possession and property, not being willing
to keep it any longer, becomes master of it." Domat's Civ. L., part 1,
b. 3, title 7, §§ 2, 9 (Am. ed. 1850, § 2154) ; 2 Bla. Com. 9, 402.
It was held by the Chief Justice, in the case of Shepard and Layton
v. Leverson, that the mere act of throwing the oysters into a public
river, where all the inhabitants have a common right of fishery, was of
itself an abandonment in law, on the ground that, where the subject is
put without the power of the owner, where it is thrown into the com^
mon stock, from which it cannot be distinguished, there can be no
question of intent. It was held analogous to the case of a deer taken
in a forest, and turned loose again. But it was admitted that where
the act relied on as an abandonment is in itself equivocal, and where
the identical property may be- known and resumed at pleasure, then the
intention may be made a question. Now this case finds that the oysters
in question could Teadil3' be identified ; that no oysters grew naturally
where they were planted, and that the spot where they were planted
was designated. The subject of the property, having itself no power
of locomotion, and being planted where no other oysters naturally
grew, it was not (as in the case of the deer in a forest) put without the
power of the owner, nor thrown into the common stock, from which it
could not be distinguished.
In Fleet u. Hegeman, 14 Wend. 42, it was held by the Supreme
Court of New York that oj'sters planted by an individual in a bed
clearlj' designated in a baj' or arm of the sea, which is a common
fishery, are the property of him who planted them, and that, for taking
them away by another, trespass lies. This case was approved in Decker
I). Fisher, 4 Barb. 592, and its authority recognized in the more recent
case of Brinckerhoff v. Starkins, 11 Barb. 248 ; Angell on Tide "Waters,
139. These authorities clearly sustain the instruction given to the jury
in the present case.
SECT. I.] COMMONWEALTH V. SHAW. 497
COMMONWEALTH v. SHAW.
ScpREME Judicial Court of Massachusetts. 1862.
[Reported 4 Allen, 308.]
Indictment for larceny of several hundred " cubic feet of illuminat-
ing gas, each cubic foot being of the value of three mills, of the
propert}', goods, and chattels of the Boston Gas Light Companj-."
At the trial in the Superior Court, before Wilkinson, J., it appeared
that the defendant occupied a house in Ashland Street in the city of
Boston, and that a service pipe of the Boston Gas Light Company led
from their main pipe in that street to within a short distance of a gas
meter owned by them and placed under the front steps outside of the
wall of the house, but upon the premises occupied by her, and the de-
fendant made the usual connection from the service pipe with the inside
supply pipe bj' short pieces of lead pipe belonging to her, through which
the company had supplied her with gas ; but, upon non-payment of the
gas rates, the company removed the meter and shut off the gas by
closing a stopcock in the service pipe, upon the premises occupied by
her, and gave her notice thereof; after which she, without the consent
or knowledge of the company, and to avoid paying for the gas, made a
connection by means of lead pipe between the service pipe and the pipe
inside of the house, and turned the cock in the service pipe, and received
and consumed gas belonging to the company. There was no question
that the company was legally incorporated.
The defendant requested the court to instruct the jury that no con-
viction could be had under this evidence ; but the judge instructed the
jury that, if they were satisfied that the defendant took the gas with a
felonious intent, she was guilty of larcenj'. The jury returned a verdict
of guilty, and the defendant alleged exceptions to this ruling, as well as
to an order of the judge overruling a motion in arrest of judgment on
the ground that the indictment was insufficient in law. '
J. F. Pickering, for the defendant.
G. P. Sanger (district attorney), for the Commonwealth.
BiGELOW, C. J. We cannot doubt that the instructions given to the
jury in this case were right. There is nothing in the nature of gas used
for illuminating purposes which renders it incapable of being feloniously
taken and carried away. It is a valuable article of merchandise, bought
and sold like other personal propert}', susceptible of being severed from
a mass or larger quantity, and of being transported from place to place.
In the present case it appears that it was the property of the Boston
Gas Light Company ; that it was in their possession by being confined
in conduits and tubes, which belonged to them, and that the defendant
severed a portion of that which was in a pipe of the company by taking
it into her house and there consuming it. All this, being proved to
have been done bj^ her secretly, and with an intent to deprive the com-
498 MDLLALY V. PEOPLE. [CHAP. VIII.
pany of their property, and to appropriate it to her own use, clearly
constituted the crime of larceny.
It was suggested by the counsel for the defendant that, if she was
guilty of any offence, it was not larceny, but embezzlement, inasmuch
as it appeared that the gas was intrusted to her possession by the com-
pany, and that at the time of the alleged felonious taking she was the
bailee thereof But the facts proved entirely negative the existence oi
any such relation between her and the company. The gas was not in
her possession. On the contrary, the pipe had been severed from the
meter hy closing a stopcock in the service pipe, which belonged to the
company, for the very purpose of preventing her obtaining possession
of it. The fact that the end of the pipe was on the premises occupied
by her is wholly immaterial. It was not placed there to be in her cus-
tody or control, and she had no possession of it or its contents. The
facts proved at the trial are similar to those which were shown to exist
in the case of Regina v. White, 6 Cox C. C. 213, in which a conviction
of the defendant for the larceny of gas was affirmed by the court of
criminal appeal. That case, however, was not so strong against the
defendant as the present one, because it there appeared that the owners
of the gas had not caused it to be shut off from the premises of the
defendant, to prevent him from making use of it.
As it is admitted that the acts charged on the defendant were com-
mitted prior to the time when St. 1861, c. 168, took effect, its provisions
can in no way affect the present case.^
MccepHons overruled.
MULLALY V. PEOPLE.
CouET OF Appeals of New York. 1881.
[Reported 86 New York, 365.]
Error to the General Term of the Supreme Court, in the first judi-
cial department, entered upon an order made May 20, 1881, which
affirmed a judgment of the Court of General Sessions in and for the
county of New York, entered upon a verdict convicting the plaintiff in
error of the crime of petit larceny in stealing a dog.°
Earl, J. The prisoner was convicted of stealing a dog of less value
than $25. His counsel contended at the trial and has argued before us
that stealing a dog is not larceny, and whether it is or not is the sole
question for our present determination.
The learned opinion pronounced at the general term leaves but little
to be written now. At common law the crime of larceny could not be
committed by feloniously taking and carrying away a dog. Wharton's
1 See Ferens v. O'Brien, U Q. B. D. 21 (larceny of water). — Ed.
^ Arguments of counsel are omitted.
SECT. I.] MULLALY V. PEOPLE. 499
Cr. Law (4th ed.), § 1755; 4 Black. Com. 235; 1 Hale's Pleas of the
Crown, 510; Coke's Third Inst. 109. And yet dogs were so far re-
garded as property that an action of trover could be brought for their
conversion, and they would pass as assets to the executor or adminis-
trator of a deceased owner. Bacon's Abr., Trover, D. ; 1 Wms. on
Ex'rs (6th Am. ed.), 775.
The reason generally assigned by common-law writers for this rule as
to stealing dogs is the baseness of their nature, and the fact that they
were kept for the mere whim and pleasure of their owners. When we
call to mind the small spaniel that saved the life of William of Orange,
and thus probably changed the current of modern history (2 Motley's
Dutch Republic, 398), and the faithful St. Bernards, which after a
storm has swept over the crests and sides of the Alps start out in search
of lost travellers, the claim that the nature of a dog is essentially base,
and that he should be left a prey to every vagabond who chooses to steal
him, will not now receive ready assent.
In nearl}' every household in the land can be found chattels kept for
the mere whim and pleasure of the owner, a source of solace after
serious labor, exercising a refining and elevating influence, and yet they
are as much under the protection of the law as chattels purely useful
and absolutely essential.
This common-law rule was extremely technical, and can scarcely be
said to have had a sound basis to rest on. While it was not larceny to
steal a dog, it was larceny to steal the skin of a dead dog, and to steal
many animals of less account than dogs. Lord Coke, in his Institutes,
cited above, said : "Of some things that he ferce naticrce, heing re-
claimed, felony may be committed in respect of their noble and generous
nature and courage, serving ob vitce solatium of princes and of noble
and generous persons to make them fitter for great emploj'ments, as all
kinds of falcons and other hawks, if the party that steals them know
they be reclaimed."
In the reign of William I. it was made grand larceny to steal a
chattel valued at twelve pence or upwards, and gran,d larceny was pun-
ishable by death, and one reason hinted at by Lord Coke for holding
that it was not larceny to steal dogs was that it was not fit that " a per-
son should die for them ; " and j-et those ancient law-givers thought it
not unfit that a person should die for stealing a tame hawk or falcon.
The artificial reasoning upon which these rules were based is wholh'
inapplicable to modern society. Tempora mutantur et leges mutan-
tur in illis. Large amounts of monej' are now invested in dogs, and
they are largely the subjects of trade and traflSc. In manj- ways they
are put to useful service, and so far as pertains to their ownership
as personal property, they possess all the attributes of other personal
property.
If the common-law rule referred to ever prevailed in this State, we
have no doubt it has been changed by legislation. It is provided in
2 E. S. 690, § 1, that everj^ person who shall be convicted of stealing
500 MULLALY V. PEOPLE. [CHAP. VIII.
"the personal property" of another, of the value of $25 or under,
.shall be adjudged guilty of petit larceny ; and then, on page 703, § 33,
" personal property," as used in that chapter, is defined to mean
" goods, chattels, effects, evidences of rights of action," and certain
written instruments. This definition of personal property is certainly
comprehensive enough to include dogs. We think it was intended to
be talcen literally, and that the law-makers meant to make it the crime
of larcenj- to steal any chattel which had value and was recognized by
the law as property. In a note to § 33 (3 R. S. 837), the revisers
saj' that " this broad and comprehensive definition is given to prevent
the enumeration of each particular instrument or article that may be
the subject of larceny, robbery, embezzlement, or obtaining property
under false pretences. The ancient idea that rights in action were not
subjects of larceny has been gradually yielding to the extension of
commerce, the increase of business, and the necessities of mankind,
until at last we have begun to believe that anything which can be
stolen, and which is of value to the owner, should be protected bj' the
law." At the same time a system for the taxation of dogs was enacted
(1 E. S. 704), and it can scarcely be supposed that the legislature meant
to regard dogs as property for the purpose of taxation and yet leave
them without protection against thieves.
The definition of personal property found in the statute is not to be
referred to the common law, but to the common understanding of the
time when the statute was enacted.
In view, therefore, of all the circumstances to which we have alluded,
and for all the reasons stated, we are of opinion that the law-rmakers
intended, by the legislation contained in the Eevised Statutes, to change
the common-law rule as to stealing dogs, if it was before recognized as
having force in this State ; and to this effect are the onlj- judicial de-
cisions upon this subject which have been rendered in this State, so far
as they have come to our knowledge. People v. Maloney, 1 Park. Cr.
593 ; People v. Campbell, 4 id. 386 ; see, also. People ex rel. Longwell
V. McMaster, 10 Abb. (N. S.) 132.
Our attention has been called bj- the counsel for the prisoner to cer-
tain decisions in other States, which tend to sustain his contention.
Findlay v. Bear, 8 Serg. & Rawle, 571 ; State of Ohio v. Lymus, 26
Ohio St. 400 ; State v. Holder, 81 N. C. 527 ; Ward v. State, 48 Ala.
161. But so far as those cases announce views in conflict with those
above expressed, we are not disposed to follow them.
We conclude, therefore, that the conviction was right, and should be
affirmed.
All concur, except Folger, C. J., dissenting, holding that the com-
mon law does not recognize a dog as the subject of larceny, and that
the Revised Statutes, in its definition of the subjects of larceny, do not
include that animal. Judgment affirmed.^
1 Ace. Haywood v. State, 41 Ark. 479. See Hurley v. State, 30 Tex. App
333. — Ed.
SECT. I.j KEGINA V. MORRISON. 501
REGINA V. MORRISON.
Crown Cask Reserved. 1859.
[Reported Bell C. C. 158.]
Ckompton, J. We are of opinion that this conviction is right, and
ought to be affirmed. The question is whether a pawnbroker's tieljet,
in the usual form, is the subject of larceny', and is properly described
either as a warrant for the delivery of goods, a pawnbrolser's ticliet, or
a piece of paper. We think that the instrument in question is a
" warrant for the delivery of goods" within the meaning of the 7 & 8
Geo. 4, c. 29, s. 5, and that the stealing of such a document is an
offence subjecting the offender to the same punishment as if he had
stolen chattels of the like value as the value of the goods mentioned in
the document. . . -^ But, supposing such a ticket not to be a warrant
for the deliver}' of goods within the provisions of that statute, we are
of opinion, on the other point in the case, that the conviction was right
as for stealing a pawnbroker's ticket or piece of paper. It clearly is so
unless it fall within the rule of the common law by which certain docu-
ments of title, and certain documents concerning mere choses in action,
were not the subjects of larceny. We are not at liberty to infringe
a rule so long settled, and which has been acted upon until the present
time, but we should be very reluctant to extend such a rule, and we
ought to be careful not to apply it to cases to which the authorities do
not clearly shew it to be applicable. The state of the law in this re-
spect was well remarked upon a hundred years ago bj- counsel — ■
Strange, 1135, Rex v. Westbeer. He says, " If I steal a skin of parch-
ment worth a shilling, it is a felony, but when it has 10,000^. added to
its value bj- what is written upon it, it is no offence to take it away ; "
and he proceeds to say, " The use to he made of this observation is,
that so far as the law is settled, it is not to be altered ; but if it does
not exempt this particular case, there is no reason to exclude it; " and
in this remark we fully concur. Documents of title to real property are
not the subject of larceny, but we find no rule extending such doctrine
to documents and tokens shewing a right to personal property ; and
the vray in which the rule is enunciated as to real property seems to
shew that it does not apply to documents relating to personalty.
Again, if it is a document relating to, or concerning a mere chose in
action, as a bond, bill, or note, that is, as I understand it, a matter
resting in contract, and giving a right by way of contract only, it is not
the subject of larceny. In the Queen v. Watts, Dears. C. C. R. 326,
Alderson, B., asks, " Is not the reason why a chose in action is not the
subject of larcen}' this, because it is evidence of a right, and that you
cannot steal a man's i-ight"? And Maule, J., page 335, observes:
' The discussion on this point is omitted. — Ed.
502 EEGINA V. MORRISON. [CHAP. VIII.
" When one speaks of a piece of paper as being an agreement, it means
that the paper is evidence of a right, and, as a right cannot be the
subject of larcen}', neither is the papei-, which is evidence of it."
"Where, however, the thing represented by the paper is not a mere
right of contract or chose in action, but is a personal chattel, to the
property' and right of possession of which the party has a right to treat
himself as entitled, the rule does not seem to apply. The thing to
which the document has reference is personal property which may be
stolen ; and the words in which the rule is enunciated appear to us
to treat such documents as not within the exception. The rule will
be found laid down in the same, or nearly the same, words from the
earliest time ; see Koscoe's Criminal Law, by Power, 612, and the
authorities there cited. This rule is stated to be "that bonds, bills,
and notes, which concern mere choses in action, were held at common
law not to be such goods whereof felonj- might be committed, being of
no intrinsic value, and not importing an3- property in possession of the
party from whom they are taken." This clearly excludes from the rule
documents of title importing property in possession of the party, and,
remembering the former part of the rule, as to documents of title, so
carefully confined to realty, we think that such documents of title to
personaltj' cannot be considered within the rule. If it is a mere
agreement to deliver property, not the party's own, or not specific, it
would, we think, be within the rule. It would rest in agreement,
would confer a right of action only, and would be in every respect a
chose in action. But we look at the pawnbroker's ticket as importing a
property in possession. We had some doubt at first whether the
partj' could be said to have the right to the property in possession
according to the meaning of the rule ; but it is quite clear that the
possession of the bailee, or pawnee, is the possession of the bailor or
pawnor for the purpose of an indictment, and he has a right to lay the
goods pawned or bailed as his goods, that is, as goods his property and
in his possession : goods pawned, and the like, may be laid to be the
goods and chattels of the person to whom they are so entrusted, or of
the owner, at the option of the prosecutors; see Jervis Archbold, bj-
Welsby, 14th edition, 34, where the authorities on this subject are col-
lected. We think, therefore, that we should be extending the rule
further than we are warranted by an}' authority in doing if we were
to hold that it extended further than to cases where the document
concerns choses in action merely, and is only an agreement to deliver
personal property, not the party's own ; and we think that in the
present case the document relates to personal propert}- to which the
party is entitled, and that he is not the less entitled to the possession
because there is a lien, which there is in so many eases of bailment,
where such lien does not interfere with the right of property or posses-
sion as far as concerns indictments. It should be observed that this
construction by no means makes the provisions of the 7 & 8 Geo. 4
useless, as that statute has the effect of makhig the stealing, which
SECT. I.] EEGINA V. MORRISON. 503
might otherwise be the stealing of a chattel of extremely small value,
a stealing of a chattel of the like value as the value of the goods men-
tioned in the document; and as there maj' be cases of orders for the
deliver}' of goods which import no propertj' in any specific goods,
and where the rights of the holder may only depend on a contract
to deliver some goods, so that the document is in effect the evidence
of a mere chose in action, and would not be the subject of larceny
if not within the provisions of the statute. We should add that it
would be very diflQcult to hold the present ticket not to be the subject
of larceny without overruling the case of Eegina v. Boulton, 1 Den. C.
C. R. 508, a decision in this court binding upon us. It was there held
that a railway ticket in the usual form was a chattel, and the subject of
an indictment for obtaining goods under false pretences. That, like
the ticket in the present case, was in the nature of a token, and it evi-
denced the' right of being carried on the railway without further
charge, and it was more in the nature of a mere agreement and
of a document concerning a mere chose in action than the present,
where it imported a right to personal property. The court held it,
however, to be a chattel, valuable as conferring the privilege of travel-
ling without further payment. If the ticket in the present case be the
subject of larceny, and not within the exception referred to, the
description of a "pawnbroker's ticket," or of a " piece of paper," is
clearlj' sufficient. For these reasons we think that the conviction is
right, and that it ought to be affirmed. Conviction Affirmed,
504 EEX V. WALSH. [chap. VIII.
-^ SECTION II.
Possession.
(o) The Act of Assuming Possession.
EEX V. WALSH.
Ckown Case Reserved. 1824.
[Reported 1 Moody C. C. 14.]
The prisoner was tried before Tliomas Denman, Esquire, Common
Serjeant, at the Old Bailey Sessions, January, 1824, on an indictment
for stealing a leathern bag containing small parcels, the property of
William Ray, the guard to the Exeter mail.
At the trial it appeared that the bag was placed in the front boot,
and the prisoner, sitting on the box, took hold of the upper end of the
bag, and lifted it up from the bottom of the boot on which it rested.
He handed the upper part of the bag to a person who stood beside
the wheel on the pavement, and both had hold of it together, endeavor-
ing to pull it out of the boot, with a common intent to steal it. Before
they were able to obtain complete _possession_of_the bag, and wEUe
t h€T-TrerB'"S5'^nga^criirtry ing to draw it out, they were Tnterrupted by
the guard anddroppedlihe bag.
The .prisoner was found guilt}^ but the facts above stated were spe-
ciall}' found by the jury, in answer to questions put to them by the
Common Serjeant.
The Common Serjeant entertaining some doubts whether the prisoner
could be trulj' said to have " stolen, taken, and carried away" the bag,
he respited the judgment, in order that the opinion of the judges might
be taken on the case.
In Easter term, 1824, the judges met and considered this case.
They held the conviction right, being of opioion^Jhat- there was a
cotapisie aspartiXfion' oi the bag.^
1 Ace. Rex V. Lapier, 2 East P. C. 557 ; Harrison v. People, 50 N. Y. 518 ; State v.
Jones, 65 N. C. 395 ; State v. Craige, 89 N. C. 475 ; Eckels v. State, 20 Ohio St. 508 ;
State V. Chambers, 22 W. Va. 779. —Ed.
SECT. II. J' EEGINA V. WHITE. 505
EEGINA V. WHITE.
Ckown Case Reserved. 1853.
{Reported 6 Cox C. C. 213 ; Dearsley C. C. 203.]
The prisoner was indicted at the last Quarter Sessions for Berwick-
upon-Tweed for stealing 5000 cubic feet of carburetted hydrogen gas of
the goods, chattels, and property of Robert Oswald and others. Mr.
Oswald was a partner in the Berwick Gas Company, and the prisoner,
a householder in Berwick, had contracted with the company for the
supplj^ of his house with gas to be paid for by meter. The meter,
which was hired by the prisoner of the companj-, was connected with
an entrange pipe, through which it received the gas from the companj''s
main in the street, and an exit pipe through which the gas was con-
veyed to the burners. The prisoner had the control of the stopcock at
the meter, by which the gas was admitted into it through the entrance
pipe, and he only paid the company and had only to pay them for such
quantity of gas as appeared by the index of the meter to have passed
through it. The entrance and exit pipes were the propertj' of the
prisoner. The prisoner, to avoid paying for the full quantitj- of gas
consumed, and without the consent or knowledge of the company, had
caused to be. inserted a connecting pipe with a stopcock upon it into
the . entrance and exit pipes and extending between them ; and tlie
entrance pipe being charged with the gas of the company, he shut the
stop-cock at the meter so that gas could not pass into it, and opened
the stop-cock in the connecting pipe, when a portion of the gas as-
cended through the connecting pipe into the exit pipe and from thence
to the burners and was consumed there, and the gas continued so to
ascend and be consumed until by shutting the stop-cock in the con-
necting pipe the supply was cut off. This operation was proved to
have taken place at the time specified by the prosecutor. It was con-\
tended for the prisoner that the entrance pipe into which the gas
passed from the main being the property of the prisoner, he was in
lawful possession of the gas by the consent of the company as soon as
it had been let into his entrance pipe out of their main, and that his
diverting the gas in its course to the meter was not an act of larceny. I
I told the jury that if they were of opinion on the evidence that the
entrance pipe was used b}- the company for the conveyance of the gas
hy the permission of the prisoner, but that he had not by his contract
any interest in the gas or right of control over it until it passed through
the meter, his property in the pipe was no answer to the charge ; that
there was nothing in the nature of gas to prevent its being the subject
of larceny ; and that the stopcock on the connecting pipe being opened
by the prisoner, and a portion of the gas being propelled through it by
the necessary action of the atmosphere and consumed at the burners,
there was a sufficient severance of that portion from the volume of gas
606 EEGINA V. WHITE. [CHAP. VIII.
in the entrance pipe to constitute an asportauit \>y the prisoner ; and
that if the gas was so abstracted with a Trauduleut intent he was guilty
of larceny. The jury answered the questions put to them in the aflBr-
mative and found the prisoner guilty ; I postponed judgment, taking
recognizance of bail according to the statute for the appearance of the
prisoner at the next Sessions to receive judgment if this court should
be of opinion that he was rightly convicted.
JBallantine for the prisoner. The prisoner was not guilty of larceny.
He received the gas with the full consent of the company, and the
evidence only shows that he did not account with the company accord-
ing to his contract. The prisoner was guilty of fraud in evading the
accounting b}' the meter, but his conduct was not felonious.
1 Lord Campbell, C. J. He took the gas from the company against
fheir will instead of receiving it properly and accounting for it.
Ballantine. The Gas Works Clauses Act, 10 Vict. c. 15, § 18, pro-
vides a specific penalty for this very offence, which would hardly have
been done if it had been regarded as a larceny.
Maule, J. That clause may be intended to provide against frauds
of a different kind, such as damaging the machinery or altering the in-
dex of the meter, which would not be larceny.
Lord Campbell, C. J. Is not this a taking invito domino ?
Ballantine. The delivery of the gas is voluntary and the possession
was not obtained by fraud.
Maule, J. The taking was by turning the gas into a new channel
without the leave of the company and that was done with intent to
defraud.
Ballantine. There was no trespass.
Maule, J. If this gas when taken was in the lawful possession of
the prisoner and he was only guilty of a breach of contract in not
accounting, you must say the same of the surreptitious introduction of
new burners.
Ballantine. An evasion of the meter and an interference with it
stand on the same ground. The meter is onlj' the voucher of an ac-
count, and if there is a deliverj' according to contract on the one hand
and only a fraudulent dealing with a voucher on the other, there is no
larceny.
Lord Campbell, C. J. I think that the conviction ought to be
affirmed and that the direction of the learned recorder was most accu-
rate. Gas is not less a subject of larceny than wine or oil ; but is there
here a felonious asportation ? No one who looks at the facts can doubt
it. The gas no doubt is supplied to a vessel which is the pvopert}- of
the prisoner, but the gas was still in the possession of the company.
Then, being in the possession of the company and their property, it is
taken away animo furandi by the prisoner. If the property remains
in the company_uiitii-it-li-as'^ passed the meter, —lvlii5iris~Toirti(J,^ to
takeilrbefore it has passed the- meter constitutes -aii^^^asjjortation. If
th^ asportation was with a fraudulent-intent ^— and^ this the jury also
SECT. II.] COMMONWEALTH V. BAKKY. 507
have found — it was larceny. As to the Act of Pailiament the legis-
latwre has for convSlrience sake added a specific penalty, but that can-
not reduce the offence to a lower degree. My brother Maule has,
however, given a probable explanation of that provision.
Parke, B., Maule, J., Talfourd, J., and Martin, B., concurred.
Conviction affirmed.
COMMONWEALTH v. BARRY.
Supreme Judicial Court of Massachusetts. 1878.
[Reported 125 Massachusetts, 390.]
Indictment for larceny of a trunk and its contents.
At the trial in the Superior Court, before Dewey, J., it was proved
that one Kerr, a travelling salesman from New York, had caused the
trunk in question to be checked at the Union Station in Worcester, for
Hartford, Connecticut, at about half-past four in the afternoon of Ma}^
11, and had himself taken a train leaving at that' time ; but, as there
was not time to load the trunk, it was retained in the baggage room at
Worcester until the departure of the express train leaving Worcester
for Hartford at half-past ten at night, when it was put upon the cars,
and arrived at New York early on the morning of May 12, with a New
York check upon it ; that one Briggs arrived in New York on the
same train, and with a check corresponding with the check on the
trunk, obtained the trunk and took it to a hotel ; that the trunk was
subsequently sent by him to Baltimore, where it was afterwards found
by its owner, rifled of its contents ; and that Briggs was convicted in
New York of the larceny of the trunk and its contents, and was
sentenced to the state prison.
There was also evidence tending to show that Briggs, in company
with the defendant, was at the Union Station in Worcester on the
afternoon and evening of May 11 ; that Briggs caused a valise to be
checked for New York, which was placed by the baggage master on
the trunk in question ; that the defendant, according to a preconcerted ^
plan between him and Briggs, got over the counter at the window of
the baggage room where baggage is checked, without permission, and
asked the baggage master to permit him to place a package in the
valise, showing a check for the same ; that he was permitted to do
this, and, while he was at the valise and trunk, Briggs called the
attention of the baggage master to the window by a question, and the
defendant changed the checks on the valise and trunk, and at once
left the baggage room through a regular exit. This was all the evi-
dence as to what the defendant did to the trunk at the station.
The defendant requested the judge to give the following instructions :
« 1. On the whole evidence, the jury would not be warranted in finding
508 COMMONWEALTH V. BARRY. [CHAP. VIII.
the defendant guilty. 2. If the jury find that all that the defendant
did was, according to a preconcerted plan with some person, to change
the checks on the trunk and valise, and that the asportation of the
trunk and its contents was done by some other person, they cannot
convict of larcenj". 3. There is no evidence in the case to warrant the
jury in finding that the defendant did anything more than to change the
checks on the trunk and valise, having previously arranged with some
other person so to do. 4. If the jury find that the defendant arranged
with Briggs that the former should change the checks on the trunk and
valise, and he did so change the checks, and if, in pursuance of the
plan, Briggs accompanied the trunk on the same train to New York
and there received the trunk from the railroad cojnpany and rifled it of
its contents, and there is no evidence which satisfies the jury that the
defendant was present with Briggs in New York, and with him re-
ceived the trunk, they cannot convict."
The judge refused to give these instructions ; but instructed the jury
that it was necessary and was sufficient, in order to convict the de-
,fendant, that thej' should be satisfied beyond a reasonable doubt
/"that the defendant, at the railroad station in "Worcester, fraudulently
and feloniously took the trunk into his temporar^_possession and con-
trol, and while so havThg^it fraudulently, with ^^ intent to'coLitinue to
have said. trjink under his cgntrolj_aB.iappropriate jt td~his Ownjise or
the use of himself-aa4''Cbnfederate, fraudulently and feloniously took
off the Hartford check from the same, which the railroad company had
placed on it, the owner having a corresponding check, and placed
thereon a check of the company for New York, whereof he held
a corresponding check which would entitle him to have the trunk
transported to New York, and to receive the trunk in New York of
the company on its arrival there, and the trunk was carried to New
York as the trunk of the defendant, or of which he was entitled to
the possession and control, and, by reason of the changed check there-
on, the trunk with its contents were, on its arrival at New York,
delivered to the defendant or to some person for him."
The jury returned a verdict of guilty ; and the defendant alleged
exceptions. ,;^ -^"i
W. S. B. Hopkins, for the defendant.
0. £. Train, Attorney General, for the Commonwealth.
Lord, J. "We do not understand that the presiding justice intended,
by the language used, to instruct the jury that the temporary pos-
session referred to in the instructions was, in itself, an asportation.
It does not appear that the question whether there was an asportation at
or before the changing of the checks was raised at the trial, or that the
attention of the court was called to that subject. An asportation at
that precise time was unimportant. The real question was, whether
the defendant then, feloniously and with intent to steal, set in motion
an innocent agency, by which the trunk and contents were to be
removed from the possession of the true owner, and put into the
SECT II.] COMMONWEALTH V. BARKY. 509
defendant's possession, and by means of such agency effected the
purpose ; and the temporary possession and control, to which the
court referred, must be understood to mean such possession and con-
trol as enabled the defendant to execute the device by which, through
such innocent instrumentality, he should become possessed of the
property.
There was evidence tending to show that the defendant and Briggs
were acting in pursuance of a common purpose, and that the acts of
each were the acts of both ; and, inasmuch as no question was raised
upon this subject, it is taken to be true that what one did was the act
of both, and that the subsequent actual possession of the trunk by
Briggs was the possession of the defendant. It will be seen, thei'efore,
that, by the instructions of the presiding judge, the jury were author-
ized to find the defendant guilty of larcenj', if, in the mode stated,- he
or his confederate in action obtained possession of the trunk and its
contents.
This, as we understand, has been the law from the earliest period :
*' There is no occasion that the carrj-ing away be bj- the hand of the
party accused, for if he procured an innocent agent to take the
property," by means of which he became possessed of it, " he will
himself be a principal offender." 3 Chit. Crim. Law, 925. It is held
to be a larceny " if a person, intending to steal vay horse, take out a
replevin, and thereby have the horse delivered to him by the sheriff ;
or if one intending to rifle my goods get possession from the sheriff,
b}' virtue of a judgment obtained without any the least color or title,
upon false affidavits, &c. ; in which cases, the making use of legal pro-
cess is so far from extenuating that it highl}- aggravates the offence,
by the abuse put on the law in making it serve the purposes of op-
pression and injustice." 1 Hawk. C. 33, § 12. 1 Hale P. C. 507.
Chissers' case, T. Raym. 275. Wilkins' case, cited in 1 Hawk. c. 33,
§ 22 ; s. c. 1 Leach (4th ed.) 520. j^tjvilljhus_be_ seen tiiat_an_as£or-
tajj^r>p may bfi effected hy means of innocent human-agency, as well as
byajoechanical agency, dFBjrttTe^nflgndeFs own hand.
Th^^cSSE^-as^btrerrTrrgtrSFrSs" if it was intended by the presiding
justice to rule that the jury must find that, at the instant of the
exchange of the checks, there was such an actual manual change in Ihe
possession as of itself to be an asportation. We do not so understand
the instruction. An asportation at that time was unimportant. The
real question was, whether the defendant at that time feloniously and
with intent to steal, set in motion an innocent agency, by which the
trunk and contents were to lie removed from the possession of the
true owner, and put into the defendant's possession, and whether such
purpose was actually accomplished. Ifr^bel0re-^:lre" trunk "hud .been
started, theschejae^had-been -datficted, the^ofFence_,of. the defendant
TOiIIcr'E^^eSgga. an uittempt .to caromiiL^arceny, and doing an act
towardTthe commission of it, but failing in Ihe perpetration ; _but, as
soon as the asportation was complete, for however short a distance,
■ '- ^ 46'^ ■' ■'—
filO EDMONDS V. STATE. [CHAP. VIII.
the offence of larceny was committedi,^ such asportation having been
catrseet-byHiirDTiSj^ fraudulent means, and through an innocent agent,
unconscious of what, in fact, he was doing. As soon as the trunlc was
placed on board the cars, checked, with the corresponding check in the
possession of the defendant or his confederate, the trunk and its
contents were in the possession and control of the defendant or his con-
federate, and it is immaterial of which. Nor is the time when the
actual manual possession came into the hands of the parties important,
thej' having all the time the constructive possession and the real con-
trol of it.
The instructions prayed for by the defendant's counsel were properly
refused, because they wholly omitted all reference to the purpose and
intent of the defendant in what he did, and all reference to the fact
that the defendant was an accomplice of Briggs, or that the actual sub-
sequent possession by Briggs was, or might be, the possession of the
defendant. The request to instruct the jury that, upon the whole evi-
dence, they would not be warranted in finding the defendant guilty^
was also properly refused. JEJxceptions overruled.
EDMONDS V. STATE.
Supreme Court of Alabama. 188L
[Beported 70 Alabama, 8.]
SoMERviLLE, J. The indictment in this case charges the defendant
with the larceny of a hog, which, under the statute, is made a felony,
without reference to the value of the animal stoleir. Code, 1876, § 4358.
The only evidence in the case, showing any caption, or asportation of the
animal, was the testimony of an accomplice, one Wadworth, who made
the following statement : "That shortly after dark, on the 18th of Febru-
ary last, witness met defendant near the horse-lot, on the plantation
of one Ilges ; that the two went together to witness' house, where the
latter procured an axe, and they then returned to the lot. Witness
then got some corn, and after giving defendant the axe, by dropping
some of the corn on the ground_.tolled the hog to the distance of about
twenty yards ; that the defendant "theiL^trttefc-ttte^BOg^with-the-axe,
and-tbe-liog Squealed, whereupon immediately both witness and defen-
dant ran away, leaving the hog where it was." Upon this state of
facts, the court charged the jury that if they believed the evidence, it
was sufHcient to show such a taking and carrying away of the property,
if done feloniously, as was necessary to make out the offence of larcen}-.
We think the court erred in giving this charge, though the question
presented is not free from some degree of doubt and difficulty. The
usual definition of larceny is, " the felonious taking and carrying away
SECT. II.J EDMONDS V. STATE. 511
of the personal goods of another." 4 Black. Com. 229. It is defined
•in Roscoe's Criminal Evidence, as " the wrongful taking possession of
the goods of another, with intent to deprive the owner of his propertj' in
them." Rose. Cr. Ev. 622. It is a well settled rule, liable to some few ex-
ceptions, perhaps, that every larceny necessaril3' involves a trespass, and
that there can be no trespass, unless there is an actual or constructive
taking of possession ;^_aiidthisjKisa£aaia(imust be entire and absolute.
Roscoe's Cr. Ev. 623-24 ; 3 Greenl. Ev. § YW. iliere mnst-TTOt-MI}-
be such a caption as to constitute possession of, or dominion over the
property, for an appreciable moment of time, but also an asportation,
or carrying away, which may be accomplished bj' anj' removal of the
propert}' or goods from their original status, such as would constitute
a complete severance from the possession of the owner. 1 Greenl. Ev.
§ 154; Roscoe's Cr. Ev. p. 625. It has been frequently held that to/i
chase and shoot an animal, witli felonious intent, without removing^ itf
after being shot, would not be such a caption and asportation as to con/ \
8tM3amate_llifi-sflfe»ee"Cinarcenj'. "Wolf ii: The State, 41 Alan'"4T2ll'he
State--!^.-S«agleliJ.- Rich. (S. C.) 30; 2 Bish. Cr. Law, § 797. So it
has been decided that the mere upsetting of a barrel of turpentine,
though done with felonious intent, does not complete the offence, for
the same reason. The State v. Jones, 65 N. C. 395. The books are
full of cases presenting similar illustrations.
On the contrarj', it is equally well settled that where a person takes
. an animal into an inelosure, with intent to steal it, and is apprehended
before he can get it out, he is guilty of larceny. 3 Inst. 109. In Wis-
dom's case, 8 Port. 507, 519, it was said, arguendo, by Mr. Justice
Goldthwaite, " If one entice a horse, hog, or other animal, by placing
food in such a situation as to operate on the volition of the animal,
and he assumes the dominion over it, and has it once under his control,
the deed is complete ; but, if we suppose him detected before he has
the animal under his control, yet after he has operated on its volition,
the offence would not be consummated." This principle is, no doubt,
a correct one ; but the true difficulty lies in its proper application. It
is clear, for example, if one should thus entice an animal from the
possession, actual or constructive, of the owner, and toll it into his
own inelosure, closing a gate behind him, the custody' or dominion
* acquired over the animal might be regarded as so complete as to consti-
tute larceny. 2 Bish. Cr. Law, § 806. It is equally manifest that, if
one should, in like manner, entice an animal, even for a considerable
distance, and it should, from indocility, or other reason, follow him so
far off as not to come virtually into his custody, the crime would be
incomplete.
The f"ntr"ii'"g pr""''pi°i ■'" '""^ nQQPg, wi3nlii_ seem to be that the
possession of the owner.g9ftaUie.so-£ar— oh«iBged» as that the dominion
of tBg~tr^gMseF shall be complete. His proximity to the intended
— b06ty musLUe'sucETas to enable him to assert this dominion, by taking
actual control or custody by manucaption, if he so wills. 11' ho
512 THOMPSON V. STATE. [CHAP. VIII.
abandon the enterprise, however, before being placed in this attitude,
he is not guilty of the offence of larcbny, though he may be convicted
of an attempt to commit it. Wolf's case, 41 Ala. 412. It wcmld,seem
there can J)e no asportatiQiijjgithifl-the legal acceptationjo£jtlie-nord,
without a previously acquired dominion. •— — "
The facts"or this ca;se,*taEe"n alone, do not constitute larceny. It is
not a reasonable inference from them that there was such a complete
caption and asportation as to consummate the offence.-'
The judgment of the Circuit Court is reversed, and the cause is
remanded..
THOMPSON V. STATE.
Supreme Court op Alabama.
[Reported 94 Alabama, 535.]
Walker, J. The witness for the State testified that he held out his
open hand with two silver dollars therein, showing the money to the
defendant ; that the defendant struck witness' hand, and the money was
either linocked out of his hand or was taken by the defendant, he could
not tell positively which. It was after twelve o'clock at night, and the
witness did not see the money, either in defendant's possession or on
the ground. The court charged the jury: " If the jury find from the
Evidence that the defendant, with a felonious intent, grabbed for the
/money, but did not get it, but only knocked it from the owner's hand
/ with a felonious intent, this would be a sufficient carrying away of the
j money, although defendant never got possession at any time of said
j money." This charge was erroneous. To constitute_larefiiiyi_there
must__bea felonious taking and carrying away- of-peisuual prepei'ty.
There^ustbesucliJ^ capttorr that the accused acquires doro'"'"" "ver
the property, followed by such an asportation or carrying away as to
(supersede the possession of the owner for an appreciable period of
time. Though the owner's possession is disturbed, yet the offence is
not complete if the accused fails to acquire such dominion over the
property as to enable liim to take actual custody or control. Frazier
V. The State, 85 Ala. 17 ; Groom v. The State, 71 Ala. 14 ; Edmunds
V. The State, 70 Ala. 8 ; Wolf v. The State, 41 Ala. 412. It is not
enough that the money was knocked out of the owner's hand, if it fell
to the ground and the defendant never got possession of it. Tfie-rtefen
dant wasjiot guilty pf larceny if he did not get ^legianfi^L-uader— bis
contrail... If the^attempt merely cau'sed the money to fall from the
owner's hand to the grbiind, and the defendant ran off without getting
1 Aec. Hardeman v. State, 12 Tex. App. 207. See Groom v. State, 71 Ala 14;
Lnndy v. State, 60 Ga. 14.3 ; State v. Alexander, 74 N. C. 232 — Ed.
SECT. II.] PEOPLE V. MEYER. 513
it, the larceny was not consummated, as the dominion of the trespassei
was not complete. Charge No. 1 was a proper statement of the law as
applicable to the evidence above referred to, and it should have been
given. ^ Heversed and remanded.
PEOPLE u. MEYER.
Supreme Coukt op California.
{Reported 75 Cal. 383.]
Shaepstein, J.^ — The defendant was tried on an information, in
"which it was charged that he wilfully, unlawfullj', and feloniously stole,
took, and carried away one overcoat, of the value of twenty dollars,
the personal property of Harris Joseph and Lewis Joseph. On the
trial Lewis Joseph testified as follows : —
"I had, as usual, placed and buttoned an overcoat upon a dummy
•which stood on the sidewalk outside of my store. I was inside the
store ai^d heard the chain of the dummj' rattle, and on coming outside,
found defendant with said coat unbuttoned from the dummy and under
his arm, the same being entirely' removed from the dummj', and aboui
two feet therefrom and from the place where it had been originally
placed on the dummj' by me, and the accused Kaa_LoUiilfi-3*tJ3f walking
off with sai^jioat^ when grabbed by me, he being prevented from taking
ftrarral'IGecause said coat was chained to the dummy by a chain which
ran through the coat-sleeve, and the dummy was tied to the building
by a string."
This was the only evidence introduced to prove the charge of lar-
ceny. The jury on this evidence returned a verdict jiLgnilty-ot petit
larceny as charged, and the defendant, having pleaded guilty of prior
convictions of other petit larcenies, was sentenced to imprisonment in
the state prison for the term of two years. '^^e-"--"^
He moved for a new trial, which was denied, and from that order
and the judgment this appeal is taken.
Appellant insists that the verdict is contrary to the evidence, which
it is claimed does not prove that the defendant carried away the coat
which he is charged with having stolen, but proves he did not.
" Larceny,'' as defined in the Penal Code of this state, " is the felo-
nious stealing, taking, carrying, leading, or driving away the personal
property of another." This is substantially the common-law defini-
tion, under which it was held that it_ must be sho-wn-.that-the -goods
were severed from Jhe_p!asafiaaian or,custody of Jbe.o..wner,-and in the
1 Ace. Eex V. Farrel, 2 East P. C. 557; Com. v. Luckia, 99 Mass. 431. — Ed.
* Part of the case discussing a question of evidence is omitted. — Ed.
514 PEOPLE V. MEYEE. [CHAP. VIIL
possession of the thief. though_it be_but.'fpr a moment. Thus where
goods were tied by a string, the other end of which was fastened to the
icounter, and the thief took the goods and carried them towards the
door as far as the string would permit, and was then stopped, this was
held not to be a severance from the owner's possession, and conse-
quently no felony. (3 Greenl. Ev., sec. 155.)
"In the language of the old definition of larceny," says Bishop,
" the goods taken must be carried away. But they need not be re-
tained in the possession of the thief, neither need they be removed
from the owner's premises. The doctrine is, that any removal, how-
ever slight, of the entire article, which is not attached either to the soil
or to anything not removed, is sufflcient ; while nothing short of this
will do." (2 Bishop's Grim. Law, sec. 794.)
The attorney-general admits that this is the doctrine of the English
cases.
In State ■;;. Jones, 65 N. C. 395, the court says : " There must be an
asportation of the article alleged to be stolen to complete the crime of
larceny. The question as to what constitutes a sufflcient asportation
has given rise to many nice distinctions in the courts of England, and
the rules there established have been generallj' observed by the courts
of this country."
People V. Williams, 35 Cal. 671, was not so clearly within the rule
as this case is, but the court said that it did not feel at libert3' to
depart from a rule so long and so firmly established by numerous deci-
sions. Tested by that rule, the evidence in this case was clearly in-
sufficient to justify the verdict, and the defendant is entitled to a new
trial on that ground. Judgment and order reversed.
iSECT. II.] STATE V. HUNT. 515
STATE V. HUNT.
Supreme Court op Iowa. 1877.
[Reported 45 la. 673.]
Defendant was indicted and convicted of the crime of grand larceny,
and sentenced to confinement in the penitentiary for eighteen months.
His case is brought to this court on appeal.
Beck, J.^ The main objection to the conviction of defendant is based
upon the ground that the evidence does not support the verdict of the
iury. The property which defendant was charged with stealing was a
steer. It was impounded by the marshal of Independence, and adver-
tised for sale, under a city ordinance. At the day of sale, defendant,
who was employed as auctioneer to sell the animal and another in the
pound, claimed the steer and sold it to a butcher, bj' whom it was
killed. The owner of the steer, after it was butchered, identified it by
the hide and certain marks. There can be no doubt that it was his
property; in fact, this is not denied. Defendant, upon_the_ owner
making claim to the property, paid him the~suin heTiidrreceived from
the butcher, it is insisted that tEeevidence fails to show a felonious
fntent on Ihe part of defendant, but establishes the fact that the prop-
erty was sold by defendant under the honest claim and belief that it
was his own. It is true that the defendant, after he had seen the steer
in the pound, did state that it was his property, and that it had strayed
from his possession. But accompanying this claim was an inquiry ad-
dressed to the marshal as to the consequences that would result if it
proved to be the property of another. He was informed that he would
be required to pay the owner the value of the animal. . . .
It is argued that there was no evidence of the taking of the ani-
mal — that if it be conceded the property was not defendant's and
was not sold in the belief of his ownership, the facts show simply a
sale of property by defendant which he did not own, and not a larceny.
But defendant asserted^ his ownershig^and claimed the possession by
the sale. Andfurther, he authorizedjthe butcher to take the steer
from the pound. This was a sufficient " taking," and as it was done
under defendant's aStfiOrttylTmust be regarded as his act.
" Affirmed.
1 Part of the opinion is omitted. — Ed.
516 ALDEICH V, PEOPLE. [CHAP. VIII.
ALDRICH t;. PEOPLE.
Supreme Court op Illinois. 1906.
[Reported 224 ///. 622.]
The record in this case brings up for review the judgment of convic-
tion of Roj' Aldrich for the crime of larceny.
The facts developed on the trial were, in substance, as follows : In
Julv, 1905, Miss Flora May Barr checked her trunk at Grand Haven,
Michigan, for Chicago, and took passage on one of the steamships
belonging to the Goodrich Transportation Company. She left Grand
Haven about 9.16 on the evening of Jul}' 10 and arrived at Chicago
about six o'clock on the morning of the 11th. At Chicago Miss Barr
gave the check for her trunk to a transfer compan}', with instructions
to transfer it to the Burlington depot and re-check it to Oakland, Cali-
fornia, which was done. Miss Barr saw the baggageman attach the
check to her trunk at Grand Haven, where she received a duplicate
check, but she did not see the trunk again before leaving Chicago for
Oakland. Upon her arrival at Oakland she gave her trunk check to
a transfer^ company, with instructions to deliver the trunk to her at
the place where she intended to stop. When the trunk^ was brought to
her she at once discovered that it was not 'Ger trunk. She refused to
receive the trunk, although it had a check attached to it correspond-
ing to the one which she had received for her trunk at Chicago. The
trunk which was sent to Oakland was a zinc-covered trunk with an
oval top, while Miss Barr's trunk was a canvas-covered trunk and of a
different shape. Miss Barr's trunk contained between $300 and $400
worth of wearing apparel and other articles of value which she intended
to take with her on her summer trip to California, while the trunk
which was brought to her at Oakland was afterwards found to contain
nothing except waste paper and rubbish. She immediately notified
the Goodrich Transportation Companj' of the loss of her trunk and
shipped the empty trunk back to Chicago. The Goodrich Transporta-
tion Company instituted a search for the missing trunk. About a week
or ten days after Miss Barr passed through Chicago an unknown man
appeared at the baggage room of the Goodrich Transportation Com-
pany in Chicago with two trunks, bought a ticket, and checked the
trunks to Milwaukee. The servants of the transportation compan}^ in
handling the two trunks, discovered that they were apparently empty,
— at least they were very light. It was also noticed that both of these
trunks had the locks broken and that they were fastened with ropes or
straps. When the boat arrived at Milwaukee plaintiff in error pre-
sented two checks and demanded the two trunks. The employees in
charge of the boat, suspecting that this transaction might not be all
right, refused to deliver the trunks to Aldrich in Milwaukee, but agreed
to re-check them for him back to Chicago, which they did. The trunks
p
\
SECT. II.] ALDRICH V. PEOPLE. 517
were not called for after their return to Chicago for several days.
Finally plaintiff in error presented checlis and demanded the two trunks.
The transportation company again refused to deliver the trunks to
plaintiff in error. Plaintiff in error called a second time and demanded
the trunks, and threatened legal proceedings unless they were delivered
to him. IrLthejneaQJiiB«-0B4i.ofthe trunks had. been positively identi
fled as Miss Bari:I&-k>&UJj'unk. It was afterwards learnecrthg:t^a" man
by the name of Frank BushreTiad hauled the two empty trunks from a
room occupied by plaintiff in error in a house at 128 Dearborn avenue,
Chicago. It is also shown that plaintiff in error and a woman known
as Daisj' Dean occupied the room from which the trunks were obtained
b}' Bushre. Plaintiff in error was then arrested on a charge of larceny'
of the Barr trunk and its contents. In the room occupied by plaintiff
in error and the woman were found substantially all of the articles
which Miss Barr had packed in her trunk in Grand Haven, Michigan,
and these articles were afterwards identifled by her as her property.
There was also found in this room a large quantity of other goods of
various descriptipn, among other things, two tickets from Grand Haven
to Chicago which had never been used.
The theojy-of-^fche--prD'?ecuti<xaaa»JhaLEl9iptiJf in error, sopaewhere
between Grand Haven and, Chicago, transferred the check from the
zinc-co^efedTrunk to Miss Barr's trunk and from her trunk to the zinc-
covered trunk, and that the plaintiff in error secured possession of Miss
Barr's trunk by having the duplicate of the check that was originally
attached to the zinc-covered trunk. Plaintiff in error denies all con-
nection with the theft, and claims that he bought the stolen trunk,
together with another large trunk, from a man by the name of Doc.
Lebej'. His explanation as to how he obtained possession of the lost
trunk is not corroborated by any testimony in the record or b}- facts
and circumstances.
The indictment charged the plaintiff in error with feloniously stealing
one trunk and various articles of personal property, the personal goods
and property of the Goodrich Transportation Companj', a corporation
of the State of Wisconsin. The jury found plaintiff in error guilty and
found the value of the property stolen to be $230. Motions for a new
trial and in arrest of judgment were made and severally overruled, and
plaintiff in error was sentenced to an indeterminate term of imprison-
ment in the penitentiary.
ViCKEKS, J.^ . . . The Goodrich Transportation Company held the
trunk and its contents merely as bailee of the rightful owner, of which
plaintiff in error must, upon the theory of the prosecution, be presumed
to have had notice, and therefore such transportation company had no
authority to consent to the titlejBias&ing,^ith the possession, to plain-
tifflHl£ja:OT. But everPtfTT'could be hekT that the corpoifation could
^■fiave given such consent by its proper officers, it certainly cannot be
1 Part of the opinion is omitted. — Ed.
518 ALDEICH V. PEOPLE. [CHAP. VIII.
said that the mere act of its servants in turning over the trunk to
plaintiff in error upon the mistaken supposition that he was entitled to
the possession thereof, would amount to such a consent as is necessary
to bring the case within the rule contended for by plaintiff in error. In
iMcClain on Criminal Law (vol. 1, sec. 658,) it is said : " The fact that
tthe servant in whose possession the property is, consents to its taking
Iwill not prevent the act being larceny, he having no authoritj' to con-
(sent, and the wrongdoer being aware of that fact." (State v. Mc-
Cartey, 17 Minn. 76 ; People v. G-riswold, 64 Mich. 722 ; State v.
Edwards, 36 Mo. 394.) It seems clear, on principle, that if property
is obtained from an infant or an insane person, who is legally disquali-
fied from giving consent, with the felonious intent to steal the sq,me,
such consent could not be availed of as a defence to a charge of larceny.
The same principle ought to apply to bailees, whose interest in the
property is known to the alleged thief.
In our opinion the case at bar is not controlled by the principle
contended for by the plaintiff in error. The case comes within the rule
laid down in Commonwealth v. Barry, 125 Mass. 390.
It will thus be seen that an asportation may be effected by means of
innocent human agency as well as mechanical agency, or by the
offender's own hands. One may effect an asportation of personal prop-
erty so as to be guilty of larceny by attaching a gas-pipe to the pipes
of the company and thus draw the gas into his house and consuming it
without its passing through the meter. (Clark and Marshall on Law of
Crimes, p. 446, and cases cited in note ; Woods v. People, 222 111. 293.)
From these cases the law appears to be well settled that where, with the
intent to steal, the wrongdoer employs or sets in mpiign any agency,
either animate or inanim!d;c,-^ith the, design of e'Stecting a_ transfer of
the Dossession of the goods of another to him in order that__^fi_^ay
felon32us^2Sii»ei*ran'l- steal them, the larceny wijl be .eomglete, if in
pursuance of siach agency the goods come into the hands of the thief
and he feloniously converts them to his own use, and in such case a
conviction may be had upon a common-law indictment charging a felo^
nious taking and carrying away of such goods. If in the case at bar
the accused shifted the checks on the trunks, by means of which the
servants of the transportation company were innocently led to further
the criminal purpose by delivering the trunk in question to the accused,
who received and converted the same to his own use, and if there was
in the mind of the plaintiff in error a felonious intent to steal this
property pervading the entire scheme and attending everj' step of it,
then he is guilty of larceny, and the instruction under consideration as
applied to such a state of facts is a correct statement of the law and
there was no error in giving it to the jury.
Judgment affirmed.
SECT. II.j ANONYMOUS. 519
SECTION II. (continued).
(5) Distinction between Possession and Cdstodt.
Littleton, Tenures, Sect. 71. If I lend to one my sheep to tathe his
land, or my oxen to plow the land, and he killeth my cattle, I may well
have an action of trespass against him, notwithstanding the lending.
Coke, First Institute, ad loc. And the reason is, that when the
bailee, having but a bare use of them, taketh upon him as an owner to
kill them, fieTosetffthe Beiiefif'of the use of them. Or in these cases
he may have an action of trespass sur le case for this conversion, at
his election.
ANONYMOUS.
Assizes. 1353.
[Reported Liber Assisarum, 137, pi. 39.]
One a. was arraigned with the mainor, sc. a coverlet and two sheets ;
and he put himself on his clergy. And it was found by the inquest that
he was a^uestat the-hQuse of a manofjjpte,iand was lodged within
these^edclothes ; and it was ^bfrndFtlwrHegbt up before day, and took
these bedclothes out of the chamber, and carried them into the hall,
andwent-OT to the stable to^-find his horse ; and his host summoned
his household against him. And it was asked of the inquest whether
he carried the bedclothes into the hall with intent to have stolen them ;
and they said yes. Wherefore he was adjudged a felon, and was
delivered to the ordinar}-, because he was a clerk, etc.^
1 After reporting this case, Staunforde (Pleas of the Crown, 26) adds : " And yet
the thing stolen seems never to have been out of the owner's possession, for it had not
passed out of the house ; so qu<ere what the law would be in such a case at this day.
For no wonder it was allowed for law at this time, sc, regnante Edwardo tertio, quia
tunc temppris voluntas reputabatur pro facto, Sfc." See ace. State v. Wilson, Coxe (N. J.).
439. — Ed.
520 EBX V. CHISSERS. [CHAP. VIII.
ANONYMOUS.
Old Bailey. 1664.
[^Reported Kelyng, 35.]
A SILK throster had men come to work in his own house, and deliv-
ered silk to one of them to work, and the workmen stole away part of
it. It was agreed by Hyde, Chief Justice, myself and Brother Wylde
being there, that this was felony, notwithstanding the delivery of it to
the party, for it was delivered to him only to work, and so the entire
pr0pfii:tj;_remained only in the owner, like the case of a butler who hath
plate delivered to hiinl~oF a shepherd, who hath sheep delivered, and
they steal any of them, that is felony at the common law. Vid. 13
Eliz. 4, 10 ; 3 H. VII., 12 ; 21 H. VII., 14 ; Accord Poulton de Pace.
126.1
REX V. CHISSERS.
Exchequer. 1678.
[Reported T. Raymond, 275.]
Upon a special verdict the jury find that, on the day and at the place
in the indictment mentioned, Abraham Chissers came to the shop of
Anne Charteris, spinster, in the said indictment likewise named, and
asked for to see two cravats in the indictment mentioned, which she
shewed to him, and delivered them into his ^ands, and thereupon he
asked the price of them, to which she answered 7s. ; whereupon the
sflid-AltfabftmJCh^sers offeredh,er 3s., and^'me^gtriy^run out of the
said shop, and took away the said goods openly in "ESt sight ; but
whether this be Xeloay-or-Bot -is- the -question. And if it shall be~^d-
judged felony, we find him guilty, and that the goods were of the value
of 7s., and that he had no goods or chattels, etc. ; but if it be not
adjudged felony, we find him not guilty, nor that he fled for the same.
And I am [of] opinion that this act of Chissers is felony ; for that,
1. he shall be said to have taken these gooAs, felleo animo ; for the act
subsequent, namely, his running away with them, explains his intent
precedent ; as the suing a replevin to get the horse of another man, to
which he hath no title, is felony, because in fraudem legis, Co. 3 Inst.
108. So if an oflScer cometh to a man, and telleth him that he is out-
lawed, when the officer knoweth the contrary to be true, and by color
thereof, takes his goods, it is felony : Dalton's Oflace of Sheriflfs, cap.
1 See ace. U. S. v. Clew, 4 Wash. C. C. 700 ; Marcus v. State, 26 Ind. 101 ; Gill v
Bright, 6 T. B. Mon. 130 j State v. Jarvis, 63 N. C. 556; State u. Self, 1 Bay.
242. —Ed.
SECT. li.] EEGINA V. SLOWLY. 521
121, fol. 489. And the case of one Far, in which I myself was a coun-
sel, was thus: Far, knowing one Mrs. Steneer, living in St. Martin's
Lane, in Middlesex, to have considerable quantity of goods in her
house, procured au aflSdavit to be filed in the Common Pleas of the due
delivery of a declaration, in an action of ejectione firmce, in which be
was lessor, though he had no title, and thereupon got judgment, and
took out an habere facias possessionem for the house, directed to the
sheriff of Middlesex, and procured him to make a warrant to a bailiff
to execute the writ, who with Far came to the house, turned Mrs.
Steneer out of possession thereof, and seized upon the goods, of a great
value, and converted them to his own use, and upon complaint made by
Mrs. Steneer to Sir Robert H3de, then Lord Chief Justice of B. R., Far
was apprehended by his warrant, and indicted at Justice Hall in the
Old Bailey, and found guilty, and hanged ; for that he used the color of
an action of ejectment and the process thereupon to execute his feloni-
ous intent, in fraudem legis.
2. Although these goods were delivered to Chissers by the owner, yet
they were not out of herpossessiojj_t>y_sucli_^elivery, till the property
should be altered by the perfection_of_th£_coj]il£ast, which was but in-
cbQatetT'ancnieveir'peffected "between the parties ; and when Chissers
run away with the goods, it was as if he had taken them up, lying in
the shop, and run away with them. Vide Hill. 21 H. VII. 14 pi. 21.^
REGINA V. SLOWLY.
Crown Case Reseeted. 1873.
[Reported 12 Cox C. C. 269.]
Case reserved for the opinion of this court by Mr. Justice Byles.
The prisoners, at the last Winter Assizes for the county of Sussex
at Lewes, were jointly indicted for stealing onions.
The prosecutor, having a cart loaded with onions, met the prisoners,
who agreed to buy all the onions at a certain price, namely, £3 16s. foi
ready'"money, "the ^prisoners "saying, "You shall have j-our monej
directly the onions are unloaded."
The onions were accordingly unloaded by the prosecutor and the
prisoners together, at a place indicated by the prisoners.
The prosecutor then asked for his money. The prisoners thereupon
asked for a bill, and the prosecutor made out a bill accordingly. One
of the prisoners said they must have a receipt from the prosecutor, and
in the presence of the other made a cross upon the bill, put a one penny
postage stamp on it, and then said they had a receipt, and refused to
restore the onions or pay the price.
' See Bassett v. SpofEord, 45 N. Y. 387. —Ed.
522 EEGINA V. SLOWLY. [CHAP. VIII.
The next morning the prisoners offered the onions for sale at
Hastings.
The jury convicted both the prisoners of larceny, aad-said— tliey__
fourui-th-afe-the~pi;ispners never inteadedto pay for the onions, and that
th'e fraud was meditated by both the prtsotIBfs"from~the beginning.
The prisoners' counsel insisting that under these circumstances there
was no larceny, I reserved the point for the decision of the Court of
Criminal Appeal.
(Signed) J. Barnakd Btles.
Willoughby, for the prisoners. The prisoners were not properly
convicted of larceny, for the prosecutor gave credit to the prisoners for
the £3 16s., and delivered the onions to them on such credit. [Kelly,
C. B. What credit was given? The case is like Beg. v. McGrath (39
L. J. 7, M. C. ; 11 Cox C. C. 347).] This is a different case. There .the
money was obtained against the will of the owner. Here the onions
were unloaded by the prosecutor. Moreover, it was proved, though
not stated in the case, that the prosecutor called on the prisoners in
the evening for the money.
The learned counsel then cited 2 East P. C. 669 (edit. a.d. 1805),
and the cases of Rex v. Harvey and Reg. v. Nicholson, there cited.
Also Rex V. Oliver, 2 Leach, 1072 ; R. v. Adams, 2 Rus. on Crimes,
209 ; Tooke v. Hollingsworth, 5 T. R. 231 (Buller, J.) ; Reg. v. Small,
8 C. & P. 46 ; Reg. v. Stewart, 1 Cox C. C. 174 ; Reg. v. McKale, 37
L. J. 97, M. C. ; 11 Cox C. C. 32.
Pocock, for the prosecution, was not called upon to argue.
Kelly, C. B. I am of opinion that the conviction should be affirmed.
!If in this case it had been intended by the prosecutor to give credit for
the price of the onions, even for a single hour, it would not have been
larceny ; but it is clear that no credit was given or ever intended to
be given. Any idea of that is negatived by the statement in the case
that the prisoners agreed to buy for ready monej'. In all such sales
the delivery of the thing sold, or of the money, the price of the thing
sold, must take place before the other ; i. e., the seller delivers the
thing with one hand while he receives the money with the other. No
matter which takes place first, the transaction is not complete until
f both have taken place. If the seUer-^deUv&rs--fi.rst_hefbxfi-_liie^ money
is paid, and the ba3'er fraudulently runs off with^the article, or if, on
the -other hand, the buyer pays first, and the seller fraudulently runs
off with the money without delivering- the thing»,saldj.^it is equally
1^-ceny.
Mellor, J. I am of the same opinion. The prisoners obtained
possession of the onions by a trick, and never intended to pay for
them, as the jury found. From the very first they meditated the fraud
to get possession of them, which puts an end to any question of its
being larceny or not.
PiGOTT, B. The facts are that the prosecutor never intended to
SECT. II.] COMMONWEALTH V. O'MALLEY. 523
part with the possession of the onions except for ready money. He
did part with the possession to the prisoners, who obtained the posses-
sion by fraud. The prisoners then brought in aid force to keep pos-
session, and refused to restore the onions or paj' the price. Therefore
the possession was obtained against the mil "f tl'g prosecutor^ ,
Denman, J., and Pollock, B., concurred.^ ^v_—
Conviction affirmed.
COMMONWEALTH v. O'MALLEY.
SuPEEME Judicial Court of Massachusetts. 1867.
[Reported 97 Massachusetts, 584.]
Hoar, J." We are of opinion that there was no evidence to sustain
the indictment for embezzlement, and that the conviction was wrong.
The defendant had been previously acquitted of larcen}' upon proof of
the same facts ; and it is therefore of great importance to him, if the
offence committed, if any, was larcenj-, that it should be so charged.
To constitutg_liie--€mrre— o^-eBthezzlemeiitv the property which the
•defendairTTsaccused of fraudulently and ieloniously converting to his
o wn usej_musr2E§liown J;o4iave been-entrusted_to_iiim, so that it was
in his possession, and not in the possession of the owner. But the
facts reported in the bill of exceptions do not show that the possession
of the owner of the money was ever divested. She allowed the de-
fendant to take it for the purpose of counting it in her presence, and
taking from it a dollar, which she consented to lend him. The money
is alleged to have consisted of two ten-dollar bills, three five-dollar
bills, a two-dollar bill, and a one-dollar bill, amounting in all to thirty-
eight dollars. The one dollar he had a right to retain, but the rest
of the money he was only authorized to count in her presence and hand
back to her. He had it in his hands, but not in his possession, any more
than he would have had possession of a chair on which she might have
invited him to sit. The distinction pointed out in the instructions of
the court between his getting it into his hands with a felonious intent,
or forming the intent after he had taken it, was therefore unimportant.
The true distinction, upon principle and authority, is that stated by the
cases upon the defendant's brief, thatjf Jhe owner puts hig-property
into, the hands of another, to use it oTdo some act in relation to it, in
hispresence , hed^oes"norparrwM "tHe^possession, and the conversion
of it. animofuram^Jlafcehy:^ Thus in The People v. Call, 1 Denio,
120, the defendant tooF'lTpFomissory note to endorse a payment of
interest upon it, in the presence of the owner of the note, and then
carried it off; and it was held that he was rightly convicted of larceny,
1 See Reg. v. Bramley, 8 Cox C. C. 468. —Ed.
'^ The opinion only is given ; it sufficiently states the case.
524 HILDEBEAND V. PEOPLE. [CHAP. VIII..
although he might have first formed the intention of appropriating it
after it was put in his hands. So where a shopman placed some cloth-
ing in the hands of a customer, but did not consent that he should take-
it away from the shop till he should have made a bargain with the
owner, who was in another part of the shop, his carr3-ing it off was held
to he larcen}'. Commonwealth v. Wilde, 5 Gray, 83. See also Eegina
V. Thompson, 9 Cox Grim. Cas. 244 ; Eegina v. Janson, 4 Cox Crim.
Cas. 82. In all such cases the temporary custody for the owner's pur-
poses, and in his presence, is oiil}' the charge or custodj' of an_agent
or servant ; gives no right of control against the owner ; and the owner's,
possession is unchanged. Exceptions sustained.^
HILDEBKAND v. PEOPLE.
Court op Appeals op New York. 1874.
[Reported 56 New York, 394.]
Church, C. J.^ The prosecutor handed the prisoner, who was a bar-
' tender in a saloon, a fifty-dollar bill (greenback) to take ten cents out
of it in payment for a glass of soda. The prisoner put down a few
coppers upon the counter, and when asked for the change, he took
the prosecutor by the neck, and shoved him out doors, and kept the
' money.
The qiie?it;ix)^a is presented on behaIf_o£_thci pvinonojiL,jrhetherlarceii3'
can be prwjjnated j]goniAiess_Jjicts. There was no trick, device, or
fraud in inducing the prosecutor to deliver the bill ; but we must
assume that the jurj- found, and the evidence was sufficient to justif}^
it, that the prisoner intended, at the time he took the bill, feloniousl}'
to convert it to his own use.
It is urged Jhat-ttis isjiot soffleient tOLfi^gigt, becausetiia.grosegutor-
,volu nUriiy^artedwitlx the. possession not^nlji^but with thejupperty ,
and did not expect a return of tho aarriP pTf>pprfy~~ ■^^|^^g "^JrTc^ni^ the
point of the case. When the possession and property are delivered
voluntarily, without fraud or artifice to induce it, the animus furandi
will not make it larcenj', because in such a case there can be no tres-
pass, and there can be no larceny without trespass. 43 N. Y. 61.
But in this case I do not think the prosecutor should be deemed tO'
have parted either with the possession of, or property in, the bill. It
was an incomplete transaction, to be consummated in the presence and'
under the personal control of the prosecutor. There was no trust or
confidence reposed in theprisoneri and nnnp intPnagcTto be. The de-
1 Ace. Reg. V. Thompson, 9 Cox C. C. 244; People v. Johnson, 91 Cal. 265; Peoplft
». Call, 1 Denio, 120. —Ed.
2 The opinion only is given ; it sufficiently states the case.
SJiGT. IlJ HILDEBKAKK V. PEOPLE. 525
livery of the bill and the giving change were to be simultaneous acts,
And until the latter was paid the delivery was not complete. The
prosecutor laid his bill upon the counter, and inipliedl3' told the pris-
oner that lie could have it upon delivering to'him $49.90. Until this
was done neither possession nor property passed ; and in the mean
time the bill remained in legal contemplation under the control and in
the possession of the prosecutor. This view is not without authoi'it3-.
The case of Reg. v. McKale, 11 Cox C. C. 32, is instructive. The
prosecutrix put down two shillings upon the counter, expecting to
(receive small change for it from the prisoner. There being several-
pieces on the counter, the prosecutrix took up a shilling of the pris-
oner's money, and a shilling of her own, which she did not discover
until she was putting them in the drawer. A confederate just then
attracted her attention, and the prisoner passed out with the two shil-
lings. It was held, upon full consideration, that the conviction for
stealing the two shillings was right. Kelly, C. B., said: " The ques-
tion is, did she part with the money she placed on the counter? I say,
■certainly not, for she expected to receive two shillings of the prisoner's
money in lieu of it. . . . Placing the money on the counter was only
one step in the transaction. The act of the prisoner in taking up the
money does not affect the question whether the prosecutrix parted with
the propert_Y in it. The property is not parted with until the wl;)nlp
traiisantion is nomplete.and the conditions have been fulfilled on which
the property is to be parted with. ... I am of the opinion that the
property in the two-skiihn'g~piece was not out of the prosecutrix for a
moment."
In Reg. V. Slowly, 12 Cox C. C. 269, the prosecutor sold onions to
the prisoners, who agreed to paj^ read}' money for them. The onions
were unloaded at a place indicated by the prisoners, and the prosecutor
signed a receipt at the request of the prisoners, when they refused to
restore the onions or pay the price. A conviction for larceny was held
right, the jury having found the original intention felonious. This wa»
«pon the ground that the delivery and payment were to be simulta
neous acts, that the property did not pass until payment, and tha/
no credit or trust was intended. See also id., 248, 257 ; 2 Russ. oi
■Cr., 22.
The counsel for the prisoner relies upon the case of Reg. v. Thomas,,
'9 C. & P. 741. There the prosecutor permitted the prisoner to take a
sovereign to go out to get it changed. The court held that the prisoner
could not be convicted of larceny, because he had divested himself of
the entire possession of the sovereign and never expected to have it
back. This was a nisi prius decision, and is not as authoritative for
that reason ; but the distinction between that case and this is the one
first suggested. There all conti-ol, power, and possession was parted
with, and the prisoner was intrusted with the monej^ and was not ex-
pected to return it. Here, as we have seen, the prosecutor retained the
•control and legally the possession and property".*- The line of dis-
526 COMMONWEALTH V. LANNAN. [CHAP. VIII.
tinetion is a narrow one, but it is substantial and sufficiently well
defined.
The judgment must be affirmed.
All concur. , Judgment affirmed^
COMMONWEALTH v. LANNAN.
SuPEEME Judicial Court of Massachusetts. 1891.
[Reported 153 Massachusetts, 287.]
Holmes, J. The defendant is indicted for the larceny of promissory
notes, the property of one Teeling, and has been found guilty. The
case is before us on exceptions to the refusal of the court below to rule
that the evidence was insufficient to support the indictment, and also to
Ihe instructions given to the jury. The evidence tended to prove the
following facts. The defendant was an attorney employed by Teeling
to ascertain the price of certain land. The price mentioned to him
was one hundred and twenty-five dollars. He told Teeling that the
lowest price was three hundred and twenty-five dollars, three hundred
dollars to go to the owners of the land, fifteen to Bent, the agent, with
whonn the defendant communicated, and ten dollars to the defendant.
Feeling assented to the terms, and gave Bent directions as to the deed.
When the deed was ready, Teeling, Bent, and the defendant met. The
defendant approved the deed, and said to Teeling, " Paj' over the
money." Teeling counted out three hundred and twenty-five dollars
on the table in front of the defendant, who counted it, took it from the
table, and requested Bent to go into the next room. He then gave
Bent one hundred and twenty-five dollars of the money, returned to
Teeling, gave him a receipt for ten dollars and kept the rest of the
money. The^urt instructed the iurv " that upon the evidence they
iiiiplil fiiiil Mil ddrmiil ml |iiii1h iirTih i in il lliey were__satiaaed that he
hgdToEtained the money of said Teeling by false premeditated trick or
devicei_Jliat although Teeling might have given The manual custodj' of
"tEemoney to the defendant, nevertheless the legal possession would
remain in Teeling under such circumstances, and the larceny would be
complete when the defendant, after thus getting posses.sinn of Teeling's
money_aad-iBduc'ing him to_count out onfi_Uundred~^uajuu<iiy dollars
m^e than wa," "Pp^lgrl; gpprnpria.terl it, to his nwn^nsp"
When the defendant took up the money from the table it had not yet
passed under the dominion of Bent, who represented the opposite party.
The defendant did not receive it as representing the opposite party ;
he purported to be acting in the interest of Teeling. The jury would
1 Ace. Reg. V. Johnson, 5 Cox C. C. 372 ; Levy v. State, 79 Ala. 259 ; State v. Fenn,
41 Conn. 590 ; Huber v. State, 57 Ind. 341 ; State v. Anderson, 25 Minn. 66. See State
V. Watson, 41 N. H. 533. —Ed.
SECT. II.] COMMONWEALTH V. LANNAN. 527
have been warranted in finding that Teeling impliedly authorized the
defendant to take up the money from the table, but they only could
have found that he allowed him to do so for the purpose of immediately
transferring the identical bills, or all but ten dollars of them, to Bent
under Teeling's eyes. Subject to a single consideration, to be men-
tioned later, there is no doubt that in thus receiving the money for a
moment the defendant puj^portedat^TTiripit tr> n,ot as Too)jng'° eoryopt,
or hand, under his immediate direction and control. Therefore not
only the title to the'^^'Trrj^ ^"* thr rnnnn-Ttm-sntTremained in Jeel-
•Jng^wEile the money was in the defendant's <^nst.of]y- Commonwealth
v^O^Msctiey^Vi Mass. t)»4. If the defendant had misappropriated the
whole sum, or if he misappropriated all that was left after paying
Bent, the offence would be larceny. Commonwealth v. Berry, 99 Mass.
428 ; Kegina v. Cooke, L. R, 1 C. C. 295 ; s. c. 12 Cox C. C. 10 ;
Regina v. Thompson, Leigh & Cave, 225, 230; 2 East P. C. c. 16,
§§ 110, 115. See further Commonwealth v. Donahue, 148 Mass. 529,
530, and cases cited.
The instructions made the defendant's liability conditional upon his
having obtained the money from Teeling by a premeditated trick or
device. If he did so, and appropriated all that was left after paying
Bent, he was guilty of larceny, irrespective of the question whether
Teeling retained possession, according to the dicta in Commonwealth v.
Barrj', 124 Mass. 325, 327, under the generallj' accepted doctrine that"
if a party fraudulently obtains possession of goods from the owner i
with intent at the time to convert them to his own use, and the!
owner does not part with the title, the offence is larceny. Even if the/
possession had passed to the defendant, there can be no question that'
the title remained in Teeling until the money should be handed to Bent.
See note to Regina «. Thompson, Leigh & Cave, 225, 230.
In this case, however, by the terms of his agreement with Teeling,
the defendant had the right to retain ten dollars out of the moneys in
his hands, and it ma}' be argued that it is impossible to particularize
the bills which were stolen, seeing that the defendant appropriated bills
to the amount of one hundred and ninety-five dollars all at once, with-
out distinguishing between the ten he had a right to select and the one
hundred and eighty-five to which he had no right.- This argument
appears to have troubled some of the English judges in one case,
although they avoided resting their decision on that ground. Regina
V. Thompson, Leigh & Cave, 233, 236, 238. If the argument be sound,
it might cause a failure of justice by the merest technicality. For it
easily might happen that there was no false pretence in the case, and
that a man who had appropriated a large fund, some small part of
which he had a right to take, would escape unless he could be held
guilty of larcenj'. We think the answer to the argument is this. All
the bills belonged to Teeling until the defendant exercised his right to
appropriate ten dollars of them to his claim. He could make an appro-
priation only bj- selecting specific bills to that amount. He had no
528 eeportee's note. [chap. viii.
property in the whole mass while undivided. Tfciip. jippropriated the
bills as owti^lo^ he gtnlp t.hft whn]e, anrl t.hp fa.nt th^t hp miffht have
tnlri^rffnjiflllhrf; <\^^° r"*- >^°lp him, becausfi ht^did not take any ten
dsnafTbvJhat title, or in the onhiHaJK-iB. whinh he had a right to take
TTT^TEeTaFer English cases seem to admit that a man may be liable for
the larceny of a sovereign given him in payment of a debt for a less
amount in expectation of receiving change, as well as in cases like
Commonwealth v. Berry, ubi supra, where there is nothing due the
defendant; Regina v. Gumble, L. R. 2 C. C. 1 ; s. c. 12 Cox C. C.
248 ; Regina v. Bird, 12 Cox C. C. 257, 260. See further Hildebrand
V. People, 56 N. Y. 394.
Although the point is immaterial to the second ground of liability
which we have mentioned, we may add that we are not disposed to
think that the fact that the defendant may have been expected to
select ten dollars for himself during the moment that the bills were in
Ms hands was sufHcient to convert his custody into possession. That
right on his part was merely incidental to a different governing object,
and it would be importing into a very simple transaction a complexity
which does not belong there, to interpret it as meaning that the defen-
dant held the bills on his own behalf with a lien upon them until he
could withdraw his pay.
It is not argued that the averment as to promissory notes is not
sustained. Commonwealth v. Jenks, 138 Mass. 484, 488.
Exceptions overruled.
REPORTER'S NOTE.
Common Pleas. 1487.
[Bepcrrted Year Book 3 Hen. VII., 12, pi. 9.]
HussET put a question. If a shepherd steals the sheep which are,
in his charge, or a butler the pieces which are in his charge, or servants
other things which are in their charge, whether it shall be called felony.
And it seemed to him that it would. And he cited a case which .was,
that a butler had stolen certain stuff which was in his charge, and was
hanged for it. Ha0gh [J.] cited the case of Adam Goldsmith of
London, who had stolen certain stuff which was in his charge, and was
hanged for it. Brian [C. J.] — It cannot be felony, because he could
not take vi <& armis, because he had charge of it. And the justices
were of the same opinion, and so no discussion, etc. R. see M. 13 E.
4 f 3, P. 13 E. 4 f. 9, T. 22 E. 3 Corofl 256, what shall be called felony
of goods.
SKcr. II.] bepoktee's note. 529
REPORTER'S NOTE.
King's Bench. 1506.
[Reported Year Book 21 Hen.VTI., 14, pi. 21.]
In the King's Bench Cutler, Serjeant, and Pigot, apprentice, were
at the bar ; and Pigot put this question to Cutler : If I deliver a bag
of monej' to my servant to keep, and he flees and goes away from me
with the bag, is it felony? Cutler said yes ; for so long as he is in my
h0USe^_0rjatb-Xnn, whntOVOr I hiu;e_delivered to him is grljnrlp;p^^^inrriy
^iiissiq^ As my butler who hasmy plate in charge, if he fleeTlnth
it, it is felony ; the same law if he who keeps my horse goes away with
it ; and the case is, that they are at all times in my possession. BuL
ifj.'lplivpr.a^ horse to my servant to ride on a journey, and he flfees
with it^jtjs-fflotjglony, forlie comes lawfully bylEe horse by delijfijy.
.tea-soit is, if I give him a bag to carryj«r London, or to paftosome
one, or to buy something, and he flee^^mth it, it is not felony ; for it
is out of my possession, and hg--<<omes lawfully by it. Pigot. — It
may well be, for the master la all these cases has a good action against
him, sc. detinue, or action of account. ~ ~
REPORTER'S NOTE.
Common Pleas. 1533.
[Reported Dyer, 5 a.]
YoRKE puts this question upon the statute 21 H. VIII. [c. 7.], which
is " that if any master or mistress deliver anj' goods to his servant to
keep, who withdraws himself, and goes away with the goods to the
intent to steal them, or if he embezzle the goods of his master, or
convert them to his own use, if the goods be worth forty shillings, it
shall be felony." ■" And a man delivers a bond to his servant to receive
£20 of the obligor, and the servant receives them, and after that goes
away, or converts them to his own use, whether this be within the mean-
ing of the statute or not ? And by the better opinion it is not, for he
did not deliver to him any goods ; for a bond is not a thinpf in valin^^bnt
a chose in action. And Englefielde, J., said that if a man deliver to
his apprentice wares or merchandises to sell at a market or fair, and he
1 The preamble to this act concludes, " which misbehavior so done was doubtful in the
common law whether it were felony or not, and by reason thereof the foresaid
servants have been in great boldness to commit such or like offences." By Sect. 2
it is provided that the act shall not apply to an apprentice, or to a servant undei
the age of eighteen. — Ed.
530 bazelet's case. [chap. viii.
sell them, and receive money for them, and go away, that is not within
the statute ; for he had not it by the delivery of his master, nor goes
off with the things delivered to him. Qumre. For the money was not
delivered t"JJ2^_^rvs"ti ^y ^^ hands of his maa^^pyi >"it, of the obligor.
But If one ofmy servants deliver to another of my servants my goods,
awHrFjnjrffjith thpm, thfit in folony j for it Rlaali_h^sairl mydgliv''''y
Afld i'lTZHEEBEKT, J., Said that in the case of a bondp5y~gtft-©f-a22i2iia
bona et catalla, bonds pass.^
BAZELEY'S CASE.
Crown Case Eeserved. 1799.
[Reported Leach, ith ed. 835.]
At the old Bailey in February Session, 1799, Joseph Bazeley was
tried before John Silvester, Esq., Common Serjeant of the city of Lon-
don, for feloniously stealing on the 18th January preceding, a bank-note
of the value of one hundred pounds, the propertj' of Peter Esdaile,
Sir Benjamin Hammett, William Esdaile, and John Hammett.
The following facts appeared in evidence: The prisoner, Joseph
Bazeley, was the principal teller at the house of Messrs. Esdaile's and
Hammett's, bankers, in Lombard Street, at the salary of £100 a year,
and his duty was to receive and pay money, notes, and bills, at the
counter. The manner of conducting the business of this banking-
house is as follows : There are four tellers, each of whom has a separate
money book, a separate money-drawer, and a separate bag. The
prisoner being the chief teller, the total of the receipts and payments
of all the other money-books were every evening copied into his, and
the total balance, or rest, as it is technically called, struck in his book
and the balances of the other money-books paid, by the other tellers,
over to him. "When any moneys, whether in cash or notes, are brought
by customers to the counter to be paid in, the teller who receives it
counts it over, then enters the bank-notes or drafts, and afterwards the
cash, under the customer's name, in his book; and then, after casting
up the total, it is entered in the customer's book. The money is then
put into the teller's bag, and the bank-notes or other papers, if any,
pnt into a box which stands on a desk behind the counter, directly
before another clerk, who is called the cash book-keeper, who makes
an entry of it in the received cash-book in the name of the person who
has paid it in, and which he finds written by the receiving teller on the
back of the bill or note so placed in the drawer. The prisoner was
treasurer to an association called " The Ding Dong Mining Company ; "
and in the course of the year had many bills drawn on him by the com-
1 But see, contra, on this last point, Calye's case, 8 Co. 33. — Ed.
SECT. II.] BAZELEY'S CASE. 531
pany, and many bills drawn on other persons remitted to him by the
company. In the month of January, 1799, the prisoner had accepted
bills on account of the company, to the amount of £112 4«. Id. and
had in his possession a bill of £166 7s. 3d. belonging to the company,
but which was not due until the 9th FebruarJ^ One of the bills, amount-l
ing to £100, which the prisoner had accepted became due on the 18th\
January. Mr. William-G:ilhertj_a grocer in the Surry-road, Black-
friars, kept his cash at the bankinglottsesOf the prosecutors, and on the
18th January, 1799, he sent his servant, G^Kge Cock, to pay in £137.
This sum consisted of £122 in bank-notes, aiM the rest in cash. One
of these bank-notes was the note whir^h thejj^nipr was indicted tor^
stealing. The prisoner received this moneyfrom tjeOrge Uock, and |
after entering the £137 in Mr. Gilbert's bank-book, entered the £15
tash in his own money-book, and put over the £22 in bank-notes into
•he drawer behind him, keeping back the £100 bank-note, which he put
oto his pocket, and afterwards paid to a banker's clerk the same day
it a clearing-house in Lombard Street, in discharge of the £100 bill
which he had accepted on account of the Ding Dong Mining Company.
To make the sum in Mr. Gilbert's bank-book, and the sum in the book ,
of the banking-house agree, it appeared that a unit had been added to J
the entry of £37 to the credit of Mr. Gilbert, in the book of the bank- 1
jng-house, but it did not appear by any direct proof that this alteration I
had been made by the prisoner ; it appeared, however, that he had made *■
a confession, but the confession having been obtained under a promise
of favor, it was not given in evidence.
Const and Jackson, the priannpr'g pnnngpl , onhmiltrrl tn iJiA COurt
that to constitute a' larceny, it was necessary, in point «f law, that the
propertj' should be taken from the possession of the p^secutor, but
that it was clear from the evidence in this case thnt th^ bnnlr-niftt-
charged-to have boon otolep never was pither in the actual or the
constructive possession of Esdaile and Hammett. and that even if it
had been in their possession, yet ttiat from the manner in which it had
been secreted by the prisoner, it amounted onlj' to a breach of trust.
The court left the facts of the case to the consideration of the jury,
and on their finding the prisoner guilty, the case was reserved for the
opinion of the twelve judges on a question whether, niiflpr th° virrf'iim-
stances above stated, the taking of the v>onir-nri|^^wggjp law g tqlf^yiiffl];^
taking, or only a fraudulent breach of trust.
^'Ee'case was accordingly argued before nine of the judges in the
Exchequer Chamber, on Saturday, 27th April, 1799, by Const for the
prisoner, and by Fielding for the Crown.
Const, for the prisoner, after remarking that the prosecutor never had
actual possession of the bank-note, and defining the several offences of
larceny, fraud, and breach of trust, viz., that larceny is the taking of
valuable property from the possession of another without his consent
and against his will ; secondly, that fraud consists in obtaining valua-
ble property from the possession of another with his consent and will,
532 bazeley's case. [chap. viii.
bj- means of some artful device, against the subtilty of which common
prudence and caution are not sufficient safeguards ; and, thirdly, that
breach of trust is the abuse or misusing of that propertj' which the
owner has, without any fraudulent seducement, and with his own free
will and consent, put, or permitted to be put, either for particular or
j general purposes, into the possession of the trustee, — proceeded to
argue the case upon the following points : —
First, That the prosecutors cannot, in contemplation of law, be said
to have had a constructive possession of this bank-note, at the time
the prisoner is charged with having tortiously converted it to his own
use.
Secondly, That, supposing the prosecutors to have had the possession
of this note, the prisoner, under the circumstances of this case, cannot
be said to have tortiously taken it from that possession with a felonious
intention to steal it.
Thirdly, That the relative situation of the prosecutors and the pris-
oner makes this transaction merely a breach of trust ; and,
Fourthly, That this is not one of those breaches of trust which the
Legislature has declared to be felony.
The first point, viz., that the prosecutor cannot, in contempla-
tion of law, be said to have had a constructive possession of this
bank-note at the time the prisoner is charged with having tortiously
converted it to his own use. To constitute the crime of larceny,
the property must be taken from the possession of the owner ; this
possession must be either actual or constructive. It is clear that the
prosecutors had not, upon the present occasion, the actual possession
of the bank-note, and therefore the inquiry must be, whether they had
I the constructive possession of it ; or, in other words, whether the pos- ,
session of the servant was, under the circumstances of this case, the
possession of the master. Prnpprt.y in pnaapaainn ]> ppiH hy Sir William
Blackstone to subsist only where. .au-maB— hath botb-jhe— n^t to, and
^^2JJlfi "I'l niHitiinn rrPptlifrpfripevtv- TheprosecutorsTn tue present
lease had only a right or title to possess the note, and not the absolute
/or even qualified possession of it. It was never in their custody or
under their control. There is no difference whatever as to the question
of possession between real and personal propertj' ; and if, after the
death of an ancestor, and before the entry of his heir upon the descend-
ing estate, or if, after the death of a particular tenant, and before the
entry of the remainder-man, or reversioner, a stranger should take pos-
sesion of the vacant land, the heir in the one case, and the remainder-
man or reversioner in the other, would be like the prosecutor in the
present case, only entitled tO, but not possessed of, the estate ; and
each of them must recover possession of it by the respective remedies
which the law has in such cases made and provided. Suppose the pris-
oner had not parted with the note, but had merely kept it in his own
custody, and refused on any pretence whatever to deliver it over to his
employers, they could only have recovered it by means of an action of
SECT. II.] •f BAZELEY'S CASE. 533
/
trover or detinue, tt^e first of which presupposes the person against
whom it is brought to have obtained possession of the property b}-
lawful means, as by delivery or finding ; and the second, that the right
of property only, and not the possession of it, either really or con-
structively, is in the person bringing it. The prisoner received this
note by the permission and consent of the prosecutors, while it was
passing from the possession of Mr. Gilbert to the possession of Messrs.
Esdaile's and Hammett's ; and not having reached its destined goal, but
having been thus intercepted in its transitory state, it is clear that it
never came to the possession of the prosecutors. It was delivered into
the possession of the prisoner, upon an implied confidence on the part of
the prosecutors that he would deliver it over into their possession, but
which, from the pressure of temporary circumstances, he neglected to do.
At 1jiptini"i thpr?f"''"i "f^^^'''' a"pp««'"d-Q""Y°rsi"n '^fthii; ^n\if;^j\, was in
thr," iofrnY"°°°i^F^-^" f<''' I'i '"- To divest the prisoner of this pos-
session, it certainly was not necessary that he should have delivered this
note into the hands of the prosecutors, or of any other of their servants
personally ; for if he had deposited it in the drawer kept for the recep-
tion of this species of property, it would have been a delivery of it
into the possession of his masters ; but he made no such deposit, and
instead of determining in any waj' his own possession of it, he con-
veyed it immediately from the hand of Mr. Gilbert's clerk into his own
pocket. Authorities are not wanting to support this position. In the
Year-book, 7 Hen. 6 fol. 43, it is said, " If a man deliver goods to
another to keep, or lend goods to another, the deliverer or lender ma\-
commit felony of them himself, for he hath but jus proprietatis ; the
jus possessionis being with the bailee ; " and permitting one man to
receive goods to the use of another, who never had any possession of
them, is a stronger case. So long ago as the year 1687, the following
case was solemnh' determined in the Court of King's Bench on a special
verdict : The prisoner had been a servant, or journeyman, to one John
Fuller, and was emploj-ed to sell goods and receive money for l)is
master's use ; in the course of his trade he sold a large parcel of goods ;
received one hundred and sixty guineas for them from the purchaser ;
deposited ten of them in a private place in the chamber where he slept ;
and, on his being discharged from his service, took away with him the
remaining one hundred and fifty guineas ; but he had not put aYiy of
the money into his master's till, or in any way given it into his possess-
sion; Before this embezzlement was discovered he suddenly decamped
from his master's service, leaving his trunk, containing some of bis
clothes and the ten guineas so secreted behind him ; but he afterwards,
in the night-time, broke open his master's house, and took away with
him the ten guineas which he had hid privately in his bed-chamber ;
and this was held to be no burglary, because the taking of the money
was no felony : for although it was the master's money in right, it was
the servant's money in possession, and the first original act no felony.
This case was cited by Sir B. Shower, in his argument in the case of
534 bazeley's case. \ [chap. viii.
Rex V. Meers, and is said to be reported by Gouldsborough, 186 ; but
I have been favored with a manuscript report of it, extracted from a
collection of cases in the possession of the late Mr. Reynolds, Clerk of
the Arraigns, at the Old Bailey, under the title of Rex v. Dingley, by
which it appears that the special verdict was found at the Easter
Session, 1687, and argued in the King's Bench in Hilary Term, 3 Jac.
II., and in which it is said to have been determined that this offence
was not burglar}', but trespass onl3^ The law of this case has been
recentlj- confirmed by the case of the King v. Bull. The prisoner,
Thomas Bull, was tried at the Old Bailey, January Session, 1797,
before Mr. Justice Heath, on an indictment charging him with having
stolen, on the 7th of the same month, a half-crown and three shillings,
the property of William Tilt, who was a confectioner, in Cheapside,
with whom the prisoner lived as a journej'man ; and Mr. Tilt having
had, for some time before, strong suspicion that the prisoner had robbed
him, adopted the following method lor the purpose of detecting him :
On the 7th Januarj^ the day laid in the indictment, he left only four six-
pences in the till ; and taking two half-crowns, thirteen shillings, and
two sixpences, went to the house of Mr. Garner, a watchmaker, who
marked the two half-crowns, several of the shillings, and the sixpences,
with a tool used in his line of business, that impressed a figure some-
thing like a half-moon. Mr. Tilt, having got the money thus marked,
went with it to the house of a Mrs. Hill ; and giving a half-crown and
three of the shillings to Ann Wilson, one of her servants, and five of
the shillings and the other sixpence to Mary Bushman, another of her
servants, desired them to proceed to his house, and purchase some of
his goods of the prisoner, whom he had left in care of the shop. The
two women went accordingly to Mr. Tilt's shop, where Ann Wilson
purchased confectionary of the prisoner to the amount of five shillings
and three-pence, gave him the half-crown and three shillings, and re-
ceived three-pence in change ; and Mary Bushman purchased of him
articles to the amount of four shillings and sixpence, for which she paid
him out of the moneys she had so received, and returned the other shilling
to her mistress, Mary Hill : but neither of these women observed whether
the prisoner put either the whole or any part of the money into the till
or into his pocket. While the women, however, were purchasing thess
things Mr. Tilt and Mr. Garner were waiting, with a constable, at a
convenient distance, on the outside of the shop-door ; and when they
observed the women come out, they went immediately into the shop,
where, on examining the prisoner's pockets, th^j' found among the
silver coin, amounting to fifty-three shillings, which he had in his waist-
coat pocket, the marked half-crowns, and three of the marked shillings,
which had been given to Wilson and Bushman ; only seven shillin'ss
and sixpence were found in the till ; and it appeared that Mrs. Tilt had
taken one shiUing in the shop and put it into the till during her hu^-
band's absence ; so that the two -shillings which had been left therein
in the morning, the one shilling which Mrs. Tilt had put into it, the
SECT. II.J BAZEa.tJf'a UASE. 535
four shillings and sixpence laid '/out by Mary Bushman, and the five
shillings and sixpence marke-i. money which was found in the prisoner's
pocket, made up the suiii wU'ich ought to have been put into the till. The
prisoner upon this evidence was found guiltj^, and received sentence of
transportation ; but sk case was reserved for the opinion of the twelve
judges, Whether, as Mr. Tilt had divested himself of this money by
giving it to Mary Hill, who had given it to her servants in the manner
and for the purpose above described, and as it did not appear that the
prisoner had on receiving it from them, put it into the till, or done any-
thing with it that could be construed a restoring of it to the possession
of his master, the converting of it to his own use by putting it into his
pocket could amount to the crime of larceny, it being essential to the
commission of that offence that the goods should be taken from the pos-
session of the owner ; and, although no opinion was ever publicly
delivered upon this case, the prisoner was discharged. After these de-/
terminations, itcannpt hp. riQntended that the possession of the servant
is Lhe possession of the master ; for, independentlj' of these authorities,
""the mlu thai "tM~possession of the servantis the possession of the
master carmoTbe extended to ajsase-in whicb-4bg_j!roperty neV^F^as \
in Ttrr— mflitPrj-gosg^ssionrhowever it may be so construed m cases ^
where the identical thing stolen is delivered by the master, or where the
question is between the master and a third person. " If," says Sir Mat-
thew" Hale, "I deliver my servant a bond to receive money, or deliver
goods to him to sell, and he receives the money upon the bond or
goods and go away with it, this is not felony ; for though the bond
or goods were delivered to him by the master, yet the money was not
delivered to him by the master." But he admits, that " if taken away
from the servant by a trespasser, the master may have a general action
of trespass ; " which shows that the law, in a criminal case, will not,
under such circumstances, consider the master to have a constructive
possession of the property. Such a possession arises by mere impli-
cation of law ; and it is an established rule that no man's life shall be
endangered by any intendment or implication whatsoever.^
The judges, it is said, were of opinion upon the authority of Rex
V. Waite, that this bank-note never was in the legal custody or pos-
session of the prosecutors, Messrs. Esdaile and Hammett ; but no
opinion was ever publicly delivered ; and the prisoner was included in
the Secretary of State's letter as a proper object for a P^^'^o?^ / f
1 The argument for the prisoner upon the other points, and thal^porjfie Crown
are omitted. _i.ji.it
2 On consultation among the judges, some doubt was at first entertamed; hut at
last all assembled agreed that it was not felony, inasmuch as the note was never in the
possession of the bankers, distinct from the possession of the prisoner ^ though it would
have been otherwise if the prisoner had deposited it in the drawer, and had afterwards
taken it. ( Vide Chipchase's case, Leach, 699.) And they thought that this was not
to be differed from the cases of Rex v. Waite, Leach, 28, and Rex v. Bull, Leach, 841
which turned on this consideration, that the thing was not taken by the prisoner out
of the possession of the owner; and here it was delivered into the possession of the
536 EEGIN^ tjirjfeoBINS. [CHAP. VIII.
KEGINA V. EOBINS.
' Ckown Case Reserved. 1854.
[Reported Dearsly C. 0. 418.J
The following case was reserved for the opinion of the Court of
Criminal Appeal, by W. H. Bodkin, Esq., sitting for the Assistant
Judge of the Middlesex Sessions.
John Robins was tried at the Middlesex Sessions, in September,
1854, upon an indictment which charged him with stealing five quar-
ters of wheat, the property of his masters, George Swaine and
another.
The wheat_in question was not"tlie''proKerty of the prosejMitors, but
part of a large quantity consigned to their cafS" and~a'S^sited at one of
their storehouses. This storehouse was in the care of Thomas East-
wick, a servant of the prosecutors, who had authority to deliver the
wheat only on the orders of the prosecutors, or of a person named
Callow, who was their managing clerk.
It was proved that on the 24th of June the prisoner, who was a ser-
vant of the prosecutors at s^nother atorehouae, came to the storehouse
in'"qacsti-on accompanied by a man with a horse and cart, and obtained
the key of the storehouse from Eastwick by representing that he, the
prisoner, had been sent by the managing clerk Callow for five quar-
ters of wheat, which he was to carry to the Brighton Railway. East-
wick, knowing the prisoner and believing his statement, allowed the
wheat to be removed, the prisoner assisting to put it into the cart, in
which it was conveyed from the prosecutors' premises, the prisoner
going with it. It was aboj^roved-that-CaHowhad' given no such au-
thority, the prisoner's Statement bei_ug_eatirely false, and that the wheat
was not taken to the Brighton Railway, but disposed of, with the
privity of the prisoner, by other parties who had been associated with
liim in the commission of the offence.
The counsel for the prisoner contended that the wheat was obtained
by false pretences, but the jury were directed, if they believed the
facts, that the offence amounted to larceny, and they found the pris-
oner guilty of that offence. The prisoner was sentenced to twelve
months' imprisonment, and is now confined in the House of Correction
at Coldbath Fields in execution of that sentence. I have to ask this
Honorable Court, whether the verdict was right in point of law.
This case was argued on the 11th of November, 1854, before Jervis,
C. J., Alderson, B., Coleridge, J., Martin, B., and Crowder, J.
SECT. II.J EEGINA V. ROBINS. 537
Metcalfe, for the prisoner. In this case the prisoner obtained thi'
wheat by means of a false pretence, and was not guilt}- of larceny.
The general rule is, that in larceny the property is not parted with, andl
jn false pretences it is. Here the prosecutor parted with the property
in the wheat.
Alderson, B.. It was delivered to the prisoner for a special purpose,
namely, to be taken to the Brighton Railway.
Jervis, C. J. He gets the key by a false pretence, and commits a
larceny of the wheat.
Metcalfe. Eastwick had the sole charge of the wheat ; and although
it was not delivered to the prisoner by the hand of the master, the
delivery by Eastwick must be taken to be a delivery by the master.
The decision in Regina v. Barnes, 2 Den. C. C. 59, is in favor of this
proposition. There the chief clerk of the prisoner's master, on the
production by the prisoner of a ticket containing a statement of a pur-
chase which, if it had been made, would have entitled the prisoner to
receive 2s. 3<?., but which purchase had not in fact been made, paid
the prisoner the 2s. 3d., and it was held that the prisoner was not in-
dictable for larceny, but for obtaining money under false pretences.
Alderson, B. That is simply the case of one servant being iiiduced
to give the property of the master to another servant bj- means of ft
false pretence ; but here the property remained in Swaine throughout
as bailee. Suppose the prisoner had been really sent by Callow and
had not been guilty of any fraud, but on his way to the railwaj- had
been robbed of the wheat, could not the wheat have been laid in
Swaine ?
Metcalfe. Swaine was the bailee of the consignor ; he had only a
special property, and that special property he parted with to the
prisoner.
Martin, B. For the purposes of this case Swaine was the owner of
the wheat.
Alderson, B. If the prisoner had told the truth, and, having;
obtained the wheat without making any false pretence, had subse-
quently dealt with it as he has done, he would without doubt be
guilty of larceny ; and can it be said that he is not guilty of larceny
simply because he told a falsehood?
■ Sleigh, for the Crown, was not called upon.
Convictioti affirmed.^
1 Ace. Keg. V. "Webb, 5 Cox C. C. 154; State «. McCartey, 17 Minn. 76. See Kex
V. Jackson, 1 Moo. C. C. 119. — Ed.
538 keX v. bass. [chap. viii.
EEX V. BASS.
Crown Case Keservbd. 1782.
IReported Leach, 4th ed., 251.]
At the Old Bailey, in May Session, 1782, William Bass was convicted
of stealing a quantity of goods, the property of John Gatfee.
The prisoner was servant and porter in the general employ of the
prosecutor, a gauze weaver in Bishopsgate Street. On the day laid in
the indictment he was sent with a package of goods from his master's
house, with directions to deliver thena ta a customer at a particular
jJtace; IJT his way he met iwo "rnenV who invited him into a public
"liouse to drink with them, and then persuaded him to open the package
and sell the goods to a person whom one of the men brought in, which
he accordingly did, by taking them out of the package and putting
them into the man's bag ; and he received eight guineas of the produce
to his own use.^
It was referred to the consideration of the twelve judges, whether
from the above facts, the prisoner was guiltj' of a felonious taking.
Mr. Baron Hotham, in December Session, 1782, delivered it as the
unanimous opinion of all the judges, that the conviction was proper ;
for the prisoner standing in the relation of a servant, the pnasessiori nf
the good^_muat--bo oonaidgred as remaining in~Ehe master _until and
at the time of the unlawful conversion of them by the prisoner. The
master was to receive the money for them from the customer, and he
could at any time have countermanded the delivery of them. The
prisoner, therefore, by breaking open the package, tortiouslj' took them
from the possession of the owner, and having by the sale converted
them animo furandi to his own use, the taking is felonious.
Many cases of this kind have occurred, and all of them have been
determined to be felony.
prisoner. That although to many purposes the note was in the actual possession of
the masters, yet it was also in the actual possession of the servant, and that possession
not to be impeached ; for it was a lawful one. Etee, C. J., also observed that the
cases ran into one another very much, and were hardly to be distinguished ; that in
the case of Eex v. Spears, Leach, 825, the corn was in the possession of the master
under the care of the servant : and Lord Kenton said that he relied much on the. Act
of Parliament respecting the Bank not going further than to protect the Bank. 2 East,
C. L. 574. — Rep.
1 " It was further mentioned as an additional circumstance, that the goods were
taken out of the package in which they had been delivered to the prisoner, and put
into a bag at the public house." 2 East P. C. 566. — Ed.
SECT. II.J EEX V. LAVENDER. 539
EEX V. WATSON.
Crown Case Reserved. 1788.
[Reported 2 East P. C. 562.]
William Watson was tried on an indictment containing three counts :
the first stating, that the prisoner, as a servant, received £3 18s., the
money of E. Cowper, his late master, which was delivered to him safely
t.n Irppp \,n t.lip ]^se pf lijs said master ; and that afterwaras tue said
prisoner withdrew himself from his master with the money, w-ith an
intent to steal the same, and to defraud his said master thereof. The
second count stated that the prisoner, having received the said money
in the manner above stated, and being with his master, had converted
the same to his own use ; and both concluded against the form of the
statute. The third count was for larceny generally. It appeared that
Cowper, who ^as_a^urjQgate^ had sent the prisoner, who was his ser-
vant, to buy some blank licenses, and had delivei;ed him the £3 18s.
for that purpose ; but tlie prisoner ran away with the Tiinnev. and being
coimCled, a, questiuii was leserved for the opinion of the judges, whether
the evidence supported any of the counts. And in Easter Term, 1 788,
all the judges but the Chief Baron held that this case was not within
the statute, for to keep means to keep for the use of the master, and to
return to him. As to the count for larceny, all the judges held this
could not be felony at common 13'^ ] tv^r '''t Tnai^g it leiony Lht^l'H Ipust
be some act done by the prisoner^ a fraudulent obtaininp; of tVip'pfliiFpi
sion, with intent to steal.
REX V. LAVENDER.
Crown Case Reserved. 1793.
[Reported 2 East P. C. 566.]
John Lavender was indicted for larceny at common law of a certain
sum of money belonging to John Edmonds. The prisoner was a ser-
vant to Edmonds, who had delivered him the money in question to
carfftothe hquge of one Thomas Flawn, and there to leave the same
with him, be having agreeH~to"gTvir EdffiOnds bills for the money in a
few days. The prisoner did not carry the money to Flawn as directed,
but went away with it, purchased a watch and other things with part,
and part remained in his possession when he was apprehended. Being
found guilty, sentence was respited for the opinion of the judges,
whether this were a felony or a breach of trust ; and in Easter Term,
1793,' all tne judges held this waFaMonyTand that the last point in
Watson's case above referred to was not law. In Trinitj- Term follow
540 EEGINA V. TOLLETT AND TAYLOE. [CHAP. Till.
ing this case was again under the consideration of the judges, when
they adhered to their former opinion, and some said that the distinc-
tion between this case and Watson's, if there were any, was, that in
Watson's case the money was not delivered to the prisoner to be paid
specifically to any other person ; but if the prisoner^had laid out his
own money to the same amount in buying. licenses, it wottld-iiave been
a compliance with the order. "He was commissioned to merchandise
with the money. But they admitted that the distinction, if any, was
extremely nice, and Buller, J., thought there was none, and recog-
nized the case of R. v. Paradice, before Gould, J., as good law.'
REGINA V. TOLLETT AND TAYLOE.
Oxford Assizes. 1841.
[Reported Carrington ^ Marshman, 112.]
Coleridge, J.^ (in summing up). There is no doubt that the prop-
erty found, in the possession of the prisoner at Abingdon was the
property of the prosecutor Henry Eltham, and that it was taken from
his house on the night of Saturday, the 31st of October, and that it
was found at Abingdon in the same state in which it was taken ; and
it seems also to be clear that neither of the prisoners was in possession
of the keys which unlocked the boxes. With respect to the prisoner
ToUett, I think that the evidence is insufficient to affect him as a prin-
cipal. The evidence, as it affects the other prisoner, is therefore that
which you will principally have to attend to. It is proved by the
prosecutor, that he and his wife had been upon bad terms, and that
she had threatened to leave him and go to service ; and the wife herself
says that she twice met the prisoner Taylor at Mrs. Hayward's, which
she does not know to be a house of ill fame, and there arranged with
the prisoner Taylor that she should elope with him, and that they
should live at Gloucester as man and wife. She says that on these
two occasions she was with the prisoner in a bedroom for half an hour
each time, but that nothing improper passed between them ; she also
says that the prisoner Taylor desired her to bring all the money she
could, and that she was to get the money and the boxes ready on the
Saturday night, and he would come for them and take her away with
him also. She further states that she sat up after her husband had
gone to bed, in expectation of his coming ; that he did come, and that
she took him into the room in which her husband was asleep, and
that he took the boxes away in the cart of the other prisoner, "ToUett,
and that if her husband had remained asleep she would have gone ofl
1 :4cc.' State v. Schingen, 20 Wis. 74. — Ed.
" The charge only is given ; it sufficiently states the case.
SECT, n.] EEGINA V. TOLLETT AND TAYLOE. 541
with the prisoner Taylor ; but as her husband awoke she was obliged
to stay, and she gave information which led to the apprehension of the
prisoners at Abingdon. Now, by law there is such a unit}' of interest
between husband and wife, that ordinarily the wife cannot steal the
goods of the husband, nor can an iudifferent person steal the goods of
the husband by the delivery of them bj- the wife. If, therefore, the
prisoner Taylor had been an indifferent person, and the wife of the
prosecutor had delivered this money and these goods to him to convert
to his own use, that would in point of law have been no larceny.' But
if the person to whom the goods are delivered by the wife be an adul-
terer, it is otherwise, and an adulterer can be properly convicted of
stealing the husband's goods, though they be delivered to him by the
wife. On this evidence, it does not appear that the criminal purpose
had been carried into effect ; but if that criminal purpose had not been
completed, and these goods were removed bj- the wife and the prisoner
Taylor with an intent that she should elope with him and live in adul-
terj' with him, I shall direct j-ou in point of law that the taking of them
was a larceny. Mr. Carrington has said that if the wife eloped with
an adulterer, it would be no larcenj' in the adulterer to assist in carry-
ing away her clothes. I do not agree with him, for I think that if she
elopes with an adulterer, who takes her clothes with them it is larceny
to steal her clothes, which are her husband's propert}-, just as much as
it would be a larcen}' to steal her husband's wearing apparel, or any-
thing else that was his property. However, the evidence in this case
goes further than that ; for it is proved that the prisoner told her to
bring with her all the money that she could, and a sum of mone)- is
contained in one of the boxes. Mr. Carrington also contends that,
except on the evidence of the wife, there is no proof that the prisoner
Ta3'lor was anything more than a friend ; and if there was a larceny in
the stealing of these goods, the wife is an accomplice, and requires con-
firmation. Taking that to be so, we find that she is confirmed as to all
the main facts of the case ; and she certainly appears to have no motive
to blacken her own character ; and it seems reasonable, therefore, to
believe her as to the criminal intention on her part. Mr. Carrington
also says that the conduct of the two prisoners was not that of thieves,
as they stayed at Abingdon, where the.y were known ; and that certainl}-
ought to weigh in favor of the prisoners. It is also said that they did
not break bulk ; but I think that that does not amount to much, because,
if the scheme was for the wife of the prosecutor to live with the prisoner
Taylor at Gloucester, there would be no object in opening the box:es at
Abingdon. It is further said that Taylor did not know what was in
the boxes. However, if a man take away any property at all belonging
to another, having arranged to elope with the wife of that other, and
having told the wife to bring all the money she could, it will be for you
to say whether he did not intend to steal the property thus taken away,
1 Ace. Lamphier r. State, 70 Ind. 317, semWe. — Ed.
542 REGINA V. NORVAL. [OHAP. VIII.
though he might not at the time of the taking know exactly of what the
property consisted. If you are satisfied that the prisoner Taylor took
any of the husband's property, there then being a criminal intention, or
there having been a criminal act between that prisoner and the wife, it
is a larceny, and you ought to find the prisoner guilty ; but if you think
that the prisoner took away the boxes merelj' to get the wife away as a
friend onty, and without any reference to any criminal connection be-
'tween the prisoner and the wife, either actual or Intended, you ought to
acquit him.
The jurj' found the prisoner Taylor guilty, and the prisoner ToUett
not guilty. 1
EEGINA V. NOEVAL.
Central Criminal Court. 1844.
■[Reported 1 Cox C. C. 95.]
The prisoners were indicted for feloniously stealing certain' deer-
horns, the property of one Kirkman.
It appeared in evidence tliat the prisoner Nerval was in the employ
of Kirkman, who was a carman. The goods in question were lying in
the docks, and the owner delivered to Kirkman the dock warrants, in
order that he might receive them and cart them up to town. Kirkman
accordingly gave the warrants to the prisoner Nerval, with the neces-
sary instructions, and he (Nerval) went with a cart to the docks, the
deer-horns were put into it, and on the passage back to London several
of them were abstracted, Nerval colluding with the ether prisoner for
that purpose.
Ballantine, for the prisoner Nerval, contended, that upon this state
of facts tlie>*Ha*g,e_should have been one of embezzlement as against
him, and not one of felony. The goods had never been in the master's
posgessieii. The prisoner obtained them lawfully in the first instance,
so thaTthere could be no tortious taking, which was an essential ingre-
dient in the proof of felony.
Mr. Commissioner Bcllock consented to reserve the point, and the
prisoner was convicted.
The learned commissioner subsequently stated that he had consulted
Mr. Baron Gurnet on the subject, who was of opinion that the cen-
victionjvaajjroper. True it is that the making away by a servant with
goodsthat have never been in the possession of the master, is embez-
zlement; but here thevp is f (■nnst.rni^tivp pngapaainn , and thai_acc«i64-
at the moment whenthe goods were placed in the'masier'g.^caEt—
1 Ace. Eex V. Willis, 1 Moody C. C. 375 ; Eeg. v. Glassie, 7 Cox C. C. 1 ; Reg. v
Kenny, 13 Cox C. C. 397 ; People v. Schuyler, 6 Cow. 572. — Ed.
SECT. U."] EEGINA V. EEED. 543
REGINA V. REED.
Crown Case Reserved. 1853.
[Reported 6 Cox C. C. 284.]
The following case was reserved by the Court of Quarter Sessions
for the county of Kent.
At the General Quarter Sessions of the Peace for the county of Kent,
holden at Maidstone, on the 4th January, 1853, before Aretus Akers,
Edward Burton, and James Espinasse, Esqrs., justices appointed to try
prisoners in a separate court, Abraham Reed was tried upon an idict-
ment for feloniously stealing 200 lbs, weight .gf joal-Sai-tlie property of
William Newtonj_hismaste_r, on the 6th December, 1852 ; and James
Feerless was cnarged inthe same indictment with receiving the coals,
knowing the same to have been stolen, and was acquitted.
The evidence of the prosecutor, WilHam Newton, was as follows : —
" I am a grocer and miller, at Cowden, and sell coals by retail. The
prisoner, Reed, entered my service last year, about three weeks before
the 6th December. On that day I gave him directions to go to a cus-
tomer to take some flour, and thence to the station at Edenbridge, for
12cwt. of coals. I deal with the Medwaj* Compan}-, who have a wharf
there, Holman being wharfinger. I told Reed to bring the coals to my
house. Peerless lives about 500 yards out of the road from the station
to my house. Reed went about nine a.m., and ought to have come
back between three and four p. m. ; but as he had not come back, I
went in search of him at half-past six, and found him at Peerless's.
The cart was standing in the road opposite the house, and the two
prisoners were taking coals from the cart in a truck basket. It was
dark. I asked Reed what business he had there ; he said, ' to deliver
half a hundredweight for which he had received an order from Peer
less.' Reed had never before told me of such an order, and had
authority from me to sell coals. Later that evening I went and asked
Peerless what coals he had received from m}- cart ; he said, half a hun.
dredweight. I then asked him how they were carried from the cart ;
he said, in a sack. I weighed the coals when brought home, and found
the quantity so brought a quarter of a hundredweight and four pounds
short. I went to Peerless's next day and found some coals there,
apparently from half to three quarters of a hundredweight." Upon his
cross-examination he stated as follows : " I believe Peerless had some-
times had coals from me. When I came up they were shutting the tail
of the cart, but some coals were in a truck-basket at their feet. Reed
said at once that he had received an order from Peerless. It was two
hours later when I asked Peerless, and when he said he had ordered
them. Reed said he had carried two hundredweight in, but that was
two hours after." On his re-examination he said: "I think Peerless
had had some coals from me about a fortnight before the 6th." James
rerl
544 KEGINA V. KBED. [CHAP. VIII.
Holman, another witness for the prosecution, said : "I am wharfinger
to the Medway Company, at the Edenbridge station, and Newton deals
there for coals. Reed came on the 6th December, and asked for half a
ton for Newton, and I supplied him. I entered them at the time to
Newton, and now produce the book with the entry." James Handley,
another witness for the prosecution, said, " I am superintendent of the
Sevenoaks division. On the 7th December, I went to Peerless's, and
asked him how much coals he had received from Reed ; he said he had
ordered half a hundredweight three weeks before ; Reed, when I asked
him afterwards, said, three days before ; Reed said he had received
two glasses of wine from Peerless." On his cross-examination, he
said, "This was about four p.m., 7th December." Newton was then
re-examined and said : " Reed came to me in the morning of the 7th ;
I told him 2| cwts. were missing. He then said one sack had been
left at the wharf by mistake ; I therefore charged him with only three-
quarters of a hundredweight." Holman, upon re-examination, said :
" Reed left a sack behind him ; but it was an empty one." This being
the case for the prosecution, Mr. Ribton, ""'Ulilfil fnr ^^"^ p'''soner^sub-
mitted thatthere was no case to go to the jury on the charge of larceny.
irraSTSuch as the coals left at .Peerless's had never been in the possession
oi Newton, tUe_amster. Mr. ±tose, counsel on the part of the prosecu-
tioftr'COBtended that the coals were constructively in the possession of
Newton, and that the offence was properlj' charged as larcenj- ; but that,
under the provisions of the act 14 & 15 Vict. c. 100, s. 13, it was imma-
jterial whether the offence were larceny or embezzlement, as the jury
might find a verdict either for larcenj^ or embezzlement. Mr. Ribton
then proposed that it should be left to the jury as a charge of embezzle-
ment ; but to this Mr. Rose objected, on the ground that the receiver
(must then be acquitted. J^l^e court were of opinion that there was a
constructive possession in the master, "aJTd left Lhycase to the jurj' as a
case ot larceny upon the evidence, -Vho thereupon found the prisoner,
Abraham Reed, guilty. Mr. Ribton then applied to the court to sub-
mit the case to the Court of Criminal Appeal, contending that the
conviction was wrong in law ; as, if any ofl;ence had been committed, it
was embezzlement, and not larceny. The court acceded to the appli-
cation, and respited judgment, and discliarged Reied, upon his entering
into recognizances — himself in £20, and one surety in ^20 — to receive
judgment at the next Court of Quarter .Sessions for Kent.
This case was first argued on the 23d April, 1853, before Jervis,
C. J., Parke, B., Alderson, B., Wightman, J., and Cresswell, J.,
wlien the court took time to consider their judgment. The court
afterwards directed tliat the case should be argued before all the judges ;
and, in pursuance of that direction, the case was again heard on the
I'Jth November, 1853.
Ribton, for the prisoners. The conviction is wrong. To constitute
larceny tliere must, acc<n'ding to all the definitions of that offence, be a
taking from the possession of the owner. Formerly, it was supposed
SECT, II.7 EEGINA V. KEED. 545
that the taking must be out of the actual possession of the owner, as
appears by the recital of the earliest Embezzlement Act (21 Hen. VIII.
0. 7) , which was passed to provide for the punishment of servants con-
verting goods or money entrusted to their keeping by their masters
(Dalton's Country Justice, 496) ; but it is now settled that the posses-
sion may be either actual or constructive. In either case the taking
constitutes a trespass, which is essential to larceny. Constructive pos-
session is of two kinds : first, where property has been given bj- tlie
master to the servant for a special purpose, or is put under the ser-
vant's charge or custody ; secondly, where a third person has given
goods to the servant, and the servant has determined his own exclusive
possession by some act which vests the possession in the master. The
constructive possession in this case, if any, was of the second kind ; but
there was, in truth, no possession bj' the master at all.
Paeke, B. If the goods were the property of the master before the
delivery of them to the servant, any act whereby they are reduced into
the master's possession is sufficient.
Hibton. Yes ; but not a more right to the actual possession. The ,
criterion is, whether the goods have reached the place of their ultimate \
destination ? The distinction is between the actual possession and the \
right to the actual possession. In Waite's case (1 Leach, 28 ; 2 East
P! C. 570), a cashier of the Bank of England abstracted an India bond ;
but, as the bond had not been previously placed by him in the cellar of
the bank, the place of its ultimate destination, the act was held to be
not one of larceny. So, in the present case, the act is not one of lar-
ceny, because the coals, though the master had a right to the possession
of them, had not reached the place of their final deposit. In R. v.
Bazeley (2 Leach, 835 ; 2 East P. C. 571), money was received by a
banker's clerk at the counter, and, instead of putting it into the proper
drawer, he purloined it ; and that was held not to be larceny, because as
against him there was no possession by the master. [Lokd Campbell,
C. J. — On the former argument, my brother Parke suggested that that
was money, the subject of account. Platt, B. — Suppose it to be the
duty of the clerk to put the money into a drawer and lock it up, must
the drawer be pushed home and locked up before the money has got
into the possession of the master?] The drawer on the premises of the
master is the ultimate place of deposit. [Lord Campbell, C. J. — Sup-
pose that the servant leaves the horse and cart on the road ; has he then
determined his duty, so tfiat if he comes back he may steal them?] If
he had, it would be embezzlement. R. v. Bull, 2 Leach, 841 ; R. v.
Poorer, cited in R. v. Meeres, 1 Show. 50 ; R. v. Walsh, 4 Taunt.
258, 276 ; R. & R. 215 ; 2 East P. C. 177 ; and R. v. Spears there
cited. [Lord Campbell, C. J. — In the report in 4 Taunt. 276,
Heath, J., says, " That case went upon the ground that the corn was
in the prosecutor's barges, which was the same thing as if it had been
in his granary."] The report in East is not so. He also cited R. y.
SuUens, 1 Moo. C. C. 129, and R. v. Masters, 8 Cox Crim. Cas. 178;
546 REGINA V. EBED. [CHAP. Till.
1 Den. 332. [Pollock, C. B. — Suppose he had had to take the coals
to a customer at once. How would it be then? In respect to the
master, the cart would be the filial place of deposit.] The customer's
house would have been the final place of deposit. [Lord Campbell,
C. J. — How do you define the place of final deposit?] That depends
on the particular circumstances of each case. In this one, for instance,
it is the house of the master. [Lord Campbell, C. J. — When the
coals passed the threshold, or the cart passed the gate ? A farm-house
is at the extremity of a field ; does the constructive possession cease at
the gate of the field, or at the door of the house ? Platt, B. — The cart
was in the possession of the master. If he had taken that, it would
have been larceny. Parke, B. — The cart is but the means of transit to
the master's house, which was the ultimate place of destination.] In
R. V. Hayward (1 Car. & K. 518) straw thrown down at a stable door
was considered to have reached a place of final deposit. If a banker's
clerk collects bills, puts them into his pocket, and abstracts one, the
property of his master, which he afterwards converts to his own use,
that is embezzlement, not larceny. [Jekvis, C. J. — How do you distin-
guish the cases of R. v. Spears and E. v. Abrahat (2 Leach, 828) ?
Lord Campbell, C. J. — R. v. Spears is on all- fours with this case.
Parke, B. — In R. v. Spears it is uncertain, looking at the reports in
East and Leach, and the difference between the two editions of Leach,
whether the judgment did not turn on the fact that the master had
bought the whole cargo.] In that case the master would have had a
title and constructive possession before delivery to the prisoner.
JRose, contra. The act of the prisoner was an offence at common
law. The embezzlement statutes are aflirmative, and, so soon as a
trespassjis proved, a larceny is established. There was a trespass in this
case ; for, as the coals were asked for in the master's name, charged to
the master in the bill, put into the master's sacks, and the sacks put
into the master's cart, the master had constructive possession before
the servant had actual exclusive possession. Com. Dig. "Trespass,"
B. 4. [Lord Campbell, C. J. — The constructive possession of the
master need not be distinct from the actual possession of the servant.]
What act before the taking in this case divested the master of his con-
structive possession? Robinson's case (2 East P. C. 565), Paradice's
case (ib.), proceed on the principle that, despite the manual possession
of the servant, the constructive possession is in the master. So, if the
servant had left the cart and coals, had returned suddenly in the night,
and had taken the coals, would he not have been guilty of stealing his
master's property ? The case of R. v. Spears is not to be distinguished
from this. In commenting on Waite's case and Bazeley's case, East
reconciles them by saying that there is no constructive possession with-
out the possession of the servant. In R. v. Bull the case was one of
money, which constitutes matter of account, and trespass would not
lie. Higgs V. Holliday, Cro. Eliz. 746. This is not like the case of a
gift to the master, where he never gets possession until delivery to the
SECT. II.] EEGINA V. REED. -547
servant. [Lord Campbell, C. J. — Spears' case is to be taken from
the second edition of Leacti, as is shown by Heath, J., in 4 Taunt..
276. Paeke, B. — If we take it from Abrahat's case, the corn was
clearly purchased by the master before.] Suppose that another servant '
had been sent ; that he had delivered the order ; that the coals had been
weighed out ; and that the prisoner had then been sent with the cart for
the coals, and had stolen some of them, — ^that must have been larcenj'.
In E. V. Harding (R. & R. 125) property which the prosecutor had
bought was weighed out in the presence of his clerk, and delivered to
the carter's servant to cart, and a fraudulent conversion by the carman
was held larceny.
mbton, in replj-. In R. v. Harding the property had been in the
actual possession of the master. In R. v. "Watts (2 Den. C. C. 14), the
defendant divested himself of possession in favor, so to say, of his
emploj'ers. In this case the prisoner has not so divested himself by
any distinct act. In R. v Watts, the distinct act was the receipt had
of the cheque by the prisoner ; it being his duty to his employers to
receive it. In this case the coals had not reached their final destina-
tion. Cur. adv. vult.
liORD Campbell, C. J. There lies before me a judgment that I had
prepared for myself at a time when there was reason to suppose that
there might be one, if not more dissenting judges. I have reason to
believe now that there will not be any dissent ; but still this judgment
must be considered only as embodying the reasons I give for my
opinion, because I have no authority to say that my brothers concur in
that opinion, and the reasons for it. For convenience, I have written
my judgment, and my learned brothers will saj' how far thej- concur or
dissent. I am of opinion that the prisoner has been properly convicted
of larceny. There can be no doubt that, in such a case, the goods
must have been in the actual or the constructive possession of the mas-
ter ; and that, if the master -had no otherwise the possession of them
than by the bare receipt of his servant upon the delivery of another for
the master's use, although as against third persons this is in law a
receipt of the goods by the master, yet in respect of the servant himself
this will not support a charge of larceny, because as to him there was
no tortious taking in the first instance, and consequently no trespass.
Therefore, if there had been a quantity of coals delivered to the pris-
oner for the prosecutor, and the prisoner, having remained in the
personal possession of them, as by carrying them on his back in a
bag, without anything having been done to determine his original ex-
clusive possession, had converted them animo furandi, he would have
been guilty of embezzlement, and not of larceny. But if the servant,
has done anything which determines his original exclusive possessioin
of the goods, so that the master thereby comes constructivelj' intol
possession, and the servant afterwards converts them animo furandi, ■
he is guilty of larceny, and not merely of a breach of trust at common
548 EEGINA V. REED. [CHAP. Till.
law, or of embezzlement under the statute. On this supposition he
subsequently takes the goods tortiously in converting them, and com-
mits a trespass. Wphttvc. t)mrp.fnrp tg •.•nX\?<V\?X whpt'''"'' '•^'f offOnaivp
possession of the coals continued with the prisoner down to the time
of^tke conversion. L am, of oi^mpir-feat--tliis exclusive po'Bsessi on
was-OEiermined when the coals were deposited in the prosecutor's
^artrlii the same manner as ^i they^nad been deposited in the prose-
cTitor's cellar, of wnich the prisoner had the charge. The prosecutor
was undoubte"cny in possession of the cart at the time when the coals
were deposited in it ; and if the prisoner had carried off the cart dnimo
furandi, he would have been guilty of larceny. That is expressly
determined in Eobinson's case (2 East, 565). There seems considera-
ble difficulty in contending that, if the master was in possession of the
cart, he was not in possession of the coals which it contained, the coals
being his property, and deposited there by his order, for his use. .Mr.
T?'litnn nrgiip'^ tim*'' ^■'•"' g:""^^ rpppjvpri hj a, stirviint f"'- ^jg master
remain in the exclusive possession of Hi" sp'-^^int tjH they have reachecT
"their ultinaatp rloBtinnition. But he was unable, notwithstanding his
'^SariTing and ingenuity, to give any definition of " ultimate destination,"
when so used. He admitted that the master's constructive possession
would begin before the coals were deposited in the cellar, when the cart
containing the coals had stopped at his door, and even when it had
Entered his gate. But I consider the point of time to be regarded is
that when the coals were deposited in the cart. Thenceforth the pris-
oner had only t.he fiistpdy or charge of the coals, as a butler has of his
master's plate, or a groom has of his master'sTiorse. To this conclu-
sion, with the most sincere deference to any of my learned brothers
who may at any time have taken a different view, — to this conclusion
I should have come on principle ; and I think that Spears' case is an
express authority for it. The following is an exact copy of the state-
ment of that case, signed by BuUer, J., in pp. 181, 18i2, and 183 of the
2d volume of the Black Book, containing the decisions of the judges in
Crown cases, deposited with the Chief Justice of the Queen's Bench for
the time being: "John Spears was convicted before me at Kingston,
for stealing forty bushels of oats of James Broune & Co. in a barge on
the Thames. Broune & Co. sent the prisoner with their barge to Wil-
son, a corn meter, for as much oats only as the barge would carry,
and which were to be brought in loose bulk. The prisoner received
from Wilson 220 quarters in loose bulk, and five quarters in sacks ; the
prisoner ordering that quantity to be put into sacks. The quantity in
the sacks was afterwards embezzled by the prisoner ; and the question
reserved for the opinion of the judges is, whether this was felon}-, the
oats never having been in the possession of the prosecutor ; or whether
it was not like the case of a servant receiving change or buyino- a thino-
for his master, but never delivering it." Then there is a reference madu
to Dy. 5, and 1 Show. 52 ; and then this is signed by Sir J. Buller ; and
then is added, " 25th April, 1798. Conviction affirmed." Now that
SECT. II.] EEGINA V. EEED. 549
is an exact copy from the Black Book. In that case the question arose
whether the corn, while in the prosecutor's barge, in which it was to be
brought by the prisoner to the prosecutor's granarj', was to be consid-
ered in the possession of the prosecutor ; and the judges unanimously
held, that from the time of its being put into the barge it was in the
prosecutor's possession, a.lthoiigh the prisoner had the custody or charge
of it. That case has been met at the bar by a suggestion that the
whole cargo of corn, of which the quantity put on board this barge was
a part, was or might have been purchased by the prosecutor, so that he
might have had a title and constructive possession before the delivery
to the prisoner. But the very statement of the case in the Black Book,
and the authorities referred to, show that the judges turned their atten-
tion to the question whether the exclusive possession of the servant had
not been determined before conversion ; and during the argument of
Kex V. Walsh (4 Taunt. 276) we have the ratio decidendi in Spears'
case explicitly stated by one of the judgfes who concurred in the
decision : " Heath, J. — That case went upon the gi'ound that the corn
was in the prosecutor's barge, which was the same thing as if it had
been in his granary." Eead " cart " for " barge," " coals " for " corn,"
and "cellar" for "granary," and the two cases are for this purpose
precisely' the same. There is no conflicting authority ; for in all the
cases relied upon by Mr. Ribton, the exclusive personal possession of
the prisoner had continued down to the time of the wrongful conver-
sion. -i(ns baid there is great subtlety in giving such an effect to the
deposit of the coals in the prosecutor's cart ; but the objection rests on
a subtletj' wholly unconnected with the moral guilt of the prisoner, for
as to that it must be quite immaterial whether the propertj' in the coals
had or had not vested in the prosecutor prior to the time when they
were delivered to the prisoner. We are to determine whether this
would have been a case of larcenj- at common law before there was anj-
statute against embezzlement ; and I do not think that there would have
been any reproach to the administration of justice in holding that the
subtlety arising from the prosecutor having had no property in the sub-
ject of the larceny before its delivery to the prisoner, who stole it, was
sufficiently answered by the subtlety that when the prisoner had once
parted with the personal possession of it, so that a constructive posses-
sion by the prosecutor began, the servant who subsequently stole it
should be liable to be punished, as if there had been a prior property
and possession in the prosecutor, and that the servant should be ad-
judged liable to be punished for a crime, instead of being allowed to
say that he had only committed a breach of trust, for which he might be
sued in a civil action. In approaching the confines of difl'erent offences
created by common law or by statute, nice distinctions must arise, and
must be dealt with. In the present case it is satisfactory to think that
the ends of justice are eflTectually gained by affirming the conviction ;
for the only objection to it is founded upon an argument that he ought
to have been convicted of another offence of the same character, foi
which he would have been liable to the same punishment.
550 COMMONWEALTH V. EYAN. [CHAP. VIII.
Jekvis, C. J. I concur in the judgment of the Lord Chief Justice.
I had originally written a judgment concurring in the view taken by
my lord ; but ultimately I have not found it necessary to read it. It is
admitted that the cart was in the possession of the servant for a special
purpose ; if he had taken the cart, he would have been guilty of lar-
ceny ; and if the cart for this purpose continued the cart of the master,
the delivery of the coals into the cart was a delivery to the master, and
makes the ofltence a larcen3^ "*-
Parke, B. I certainly had differed from the view of this case which
has been taken by Lord Campbell at a time when it was uncertain
what the case of Spears actually was, and treating this case as res
nova. The book in which the opinions of the judges are written, and
which is always in the custody of the Lord Chief Justice, was mislaid ;
and the case of John Spears was differently reported in the two editions
of Leach, and also in East's Crown Law ; and that case could not for a
long time be found. Howfever, since it has been found, I have satisfied
myself; and I entertain no doubt upon it. I should have delivered my
reasons at length ; but it is unnecessary now to do so. The cases of
Rex V. Abrahat and Hex v. Spears having been discovered, and having
read that case with the explanation of Heath, J., I find the point de-
cided ; and though, therefore, if this were res nova, I should have
pronounced an opinion that this was not larcenj', 3'et as that case is a
decided authoritj', by the authoritj' of that case I am bound ; and it is
unnecessary for me to deliver my reasons at any greater length.
The other judges concurred. Conviction affirmed.
COMMONWEALTH v. RYAN.
Supreme Judicial Court of Massachusetts. 1892.
[Reported 155 Massachusetts, 523.]
Holmes, J.» This is a complaint for embezzlement of money.
The case for the government is as follows : The defendant was em-
ployed by one Sullivan to sell liquor for him in his store. Sullivan
sent two detectives to the store, with marked money of Sullivan's, to
make a feigned purchase from the defendant. One detective did so.
The defendant dropped the money into the money drawer of a cash
register, which happened to be open in connection with another sale
made and registered by the defendant, but he did not register this sale,
as was Customary, and afterward — it would seem within a minute or
two — he took the money from the drawer. The question presented is
^etherjlAmeftmr-fUi mattpr of law, that the dpfpnrlant was not guilCy
oTembezzlement, but was guilty of larcenj-, ifoF~5:nything. ~Tte de-
1 The opinion only is given ; it sufficiently states the case.
SECT. II.] COMMOITWEALTH V. EYAN. 551
fendant asked rulings to that effect on two grounds : first, that after the
money was put into the drawer it was in Sullivan's possession, and there-
fore the removal of it was a trespass and larceny ; and secondly, that
SuUivan's ownership of the money, in some way not fully explained,
prevented the offence from being embezzlement. We will consider
these positions successively.
We must take it as settled that it is not larceny for a servant to con-
vert property delivered to him by a third person for his master, provided
he does so before the goods have reached their destination, or some-
thing more has happened to reduce him to a mere custodian (Com-
monwealth V. King, 9 Cush. 284) ; while, on the other hand, if the
property is delivered to the servant by his master, the conversion is
larceny. Commonwealth v. Berry, 99 Mass. 428 ; Commonwealth v.
Davis, 104 Mass. 548.
This distinction is not very satisfactory, but it is due to historical
accidents in the development of the criminal law, coupled, perhaps,
with an unwillingness on the part of the judges to enlarge the limits of
a capital offence. 2 Leach (4th ed.), 843, 848, note ; 1 Leach (4th ed.),
35, note ; 2 East P. C. 568, 571.
The history of it is this. There was no felony when a man received
possession of goods from the owner without violence. Glanv., bk.
10, c. 13 ; Y. B. 13 Edw. IV. 9, pi. 5 ; 3 Co. Inst. 107. The early
judges did not always distinguish clearl}' in their language between
the delivery of possession to a bailee and the giving of custody to a
servant, which indeed later judges sometimes have failed to do. E. g.
Littleton in Y. B. 2 Edw. IV. 15, pi. 7; 3 Hen. VII. 12, pi. 9;
Ward V. Macauley, 4 T. R. 489, 490. When the peculiar law of mas-
ter and servant was applied either to the master's responsibility or to
his possession, the test seems to have been whether or not the servant
was under the master's eye, rather than based on the notion of status
and identity of person, as it was at a later day. See Byington v.
Simpson, 134 Mass. 169, 170. Within his house a master might be
answerable for the torts of his servant, and might have possession of
goods in his servant's custody, although he himself had put the goods
into the servant's hands ; outside the house there was more doubt ; as
when a master intrusted his horse to his servant to go to market. Y. B.
21 Hen. VII. 14, pi. 21 ; T. 24 Edw. III. ; Bristol in Molloy, De Jure
Maritimo, bk. 2, c. 3, § 16; Y. B. 2 Hen. IV. 18, pi. 6 ; 13 Edw. IV.
10, pi. 5 ; s. c. Bro. Abr. Corone, pi. 160 ; Staundforde, I., c. 15, fol.
25 ; c. 18, fol. 26 ; 1 Hale, P. C. 505, note. See Heydon & Smith's
case, 13 Co. Rep. 67, 69 ; Drope v. Theyar, Popham, 178, 179 ; Combs
V. Bradley, 2 Salk. 613 ; and, further, 42 Ass. pi. 17, fol. 260 ; 42 Edw.
IIL 11, pi. 13; Ass. Jerus. (ed. 1690), cc. 205, 217. It was settled
by St. 21 Hen. VIII. c. 7, that the conversion of goods delivered to a
servant by his master was felony, and this statute has been thought to
be only declaratory of the common law in later times, since the distinc-
tion between the possession of a bailee and the custody of a servant
552 COMMONWEALTH V. EYAN. [CHAP. VIII.
has been developed more fully, on the ground that the custody of the
servant is the possession of the master. 2 East P. C. 564, 665 ; The
King V. Wilkins, 1 Leach (4th ed.), 520, 523. See Kelyng, 35 ; Fitzh.
Nat. Brev. 91 E ; Blosse's case, Moore, 248; s. c. Owen, 52, and
Gouldsb. 72. But probably when the act was passed it confirmed the
above mentioned doubt as to the master's possession where the servant
was intrusted with property at a distance from his master's house in
cases outside the statute, that is, when the chattels were delivered bj^ a
third person. In Dyer, ha, 5b, it was said that it was not within the
statute if an apprentice ran off with the money received from a third
person for his master's goods at a fair, because he had it not by the
delivery of his master. This, verj' likely, was correct, because the
statute only dealt with delivery by the master ; but the case was taken
before long as authority for the broader proposition that the act is not
a felony, and the reason was invented to account for it that the servant
has possession, because the money is delivered to him. 1 Hale P. C.
667, 668. This phrase about delivery seems to have been used first in
an attempt to distinguish between servants and bailees. Y. B. 13
Edw. IV. 10, pi. 5 ; Moore, 248 ; but as used here it is a perverted
remnant of the old and now exploded notion that a servant away from
his master's house always has possession. The old case of the servant
converting a horse with which his master had intrusted him to go to
market was stated and explained in the same way, on the ground that
the horse was delivered to the servant. Crompton, Just. 35b, pi. 7.
See The King v. Bass, 1 Leach (4th ed.), 251. Yet the emptiness of
the explanation was shown by the fact that it still was held felony when
the master delivered property for service in his own house. Kelyng,
35. The last step was for the principle thus qualified and explained
to be applied to a delivery by a third person to a servant in his master's
shop, although it is possible at least that the case would have been
decided differently in the time of the Year Books (Y. B. 2 Edw. IV.
15 pi. 7; Fitzh. Nat. Brev. 91 E) ; and although it is questionable
whether on sound theory the possession is not as much in the master as
if he had delivered the property himself. Eex v. Dingley (1687), stated
in The King v. Bazeley, 2 Leach (4th ed.), 835, 841, and in The King
V. Meeres, 1 Show. 50, 53 ; Waite's case (1743), 2 East P. C. 570 ; s. c.
1 Leach (4th ed.), 28, 35, note ; Bull's case, stated in The King v.
Bazeley, 2 Leach (4th ed.), 835, 841 ; s. c. 2 East P. C. 571, 572 ; The
King V. Bazeley, ubi supra; Regina v. Masters, 1 Den. C. C. 332;
Eegina v. Reed, Dears. C. C. 257, 261, 262.
The last mentioned decisions made it necessary to consider with care
what more was necessary, and what was sufficient, to reduce the servant
to the position of a mere custodian. An obvious case was when the
property was finally deposited in the place of deposit provided by the
master, and subject to his control, although there was some nice discus-
sion as to what constituted such a place. Eegina v. Reed, Dears. C. C.
257. No doubt a-flnaLdggosit of money in the tULo£-a.a^p would
SECT. II.] COMMONWEALTH V. ETAJT. 553
have the effect. "Waite's case, 2 East P. C. 570, 571 ; s. c. 1 Leach
(4th fed.); 2S, 35, note ; Bull's case, 2 East P. C. 572 ; s. c. 2 Leach (4th
ed.), 841, 842; The King v. Bazeley, 2 East P. C. 571, 574; s. c. 2
Leach (4th cd.), 835, 843, note ; Regina v. Wright, Dears. & Bell, 431,
441. But it is plain thaUhe mere physical presence of the money there
for a moment is not conclusive~whiie tne "servant is on the spot and has
nni-. L.^t Ilia pr.irr,.- ^yc-,. j)^ • go f^v ;„c|;7.n-^.p jf f|^p rrmnt ilriiii ■ il , ^iml-
instantly picks it up again. Such cases are among the few in which
the actual intent of t.he^ party_is legally jmportant : for, apart from
other considerations, the character in whicE he exercises his control
depends entirely upon himself. Sloan v. Merrill, 135 Mass. 17, 19 ;
Jefferds v. Alvard, 151 Mass. 94, 95 ; Commonwealth v. Drew, 153
Mass. 588, 594.
It follows from what we have said that the defendant's first position
cannot be maintained, and that the judge was right in charging the
jnr}' that, if the defendant before he placed the money in the drawer
intended to appropriate it, and with that intent simply put it in the
drawer for his own convenience in keeping it for himself, that would
not make his appropriation of it just afterwards larceny. The distinc-
tion may be arbitrary, but, as it does not affect the defendant otherwise
than by giving him an opportunity, whichever offence he was convicted
of, to contend that he should have been convicted of the other, we have
the less uneasiness in applying it.
With regard to the defendant's second position, we see no ground for
contending that the detective in his doings was a servant of Sullivan,
or that he had not a true possession of the money, if that question were
open, which it is not. The only question reserved b}' the exceptions is
whether AallivaB^oynership of the money prevented the defendant's
ag^from being embezzlement. It has been supposed to make a differ-
ence if the right of possession in the chattel converted by the servant
has vested in the master previous to the deliverj- to the servant by the
third person. 1 Eng. Crim. Law Com'rs Rep. (1834), 31, pi. 4. But
this notion, if anj'thing more than a defective statement of the decisions
as to delivery into the master's barge or cart (Rex v. Walsh, 4 Taunt.
258, 266, and Regina v. Reed, ubi supra), does not appl}- to a case
like the present, which has been regarded as embezzlement in England
for the last hundred years. Bull's case, stated in The King v. Bazeley,
2 Leach (4th ed.), 835, 841 : s. c. 2 East P. C. 571, 572 ; The King
V. Whittingham, 2 Leach (4th ed.), 912 ; The King v. Headge, 2 Leach
(4th ed.), 1033 ; s. c. Russ. & Ry. 160 ; Regina v. Gill, Dears. C. C.
289. If we were to depart from the English decisions, it would not be
in the way of introducing further distinctions. See Commonwealth v.
Bennett, 118 Mass. 443, 454..
Exceptions overruled
554 EEX V. MUCKLOW. [CHAP. VIII.
SECTION II. (continued).
(c) Possession in case of FiNDisa.
EEX V. MUCKLOW.
Crown Case Reserved. 1827.
[Reported 1 A^oodi/ C. C. 160.]
The prisoner was tried before Mr. Justice Holroyd, at the Spring
assizes for the county of Warwick, in the j'ear 1827, upon an indict-
ment which charged him with stealing a bill of exchange for ten
pounds eleven shillings and sixpence, the first count stating it to
be the property of John Lea and others, and the second count as the
property of one other James Mucklow. There were two other counts
stating it to be a warrant for the payment of ten pounds eleven shil-
lings and sixpence, instead of a bill of exchange.
The instrument in question was a draft drawn by John Lea and
Sons, on the day it bears date, at Kidderminster (where they carried
on business), on their bankers at the same place, and was as follows : —
Kidderminster, Dec. 1. 1826.
Messrs. Wakeman and Turner, Bankers, Kidderminster :
Pay Mr. James Mucklow, or bearer, ten pounds eleven shillings and
sixpence.
£10. lis. 6d. John Lea and Sons.
This draft was unstamped, and was written on the same sheet of
paper with a letter, directed "James Mucklow, Saint Martin's Lane,
Birmingham," and was sent by Lea and Sons by the post to Birming-
ham, which is eighteen miles from Kidderminster.
No person of that name being found or heard of to be living in
Saint Martin's Lane, Birmingham, and the prisoner living in a house
about a dozen j-ards from Saint Martin's Lane, with his father, Joseph
Mucklow (who was also included in the same indictment, but ac-
quitted), the postman, on the second of the same December, called
with the letter at their house when they were out, and left a message
that there was a letter for them which thej- were to send for ; and it
was in consequence thereof, on the same day, delivered to^the father,
and afterwards-eame to-the hands of the prisoner his son, who appro-
priated the draft to his own use, and received payment of it, under cir-
foms^nces proved-by-ertdeiice arising from the contents of the letter,
and otherwise, that satisfied the jury be knew the letter and draft were
not intended for him, but for another person, and upon which they
found him guilty of the larceny.
The letter and draft were intended for another Mr. James Mucklow,
then of New Hall Street, Birmingham, to whom Messrs. Lea and Sons
SECT. II.] MERRY V. GREEN. 555
were then indebted, to the amount of the sum contained in the draft,
for goods sold and delivered ; but it was misdirected to Saint Martin's
Lane l>jz_miatake,— and sent by the post, in consequence oi amtppii-
cation by letter by that James Mucklow to them for payment; as the
goods were sold for cash.
It wagjthjpffpdjjju.t, this cnn\(\ nnf-, in la.w^^mnmjf-. io— hmi-^^TI^^g the
^OSSfissioJB-oiLjhe letter and draft had been voluntarily parted with by
Lea and Son&r^m^-alsa^y the posiman, and without any fi'aud~on~lli.e
part of the piaaegerSsandStorv^ case. Rrrssr& Ry. O. O. R. SiTand.
*^WB^V'case7ibid. 215, were cited. ^
The learned judge respited the judgment, to take the opinion of the
judges on these points.
At a meeting of the judges in Easter Term, 1827, thiaconviction
washeldjEjaang, on the ground that it did not appear that the prisoner
had any animus furandi when he first received the letter ; and a
pardon was recommended.
MERRY V. GREEN.
Exchequer. 1841.
[Reported 7 Meeson S/- Welsby, 623.]
Trespass for assault and false imprisonment. Pleas : first, not guilty,
whereupon issue was joined ; secondly, that the plaintiff had feloniously
stolen, taken, and carried away a certain purse filled with coin, etc., of
the goods and chattels of one Francis Tunnicliffe, wherefor the
defendants had given the plaintiff in charge to a peace-officer, and the
plaintiff was therefore arrested and detained a reasonable time, which
are the alleged trespasses in the declaration mentioned.^ To this plea
the plaintiff replied de injuria, whereupon issue was joined.
A.t the trial before Tindal, C. J., at the last Warwickshire Assizes,
the following appeared to be the facts of the case : Messrs Mammatt
and Tunnicliffe, who had for some time resided together at Ashby-de-
la-Zouch, in the same house, and keeping the same table and servants,
in October, 1839, broke up their establishment and sold their furniture
(which was partlj- joint and partly separate propert}-) bj' public auction.
At that sale the plaintiff, who was a shoemaker also residing in Ashby,
became the purchaser, at the sum of £1 6s., of an old secretary or
bureau, the separate property of Mr. Tunnicliffe. The plaintiff kept the
bureau in his house, and on the 18th of November following, he sent
for a boy of the name of Garland, a carpenter's apprentice, to do some
repairs to the bureau. While Garland was so engaged he remarked to
1 Two other objections urged by the defendant are omitted.
2 The substance ouly of the second plea is stated.
556 MEEEY V. GREEN. [CHAP. VIII.
the 'pkintiff that he thought there were some secret drawers in the
bureau, and touching a spring he pulled out a drawer which contained
a quantity of writings. The plaintiff then discovered another drawer,
in which was a purse containing several sovereigns and other coins, and
under the purse a quantity of bank-notes. Of this property the plain-
tiff took possession, and telling Garland that the notes were bad, he
opened the purse and gave him one of the sovereigns, at the same
time charging him to keep the matter secret. Garland being interro-
gated by his parents how he came by the possession of the sovereign,
the transaction transpired ; and it being subsequently discovered that
the plaintiff had appropriated the property to his own use, falsely
alleging that he had never had possession of a great portion of it, the
defendants (one of whom was the solicitor of Mr. Tunnicliffe) went with
a police officer to the plaintiffs house, took him into custody, and con-
veyed him before a magistrate, on a charge of felony. The plaintiff
was ultimately discharged, the magistrate doubting whether a charge
of felony could be supported. At the trial, a witness of the name of
Hannah Jenkins was called on behalf of the plaintiff, who deposed
that she was present at the auction and remembered the piece of furni-
ture in question being put up for sale and bought by the plaintiff ; that
after it was sold an observation was made by some of the bj'standers
to the effect that the plaintiff might have bought something more than
the bureau, as one of the drawers would not open, upon which the
auctioneer said, "So much the better for the buyer;" adding, "I
have sold it with its contents, and it is his." This statement was op-
posed by the evidence of the auctioneer, who stated, on cross-exami-
nation by the defendant's counsel, that there was one drawer which
would not open, and that what he had said was, " That is of no
consequence ; I have sold the secretary and not its contents." It did
not appear that anj^ person knew that the bureau contained anything
whatever.
The learned chief justice, in summing up, told the jury that, as the
property had been delivered to the plaintiff as the purchaser, he
thought there had been no felonious taking ; and left to them the ques-
tion of damages only, reserving leave for the defendant to move to
enter a nonsuit. The jurj- found a verdict for the plaintiff with £50
damages.
In Michaelmas Term, Whitehurst obtained a rule to show cause why
the verdict should not be set aside and a nonsuit entered or a new
trial had.^
Paeke, B. In this case there was clearly no bailment, because there
was no intention to part with the property in question. It amounts
therefore, only to a finding, and comes within the modern decisions on
1 Arguments of counsel are omitted. During the argument for the plaintiff Parke,
B., said : " Suppose a person finds a cheque in the street, and in the first instance takes
it up merely to see what it is : if afterwards he cashes it, and appropriates the money
to his own use, that is a felony, though he is a mere finder till he looks at it." — Ed.
SECT. II.] MERRY V. GREEN. 557
that subject. It is a matter fit for our serious consideration, and" we
will speak to the chief justice before we deliver our judgment. No
doubt the same evidence is necessarj' in the present case as would be
required to support an indictment. _ Cur. adv. vult.
The judgment of the court was now delivered by —
Pakke, B. My Lord Chief Justice thought in this case that, even
assuming the. facts of which evidence was given by the defendant to
be true, the taliing of the purse and abstracting its contents was not a
larceny ; and that is the question which he reserved for the opinion of
the court, giving leave to move to enter a nonsuit. After hearing the
argument, we have come to the conclusion that, if the defendant's case
was true, there was sufficient evidence of a larceny by the plaintiff; but
we cannot direct a nonsuit, because a fact was deposed to on the part
of the plaintiff which ought to have been left to the jury, and which, if
believed by them, would have given a colorable right to him to the con-
tents of the secretary as well as to the secretary itself; namely, the
declaration of the auctioneer that he sold all that the piece of furniture
contained with the article itself ; and then the abstraction of the con-
tents could not have been felonious. There must therefore be a new
trial, and not a nonsuit.
But if we assume, as the defendant's case was, that the plaintiff had
express notice that he was not to have any title to the contents of the
secretary if there happened to be anything in it, and indeed without
such express notice, if he had no ground to believe that he had bougiit
the contents, we are all of opinion that there was evidence to make
out a case of larceny.
It was contended that there was a deliver}' of the secretary and the
money in it to the plaintiff as his own property, which gave him a
lawful possession, and that his subsequent misappropriation did not
constitute a felony. But it seems to us that, though there was a deliv-
ery of the secretarj', and a lawful property in it thereby vested in the
plaintiff, there was no deliverj' so as to give a lawful possession of the
purse and money. The vendor had no intention to deliver it, nor
vendee to receive it ; both were ignorant of its existence ; and when
the plaintiff discovered that there was a secret drawer containing the
purse and money, it was a simple case of finding, and the law applica-
ble to all cases of finding applies to this.
The old rule, that "if one lose his goods and another find them,
though he convert them animo furandi to his own use, it is no larcen}-,"
lias undergone in more recent times some limitations ;_r'"'''''i ^^lat jf thet
finder knows who the ow"pr ftf t'lo l"gt rhaffoi ifj^^or jf^ from any Tna.^;k|
upon "it or the circumstance" 'infl^'' •"'^''^'^ '^* i° ^filindi the owner could I
be reasonably qgf»rtairio^^^ f,hpn th" f'-'inri'ii""*- — rnnTrr'5i'''n -rrnTmn \
ftirandi constitufesalarcenx^ Under this head fall the cases where
"the finder of a pocket-book with bank-notes in it with a name on them
converts them animo furandi ; or a hacknej' coachman who abstracts
558
EEGINA V. THUEBORN.
[CHAP. VIII.
the contents of a parcel which has been left in his coach by a pas-
senger, whom he could easih' ascertain ; or a tailor who finds and ap-
plies to his own use a pocket-book in a coat sent to hiin to repair by a
customer, whom he must know ; all these have been held to be cases of
larceny ; and the present is an instance of the same kind and not dis-
tinguishable from them. It is said that the offence cannot be larceny
unless the taking would be a trespass, and that is true ; but if the
finder, from the circumstances of the case, must have known who was
the owner, and instead of keeping the chattel for him, means from the
first to appropriate it to his own use, ho does not acquire it by a rightful
title, and the true owner might maintain trespass ; and it seems also
from Wynne's case that if, under the like circumstances, he acquire
possession and mean to act honestly, but afterwards alter his mind
and open the parcel with intent to embezzle its contents, such unlawful
act would render him guilty of larceny.
We therefore think that the rule must be absolute for a new trial, in
order that a question may be submitted to the jury whether the plain-
tiff had reason to believe that he bought the contents of the bureau,
if any, and consequently had a color of right to the property.^
Hule absolute for a new trial.
EEGIN'A v. THURBORN.
Crown Case Reserved. 1849.
[Reported 1 Denison C. C. 387.2]
The prisoner was tried before Parke, B., at the summer assizes for
Huntingdon, 1848, for stealing a bank-note.
He found the note, which had been accidentally dropped on the high
road. There was no name oiL-mark^on it, indica*ii^-^ho was the
which
owner, nor vtsne there:-a«y-ei3Pcumsti
would enable him to discover
[iinstaBces a^njiing the finning
'to whom thenote belonged wl
ged when he
picked it up; nor had he any reason to believe that the owner knew,
where to find it again. The prisoner meant to appropriate it to his
own use, when he picked it up. -•Tiir3ayjI^J>siuiJ)g|2TCjieJia^ dis-
posjd^-Jtr.^e-^as informed th^t tbe-prOseCtrte^jas-the ^yw7?^7~-gnfl
had dropped it accidentally ; he then changed it, and appropriated the
money taken to his own use. The jury found that he had reason to
believe, and did believe it to be the prosecutor's property, before he
thus changed the note.
The learned Baron directed a verdict of guilty, intimating that he
1 Ace. Cartwright v. Green, 8 Ves. 405 ; Robinson w. State, 11 Tex. App 403
Daifee v. Jones, 11 R. I. .')88 ; s. c. 1 Gray's Cases on Prop. 380. Ed.
* This case was reported as Reg. v. Wood, 3 Cox C. C. 453. Ed.
See
SECT. II.] EEGINA V. THUEBOEN. 559
should reserve the case for further consideration. Upon conferring
with Maule, J., the learned Baron was of opinioiL-ihat thd~engirial
taMn^' wuij uuL felmiioiii, and that in the subsequent disposal of it
thnvnnfas tjq t.n^hiifirf^iiui] liii WTSrp^ny^ declined Lo pass HeutefieeT»and
Jered the prisoner to be discharged, on entering into his own recog-
nizance to appear when called upon.
On the 30th of April, a. d. 1849, the following judgment was read
by Parke, B : —
A case was reserved by Parke, B., at the last Huntingdon Assizes.
It was not argued by counsel, but the judges who attended the sitting
of the court after Michaelmas Term, 1848, namely, the L. C. Baron,
Patteson, J., Rolfe, B., Cresswell, J., Williams, J., Coltman, J., and
Parke, B., gave it much consideration on account of its importance,
and the frequency of the occurrence of cases in some degree similar in
the administration of the criminal law, and the somewhat obscure state
of the authorities upon it. [The learned Baron here stated the case.]
In order to constitute the crime of larceny, there must be a taking of
the chattel of another animo furandi, and against the will of the
owner. This is not the full definition of larceny, but so much only of
it as is necessary to be referred to for the present purpose ; by the term
animo furandi is to be understood the intention to take, not a partic-
ular temporary, but an entire dominion over the chattel, without a
color of right. As the rule of law founded on justice and reason is
that actus non facit reum nisi mens sit rea, the guilt of the accused
must depend on the circumstances as they appear to him, and the crime
of larcenj,£a5not be committed unless the^poda-teken appear to f "y^
an o'^gfi^ and tlIS^pa*tj!j;akmg[mjjst-lsfiow or believe that the taking is
Igamst the will of that owner.
In the earliest times it was held that chattels which were apparently
without an owner, " nuUius in bonis," could not be the subject of
lareenj^ Stamford, one of the oldest authorities on criminal law, who
was a judge in the reign of Philip and Mary, says, B. 1 ch. 16, " Treas-
ure trove, wreck of the sea, waif or stray, taken and carried away is
not felony." "Quia dominus rerum non apparet, ideo cujus sunt
incertum est." For this he quotes Fitz. Abr. Coron. p. 187, 265 ; these
passages are taken from 22 Ass. 99 ; 22 Ed. III., and mention only
"treasure trove," "wreck," and "waif," and Fitz. says the punish-
ment for taking such is not the loss of life or limb. The passage in 3
Inst. 108, goes beyond this ; Lord Coke mentions three circumstances
as material in larceny : first, the taking must be felonious, which he
explains; secondly, it must be an actual taking, which he also ex-
plains ; and thirdly, " it is not by trover or finding ; " he then proceeds
as follows: "If one lose his goods and another find them, though he
convert them ' animo furandi,' to his own use, it is not larceny, for the
first taking is lawful. So if one find treasure trove, or waif or stray
(here '.wreck ' is omitted and ' stray ' introduced), and convert them ut
supra, it is no larcenj-, both in respect of the finding, and that ' dom-
560 KEGINA V. THUEBOEN. {CHAP. VIII.
inus rerum non apparet.'" The only authority given is that before
mentioned : 22 Ass. 99 ; 22 Ed. HI.
Now treasure trove and waif seem to be subject to a different con-
struction from goods lost. Treasure trove is properly money supposed
to have been hidden bj' some owner, since deceased, the secret of the
deposit having perished, and therefore belongs to the Crown ; as to
waif, the original owner loses his right to the property by neglecting to
pursue the thief. The verj' circumstances under which these are
assumed to have been taken and converted shew that they could not
be taken from any one, there being no owner. Wreck and stray are
not exactly on the same footing as treasure trove and waif ; wreck is
not properly so called if the real owner is known, and it is not for-
feited until after a year and a day.
The word " estray '' is used in the books in different senses, as may
be seen in Com. Dig. Waife, ¥., where it is used in the sense of cattle
forfeited after being in a manor one year and one A&y without chal-
lenge, after being proclaimed, where the property vests in the Crown,
or its grantee of estrays ; and also of cattle strajing in the manor,
before they are so forfeited. Blackstone, vol. 2, 5G1, Stephens' ed.,
defines estrays to be " such valuable animals as are found wandering
in any manor or lordship, and no man knoweth the owner of them, in
which case the law gives them to the Sovereign."
In the passage in Stamford no doubt the word is used, not exclu-
sively in the former sense, but generally as to all stray cattle not
seized by the lord. Now treasure trove and waif, properly so called,
are clearly " bona vacantia, nullius in bonis," and but for the preroga-
tive would belong to the first finder absolutely.
" Cum igitur thesaurus in nullius bonis sit, et antiquitus de jure
naturali esset inventoris, nunc de jure gentium efflcitur ipsius domini
regis." Bracton, Coron. L. 3, c. 3, p. 126. Wreck and stray, in the
sense we ascribe to those words, are not in the same situation, for the
right of the owner is not forfeited until the end of a year and a day ;
but Lord Coke, in Constable's case, 5 Rep. 108 a, treats wreck also as
"nullius in bonis;" and estrays, "animalia vagantia," he terms
"vacantia," because none claims the property. Wreck and estray,
however, before seizure, closely resemble goods lost, of which the
owner has not the actual possession, and afford an analogy to which
Lord Coke refers in the passage above cited.
Whether Lord Coke means, what the language at first sight imports,
that under no circumstances could the taker of goods really lost and
found be guilty of larceny, is not clear ; but the passage is a complete
and satisfactory authority that a person who finds goods which are
lost may convert them animo furandi under some circumstances so as
not to be guilty of larceny. The two reasons assigned by him are, thtit
the person taking has a right in respect of the finding," and also thnt
they are apparently without an owner, " dominns renim non apparet'
a)i owner, " or " the owner does not appcnr.
SECT, II.J EEGINA V. THTJRBOEN. 561
The first of these reasons has led to the opinion that the real mean-
ing of Lord Coke was not that every finder of lost goods who takes
animo furandi is not guilty of felony, but that if one finds, and inno-
cently takes possession, meaning to keep for the real owner, and after-
wards changes his mind and converts to his own use, he is not a felon,
on the principle that Lord Coke had previously laid down, viz., that
" the intent to steal must be when the thing stolen cometh to his
possession, for if he bath the possession of it once lawfully, though he
hath animum furandi afterwards, and carryeth it awaj^ afterwards, it'
is no larceny ; " and Lord Coke also cites GlanviUe, " Furtum non est
ubi initium habet detentionis per dominium rei."
It is said therefore that the case of finding is an instance of this, —
beginning with lawful title, which consequently cannot become a felony
bj- subsequent conversion ; but if it be originally taken, not for the true
owner, but with intent to appropriate it to his own use, it is a felony ;
and of this opinion the commissioners for the amendment of the crimi-
nal law appear to have been, as stated in their first report.
This opinion appears to us not to be well founded ; for Lord Coke
puts the case of lost goods on the same footing as waif and treasure
trove, which are reallj- bona vacantia, goods without an owner, and
with' respect to which we apprehend that a person would not be guilty
of larceny, though he took origirjally animo furandi, that is, with thft
intent, not to take a partial or temporary possession, but to usurp the
entire dominion over them ; and the previous observations have refer-
ence to cases in which the original possession of the chattel stolen is
with the consent of or bj- contract with the owner. But any doubt on
this question is removed by what is said by Lord Hale, 1 P. C. 506 :
" If A. find the purse of B. in the highway and take and carry it away,
and hath all the circumstances that may prove it to be done animo
furandi, as denying or secreting it, yet it is not felony. The like in
case of taking oif a wreck or treasure trove," (citing 22 Ass. 99), " or a
waif or stray." Lord Hale clearly considers that if lost goods are
taken originally animo furandi, in the sense a-bove mentioned, the
taker is not a felon ; and when it is considered that by the common
law, larceny to the value of above twelve pence was punishable by
death, and that the quality of the act in taking animo furandi goods
from the possession of the owner, differs greatly from that of taking
.them when no, longer in his possession, and quasi derelict, in its
injurious effect on the interests of society (the true ground for the
punishment of crimes), it is not surprising that such a rule should be
established, and it is founded in strict justice ; for the cases of abstrac-
tion of lost property being of rare occurrence, when compared with
the frequent violations of property in the possession of an owner, there
was no need of so severe a sanative, and the civil remedy might be
deemed amply .sufficient. Hawkins, B. 1, ch. 19, s. 3, Curwood's ed.,
says : " Our law, whfch punishes all theft with death, if the thing stolen
be above the value of twelve pence, and with corpov.il punishment if
562 EEGINA V. THUEBOEN. [CHAP. "VIII.
under, rather chooses to deal with them (e. ff. , eases of finding, and
of appropriating by bailees) as civil than criminal offences, perhaps
for this reason, in the case of goods lost, because the partj' is not much
aggrieved where nothing is taken but what he had lost before.'' It
cannot indeed be doubted that if at this day the punishment of death
was assigned to larcenj- and usually carried into effect, the appropria-
tion of lost goods would never have been held to constitute that offence ;
and it is certain that the alteration of punishment cannot alter the
definition of the offence. To prevent, however, the taking of goods
from being larceny, it is essential that they should be presumably lost ;
that is, that they should be taken in such a place and under such cir-
cumstances as that the owner would be reasonably presumed by the
taker to have abandoned them, or at least not to know where to find
them. Therefore if a horse is found feeding on an open common or on
the side of a public road, or a watch found apparently hidden in a hay-
stack, the taking of these would be larceny, because the taker had no
right to presume that the owner did not know where to find them ; and
consequentlj' had no right to treat them as lost goods. In the present
case there is no doubt that the bank-note was lost, the owner did not
know where to find it, the prisoner reasonably believed it to be lost, he
had no reason to know to whom it belonged ; and therefore, though he
took it with the intent not of taking a partial or temporarj-, but the
entire dominion over it, the act of taking did not, in our opinion, con-
stitute the crime of larceny. Whether the subsequent appropriation of
it to his own use by changing it, with the knowledge at that time that
it belonged to the prosecutor, does amount to that crime, will be after-
wards considered.
It appears, however, that goods which do fall within the category of
lost goods, and which the taker justly- believes to have been lost, maj'
be taken and converted so as to constitute the crime of larceny, when
the part3' finding may be presumed to know the owner of them, or
there is any mark upon them, presumably known Jjy him, by which the
owner can be ascertained. Whether this is a qualification introduced
in modern times or which always existed, we need not determine. It
may have proceeded on the construction of the reason of the old rule,
" quia dominus rerum non apparet, ideo cujus sunt incertum est," and
the rule is held not to apply when it is certain who is the owner ; but
tlie authorities are many, and we believe this qualification has been
generally adopted in practice, and we must therefore consider it to be
the established law. There are many reported cases on this subject,
some where the owner of the goods may be presumed to be known,
from the circumstances under which they are found ; amongst these are
mentioned the cases of articles left in hackney coaches by passengers,
which the coachman appropriates to his own use, or a pocket-book,
found in a coat sent to a tailor to be repaired, and abstracted and
opened by him. In these cases the appropriation has been held to be
larceny. Perhaps these cases might be classed amongst those in
SECT. II.] ' _ EEGINA V. THURBOEN. 563
which the taker is not justified in conduding that the goods were lost,
because there is little doubt he must have believed that the owner
would know where to find them again, and he had no pretence to con-
sider them abandoned or derelict. Some cases appear to have been
decided on the ground of bailment determined by breaking bulk,
which would constitute a trespass, as W^'nne's case, Leach C. C.
460, but it seems difficult to applj' that doctrine which belongs to bail-
ment, where a special propert}- is acquired by contract, to any case of
goods merely lost and found, where a special property is acquired by
finding.
The appropriation of goods by the finder has also been held to be
larceny where the owner could be found out by some mark on them, as
in the case of lost notes, checks, or bills, with the owner's name upon
them.
This subject was considered in the case of Merry v. Green, 7 M. &
W. 623, in which the Court of Exchequer acted upon the authority of
these decisions ; and in the argument in that case difficulties were sug-
gested, whether the crime of larceny- could be committed in the case of
a marked article, a check for instance, with the name of the owner
on it, where a person originall}' took it up, intending to look at it and
see who was the owner, and then, as soon as he knew whose it was,
took it animo furandi ; as, in order to constitute a larceny, the taking
must be a trespass ; and it was asked when in such a case the trespass
was committed. In answer to that inquiry' the dictum attributed to
me in the Report was used : that in such a case the trespass must be
taken to have been committed, not when he took it up to look at it
and see whose it was, but afterwards, when he appropriated it to his
own use animo furandi.
It is quite a mistake to suppose, as Mr. Greaves has done (vol. 2,
c. 14), that I meant to lay down the proposition in the general terms
contained in the extract from the Report of the case in 7 M. & W.,
which, taken alone, seems to be applicable to everj' case of finding
unmarked, as well as marked property. It was meant to apply to the
latter only.
The result of these authorities is, that the rule of law on this sub-
ject seems to be, that if a man find goods that have been actually lost,
or are reasonably supposed by him to have been lost, and appropriates
them with intent to take the entire dominion over them, really believ-
ing when he takes them that the owner cannot be found, it is not
larceny. But if he takes them with the like intent, though lost, or
reasonably supposed to be lost, but reasonably believing that the owner
can be found, it is larcenJ^
In applying this rule, as indeed in the application of all fixed rules,
questions of some nicety may arise, but it will generall}' be ascertained
whether the person accused had reasonable belief that the owner could
be found, by evidence of his previous acquaintance with the ownership
of the particular chattel, the place where it is found, or the nature of
564 RBGINA V. PRESTON. [CHAP. VIII.
the marks upon it. In some cases it would be apparent, in others
appear onlj' after examination.
It would probably be presumed that the taker would examine the
chattel as an honest man ought to do, at the time of taking it, and if
lie did not restore it to the owner, the jury might conclude that he took
it, when he took complete possession of it, animo furandi. The mere
taking it up to look at it would not be a taking possession of the
chattel.
To apply these rules to the present case : the first taking did not
amount to larcenj', because the note was really lost, and there was no
mark on it or other circumstance to indicate then who was the owner,
or that he might be found, nor any evidence to rebut the presumption
that would arise from the finding of the note as proved, that he
believed the owner could not be found, and therefore the original
taking was not felonious ; and if the prisoner had changed the note or
otherwise disposed of it before notice of the title of the real owner, he
clearly would not have been punishable ; but after the prisoner was in
possession of the note, the owner became known to him, and he then
appropriated it animo furandi, and the point to be decided is whether
that was a felon}'.
Upon this question we have felt considerable doubt.
If he had taken the chattel innocently, and afterwards appropriated
it without knowledge of the ownership, it would not have been larceny ;
nor would it, we think, if he had done so, knowing who was the owner,
for he had the lawful possession in both cases, and the conversion
would not have been a trespass in either. But here the original taking
was not innocent in one sense, and the question is does that make a
difference? We think not; it was dispunishable as we have already
decided, and though the possession was accompanied by a dishonest
intent, it was still a lawful possession and good against all but the real
owner, and the subsequent conversion was not therefore a trespass in
this case more than the others, and consequently no larceny.
We therefore think that the conviction was wrong. ^
REGINA V. PRESTON.
Crown Case Reserved. 1851.
[Reported 5 Cox G. C. 390.]
The following case was reserved bj- the Recorder of Birmingham : —
Michael Preston was tried before me, at the last Michaelmas Ses-
1 Ace. Reg. V. Scully, 1 Cox C. C. 189; Reg. v. Dixon, 7 Cox C. C. 35; Reg.
V. Shea, 7 Cox C. C. 147; Reg. v. Christopher, 8 Cox C. C. 91 ; Reg. v. Clyde, 11
Cox C. C. 103; Reg. v. Deaves, 11 Cox C. C. 227 ; Bailey v. State, 52 Ind. 462;
Wolfington V. State, 53 Ind. 343 ; State v. Dean, 49 la. 73. —Ed.
SECT. II.] ' KEGINA V. PEESTON-. 565
sions for the borough of Birmingham, upon an indictment which
.charged him in the 1st count with stealing, and in the 2d count
with feloniouslj' reeei\ing, a £50 note of the Bank ^of England. It
was proved that the prosecutor, Mr. Collis, of Birmingham, received
the note in question, with others, on Saturday, the 18th of October,
from a Mr. Ledsam, who, before he handed it to the prosecutor, wrote
on the back of it the words, " Mrs. Collis." It was further proved that
Collis was a verj- unusual surname in Birmingham, and almost, if not
quite confined to the family of the prosecutor, a well-known master
manufacturer. About four or five o'clock the same afternoon the prose-
cutor accidentally dropped the notes in one of _the public sti'eets of
Birmingham, and immediatelj- gave information of his loss to the
police, and also caused handbills, offering a reward for their recovery,
to be printed and circulated about the town. On Monday the 20th,
about three o'clock in the afternoon, the prisoner, who had been
living in Birmingham fourteen j'ears, and keeping a shop there, went
to one of the police stations, and inquired of a policeman if there was
not a reward publiclj' offered for some notes that had been lost, and
whether their numbers were known, stating that he was as likely as
any person to have them ofl'ered to him, and if he heard anything of
them he would let the police know. He also inquired if the policeman
could give him a description of the person who was supposed to have
found them, and the policeman gave him a written description of such
person, who was described therein as a tall man. Afterwards, between
three and foiir o'clock on the same afternoon, the prisoner went to the
shop of Mr. Nicklej', in Birmingham, and, after inquiring if he
(Nickley) had heard of the loss of a £50 note, stated that he (the
prisoner) thought he knew parties who had found one ; and he asked
Nicklej' whether the finders would be justified in appropriating it to
their own use, to which Nickley replied that they would not. At
four n'o\no\!: thp sf^.mp afternoon^ the prisoner changed the note, and
was, later in the same evening, found in possession of a consider-
able quantity of gold, with regard to which he gave several false
and inconsistent accounts. He was then taken into custody, and
on the following daj^, October 21 , stated to a constable that when
he was alone in his own house on Sunday, a tall man, whom he did
not know, came in and offered him a £50 note, for which he (the
prisoner) gave him fifty sovereigns. The police officers previously
told the prisoner that they were in possession of information that one
Tay, who was known to the prisoner, had found the note, but Taj' was
not called, nor was any evidence given as to the part (if anj') which
he took in the transaction. Upon these facts I directed the jury that
the important question for them to consider was, at what time the
prisoner first resolved to appropriate the note to his own use. If they
arrived at the conclusion that the prisoner either knew the owner, or
reasonably believed that the owner could be found at the time when he
first resolved to appropriate it to his own use, that is, to exercise com-
566 REGINA V. PRESTON. [CHAP. VIII.
plete dominion over it, then he was guilty- of larceny. If, on the other
hand, he had formed the resolution of appropriating it to his own use
before he knew the owner, or had a reasonable belief that the owner
could be found, then he was not guilty of larceny. I also told the jury
that there was no evidence of any other person having possession of the
note after it was lost, except the prisoner, but that even though the
prisoner might not be the original finder, still, if he were the first
person who acted dishonestly with regard to it, and if he began to act
dishonestly by forming the resolution to keep it for his own use after
he knew the owner, or reasonably believed .that the owner could be found,
he would be guilty of larceny. The jury found the prisoner guilty
upon the 1st count, and I request the opinion of the judges as to
the validity of the conviction. The prisoner was discharged on the
recognizances of himself and two sureties, to appear and receive
judgment at the next sessions.
Bittleston,^ for the Crown. The case of B. v. Thurborn was brought
under the consideration of the Eecorder ; and construing his direction
with reference to the facts stated, it does in substance follow the rule
there laid down. It only means that the prisoner would be guilty of
larceny if, when he first took complete possession of the note animo
furandi, he then knew or had the means of knowing the owner.
[Alderson, B. — The direction does not exclude the supposition that
the prisoner in the first instance received the note with an honest
intention, but afterwards altered his mind, and in a day or two resolved
to appropriate it to his own use. But my brother Parke, in Thurborn's
case, decided that the dishonest intention must exist as soon as the
finder has taken the chattel into his possession so as to know what
it is.] It is conceded that the very first moment of taking is not
that at which the animus furandi and knowledge of the owner must
exist to constitute larceny ; because the chattel must be taken into the
hand to ascertain what it is. The original possession, therefore, must
necessaril3^ be lawful in every case ; and if the dishonest intention
arising at the next minute maj' make the finder guilty of larceny, why
may not the same dishonest intention arising afterwards have the same
effect? What is a proper time for examining the thing may vary in
different cases ; and, if a man takes time to make inquiries, for the
purpose of satisfiying himself whether he can keep the chattel without
risk of discovery, and ultimately resolves to appropriate it, is he to be
held not guilty of larceny because he did not immediately make up his
mind to deprive the owner of it? It is stated generally in the text-
books (1 Bl. Com. 295, 5th ed.) that the finder of lost goods has a
special property in them ; and so, according to Armory v. Delamivie
(1 Stra. 505), he has against all but the true owner ; but as against the
true owner he has no property whatever; and it is submitted, at all
events with regard to marked property, that as between the finder and
1 The argument of O'Brien for the prosecution is omitted.
SECT. II.j EEGINA V. PKESTON. 567
the loser, the possession of the former is, in law, that of the latter, so
long as the latter intends to act honestly. He holds merely for the
true owner ; he had a bare custody : but as soon as he resolves to
appropriate the goods to his own use he then converts that lawful
custody into an unlawful possession ; he commits a trespass ; and
Is guilty of larceny, according to that class of cases where the owner,
by delivering goods to the prisoner, does not part with the possession,
but gives him the charge or custody of them only. [Aldebson, B. —
What do you say to that part of the direction which supposes that the
prisoner was not the original finder?] It makes no difference whether
the prisoner himself picked up the lost note, or whether the person
who did, brought it to him and informed him of all the circumstances.
That intermediate person might act with perfect honesty ; and the
prisoner receiving it under those circumstances would be in the
situation of a finder. [Martin, B. — Suppose a man takes an umbrella
by mistake, and, after keeping it for a few days, finds the owner, but
does not return it ; is there a felonious taking ? Lord Campbell,
C. J. — You must contend that there is.] Yes, there would be no change
in the possession until the dishonest intention arose. [Lord Campbell,
C. J. — Can there be a mental larcenj-? Alderson, B. — There must be
a taking, and it must be a taking animo furandi ; but the taking and
the intent are distinct things.] In the cases of carriers, where the
bailment is determined by breaking bulk, there is in truth no fresh
talking. The carrier has possession of all the goods delivered to him
for the purpose of carriage ; but when he begins to deal dishonestly
with them there is a constructive taking ; and Parke, B., from the
observation which he makes on Wynne's case, in Merr3^ v. Green,
seems to have thought so.
Lord Campbell, C. J. I am of opinion that this conviction can-
not be supported. Larceny supposes a taking animo furandi. There
must always be a taking ; but in the present case it is quite consistent
with the direction of the learned Eecorder that the prisoner might b'e
guilty of larceny though, when he took possession of it, with a full
knowledge of the nature of the chattel, he honestly intended to return
it to the owner whensoever he should be found ; because he puts
it that the important question is, at what time the prisoner first
resolved to appropriate it to his own use. But when was the taking?
It is said that whenever he changed his mind, and formed the dishonest
purpose of appropriating the note to his own use, that then he took it
constructively from the possession of the owner; but that dishonest
purpose may have first come into his mind when he was lying in bed
at a distance of many miles from the place where the note was. It
seems to me that that operation of the mind cannot be considered a
taking, and that, as there was no taking except the original taking,
which might have been lawful, the conviction must be reversed. It is
unnecessary to go into authorities upon this subject, after the elaborate
judgment of my brother Parke in Thurborn's case.
568 KBGINA V. WEST. [cilAP. VIII.
Alderson, B. In order to constitute larceny, there must be a taking,
as well as an intention to steal. The diffloulty IJeel in thlg.j:a^fi-iiS to
know how a takingj_honesL-iitfirst, can be conveited into a dishonest
taking by the sul5sequent alteration of intently. It is clear, in this
caSBTttratTEe learned Recorder lett it open to the jury to convict the
prisoner, even if tlie3- tliought that at first he took the note hon-
estly, but that he afterwards changed his mind, then, knowing the
owner ; and it is argued that the formation of the dishonest intention
alters the character of the possession, though the taking may have
been a week before ; but I think that that is a degree of refinement
which would destroy the simplicity of the criminal law.
The other judges concurred.
Conviction quashed-^
REGINA V. WEST.
Crown Case Reserved. 1854.
[Reported Dear sky C. C. 402.]
• Jervis, C. J.° The question is whether, under the circumstances
stated in this case, the prisoner was properly convicted of larcenj',
and -we are all of opinion that she was properly convicted. The
prisoner keeps a stall in the Leicester market. The prosecutor went
to that stall, left his purse there, and went away. The purse was
pointed out to the prisoner by another person, and she then put it in
her pocket, and treated it as her own, and on the prosecutor returning
to the stall and asking for the purse, she denied all Vnnwipdcrp of it.
Two questions were left to the jury : first, did the prisoner take the
purse IrnnwiniT that, jt, wflg nr>f, ^}^pr ny n ^ and int.pndinp; tn appropriate
^nir--frihpv_j\-mn Hfip ;', This the jury said she did. Secondly, did the
prisoner then know who was the owner of the purse ? This the jury
said she did not. If there had been any evidence that the purse
and its contents were lost property, properly so speaking, and the
jury had so found, the jury ought further to have been asked whether
the prisoner had reasonable means of finding the owner, or reasonably
believed that the owner could not be found ; but there is in this case
no reason for supposing that the property was lost at. all, or that the
prisoner thought it was lost. On the contrarj', the owner, having left
it at the stall, would naturally return there for it when he missed it.
There is a clear distinction between proparty lesL^and property
merelymi^lgiil^ut down, and left by mistake, as in this case, under
rcurastances which would enable the owner to know the place where
1 Ace. Reg V. Matthews, 12 Cox C. C. 489. But see Beatty v. State, 61 MisB.
18 — Ed.
^ The opinion only is given ; it sufficiently states the case.
SECT. II.] EEGINA V. ROWE. 569
he had left it, and to which he would naturally return for it. The
question as to possession by finding, therefore, does not arise.
The other learned judges concurred. ' Conviction affirmed.
REGINA V. ROWE.
Crown Case Reserved. 1859.
[Reported Bell C. C. 93.2]
The following case was reserved by the Chairman of the Glamorgan-
shire Quarter Sessions : —
At the Glamorganshire Midsummer Quarter Sessions, 1858, William
Rowe was indicted for stealing 1 6 cwt. of iron of the goods and chat-
tels of The Company, of Proprietors of the Glamorganshire Canal
Navigation.
It appeared by the evidence that the iron had been taken from the
canal by the prisoner, who was not in the employ of the Canal Com-
pany, while it was in process of being cleaned. The manager of
the canal stated that, if the property found on such occasions in the
canal can be identified, it is returned to the owner. If it cannot, it is
kept by the company.
It was objected that, as the Canal Company are not carriers, but only
find a road for the conveyance of goods by private owners, the property
was not properlj' laid as that of the Canal Company. The prisoner
was convicted, and sentenced to two calendar months' imprisonment in
the House of Correction at Cardiff, but was released on bail.
This case was considered, on 22d November, 1858, by Pollock,
C. B. , Wightman, J., WiUiams, J., Channell, B., Byles, J., and
Hill, J.
No counsel appeared. Cur. adv. vult.
On 5th February, 1859, the judgment of the court was given by —
Pollock, C. B. The judges who have considered this case are unan-
imously of opinion that the conviction should be affirmed. The case
finds that some iron had been stolen by the prisoner from the canal
while the canal was in process of cleaning, and while the water was
out. The prisoner was not in the employ of the Canal Company, but
a- stranger ; and the property of the company in the iron before it was
taken awa}' by the prisoner was of the same nature as that which a
1 Ace. Reg. V. Coffin, 2 Cox C. C. 44 ; Reg- "• Pierce, 6 Cox C. C. 117 ; Reg. v.
Moore, 8 Cox C. C. 416 ; State v. McCann, 19 Mo. 249 ; People v. McGarren, 17
Wend. 460; Lawrence v. State, 1 Humph. 228. See McAvoy v. Medina, 11 All. 548;
8. c. 1 Gray's Cases on Prop. 378. — Ed.
2 B. c. 1 Gray's Cases on Prop. 375.
570 COMMONWEALTH V. TITUS. [CHAP. VIII.
landlord has in goods left behind by a guest. Propertj' so left is in
the^gossession of the landlord for tha purpose of ddivmiuiJ IL u|J*,to
tlie true owner ; and he has sufHcient possession to maintain an indict-
nieiil^Aii hmreny.^ " Conviction affirmed.
COMMONWEALTH v. TITUS.
Supreme Judicial Court of Massachusetts. 1874.
[Reported 116 Massachusetts, 42.]
Indictment against Lueian M. Titus and Elbridge F. Horr, charging
them jointly with the larceny of certain articles of personal property
alleged to be the property of Nancy Meacham.
Trial in the Superior Court, before Aldrich, J., who allowed the
following bill of exceptions: "The defendant Horr pleaded guiltj'.
Titus pleaded not guilty. Upon his trial the government introduced
evidence tending to prove the ownership of the property as alleged in
/ the indictment ; and that the owner, while riding on one of the public
highways in Athol, lost the wallet or travelling bag containing the
articles mentioned in the indictment ; that the defendants, passing
along the same highway not long after the loss of the bag, discovered
it, picked it up, and afterwards appropriated the contents of the bag to
their own use, and destro3'ed the bag by cutting it in pieces and con-
cealing the same in a wood-lot remote from the place of finding.
"As bearing upon the question of the intent with which the defend-
ant Titus originally took the bag and its contents, the government,
against his objection, was permitted to introduce evidence to show
what Titus said and did about the property and his possession of it,
subsequently to the original finding and taking. This evidence was
offered by the government and admitted by the court for the single
purpose of proving, so far as it tended to do that, the intent with
which Titus originally took the property into his possession at the time
of finding it. And the jury were instructed that they could properly
make no other use of this evidence as against the defendant.
' ■ Thp rlpfendfint'a mnnspl asked the court to rule that lost^^roperty
cannot bethe_sal!J£ct-«£-4ar-ceny. This ruling the court declined to
SuTHidinstruct the jury that to authorize a conviction of the
defendant Titus, they must be convinced by the evidence in the case
beyond all reasonable doubt : first, that at the time of the finding of
the property by the defendant and the taking of it into his possession
he had a felonious intent of appropriating the property to his own use
and depriving the owner of it ; secondly, that he then knew who the
1 See Elwes w. Brigg Gas Co., 33 Ch. D. 562; Goodard v. Wiuchell (la.), 52 N. W.
1124. — Ed.
SECT. II.J COMMONWEALTH V. TITUS. 571
owner was, or then had reasonable means of knowing or ascertaining
who the owner was.
" The court further instructed the jury that if the evidence failed to
satisfy them beyond every reasonable doubt that, at the time of finding
the property', Titus knew or had reasonable means of knowing who the
owner was ; or if they should find that he did not originally take thei
property with the felonious intent of converting it to his own use, bu
formed such purpose afterwards, it would be their dutj' to acquit him.
" To the admission of the evidence objected to, the refusal to rule
as requested, and the foregoing instructions, the defendant objected.
Other and appropriate instructions, not objected to, in relation to the
nature of the offence charged, and in relation to the evidence, the
burden of proof, &c., were given.
"The jury returned a verdict of guilty, and the defendant alleged
exceptions."
F. T. Blackmer, for the defendant, cited 2 East P. C. 663 ; Regina
V. Wood, 3 Cox C. C. 453 ; Regina v. Preston, 2 Den. C. C. 353 ; s. c.
5 Cox C. C. 390 ; Regina v. Dixon, 7 ib. 35 ; Regina v. Christopher,
8 ib. 91 ; Regina v. Moore, ib. 416 ; Regina v. Glj'de, 11 ib. 103
People V. Anderson, 14 Johns. 294 ; People v. Cogdell, 1 Hill, 94
Porter «. State, Mart. & Yerg. 226 ; Tyler v. People, Breese, 227
State V. Weston, 9 Conn. 527.
C. R. Train, Attorney General, for the Commonwealth, cited, in
addition to some of the above cases, Regina v. Thurborn, 1 Den. C. C.
387 ; 2 Bennett & Heard's Lead. Crim. Cas. (2d ed.) 409, 417 ;
Regina v. Shea, 7 Cox C. C. 147 ; Commonwealth v. Mason, 105
Mass. 163.
Gray, C. J. The rulings and instructions at the trial wei"e quite as
favorable to the defendant as the great weight, if not the unanimous
concurrence, of the cases cited on either side at the argument would
warrant.
The finder of lost goods maj' lawfullj' take them into his possession,
and if he does so without any felonious intent at that time, a subse-
quent conversion of them to his own use, by whatever intent that
conversion is accompanied, will not constitute larcenj'. But if, at the
time of first taking them into his possession, he b-is «■ fploninng intpnt
to appropHate them to his ow" nT°p ""d t" '^oprjvp th^ owner of them,
and^hen knows or has the reasonable means '~'f i^nO'^^"fT "'" nroc^r^x^-n.
ingTby marks on the g'oods or otherwise, who the owner ig, hf ""^3' ^'^
found guilty of larceny.
" It wab aigucdfor^CEe^ defendant that it would not be sufficient that
he might reasonably have ascertained who the owner was ; that he
must at least have known at the time of taking the goods that he had
reasonable means of ascertaining that fact. But the instruction given
did not require the jury to be satisfied merely that the defendant might
have reasonably ascertained it, but that at the time of the original
taking he either knew or had reasonable means of knowing or ascer-
572 EEGINA V. FINLAYSON. [CHAP. VIII.
taining who the owner was. Such a finding would clearly imply that
he had such means within his own knowledge, as well as within his
own possession or reach, at that time.
It was further argued that evidence of acts of the defendant, subse-
quent to the original finding and taking, was wronglj' admitted, because
such acts might have been the result of a purpose subsequently formed.
But the evidence of the subsequent acts and declarations of the
defendant was offered and admitted, as the bill of exceptions distinctly
states, for the single purpose of proving, so far as it tended to do so,
the intent with which the defendant originally took the property into
his possession at the time of finding it. And the bill of exceptions
does not state what the acts and declarations admitted in evidence
were, and consequently does not show that any of them had no tendency
to prove that intent, nor indeed that any acts were proved except such
as accompanied and gave significance to distinct admissions of the
intent with which the defendant originally took the goods. ^
Exceptions overruled.
REGINA V. FINLAYSON.
StrpREME Court op New South Wales. 1864.
[Reported 3 New South Wales S. C. Reports, 301.]
Stephen, C. J.^ It appears that the prisoner was driving a mob of
horses, when the horse in question (a branded animal, the ownership,
therefore, of which was ascertainable in the neighborhood) joined the
others — • it being near the owner's run. Whether the prisoner (who
was two or three hundred yards behind, having assistants ahead or at
the side) saw at the time that this horse had joined his own horses, did
not appear. But it was proved that the next morning, as the custom
was, the prisoner counted over the entire mob, and then drove the
whole on together to their destination. The learned judge, in sub-
stance, told the jury that assuming this to be a case of finding, yet the
pri.soner need not have formed the intent to fl.ppi-nppnl^A tho animal at
the moment of its junction with the others, or of the then continued
di^^g onward of the tiorses, but that it was necessary tn~^nw that
gndiTntent existed at the moment of taking; He left the question to
them, LherefOl'e, wuetner the intent existed when the prisoner first did
some act, or gave some direction by which he treated the horse as part
of his own mob of horses, or incorporated it therewith. I am of
opinion that this direction was right ; and It seems to be doubtful
1 Ace. Eonntree v. State, 58 Ala. 381 ; Griggs v. State, 58 Ala. 425 ; State v. Levy,
23 Minn. 104 ; State v. Clifford, 14 Nev. 72 ; Baker «. State, 29 Oh. St. 184 ; Brooks v
State, 35 Oh. St. 46. —Ed.
" The opinion only is given ; it sufficiently states the case.
SECT. II.] REGINA. V. ASHWELL. 573
whether the prisoner's case was one of finding at all. If it merely'
stra^-ed, it was not lost, and could' not therefore be found. But it
appears that the next morning the prisoner counted the horses, and lie
therefore then saw this one among them, and determined to take pos-
session of it. By the same act, he took possession, and determined
to appropriate it.
Wise, J., concurred. Conviction sustained}
EEGINA V. ASHWELL.
Ceown Case Keserved. 1885,
[Reported 16 Cox C. C. 1.]
Case reserved for the opinion of the court by Denman, J. , at the
January Assizes, 1885, for the count3' of Leicester, Which stated the
following facts : —
On the 23d of January, 1885, Thomas Ashwell was tried for the
larceny of a sovereign, the monej' of Edward Keogh.
Keogh and Ashwell met at a public house on the 9th of January.
At about eight p. m. Ashwell asked Keogh to go into the j'ard, and
when there requested Keogh to lend him a shilling, saying that he had
money to draw on the morrow, and that then he would repay hira.
Keogh consented, and putting his hand into his pocket, pulled out
what he believed to be a shilling, but what was in fact a sovereign, and
handed it to Ashwell, and went home, leaving Ashwell in the yard.
About nine the same evening Ashwell obtained change for the sovereign
at another public house.
At 5.20 the next morning (the 10th) Keogh went to Ashwell's house
and told him that he had discovered the mistake, whereupon Ashwell
denied having received the sovereign, and on the same evening he gave
false and contradictory accounts as to where he had become possessed
of the sovereign he had changed at the second public house on the
night before. But he afterwards said, " I had the sovereign and spent
half of it, and I sha'n't give it him back, because I ohl\' asked him to
lend me a shilling."
Mr. Sills, for the prisoner, submitted that there was no evidence of
larceny, no taking, no obtaining by trick or false pretence, no evidence
that the prisoner at the time he received the sovereign knew it was
not a shilling. He referred to Kegina v. Middleton, L. Rep. 2 C. C. E.
43. 45.
Mr. A. K. Loyd, for the prosecution, called my attention to
Stephen's Criminal Law Digest, art. 299, and to the cases relating to
larceny of property found.
I declined to withdraw the case from the jury, thinking it desirable
1 Ace. Keg. V. Eiley, 6 Cox C. C. 88 ; Dears. 149, m/™- — Ed.
574 EEGINA V. ASHWELL. [CHAP. VIII.
that the point raised should be decided by the Court of Criminal Appeal.
The passage in Stephen's Digest referred to is as follows : " Theft may
be committed by converting property which the owner has given to the
offender under a mistake which the offender has not caused, but which
he knows at the time when it is made, and of which he fraudulently
takes advantage. But it is doubtful whether it is theft fraudulently to
convert property given to the person converting it under a mistake of
which that person was not aware when he received it."
The jury found that the prisoner did not know that it was a sovereign
at the time he received it, but said thej- were unanimouslj' of opinion
that the prosecutor parted with it under the mistaken belief that it was.
a shilling, and that the prisoner, having soon after he received it dis-
covered that it was a sovereign, could have easily restored it to the
prosecutor, but fraudulently appropriated it to his own use and denied
the receipt of it, knowing that the prosecutor had not intended to part
with the possession of a sovereign, but only of a shilling. Thej' added
that, if it were competent to them, consistently with these findings and
with the evidence, to find the prisoner guilty, they meant to do so.
I entered a verdict of guilty, but admitted the prisoner to bail, to
come up for judgment at the next assizes if this court should think that
upon the above facts and findings the prisoner could properly be found
guilty of larceny.
March 21. Before Lord Coleridge, C. J., Grove, Lopes, Stephen,
and Cave, J J.'
June 13. This case was reargued before the following learned
judges: Lord Coleridge, C. J., G-rove and Denman, JJ., Pollock, B.,
Field, J., Huddleston, B., Manisty, Hawkins, Stephen, Mathew, Cave,
Day, Smith, and Wills, JJ.
Smith, J., read the following judgment: The prisoner in this case
was indicted for the larceny of a sovereign, the moneys of Edward
Keogh. The material facts are as follows : Keogh handed to the
prisoner the sovereign in question, believing it was a shilling and not
a sovereign, upon the terms that the prisoner should hand back a shil-
ling to him when he (the prisoner) was paid his wages. At the time
the sovereign was so handed to the prisoner he honestly believed it to
be a shilling. Some time afterwards the prisoner discovered that the
coin he had received was a sovereign and not a shilling, and then and
there fraudulently appropriated it to his own use. Is this larceny at
common law or by statute? To constitute the crime of larceny at
common law, in my judgment, there must be a taking and carrying
away of a chattel against the will of the owner, and at the time of such
taking there must exist a felonious intent in the mind of the taker.
If one or both of the above elements be absent, there cannot be larceny
at common law. The taking must be under such circumstances as
would sustain an action of trespass. If there be a bailment or delivery
^ Arguments of connsel are omitted.
SECT. II.] REGINA V. ASHWELL. 575
of the chattel b^' the owner, inasmuch as, among other reasons, trespass
will not lie, it is not larcenj' at common law. In c. 19, § 1, at p.
142 of vol. i. of Hawkins' Pleas of the Crown, it is stated: " Ii is
to be observed that all felony includes trespass, and that every indict-
ment of larceny must have the words felonice cepit as well as asportauit.
Whence it follows that if the party be guilty of no trespass in taking
the goods he cannot be guilty of felony in carrying them awaj-." As 1
understand, the counsel for the Crown did not reallj- dispute the above
definition, and indeed, if he had, upon further referring to the 3d In-
stitutes, chap, xlvii., p. 107, and the 1st Hale's Pleas of the Crown,
p. 61, it would be found to be fully borne out by those writers. The
two cases cited in argument, Eex v. Mucklow, 1 Moody's Crown Cases,
161, and Regina v. Davies, Dears. 640, are good illustrations of what I
have enunciated ; and if other cases were wanted there are plenty in
the books to the same effect. In the present case it seems to me, in the
first place, that the coin was not taken against the will of the owner,
and if this be so, in mj- judgment it is sufficient to show that there was
no larcenj^ at common law ; and secondly, it being conceded that there
was no felonious intent in the prisoner when he received the coin, this,
in vay judgment, is also fatal to the act being larceny at common law.
As to this last point, the law laid down by Cockburn, C. J., Blackburn,
Mellor, Lush, Grove, Denman, and Archibald, JJ., in the case of
Regina v. Middleton, L. Rep. 2 C. C. 45, is very pertinent; it is as
follows: " We admit that the case is undistinguishable from the one
supposed in argument of a person handing to a cabman a sovereign b}-
mistake for a shilling ; but after a careful weighing of the opinions to
the contrary, we are decidedly of opinion that the property in the
sovereign would not vest in the cabman, and the question whether the
cabman was guilty of larceny or not would depend upon this, — whether
at the time he took the sovereign he was aware of the mistake and had
then the guilty intent, the animus furandi." I believe the above to
be good law. The contention, however, of the Crown was that, although
the above might be correct, yet the present case was to be likened to
those cases in which finders of a lost chattel have been held guilty of
larceny. The principle upon which a finder of a lost chattel has been
held guilty of larcenj- is that he has taken and carried awa}' a chattel,
not believing that it had been abandoned, and at the time of such taking
has had the felonious intent, — the proper direction to be given to a
jury being, as I understood, " Did the prisoner, at the time of finding
the chattel intend to appropriate it to his own use, then believing that
the true owner could be found, and that the chattel had not been
abandoned?" See Regina v. Thurborn, 1 Denison's Crown Cases, 388,
and Regina v. Glyde, L. Rep. 1 C. C. 139. If he did, he would be
guilty of larceny ; aliter he would not. Then it was argued, as argued
it was bj' the counsel for the Crown, that the prisoner in this case was
on the same footing as a finder of a chattel. In my judgment the facts
do not support it. Keogh, in the present case, intended to deliver the
576 REGINA V. ASHWELL. [CHAP. VIII.
coin to the prisoner and the prisoner to receive it. The chattel,
namely, the coin, was delivered over to the prisoner by its owner, and
the prisoner received it honestly. He alwaj's knew he had the coin in
his possession after it had been delivered to him. The oul^- thing which
was subsequently found was that the coin delivered was worth 240t/.,
instead of 12af., as had been supposed. This argument, as it seems to
me, confounds the finding out of a mistake with the finding of a chattel.
In some cases, as above pointed out, the finder of a chattel may be
guilty of larceny at common law ; but how does that show that the
finder out of a mistake ma3' also be guilty of sucli a crime ? A mistake
is not a chattel. The chattel (namely, the coin) in this case never was
lost ;, then how could it be found ? In my judgment the argument upon
the point for the Crown is wholly fallacious and fails. It was further
urged for the Crown that the present case was covered by authority,
and the cases of Cartwright v. Green, 8 Ves. 405, and Merry v. Green,
7 M. & W. 623, were cited in this behalf. I fail to see that either case
is an authority for the point insisted upon by the Crown. In the first
case, Cartwright i;. Green, 8 Ves. 405, the question arose upon demurrer
to a bill in Chancery as to whether a felony was disclosed upon the face
of the bill. Lord Eldon, as he states in his judgment, decided the case
upon the ground that, inasmuch as the bureau in question had been
delivered to the defendant for no other purpose than repair, and he had
broken open a part of it which it was not necessary to touch for the
purpose of repair with the intention of takiijg and appropriating to liis
own use whatever he should find therein, it was larceny. I conceive
this to be distinctly within the principle I have above stated, — there
was the taking against the will of tlie owner with the felonious intent
at the time of taking. The other case, namely, Merry v. Green, 7 M.
& W., 623, which was also the case of a purse in a secret drawer of a
bureau which had been purchased at a sale, was clearly decided by
Paike, B., who delivered the judgment of the court, upon the principles
applicable to a case of finding. The learned Baron says : " It seems
to us that though there was a deliver}' of the secretary and a lawful
property in it thereby vested in the plaintiff, there was no delivery so
as to give a lawful possession of the purse and monej'. The vendor
had no intention to deliver it nor the vendee to receive it ; both were
ignorant of its existence ; and when the plaintiff discovered that there
was a secret drawer containing the purse and money, it was a case of
simple finding, and the law applicable to all cases of finding applies."
I understand the learned Baron, when he says " the law applicable to
all cases of finding applies," to mean the law applicable to the cases of
finding a chattel ; for there are no cases extant as to finding out a
mistake to which his remark could apply. That, too, is the distinction
between the present case and that before Parke, B. In Merry v.
Green, 7 M. & W. 623, no intention to deliver the chattel (namelj-,
the purse and money) at all ever existed, whereas in the present case
there was every intention to deliver the chattel (namely, the coin), and
SECT. II.] REGINA.W. ASHWELL. 577
it was delivered and honestly received. In my judgment a man who
honestly receives a chattel by delivery thereof to him by its true owner
cannot be found guilty of larcenj' at common law, and in my opinion
the prisoner in this case is not guilty of that offence. The second
point has now to be considered, namely, was he guilty of larceny as a
bailee within the true intent of § 3 of 24 & 25 Vict. c. 96? To consti-
tute a person bailee of a chattel there must be a bailment and not a
mere delivery of the chattel. There must be a delivery of a chattel
upon contract express or implied to return the chattel or obey the
mandate with which the delivery is clogged, or in other words, a delivery
upon condition. The question as it seems to me is this, Is the law in
the present case to imply a condition when we know perfectly well that
at the time of the delivery of the coin no condition at all was in the
contemplation of the parties, excepting that a coin of like value should
be returned to Keogh when the prisoner had drawn his wages ? No
condition to return the coin delivered to the prisoner was ever thought
of, and in my judgment, such a condition cannot be implied. Should,
however, any condition be implied as to what was to be done if or
when anj'. mistake not then contemplated should be discovered, my
opinion is that the only condition, if any, which could be implied would
be that the prisoner would not spend or use for his own purposes 19«. out
of the 20s. ; and I am of opinion that if the prisoner had, upon finding
out the mistake, taken to Keogh 19s., he would have been strictly
within his rights. The case of Regina v. Hassall, L. & C. 58, is an
express authority to the effect that a person is not a bailee within the
statute unless he is under obligation to return the identical chattel
■deposited with him. In my judgment the prisoner was not a bailee. of
the sovereign for the reasons above given. I am fuUj' alive to the
remark which has been made, that if the present case is not one of
larceny, it should be. Whether this remark is well founded or not I
■do not pause to inquire ; but it seems to me that the observations of
Bramwell, B., in Regina v. Middleton, L. Rep. 2 C. C. 38, on this head
tire well worthy of consideration. Believing, however, as I do, that
according to the law of England, as administered from the earliest
times, the present case is not a case of larceny at common law, I cannot
hold otherwise than I do ; and as for the reasons given above, the
prisoner is not, in m}' opinion, guilty of larcen3' as a bailee, my judg-
ment is that the conviction should be quashed.^
Cave, J. (As the learned judge was unable to attend, the following
judgment, written by him, was read by Lord Coleridge, C. J.) The
question we have to decide is, whether under the circumstances stated
in the case the prisoner was rightly convicted of larceny, either at
common law or as a bailee. It is undoubtedly a correct proposition
that there can be no larceny at common law unless there is also a tres-
1 Concurring opinions were delivered by Mathew, Field, Manisty, and Stephen,
JJ. Day and Wills, JJ., also concurred.
578 EEGINA V. ASHWELL. [CHAP. VIII.
pass, and that there can be no trespass where the prisoner has obtained
lawful possession of the goods alleged to be stolen ; or in other words,
the thief must take the goods into his possession with the intention of
depriving the owner of them. If he has got the goods lawfully into his
possession before the intention of depriving the owner of them is
formed, there is no larceny. Applying that principle to this case, if the
prisoner acquired lawful possession of the sovereign when the coin was
■actually handed to him by the prosecutor, there is no larceny, for at
that time the prisoner did not steal the coin ; but if he only acquired
possession when he discovered the coin to be a sovereign, then he is
guilty of larceny, for at that time he knew that he had not the consent
of the owner to his taking possession of the sovereign as his own, and
the taking under those circumstances was a trespass. It is contended
that, as the prosecutor gave and the prisoner received the coin under
the impression that it was a shilling and not a sovereign, the prosecutor
never consented to part with the possession of the sovereign, and con-
sequently there was a taking by the prisoner without his consent ; but
to my mind, it is impossible to come to the conclusion that at the time
when the sovereign was handed to him, the prisoner, who was then
under a bona fide mistake as to the coin, can be held to have been
guilty of a trespass in taking that which the prosecutor gave him. It
seems to me that it would be equallj- logical to say that the prisoner
would have been guilty of a trespass if the prosecutor, intending to slip
a shilling into the prisoner's pocket without his knowledge, had by
mistake slipped a sovereign in instead of a shilling. The only point
which can be made in favor of the prosecution, so far as I can see, is
that the prisoner did not actually take possession until he knew what
the coin was of which he was taking possession, in which case, as he
then determined to deprive the prosecutor of his property, there was a
taking possession simultaneously with the formation of that intention.
Had the coin been a shilling, it is obvious that the prisoner would have
gained the property' in and the possession of the coin when it was handed
to him by the prosecutor ; as there was a mistake as to the identity of
the coin no property passed, and the question is whether the possession
passed when the coin was handed to the prisoner or when the prisoner
first knew that he had got a sovereign and not a shilling. There are
four cases which it is important to consider. The first is Cartwright v.
Green, 8 Ves. 405, which, however, differs slightly from the present,
because in that case there was no intention to give the defendant
Green either the property in or the possession of the guineas, but only
the possession of the bureau, the bailor being unaware of the existence
of the guineas. If the bailee in that case had, before discovering the
guineas in the secret drawer, negligently lost the bureau with its con-
tents, it is difficult to see how he could have been made responsible for
the loss of the guineas. In Merry v. Green, 7 M. & W. 623, the facts
were similar to Cartwright v. Green, 8 Ves. 405, except that the bureau
had been sold to the defendant. In that case Parke, B., says that though
SECT. II.] KEGINA V. ASHWELL. 579
there was a delivery of the bureau to the defendant, there was no de-
livery so as to give a lawful possession of the purse and money in the
secret drawer. If these cases are rightly decided, as 1 believe them
to be, they establish the principle that a man has not possession of that
of the existence of which he is unaware. A man cannot without his
consent be made to incur the responsibilities toward the real owner
which arise even from the simple possession of a chattel without further
title, and if a chattel has without his knowledge been placed in his
custody, his rights and liabilities as a possessor of that chattel do not
arise until he is aware of the existence of the chattel and has assented
to the possession of it. A case much urged upon us on behalf of the
prisoner was Rex v. Mucklow, 1 Moody's Crown Cases, 160. In that
case a letter containing a draft for £10 lis. 6d. had been delivered to
the prisoner, although really meant for another person of the same name,
and the prisoner appropriated the draft, and was tried and convicted of
larceny. The conviction, however, was held wrong on the ground that
he had no animus furandi when he first received the letter. Here, as
in the two previous cases, the prisoner was not at first aware of the
existence of the draft, and when he became aware of it he must have
known that it was not meant for him, yet the judges seem to have held
that he got possession of the draft at the time when the letter was
handed to him. In Regina v. Davies, Dearsley's Crown Cases, 640, the
facts were similar to those in Mucklow's case, 1 Mood3''s Crown Cases,
161 ; and Erie, C. J., then Erie, J., who tried the case, directed the
jury that if at the time the prisoner received the order he knew it was
not his property but the property of another person of known name and
address, and nevertheless determined to appropriate it wrongfully to
his own use, he was guilty of larceny, and that in his opinion the
prisoner had not received it until he had discovered, by opening and
reading the letter, whether it belonged to him or not. " I considered,"
says the judge, " that the law of larceny laid down in respect of articles
found was applicable to the article here in question." The court,
however, quashed the conviction on the authority of Mucklow's case,
1 Moody's Crown Cases, 160. In Regina v. Middleton, L. Rep. 2
C. C. 38, in which it was held by eleven judges against four that, where
there was a delivery of money under a mistake to the prisoner, who
received it animo fwrandi, he was guilty of larceny, there occurs a
passage in the judgment of some of the judges who formed the majority,
which is as follows: "We admit that the case is undistinguishable
from the one supposed in the argument, of a person handing to a
cabman a sovereign by mistake for a shilling; but after carefully
weighing the opinions to the contrary, we are decidedly of opinion that
the property in the sovereign would not vest in the cabman, and that
the question whether the cabman was guilty of larceny or not would
depend upon this, — whether he, at the time he took the sovereign, was
aware of the mistake, and had then the guilty intent, the animus
furandi." For my part, I am quite unable to reconcile the cases ol
580 EEGINA V. ASHWELL. [CHAP. VIII.
Rex V. Mucklow, 1 Moody C. C. 161 and Regina v. Davies, Dears.
C. C. 640, and the passage I have cited from Regina v. Middleton,
L. Rep. 2 C. C. 38, with those of Cartwright v. Green, 8 Ves. 405 and
Merry v. G-reen, 7 M. & W. 623 ; and being compelled to choose be-
tween them, I am of opinion that the law is correctly laid down in
Merry v. Green, 7 M. & W. 623, for the following reasons : The accept-
ance by the receiver of a pure benefit unmixed witli responsibility may
fairly be, and is in fact, presumed in law until the contrary is shown ;
but the acceptance of something which is of doubtful benefit should not
be and is not presumed. Possession unaccompanied hy ownership is
of doubtful benefit ; for althougli certain rights are attached to the
possession of a chattel, they are accompanied also by liabilities toward
the absolute owner which may make the possession more of i a burden
than a benefit. In my judgment, a man cannot be presumed to assent
to the possession of a chattel ; actual consent must be shown. Now a
man does not consent to that of which he is wholly ignorant ; and I
think, therefore, it was rightly decided that the defendant in Merry v.
Green, 7 M. & W. 623, was not in possession of the purse and money
until he knew of their existence. Moreover, in order that there may be
a consent, a man must be under no mistake as to that to which he
consents ; and I think, therefore, that Ashwell did not consent to the
possession of the sovereign until he knew that it was a sovereign.
Suppose that while still ignorant that the coin was a sovereign he had
given it away to a third person, who had misappropriated it, could he
have been made responsible to the prosecutor for the return of 20s. ?
In my judgment he could not. If he had parted with it innocentlj',
while still under the impression that it was only a shilling, I think he
could have been made responsible for the return of a shilling and a
shilling only, since he had consented to assume the responsibility of a
possessor in respect of a shilling only. It may be said that a carrier is
responsible for the safe custody of the contents of a box delivered to
him to be carried, although he may be ignorant of the nature of its
contents ; but in that case the carrier consents to be responsible for the
safe custody of the box and its contents, whatever they may happen to
be ; and, moreover, a carrier is not responsible for the loss of valuable
articles if he has given notice that he will not be responsible for such
articles unless certain conditions are complied with, and is led by the
consignor to believe that the parcel given to him to carrv does not
contain articles of the character specified in the notice. Batson v.
Donovan, 4 B. & A. 21. In this case, Ashwell did not hold himself
out as being willing to assume the responsibilities of a possessor of the
coin, wliatever its value might be ; nor can I infer that at the time of
the delivery he agreed to be responsible for the safe custody and return
of the sovereign. As, therefore, he did not at the time of delivery
subject himself to the liabilities of the borrower of a sovereio-n, so also
I think that he is not entitled to the privileges attending the lawful
possession of a borrowed sovereign. When he discovered that the
SECT. II.] EEGINA V. FLOWERS. 581
coin was a sovereign, he was, I think, bound to elect, as a finder would
be, whether he would assume the responsibilities of a possessor ; but
at the moment when he was in a position to elect, he also determined
fraudulently to convert the sovereign to his own use ; and I am there-
fore of opinion that he falls within the principle of Begina v. Middleton,
L. Eep. 2 C. C. 45, and was guilty of larceny at common law. For these
reasons, I am of opinion that the conviction was right.^
EEGINA V. FLOWERS.
Ckown Case Reserved. 1886.
[Reported 16 Cox C. C. 33.]
Case reserved by the learned Recorder for the borough of Leicester,
at the last Epiphany Quarter Sessions for that borough, upon the trial
of an indictment which charged one Charles Flowers with having, on
the 31st day of October, 1885, while being servant to one Samuel Len-
nard and another, feloniously stolen, taken, and carried away certain
money to the amount of seven shillings and one penny halfpenny, the
property of the said Samuel Lennard and another, his masters.
It appeared from the case that the prisoner had been for about three
months next preceding the 31st day of October, 1885, a chcker in the
service of Messrs. Lennard Brothers, a firm of shoe manufacturers in
Leicester, in whose establishment the following mode of pajuneut of
the wages of their employees was adopted, namely : —
The amount of wages due to each workman was calculated from the
time-book and entered into the wages-book. Each amount was then
made up and put into a small paper bag, which was then sealed ; and
the bags so secured were sent to the various rooms in which the men
worked. The foreman of each of such rooms then distributed the bags
containing the wages among the men under his charge. When a mis-
take occurred the workman affected thereby took his bag to one Francis
Cufflin (the clerk) to have the mistake rectified.
On the 31st day of October there was due to the prisoner the sum
of sixteen shillings and eight pence, and after the workmen had been
paid their wages the prisoner came to Cufflin and said that lie 'was
three pence short, and gave him the bag into which his money had
been put. The top of the bag had been torn off, and the bag was
empty. Another workman named Jinks had also come to CuiHin for
a correction in his money, stating that fivepence or sixpence was due
' Concurring opinions were delivered by Lord Colekidge, C. J., and Denman, J.
Grove and Hawkins, JJ., Pollock and Huddleston, BB., also concurred.
In accordance with the opinion of Smith, J., see Reg. v. Jacobs, 12 Cox C. C
151 ; Bailey v. State, 58 Ala. 414.
In accordance with the opinion of Cave, J., see State v. Pucker, 8 Or. 394. — Ed.
582 KEGINA V. FLOWEKS. [OHAP. VIII.
to him, and had handed to CuflBin his bag with seven shillings and
eleven pence halfpenny in it. Cufflin thereupon gave the prisoner by
mistake Jinks's bag, and also three pence in copper, into_his hand, and
the prisoner, having received Jinks's bag, went away immediately,
and in the presence of one of his fellow-workmen emptied the contents
of Jinks's bag into his hand, saying, "The biter has got bit: he has
paid me double wages." He then turned to another man and said,
" Come on, we '11 go and have a drink on it."
At the close of the case for the prosecution, it was submitted on
behalf of the prisoner that there was no case to go to the jury, as the
evidence failed to show that the prisoner at the time he received the
seven shillings and eleven pence halfpenny from Cufflin had the ani-
mus furandi, or guilty mind, er,sential to constitute the offence of lar-
ceny, and that anj^ subsequent fraudulent appropriation of the money
by the prisoner was immaterial in so far as the offence of larceny was
concerned.
The learned Recorder, however, held that there was evidence to go
to the jury of the prisoner having the animus furandi at the time he
received from Cufflin tlie money, and he also ruled, in deference to the
opinion of certain of the learned judges in Regina v. Ashwell, 53
L. T. Rep. N. S. 773 ; 16 Cox C. C. 1 ; 16 Q. B. Div. 190 ; 55 L. J.
65, M. C, that if the prisoner received the money innocently but after-
wards fraudulently appropriated it to his own use, he was guilty of larceny.
Having directed the jurj' to this effect, he put to them the following
questions, namel}' : —
1. Did the prisoner, from the time he received from Cufflin the bag
containing the seven shillings and eleven pence halfpenny, kn6w that
it did not belong to him ? To this the jury answered. No.
2. Did the prisoner, having received the bag and its contents inno-
cently, afterwards fraudulently appropriate them to his own use? And
to this the jury answered, Yes.
The learned Recorder thereupon directed a verdict of guilty to be
entered on the first count of the indictment, which was that above set
out, and reserved the question for the consideration of this court
whether, the jury not having found affirmatively that the prisoner had
the animus furandi at the time he received the seven shillings and
eleven pence halfpenny from Cufflin, he could be rightly convicted of
larceny by reason of the subsequent fraudulent appropriation by him
of the said money to his own use.
No one appeared on behalf of the prosecution or the prisoner.
LoKD Coleridge, C. J. This case might have raised a verj' subtle
and interesting question. The manner in which the learned Recorder
has stated it, however, raises a question which is distinguishable from
that which was raised in the case of Regina xi. Ashwell. Now, in that
-case, the judges who decided in favor of the conviction never meant
to question that which has been the law from the beginning, and to
hold that the appropriation of chattels which had previously been inno-
SECT. II. J KEGINA V. FLOWERS. n 583
cently received should amount to the offence of larceny. If that case
is referred to, it will be seen that I myself assumed it to be settled law
that where there has been the delivery of a chattel from one person to
another, subsequent misappropriation of that chattel by the person
to whom it has been delivered will not make him guilty of larceny
except by statute. In the present case, however, the learned Recorder
appears to have directed the jury that, if the prisoner received the
7s. ll^d. innocently, but afterwards fraudulently appropriated the
money to his own use, he was guilty of larceny. But no such rule
was intended to be laid down in Regina v. Ash well, and the direction
of the learned Recorder was not, in my opinion, in accordance with
that decision. Ilr is quite possible for the jury to have considered con-
sistently with that direction that a fraudulent appropriation, six months
after the receipt of the money, would justify them in finding the pris-
oner guilty of larceny. The question we are asked is, whether the jury
not having found affirmatively that the prisoner had the animus furandi
at the time he received the money, he was rightly convicted of larceny
by reason of the subsequent fraudulent appropriation. In my opinion
he was not. The judgment of those judges who affirmed the convic-
tion in Regina v. Ashwell, if carefully read, shows that they considered
that to justify a conviction for larceny there must be a taking posses-
sion simultaneously with the formation of the fraudulent intention to
appropriate, and that was not the case here.
Manistt, J. I am of the same opinion. The difference of opinion
among the judges who decided the case of Regina v. Ashwell was in
the appplication to the particular facts in that case of the settled prin-
ciple of law that the innocent receipt of a chattel, coupled with the
subsequent fraudulent appropriation of that chattel, does not amount
to larceny. And while certain of the judges were of opinion that there
had been a fraudulent taking and not an innocent receipt, and held that
Ashwell had been guilty of larceny, the others, on the contrary, were
of opinion that there had been an innocent receipt, and that therefore
there had been no larceny. I am glad to think that the old rule of law
remains unaffected.
HAwpiNS, J. The old rule of law was not questioned by any of
the judges in Regina v. Ashwell. This case is distinguishable, for
here the learned Recorder told the jury that if the prisoner received
the 7s. l\\d. innocently but afterwards fraudulently appropriated, that
money to his own use, he was guilty of larceny. It appears clear to
me that that direction could not be right, and that the learned Recorder
misapprehended the rule of law.
Day, J. I was one of those who dissented from aflBrming the con-
viction in Regina'?;. Ashwell, and have only to add that, in my opinion,
this conviction cannot be supported.
Graktham, J. I am of the same opinion.
Conviction quashed.
584 EEGIXA V. HEHIR. [cHAP. VIII.
REGINA V. HEHIR.
Court of Crown Cases Reserved, Ireland. 1895.
[Reported 18 Cox C. C. 267.1]
Case reserved by the Right Hon. the Lord Chief Baron, as follows :
At the Assizes for the Munster Winter Assize County, 1894, held at
Cork under the provisions of the Munster Winter Assize County Order,
1864, Denis Hehir was tried before me and a common jur3' for the
larceny of " nine pounds sterling, of the goods and chattels of one
John Leech ; " but during the course of the trial, upon the application
of Mr. Bourke, Q. C, counsel for the Crown, I allowed the indictment
to be amended by striking out the words " nine pounds sterling," and
substituting therefor the words "a ten pound note." A copy of the
indictment is contained in the Appendix.
Evidence was given that John Leech, the master of the brigantine
Uzziah, which was then in Limerick, engaged the prisoner, Denis
Hehir, to assist in the discharge of the cargo. On the 20th day of
September last Leech owed Hehir for work done in such discharge the
sum of 21. 8.S. 9d. For the purpose of paying this sum Leech, on said
20th day of September, handed the prisoner nine shillings in silver and
two bank notes, each of which both Leech and the prisoner believed to
be a IZ. note. One of these notes was in fact a lOl. note. The prisoner
left taking away the two notes with him. Within twenty minutes after-
wards Leech discovered his mistake and went in search of the prisoner,
whom be found within half an hour after he had given him the notes.
Leech told the prisoner that he had given him a 101. note instead
of a 11. The prisoner alleged that he had already changed both the
notes. There was evidence that at the time when the prisoner first
became aware that the note was for 101. (which was a substantial
period after it had been handed to him by Leech) he fraudulently and
without colour of right intended to convert the said note to his own use,
and to permanently deprive the said John Leech thereof, and that to
eflfectuate such intention the said prisoner shortly afterwards changed
the said note and disposed of the proceeds thereof.
Mr. Bourke referred me to Reg. v. Ash well (16 Cox, C. C. 1) and
Reg. V. Flowers (16 Cox C. C. 33 ; 54 L. T. Rep. 547).
In order to have an authoritative decision upon the question, upon
which the Court for Crown Cases Reserved in England was, in Reg. v.
Ashwell, equally divided, I left the case to the jury, who found the
prisoner guilty, and I reserved for this Court the question hereinafter
stated. I allowed the prisoner to remain out on bail to come up for
sentence at the next assizes for the county of the cit}' of Limerick.
1 The official report (1895), 2 Ir. 709, gives the opinions at length. — Ed.
SECT. II.] EEGINA V. HEHIR. 585
I request the opinion of tliis Court upon the question, " Whether I
ought to have directed a verdict of acquittal by reason of the prisoner
not having had the animus furandi when Leech handed him the 10^.
note?"
Madden, J., said : I consider the conviction in the present case was
good at common law. The law being the same in both countries, the
English cases are applicable. We are not, however, absolved by Eeg.
V. Ashwell from the duty of forming an independent judgment. Does
the evidence show the taking by Hehir to have heen invito domirn ?
If the handing of the note by Leech to Hehir amounted to delivery, no
fraudulent intention would suflSce to constitute larceny. There was a
fiscal transfer. Men are presumed to li:now the consequences of their
own acts. Does the transfer of physical possession, made under such
a mistake, amount to a delivery of legal possession? I think not, if it
is accepted under a common mistake. If the owner intends the specific
property to pass, it is not larceny ; but where there is a mistake as to
identity, it is different. There must be intelligent delivery, and not the
mere ph3-sical fact from which intelligence is absent. I rest my judg-
ment on the fact that the mistake was not one of value, but of identity;
not tlie paper per se, but the money it represents. The case would be
plainer if the exchange were carried on, as in some nations, by means
of shells or precious stones. A mistake between a 101. note and a 11.
is the same. Any consent given or act done in consequence of such
mistake can have no legal value whatever. The case of Merry v.
Green presents no substantial or essential difference to the present
case. It was a case of transfer of physical possession. Deliver}- was
there made in ignorance of the existence of the chattel. In either case
the dominus remained invitus, for the element of intelligent delivery
was wanting. Cases of finding do not throw much light on the ques-
tion. Assuming the dominus to be invitus, was there any felonious
taking of the money at all? In Reg. v. Middleton the question was not
as to the effect of knowledge coincident with the taking. The rule
which governs this case is simple : it is, " A man to wliom a chattel is
delivered under a mistake as to its identity does not therebj' obtain
legal possession ; and if he subsequently learns the mistake and retains
its possession, he is guilty of larceny."
Gibson, J., said : On the question of consent or non-consent there is
no substantial difference between a bank-note and any other chattel.
First, as to acquisition. Legal possession imports knowledge. Here
there was a physical delivery without knowledge. Until knowledge
the law should not attribute to the taker the object of taking without
consent. If upon discovery he elects to return the chattel, then it
amounts to custodj' rather than possession ; if he appropriates, then
either the possession becomes wrongful, or then and there, for the first
time, there is a taking out of possession of the owner of the chattel,
which previously was lost ; he commits a tort. Secondly, as to tiie
lawfulness of the possession. Consent to possession obtained by fraud
586 EEGINA V. HEHIE. [OHAP. VIII.
or force animo furandi is unlawful. Physical delivery is evidence of
consent, but is rebuttable. Even without animus furandi a taker who
at delivery is aware of a mistake, his possession is not innocent. The
taker there is not misled. The question of consent is one of substance,
not of form. Delivery under mistake does not work an estoppel. The
taker is bound to give up the chattel on demand. The protection
given to mistake does not extend to wilful fraud. I express no opin-
ion on the question of bailment ; it was not argued. Of seven cases
relating to this principle of mistake, only two are against the view I
take. The cases on lost property are distinguishable. The bureau
cases seem in direct conflict with the post-oflBce cases. Hehir, who is
morally a rogue, is legally a thief.
Holmes, J., said : All acts to carry legal consequences must be acts
of the mind. The prosecutor did not intend to give, or know that he
was giving, and Hehir did not intend to receive, or know he was receiv-
ing ; therefore possession remained in the owner. When the taker
discovers that he has a chattel which the owner did not intend to give,
he then takes it the first time, and if he retains it he is guilty of
larceny.
Murphy, J., said : As to the moral aspect of the defendant's conduct
it was clearly just as bad as if he had picked the owner's pocket. But
it is said that in consequence of the means he adopted he is not guilty
of larceny. The case is governed by Reg. v. Ashwell, where fourteen
judges were equally divided.
Johnson, J., said : In my opinion Hehir is not guilty, because a man
who honestly receives a chattel with consent of the true owner cannot
be found guilty of larceny. Larceny by common law is felonious taking
and carrying awaj- from a person. It must be felonious, and this intent
to steal must be when it comes to his hand. There must be an actual
taking. Hawkins, in his " Pleas of the Crown," adopts Coke's defini-
tion of larceny. We are not here concerned with what the law of
dishonesty is ; the severity of the ancient criminal law led to the dis-
tinction I refer to, but still the principle of law remains to-day the
same. Where no trespass is there is no larceny at common law. Here
there was no trespass. Leigh gave Hehir two notes, 11. and 10?. He
intended to give Hehir the property in one of the notes ; what dif-
ference is there from the giving of the other note at the same time ?
Hehir had no animus furandi when he took the notes and obtained
possession of them.
Andrews, J., said: I think the conviction ought to be quashed.
I think the property in the note immaterial in this case ; no doubt it
did not pass to the prisoner. When Leech handed the notes to Hehir
he intended to give Hehir possession of the thing he handed. His
Intention arose from mistake ; that does not show that the intention
does not exist. In fact, he handed the note to Hehir, knowing that he
was handing it to him. A man can take and be in possession of a
SECT. II.] KEGINA V. HEHIR. 587
chattel of which he does not know the value, or believes it to be of a
different value or quality from its real value or quality. As regards
taking, it is an absolute Action tp say that, although Hehir actually
took the note when handed to him, he did not then take it, but only at
a subsequent time when he discovered it was something different, and
that he then took it, when he really did not take it at all, for he had it
for some time in his possession. This is to ignore the actual taking,
and make a mere movement of the mind amount to an actual taking.
At the time Hehir received possession of the note he got lawful posses-
sion of it, and committed no trespass whatever. He took the lOZ. note
innocently and with the consent of the owner, not fraudulently ; there-
fore he is not guilty of larceny. In Reg. v. Ashwell the conviction was
not aflBrmed, but stood merelj' because it was not quashed. It is for
the Legislature to make this transaction larceny.
O'Brien, J., said : The question of consent did not exist in the owner's
mind as to the 10?. By his own act he put it into the possession of
Hehir. The latter was not guilty of larceny. In order to make him out
so, we must hold that he " feloniously took," when in fact he did not
take at all. We must invent a new criminal category ; he is a " finder-
out," by an operation of mind. The asportavit disappears altogether
in this case. The corporeal transfer cannot be left out in the idea of
larceny. What was the position of Hehir between the taking of the
article and the discovery of the mistake \>y him ? Excusable detention,
I suppose. He is then a party innocent at first, and afterwards guilty.
I do not consider that Reg. v. Ashwell levels all the previous cases. It
was a divided judgment. No crime has been committed in this case,
only a moral transgression, as to which the law has not hitherto given
effect to the views of those who think to compass the sea by undertak-
ing to push the confines of crime into the boundless regions of dis-
honest3-. The conviction should be reversed.
Palles, C. B., said : I admit that the prisoner in this case was a dis-
honest one, but it is punishable not by the judges but by the Legislature.
Reg. V. Mucklow, Reg. v. Davies, and Reg. v. Middleton are all against
the conviction. Reg. v. Ashwell said the two first were overruled. In
it the opinion of seven judges was adverse to a conviction in a case like
the present. For fifty-eight years there was an unbroken series of de-
cisions that acts similar to that of the prisoner were not larceny. In
Reg. V. Ashwell a technical rule maintained tlie conviction. Cartwright
V. Green and JMerry v. Green, cited for the Crown, are civil cases.
I doubt the right of the Court for Crown Cases Reserved in England
to reverse a previous decision of their own Court in a previous case.
There is no inconsistency between these two civil cases (neither of
which was decided by a court of equal authority with that of the Court
for Crown Cases Reserved) and the criminal cases. In both the bailor
and bailee were ignorant of the existence of the chattel. There was no
intentional manual delivery of the chattel. There was that knowledge
588 EEGINA V. HEHIE. [CHAP. VIII.
in the present case. Keg. v. Asliwell has not a single prior case tO'
support it. It was a case of first impression. The ground upon which
it was arrived at is given in the judgment of Coleridge, C. J., in whose-
mind there must have been some serious misapprehension. I hold that-
it would not be competent to the court in England to uphold the con-
viction in Reg. v. Ashwell, and it is only by following that case that it
can be upheld in the present case. As regards written contracts, see
Scott V. Littledale (8 E. & B. 815). In written instruments the inten-
tion must be gathered from the writing. Why should a man not be
held to intend that which is the consequence of his act? So long as
Hehir believed the note to be for 11., the prosecutor cannot be heard
to say that he had not the intention of parting with it, and till the dis-
covery of the mistake Hehir had lawful possession of it. There is no
difference between the case here and that of a person counting notes
and giving nine notes instead of ten. Hehir might lawfully detain the
lOZ. note till he had an opportunity of changing it and giving back 9Z.
to Leech. Hehir must have had lawful possession antecedent to the
discovery of the mistake, and that discovery cannot hy relation back
change the character of the antecedent possession, which was Hehir's
possession, into that of Leech. Hehir was not guilty of larceny at;
common law.
Sir Petek O'Brien, Bart, C. J., in agreeing with the Chief Baron,
referred to Reg. v. Flower, and said : " The innocent receipt of a
chattel and its subsequent appropriation does not constitute larcenj'.
Leech gave unreservedl}', Hehir honestly received. The fact of his
mistaken belief made Leech give the note without any reservation
whatever. Reg. v. Mucklow was recognized in Reg. v. Davies, although
not argued at- the Bar. It was a moot point among the judges. It is-
not consistent with Cartwright v. Green. There was here no felonious
taking. However we dislike the law we must follow it.
The conviction was accordingly quashed^
SECT. II.] EEGINA V. TOWNLET, 589
SECTION II. (continued),
(d) ToKTious Possession.
EEGINA V. TOWNLEY.
Ckown Case Eeserved. 1871.
[Reported 12 Cox C. C. 59.]
Case reserved for the opinion of this court hy Mr. Justice Black-
iburn.
The prisoner and one George Dunltley were indicted before me at the
Northampton Spring Assizes for stealing 126 dead rabbits.
In one count they were laid as the property of "William HoUis ; in
.another as being the property of the Queen.
There were also counts for receiving.
It was proved that Selsey Forest is the property of her Majesty.
An agreement between Mr. Hollis and the Commis.sioners of the
"Woods and Forests on behalf of her Majesty was given in evidence,
"which I thought amounted in legal efl'ect merelj- to a license to Mr.
Hollis to kill and take away the game, and that the occupation of the
«oil and all rights incident thereto remained in the Queen. No point,
however, was reserved as to the proof of the property as laid in the
indictment.
The evidei^ce showed that Mr. Hollis's keepers, about eight in the
morning on the 23d of September, discovered 126 dead and newly killed
rabbits and about 400 yards of net concealed in a ditch in the forest
behind a hedge close to a road passing through the forest.
The rabbits were some in bags and some in bundles, strapped to-
gether by the legs, and had evidently been placed there as a place of
deposit by those who had netted the rabbits.
The keepers lay in wait, and about a quarter to eleven on the same
■day Townley and a man, who escaped, came in a cab driven b}' Dunk-
ley along the road. Townley and the man who escaped left the cab in
■charge of Dunkley and came into the forest and went straight to the
•ditch where the rabbits were concealed and began to remove them.
The prisoners were not defended by counsel.
It was contended by the counsel for the prosecution that the rabbits
on being killed and reduced into possession bj^ a wrong-doer became
the property of the owner of the soil, in this case the Queen (Blades v.
Higgs, 7 L. T. N. S. 798, 834) ; and that even if it was not larceny to
kill and carry away the game at once, it was so here, because the kill-
ing and carrj'ing away was not one continued act.
1 Hale, P. C. 510, and Lee v. Risdon, 7 Taunt. 191, were cited.
The jury, in answer to questions from me, found that the rabbits
590 EEGINA V. TOWNLBY. [CHAP. VIII.
had been killed by poachers in Selsey Forest, on land in the same occu-
pation and ownership as the spot where thej' were found hidden.
That Townlej' removed them, knowing that thej- had been so killed,
but that it was not proved that Dunkley had any such knowledge.
I thereupon directed a verdict of not guilty to be entered as regarded
Dunklejf, and a verdict of guilty as to Townley, subject to a case for
the Court of Criminal Appeal.
It is to be taken as a fact that the poachers had no intention to
abandon the wrongful possession of the rabbits which they had acquired
by taking them, but placed them in the ditch as a place of deposit till
they could conveniently remove them.
The question for the court is, whether on these facts the prisoner
was properly convicted of larcenj-.
The prisoner was admitted to bail.
Colin Blackburn.
No counsel appeared to argue on either side.
BoviLL, C. J. (after stating the facts). The first question that
arises is as to the nature of the property. Live rabbits are animals
ferce naturce, and are not the subject of absolute property ; though at
the same time they are a particular species of property ratione soli, —
or rather the owner of the soil has the right of taking and killing them,
and as soon as he has exercised that right they become the absolute
propert}"^ of the owner of the soil. That point was decided in Blades v.
Higgs, supra, as to rabbits, and in Lonsdale v. Eigg, 26 L. J. 196,
Ex., as to grouse. In this case the rabbits having been killed on land
the property of the Crown, and left dead on the same ground, would
therefore in the ordinary course of things have become the property of
the Crown. But before a person can be convicted of larceny of a thing
not the subject of larceny in its original state, as, e. g., of a thing at-
tached to the soil, there must not only be a severance of the thing from
the soil, but a felonious taking of it also after such severance. Such
is the doctrine as applied to stealing trees and fruit therefrom, lead from
buildings, fixtures, and minerals. But if the act of taking is continu-
ous with the act of severance, it is not larceny. The case of larcenj- of
animals ferm naturce stands on the same principle. Where game is
killed and falls on another's land, it becomes the property of the owner
of the land ; but the mere fact that it has fallen on the land of another
does not render a person taking it up guilty of larceny, for there must
be a severance between the act of killing and the act of taking the game
away. In the present case we must take it that the prisoner was one
of the poachers or connected with them. Under these circumstances
we might come to the conclusion that it was a continuous act, and that
the poachers netted, killed, packed up, and attempted to carrj' away
the rabbits in one continuous act, and therefore that the prisoner ought
not to have been convicted of larceny.
Martin, B. I am of the same opinion. It is clear that if a person
SECT. II.J EKGINA V. TOWNLEY. 591,
kills rabbits and at the same time carries them away, he is not guilty
of larceny. Then, when he kills rabbits and goes and hides them and
comes back to carry them away, can it be said that is larceny? A
passage from Hale's P. C. 510, " If a man comes to steal trees, or the
lead off a church or house, and sever it, and after about an hour's time
or so come and fetch it awaj', it is felony, because the act is not con-
tinuated, but interpolated, and in that interval the property lodgeth in
the right owner as a chattel, and so it was argued by the Court of King's
Bench, 9 Car. 1, upon an indictment for stealing the lead off West-
minster Abbey," was relied on by the prosecution. There is also a
dictum of Gribbs, C. J., to the same effect in Lee v. Eisdon, 7 Taunt.
191. I am not insensible to the effect of those dicta; but here we
must take it as a fact that the poachers had no intention to abandon
possession of the rabbits, but put them in the ditch for convenience
sake ; and I concur in thinking that the true law is that, when the
poachers go back for the purpose of taking them away, in continuation
of the original intention, it does not amount to larcenj'.
Bramwell, B. Our decision does not appear to me to be contrary
to what Lord Hale and Gibbs, C. J., have said in the passages referred
to. If a man having killed rabbits on the land of another, gets rid of
them because he is interrupted and then goes away and afterwards
comes back to remove the rabbits, that is a larceny ; and so, if on being
pursued, he throws them away ; and it is difficult to perceiv.e any dis-
tinction where the owner of a chattel attached to the freehold finds it on
his land severed, and the person who severed it having abandoned it
afterwards comes and takes it away. It is in those cases so left as to
be in the possession of the true owner, and the act is not, as Lord Hale
expresses it, continuated. In this case, however, the rabbits were left
by the poachers as trespassers in a place of deposit, though it hap-
pened to be on the land of the owner ; and it is just the same as if they
had been taken and left at a public house or upon the land of a neigh-
bor. If they had been left on the land of a neighbor or at a public
house, could it have been said to be larcenj'? Clearly. not ; and if not
why is it larceny because the poachers left them in a place of deposit
on the owner's own land ? It seems to me that the case is not within
the dicta of Lord Hale and Gibbs, C. J., but that here the act was con-
tinuous, and that there was an asportation by the poachers to a place
of deposit, where they remained not in the owner's possession.
Byles, J. I cannot say that I have not entertained a doubt in this
case ; but upon the whole I think that this was not larceny. The
wrongful taking of the rabbits was never abandoned by the poach-
ers, for some of the rabbits were in their bags. It could hardly be said
that if a poacher dropped a rabbit and afterwards picked it up that
could be converted into larceny, yet that would follow if the conviction
were upheld.
Blackburn, J. I am of the same opinion. Larceny has always been
defined as the taking and carrying away of the goods and chattels of
592 EEGINA V. TOWNLEY. [CHAP. VIII.
another person ; and it was very early settled where the thing taken was
not a chattel, as where a tree was cut down and carried away, that was
not larceny, because the tree was not taken as a chattel out of the owner's
possession and because the severance of the tree was accompanied by
the taking of it away. The same law applied to fruit, fixtures, min-
erals, and the like things, and statutes have been passed to make steal-
ing in such cases larcenj'. Though in the House of Lords, in Blades v.
Higgs, it was decided that rabbits killed upon land became the proj)-
ertj- of the owner of the land, it was expresslj- said that it did not fol-
low that everj' poacher is guilty of larceny, because, as Lord Cranworth
said, " Wild animals whilst living, though they are, according to Lord
Holt, the property of the owner of the soil on which they are living, are
not his personal chattels so as to be the subject of larceny. They par-
take while living of the quality of the soil, and are, like growing fruit,
considered as part of the realtj'. If a man enters mj- orchard and fills
a wheelbarrow with apples, which he has gathered from my trees, he is
not guilty of larceny, though he has certainly possessed himself of my
property ; and the same principle is applicable to wild animals;" The
principle is as old as 11 Year Book (par! 33), where it is reported that
a forester who had cut down and carried away trees could not be ar-
raigned for larceny though it was a breach of trust ; but it was said it
would have been a different thing if the lord of the forest had cut down
the trees and the forester had carried them awaj-, then that would have
been larceny. So that in the case of wild animals if the act of killing
and reducing the animals into possession is all one and continuous,
the offence is not larceny. The jury have found in this case that the
pi'isoner knew all about the killing of the rabbits, and that they were
lying in the ditch. It is clear that during the three hours they were
lying there, no one had any physical possession of them and that they
were still left on the owner's soil ; but I do not see that that makes any
difference. Then there is the statement from Hale's P. C. 510, where
it is said that larceny cannot be committed of things that adhere to the
freehold, as trees, or lead of a house, or the like, yet that the Court of
King's Bench decided that where a man severed lead from Westminster
Abbey and after about an hour's time came and fetched it away, it was
felony, because the act is not continuous but interpolated; and Lord
Hale refers to Dalton, c. 103, p. 166; and Gibbs, C. J., expressed
the same view very clearly in Lee v. Eisdon. Now if that is to be un-
derstood as my brother Bramwell explained, I have no fault to find with
it; but if it is to be said that the mere fact that the chattel having been
left for a time on the land of the owner has thereby remained the
owner's property, and that the person coming to take it awaj' can be
convicted of larceny, I cannot agree with it as at present advised. If
we are to follow the view taken by my brother Bramwell of these authori-
ties, they do not apply here, for no one could suppose that the poachers
ever parted with the possession of the rabbits. I agree th.it in point
of principle it cannot make any difference that the rabbits were left an
SECT. II.] BEGINA V. FOLEY. 593
hour or so in a place of deposit on the owner's land. The passage from
Lord Hale may be understood in the waj' my brother Bramwell has
interpreted it, and if so the facts do not bring this case within it.
Conviction quashed.^
REGINA V. FOLEY.
Ceqwn Case Reserved, Ireland. 1889.
[Reported 26 Law Reports (Ireland), 299.]
Case reserved by Mr. Justice Gibson as follows for the opinion of
this court : —
The accused, Edward Foley, was tried before me at Maryborough
Summer Assizes, 1889, for the Queen's County, for larceny of hay.
The indictment was at common law.
Foley had been t.pjyi.nji to a Mr. Kemmis of part of the lands of
Ballyadams in said county, but his tenancy had been determined by a
civil-bill decree in ejectmept, dated the 1st January, 1888, which was
duly executed, and possession taken on the 27th April, 1888, when the
house on the premises was levelled.
On August the 10th, 1888, the accused was seen by the police cutting
meadow on' the said lands with a scythe. On the 11th he was again
seen cutting meadow there. A police constable went to him there and
said, " He was glad some one would be responsible for the cutting,"
when Foley replied, ''He might as well have it as the landlord."
On the 13th August Foley proceeded to rake up the hay, which was j
then lying scattered in the field, and put it into a cart. He took!
altogether ten or twelve cwt. , and brought it away in the direction of \
Athy.
Mr. Leamy, counsel for the prisoner, contended that there was no i
larcenj-, as the indictment was at common law, and the taking was one i
continuous^act : relj'ing on The Queen v. Townlej', L. R. 1 C. C. R. 315.
' — Mr. M'olloy, Q. C, for the Crown, contra, contended that the hay
was to be c^eemed in the BQaS£gsion of Mr. Kemmis at the time when
the piisoner removed it.
In reply to a question put by me the jury said that the prisoner did
TTijt ah;[nr1oj;ynQsspaainn of the grass cut between the time of cutting
and time of removing the same.
It must be taken tliat Mr. Kemmis was in possession of the evicted
farm at the time when the grass was cut and removed. There was no
evidence of an}' act done by Mr. Kemmis, or any person on his behalf,
on the evicted farm from the date of eviction until the removal of the
hay ; nor was there any evidence of any act done by the prisoner in
reference to the farm or the grass cut, save as above stated.
1 Ace. Reg. V. Fetch, 14 Cox C. C. 116. — Ed.
594 EEGINA V. FOLEY. [CHAP. VIII.
Mr. Mollo^-, Q. C, further contended that there was no evidence to
support the special finding.
I advised the jur^- to convict the prisoner, which they did, but I did
not sentence him, and he stands out on his own recognizance, pending
the decision of this case.
The question for the court is, whether, on these facts, the prisoner
was properly convicted of larceny.
J. G. Gibson.*
M Leamy, for the prisoner.
Molloy, Q. C, with him T. P. Law, Q. O., for the Crown.
Gibson, J.^ I reserved this case for the purpose of settling a ques-
tion arising, or supposed to arise, on the decision in Eeg. v. Townley,
L. R. 1 C. C. R. 315. The evidence is meagre. Assuming that the
cutting of the meadow by the accused was some evidence of an assump-
tion of possession of the grass cut, there was no erjjlinpf i i" '^'■y opini"".
o^any effective possession by him of Jthe grass^'^cut and left lying on
llii lownry'i nnnnrl finm that time until it was carried awaj^, — though
it must be taken that Foley did not ifytftrnt-to-abatlTlTm-aiich g'-"'" On
these facts prisoner's counsel, relying on Eeg v. Townley, L. R. 1 C. C.
R. 315, contended that the prisoner could net be convicted of larceny.
The authorities cited by Mr. Molloy, Q. C. (to which maj' be added
East, PI. Cr., vol. 2, p. 587, and Gabbett, Crim. Law, p. 567), establish
that where a thief, after severing things parcel of the reajty, left the
chattels so severed on the proprietor's soil, and after an interval aame
again and took them away he would be guilty of larcenj' at common law,
the chattels being at the time of removal in the constructive possession
of the rightful owner. The principle of common law would seem to be
that, when the wrong-doer's actual and effective possession ceases he
cannot be deemed to be in constructive possession, and that such con-
structive possession of the severed chattels, crops, fixtures, or other-
wise, becomes vested in the rightful owner, on whose land they are
, left, by virtue of his right to possession.
For the prisoner it was argued that Townley's case, L. R. 1 C. C. R.
315, is an authority against this view, and that if wrongful possession is
once acquired by the thief, the fact that he may afterwards before re-
moval cease to be in effective occupation and control is immaterial, if he
does not intend to relinquish the wrongful possession, and in pursuance
of his original intent comes and takes away the property.
That this contention may not be entirely without color is shown by
the way Townley's case, L. R. 1 C. C. R. 315, is treated by well-known
writers. Thus,, Mr. R. S. "Wright, in his Essay on Possession, at p. 231,
says : " It was formerly supposed that the mere leaving of the thing by
the taker on the owner's premises for a time of itself vested a posses-
sion in the owner, so as to make a re-occupation by the taker a trespass
1 Arguments are omitted.
2 Johnson, J., and Morris, C. J-, delivered opinions in favor of conviction, and
Hakrison, O'Brien, and Andrews, JJ., concurred with the majority of the court.
SECT. II.] EEGINA V. FOLEY. 595
and (animus furandi being present) a theft. But it seems clear that
such a relinquishment is merely- evidence of an abandonment, general or
to the owner, more or less conclusive according to the circumstances."
So in the last edition of Archbold Criminal Law, at p. 363, it is
stated there is no larceny unless the " wrong-doer had between the
severance and the taking away intended to abandon his wrongful pos-
session of the article severed." In my opinion Townley's case, L. E.
1 C. C. R. 315, does not decide what is supposed. The continuity of
transaction contemplated by the common law as excluding larceny may
be considered from the point of view of time, act, and possession. The
principal element being possession, if the thief is in continuous posses-
sion, the occurrence of an interval of time between the taking and the
carrying away can of itself make no difference. Townley's case, L. E.
1 C. C. R 315, only decides : (1) that where there is evidence of actual
possession continuing, the fact that there is an interval of time between
the taking and carrying away does not constitute larceny where the
wrong-doer's intention is not abandoned and the transaction is in sub-
stance continuous ; (2) that chattels may be in the thief s possession,
though left on the owner's land (the chattels there being rabbits which
were not subject of property until killed). The expressions "abandon "
and " intention to abandon," found in the report of Townley's case, L.
E. 1 C. C. E. 315, though not inappropriate when read with reference to
the special facts of that case, are liable to misconstruction if emplo3'ed
in reference to such a case as that before us. Whprp ohgt.|jf|]g nftpi-
sAvpvf^npc, iii|i hifli I'll! Ihr prnpnrty pf tt'e t.ma "'yppT, r,n mnftnr. what
the wrong-doer's intentioTi may be. he cannot escape the common-law
^ootmnc, if^hiiJ possession is not in facT"conl,lnuocis: Continuity of
intention is not the equivalent of continuity of possession. The
transaction here was not continuous, and the conviction is right.
Holmes, J. I think that the solution of the question reserved in
this case depends upon whether there is any evidence that the grass or
hay was not in the possession of the true owner in the interval between
the severance and removal. When the grass was growing it belonged
to the owner of the land ; but although he was in possession of it as
part of the land, he was not in possession of it as a personal chattel.
It first became capable ^o£. being the tubjoct of liiiifiiji tilii'ii il w i^
severEtt;: It Is, i think, clear that where it is severed by a wrong-doer,
aiid, arpart of one continuous transaction, it is carried away by him,
there is no larceny. In such a case it has never, as a personal chattel,
been in the possession, actual or constructive, of the true owner. It
has been continuouslj' in the actual, though perhaps not always in
the physical, possession of the wrong-doer. In the case before us the
defendant, having cut the grass, left it on the lands. Beyond the
severance he did no act of any kind evidencing actual possession oTi
■lufl mi^l Hii I mill iliijiti ihn n-rvnpr nf thp-Lanrl Vinrl^ it. kopitib tn mp
precisely H'^ hhiiih Itiml uP po.^^eshion uf il as he would MVti had if i«
Sad been ■['lit ""'} ^"*'t t^""" by ^^" ""'" '-•^^■""r
596 EEGINA V. FOLEY. [cHAP. VIII.
There cannot, I conceive, be constructive as distinguished from
actual possession by a wrong-doer ; and when he returned at the end
of the period I have mentioned he would be guilty, of larceny, unless
he was in actual possession in the interval. There is not, however, a
particle of evidence of such actual possession, and therefore I hold the
cojiiiiciion right. This conclusion is in strict accordance with the
authorities previous to The Queen v. Townlej', L. R. 1 C. C. R. 315,
referred to bj- Mr. Molloy, and does not, I think, in any way con-
flict with that decision. In that case there was abundant evidence
that the whole transaction was a continuous act, or in other words,
that the wrong-doer had never been out of actual possession ; and
under the circumstances the fact, upon the assumption of which the
case was stated, that the poachers had no intention to abandon the
wrongful possession of the rabbits which they acquired, but placed
them in the ditch as a place of deposit till they could conveniently
remove them, was decisive in the prisoner's favor. I consider, how-
ever, that that decision has no application to the present case.
Palles, C. B. I am unable to concur with the other members of the
court. In my opinion the conviction was wrong, and ought to be
quashed. We all appear to agree that if the thing taken and carried
away is for the first time rendered capable of being stolen by the act
of taking, and if the taking and carrying away constitute one continu-
ous act, such taking and carrying away is not theft at common law.
We also appear to agree that the rule applies as well to the grass in
question here as to the rabbits in The Queen v. Townley, L. R. 1 C. C.
R. 315, and that the reason of the rule is not that the thing taken was
not at the time of the taking the property of the prosecutor, but be-
cause, at the moment at which it became that class of propert3- which
can be the subject of larceny — i. e. a, personal chattel — it was in
the possession, not of the true owner, but of the trespasser. On the
other hand, I admit that although the possession of the chattel was in
the trespasser bj' the act of taking, yet, if such possession ceased in
fact, b}' its abandonment by the trespasser, the possession upon such
cesser became constructivelj' that of the true owner ; and that if,
during the continuance of such constructive possession, the trespasser
again took possession, animo furandi, such last-mentioned taking
would be larceny.
The question, then, for decision is, whether on the facts of the present
case, and notwithstanding the finding of the jury on the question left
to them, we can say, as a matter of law, that the cutting and carr\-ing
away did not constitute one continuous act ; or, in other words, that
the ])ossession of the prisoner of the severed grass had ceased prior to
its removal on the 13th August. As to what constitutes a cesser of
possession, it seems clear that it cannot be said that it necessarily takes
place the moment the trespasser abandons physical control over the
chattel. In The Queen v. Townley, L. R. 1 C- C. R. 315, the rabbits
were lying in a ditch for three hours during the absence of the poachers,
SECT. II,] EEGINA V. FOLEY. 597
and were consequently for that period out of their physical power and
control ; yet it was held that the question of the cesser or abandon-
ment of the trespasser's possession was one not of law, but of fact ;
and that a verdict negativing — as the jury have here negatived —
intention to, abandon amounted to not guilty. The decision there,
therefore, involved the determination that during the entire period
whilst the rabbits lay in the ditch, they were in law in the possession,
not of the true owner, but of the absent poachers, and were so by
reason of the absence in the minds of the poachers of intention to
abandon.
The same conclusion was arrived at in Reg. v. Fetch, 14 Cox C. C.
116, in which the period during which the dead rabbits were hidden in
a hole in the earth must have been nearly an entire daj', viz. from half-
past eleven on one morning to early on the following morning. I am
not quite sure that I understand the exact meaning which Mr. Justice
Gibson attaches to the word "effective" when he conceives it to be
a principle of the common law that when the wrong-doer's actual and
effective possession ceases, he cannot be deemed to be in constructive
possession. If by "effective" he means something different from
' ' actual " and for this reason distinguishes the present case from The
Queen v. Townley, L. R. 1 C. C. R. 315, and The Queen v. Fetch, 14
Cox C. C. 116, I am unable to follow his reasoning. If it can be said,
as a matter of law, that the possession of the severed grass by the
prisoner in the present case, although actual, was not " effective" so,
too, should have been held the possession for a day of the trapper in
The Queen v Fetch, 14 Cox C. C. 116, and that for three hours of the
poachers in The Queen v. Townley, L. R. 1 C. C. R. 315. On the
other hand, if by " effective" he means no more than is involved in
" actual," then, although I agree in his view, I cannot distinguish the
present case from Townley's case, L. R. 1 C. C. R. 315, and Fetch's
case, 14 Cox C. C. 116. On that supposition it would not be sufficient
that the facts should be such that the jury might have found that the
actual possession of the prisoner had ceased. No doubt they might,
but they have not done so. They have found the contrary. Fetch's
case, 14 Cox C. C. 116 is a clear authority that if the period which
elapsed between the cutting the grass and its ultimate carrying away
did not amount to more than a daj', the prisoner, in the present case
(having regard to the finding) would not have been guilty. But if the
exact length of the interval be material, we, as distinct from the jurors,
cannot determine the. exact time, measured in hours or in dajs, the
existence of which will make that larceny, which would not have been
so had the ipterval been something less. We cannot say that if the
interval be twenty-three hours it may not be, but that if it be in-
creased to twenty-five hours, or three days, it necessarily must be
larceny.
The question involvedjs, as decided in Townley's case, L. R. 1 C.
C. K.~3lS, one of intention. Such a question is usualh' exclusively foi
598 KEGINA V. FOLEY. [CHAP. VIII.
a jury. If time be, as admittedly it is, material in determining this
intention, the only periods between which the common law can recog-
nize a distinction are between those which are and which are not
reasonable. This is the view talcen by Mr. Justice Stephen in his
Digest (4th ed. Art. 296). " It seegis,!ii©-sfty&,-ti4ba*4fae_taMsS^'^'^
Qgjrying away are to be deemed to be continuous if the intention to
carry away ail<jl' a Hia,bunablL timu UAi&Lb at the "time of the taking."
If thi& be, ab I' Lhlllk. IL is, the irue rule, the jurcil'tj UMne can, in a
case such as the present, determine within which class the period of
itime in question here must range ; and the question of reasonable
time not having been left to the jury or found, considerations arising
from the length of the interval cannot, as it seems to me, be relied
upon. If, therefore, the conviction, under the circumstances proved,
be right, so must it have been had the interval been three hours, or
one day, instead of three days ; and unless there be some other dis-
tinction between this and Townley's case, L. R. 1 C. C. E. 315, and
Fetch's case, 14 Cox C. C. 116, the present case would appear to be
ruled by them. Is there, then, any distinction? I think not. It is
said that here there is an absence of intention, by which I suppose
is meant absence of affirmative evidence of intention in the prisoner
to remain in possession. Even were this so it would not justifj' the
judge in withdrawing from the jury the prisoner's intention ; for the
material thing is, not the absence of intention to retain possession,
but the presence, of affirmative intention to abandon. The mere act
of cutting was some evidence that the prisoner cut the grass for him-
self, and intended to use it. He told the police constable that he (the
prisoner) might as well have it as the landlord. This declaration,
though made on the 11th, is some evidence of his intention at the
time of the original cutting, on the 10th. It was competent, too, to
the jury to have regard to the character of the act done, and to find
that the reason the prisoner refrained for three days from carrying it
away was that it might become dry, and that he might carry it away as
hay.
Mr. Molloy, as I understand,' contests the proposition laid down by
Mr. Justice Stephen, to which I have already referred, and for that
purpose relies mainly upon 1 Hale P. C, p. 510, and Lee v. Risdon, 7
Taunt. 191. In the first it is said : " If a man come to steal trees, or
the lead of a church or house, and sever it, and after about an hour's
time or so come and fetch it away, this hath been held felony, because
the act is not continuated but interpolated, and so it was agreed by the
Court of King's Bench, 9th Car. II., upon an indictment for stealing the
lead of Westminster Abbey." This passage ma}' mean no more than
that such an act is capable of being a felony, if so found by the jury ;
and that the jury should so find, if they were of opinion that the act
was not continuated but interpolated. In Lee v. Risdon, 7 Taunt. 191,
the distinction drawn by Gibbs, C. J., is as to that of which felony can,
and that of which it cannot, be committed. "Felony," he says, " can-
SECT. II.] EEGINA V. FOLEY. 599
not be committed of those things " {i. e. things attached to the freehold),
" but if the thief severs the property, and instantly carries it off, it is
no felony at common law. If, indeed, he lets it remain after it is
severed, any time, then the removal of it becomes a felony." The true
meaning, however, of these passages was determined bj' The Queen v.
Townley, L. E. 1 C. C. R. 315. Martin, B., explains them in these
words : " Those statements may be perfectly correct, and ought, per-
haps, to be followed, in cases exactly similar in their facts, where there
has been an actual abandonment of possession of the things taken ;
but here it is expressly found that there was no abandonment ; and
where the act is merely interrupted, I think it is more reasonable to
hold that there is no larceny." This judgment is valuable as showing
two things : (1) That the authorities relied upon by Mr. Molloy are
applicable only where an actual abandonment of the thing taken has
been found or admitted ; (2) That JJTf_jg[iiPsti"n of abatidfnmf^nt; in
fact, '^opov-d" "pnr ^r't°"<'i'^n t" flHnd^n There, the fact admitted
was^tfaafTEepoachers had no intention to abandon ; and that is treated
by Martin, -B., as an express finding that there was no abandonment
in fact. Bramwell, B., also treats the case as depending upon inten-
tion. "I think our decision," he says, "is consistent with the pas-
sage cited from Hale, and the dictum of Gibbs, C. J., referred to, which
appear to me to be quite correct. If a man were unlawfully to dig
his neighbor's potatoes, and from being disturbed in his work, or any
other cause, were to abandon them in the place where he had dug them,
and were afterwards, with a fresh intention, to come back and take
them awaj', I think the case would be the same as if, during this interval
of time, the potatoes had been locked in a cupboard by the true owner."
Byles, J., in the same waj' treats the fact that the poachers had no
intention to abandon as involving that their possession never had been
abandoned in fact. Blackburn, J., says: "There is the fact that the
rabbits, after being killed, were left hidden in a ditch upon the land for
nearly three hours. I should myself have thought that that made no
difference in the case." As to the passages cited from Lord Hale, and
the dictum of Chief Justice Gibbs, he adds: "If we are to under-
stand those passages in the sense put upon them by my brother Bram-
well, as applying only to a case in which the wrong-doer has abandoned
and lost all property and possession in the things in question, I have no
quarrel with them, and they do not apply to the present case. But if
those passages mean that the mere cessation of phj^sical possession is
suflflcient to make the subsequent act of removal larceny, then they do
apply to the present case, and in that case, great as is my respect for
Lord Hale, I cannot follow him."
The clear answer, then, to the argument of Mr. Molloy, appears to
me to be that if the. passages he has relied upon are to be read in the
sense for which he contends, they are inconsistent with, and have been
overruled by The Queen v. Townley, L. R. 1 C. C. R. 315.
Upon the whole, I am of opinion that the decision in The Queen
600 COMMONWEALTH V. STEIMLING. [CHAP. VIII.
V. Townley, L. R. 1 C. C. E. 315, as applied to the present case, in-
volves the following propositions : —
1. That the mere leaving by the prisoner of the field in which he cut
the grass was not, per se, and irrespective of everj- other consideration,
sufficient to make his subsequent act of removal larceny-.
2. That the prisoner's omission for three da3-s to take awaj' the haj-
was evidence from which a jury might, if they thought fit, have found an
abandonment bj' the prisoner of that possession which he had acquired
b}' the unlawful act of severance.
3. That such question of abandonment involved the intention of the-
prisoner and his object in leaving the grass lying upon the field for
three days.
4. That such abandonment was essential to a valid conviction ; and
that, in the present case, in which instead of being found it has been
negatived, the conviction cannot be sustained. See Reg. v. Barry, 2
Cox C, C. 294.
COMMONWEALTH v. STEIMLING.
Supreme Court or Pennsylvania. 1893.
[Reported 27 Atlantic Reporter, 297.]
Williams, J.^ It appeared on the trial that Bower, the prosecutor,
was the owner of a farm which was crossed by Mahanoy Creek. Some
distance up the stream coal mines were in operation, and had been for
many j'ears. The culm and waste from the mines and breaker, which
had been thrown into, or piled upon the bank of, the creek, had been
carried down the stream by the current and the fioods, and deposited
in the channel and along the shores in considerable quantities. This
material, having been abandoned by its original owners, belonged to
him on whose land the water left it. The water, dropping the heavv
pieces first, and carrj'ing the smaller particles and dust along in the
current, served as a screen ; and, as the result of this process, consid-
erable quantities of coal suitable for burning were lodged along the
channel and the banks of the stream, throughout its course over the
prosecutor's farm. The defendant, descending the stream with a flat-
boat, entered upon the lands of Bower, and began to gather coal from
the surface. He was provided with a scoop or shovel made of strong
wire or iron rods, with which he gathered up the coal. The sand and
gravel passed through the meshes of the scoop, leaving the pieces of
coal within it. When the gravel was all sifted out, the cleaned coal
was emptied upon the flatboat. This process was continued until a
boat-load was obtained. The boat was then towed or pushed to some
bins on the shore opposite to Bower's house, and the coal was trans-
1 Part only of the opinion is given.
SECT. IL] commonwealth V. STEIMLING. 601
ferred from the boat to the bins. This was repeated until from eight
to twelve tons of coal had been gathered, cleaned, deposited on the
boat, transported to the bins, and unloaded. This coal was afterwards
delivered to purchasers, or taken for consumption, from the bins.
Here was a taking with intent to carry awaj' and convert, a carrying
away, and an actual conversion, which, the commonwealth held, sus-
tained the indictment for larcenj'. The learned judge, however,
instructed the jurj' that the process of collecting, cleaning, loading
upon the flatboat, transporting to the bins, and unloading the coal into
them, must be regarded as one continuous act, like the act of him who
tears a piece of lead from a building and carries it off, or who, passing
an orchard, plucks fruit and takes it awaj-, and that the defendant was
therefore a trespasser only. The distinction in the mind of the learned
judge was that between real and personal estate. The coal lying upon
the surface he held to be real estate: The lifting it up in the shovel
was, on this theory, a severance, which forcibly changed its character,
and made it personal. The loading into the flatboat, the transporta-
tion to the bins, and unloading of the boat, all of which acts were
done within the lines of the prosecutor's land, and occupied hours of
time for each boat-load, were so connected with the severance as to
make but a single act. For this reason he held that the defendant was
guilty of a trespass only. The common law did distinguish between
things that are connected with or savor of the real estate and those
that are personal goods. An apple growing upon a tree was con-
nected with the land by means of the tree that bore it, and so held to
partake of the nature of the land, and to be real estate. One who
plucked it from the tree, and at once ate or carried it away, was there-
fore a trespasser ; but if he laid it down, and afterwards carried it
away, so that the taking and the asportation were not one and the
same act, then, if the carrying away was done animo furandi, the ele-
ments of larceny were present. Blackstone tells us, in volume 4, p.
233, of the Commentaries, that larceny cannot be committed of things
that savor of the realty, because of " subtihty in the legal notions of
our ancestors." He then explains the subtile distinction as follows :
" These things [things that savor of the realtj'] were parcel of the
real estate, and therefore, while they continued so, could not by any
possibility be the subject of theft, being absolutely fixed and immov-
able ; and if they were severed by violence, so as to be changed into
movables, and at the same time, by one and the same continued act,
carried off by the person who severed them, they could never be said
to be taken from their proprietor in their newly acquired state of
mobility." But he explains that if the act of severance and that of
carrying awa}' be separated, so that they do not constitute "one and
the same continued act,'' the subtile distinction between personal goods
and those that savor of the real estate ceases to protect the wrong-doer
from a criminal prosecution, and a charge of larceny can be sustained.
The question whether this coal, lying loose upon the surface, like other
602 COMMONWEALTH V. STEIMLING. [CHAP. VIII.
drift of the stream, was real or personal estate, does not seem to have
been raised in the court below, and it is not before us. The real ques-
tion presented is whether this case, upon its facts, is one for the appli-
cation of the common-law rule. Have ^e here a severance and an
asportation. that constitute " one and the same continuous act?" If
the picking of the coal from the surface be treated as an act of sever-
ance, we have next the act of cleaning and sifting ; then the deposit
of the cleaned coal upon the flatboat, little by little ; then the trans-
portation of the boat-load to the bins ; then the process of shovelling
the coal from the boat into the bins. The acts, occupying consider-
able time for each boat-load, were all done within the inclosures of the
prosecutor. It is as though one should come with team and farm-
wagon into Ms neighbor's corn-field, and pluck the ears, load them
into the wagon, and, when the wagon would hold no more, draw the
corn away to his own corn-house, and then return again, and continue
the process of harvesting in the same manner until he had transferreid
his neighbor's crop to his own cribs. If such acts were done under a
bona fide claim of title to the crop, they would not amount to larceny,
but, if done animo furandi, all the elements of larcenj' would be pres-
ent. In the case before us, it is conceded that the coal belonged to
Bower, and was in his possession as part of his real estate. The
defendant entered his lands for the purpose of collecting coal, and
carrying it away. He makes no bona fide claim of title ; no offer to
purchase ; sets up no license ; but rests on the proposition that, like
the man who plucks an apple from a tree, and goes his way, he is
liable only as a trespasser. If this be true, he could gather the coal
from Bower's land as often as the stream made a sufficient deposit to
justify the expenditure of time necessary to gather, clean, transport,
and put it in bins. Upon the same principle, he might gather all the
crops growing on Bower's farm, as they matured, and, by hauling each
load away when it was made up, defend against the charge of larceny
on the ground that the gathering from the tree, the stalk, or the hill,
the loading into wagcfns, and the carrying of the loads away, though
occupying hours for each load, and many days for the crop, was "one
and the same continuous act " of trespass. We cannot agree to such an
extension of the common-law rule, but are of the opinion that this case
should have gone to the jury, on the existence of the animo furandi.
SECT. II.] EEGINA V. EILEY. 603
REGINA y. RILEY.
Ckown Case Reserved. 1853.
[Reported 6 Cox C. C. 88 ; Dearsly, C. C. 149.]
At the General Quarter Sessions of the Peace for the county of
Durham, held at the city of Durham, before Rowland Burdon, Esq.,
Chairman, on the 18th day of October, in the year of our Lord 1852,
the prisoner was indicted for having, on the 5th day of October, 1852,
stolen alam^the property of John Burnside. The prisoner pleaded
rtot"g,'uilLy. On the trial it was proved that on Friday, the 1st day of
October, in the year of our Lord 1852, John Burnside, the prosecutor,
put ten white-faced lambs into a field in the occupation of John Clarke,
situated near to the town of Darlington. On Monday, the 4th daj' of
October, the prisoner went with a flock of twenty-nine black-faced
lambs to John Clarke, and asked if he might put them into Clarke's
field for a night's keep, and upon Clarke's agreeing to allow him to do so
for one penny per head, the prisoner put his twenty-niae, larnfeg-Jnto
the same field with the prosecutor's lamBs.' At half-past seven o'clock
in the mofntng or'i'uesday, the~Mrday of October, the prosecutor went
to Clarke's field, and in counting his lambs he missed one, and the pris-
oner's lambs were gone from the field also. Between eight and nine
o'clock in the morning of the same day, the prisoner came to the farm
of John Calvert, at Middleton St. George, six miles east from Darling-
ton, and asked him to buy twenty-nine lambs. Calvert agreed to do
so, and to give 8s. apiece for them. Calvert then proceeded to count
the lambs and informed the prisoner that there were thirty instead of
twenty-nine in the flock, and pointed out to him a white-faced lamb ;
upon which the prisoner said, " If you object to take thirty, I will
draw one." Calvert, however, bought the whole and paid theprisoner
£12 for them. One of the lambs Wd~to-Galver£'was identified by the
prosecutor as his property and as the lamb missed by him from Clarke's
field. It was a half-bred, white-faced lamb, marked with the letter
"T," and similar to the other nine of the prosecutor's lambs. The
twenty-nine lambs belonging to the prisoner were black-faced lambs.
On the 5th of October, in the afternoon, the prisoner stated to two of the
witnesses that he never had put his lambs into Clarke's field, and had
sold them on the previous afternoon, for £11 12s., to a person on the
Barnard Castle road, which road leads west from Darlington.
There was evidence in the case to show that the prisoner must have
taken the lambs from Clarke's field early ia_the. morning, which was
thick andrgiuyr — y^''
It was argued by the counsel for the prisoner, in his address to the
jury, that the facts showed that the original taking from Clarke's field
was by mistake ; and if thejucywere of that opinion, then, as the
original taking was n9t--doue anmio furandi, the ^absequeirtj appro-
priation would,jjofniake it .a larceny, and the prisoner must be
604 EEGINA V. EILEY. [CHAP. VIII.
acquitted. The chairman, in summing up, told the jury that though
they might be of opinion that the prisoner did not know that the lamb
was in his flock, until it was pointed out to him by Calvert, he should
rule that in point of law the taking occurred when it was so pointed
out to the prisoner and sold byTiimTolDalvert, and not" at the ti'ffig^'Df
VeaTiiig"tEe field. Th¥ jiiry returnM the following veTdict f " The jur}-
say "that at tbe"tTme of leaving ttie field the prisoner did not know that
the lamb was in his flock, and that he was guilty of felony at the time
it was pointed out to him."
The prisoner was then sentenced to six months' hard labor in the
house of correction at Durham ; and being unable to find bail, was
thereupon committed to prison until the opinion of this court could be
taken upon the question whether Charles Riley was properly convicted
of larceny.^
Pollock, C. B. We are all of opinion that the conviction is right.
The case is distinguishable from those cited. R. v. Thristle decides
only that if a man once gets into -rightful possession, he cannot b}' a
subsequent fraudulent appropriation convert it into a felony. So* in
R. V. Thurborn, in the elaborate judgment delivered by my brother
Parke on behalf of the court, of which I was a member, the same rule
is laid down. It is there said that the mere taking up of a lost
chattel to look at it would not be a taking possession of it ; and no
doubt that may be done without violating any social dutj'. A man
may take up a lost chattel and carry it home, with the proper object of
endeavoring to find the owner ; and then afterwards, if he j'ields to
the temptation of appropriating it to his own use, he is not guilt}' of
felony. In Leigh's case, also, the original taking was rightful, but
here the original taking was wrongful. I am not desirous of calling in
aid the technicality of a continuing trespass ; and I think this case
may be decided upon the ground either that there was no taking at all
by the prisoner in the first instance or a wrongful taking, and in either
case, as soon as he appropriates the property, the evidence of felony is
complete.
Parke, B. I think that this case may be disposed of on a short
ground. The original taking was not lawful, but a trespass, upon
which an action in that form might have been founded ; but it was not
felony, because there was no intention to appropriate. There was,
however, a continuing trespass jup to -the time-o_f appropriation, and at
that time, therefore, 'lEefelony was committed."' Wl5eTe-..!.goods are
carried from one county to another they may be laid as taken in the
second county, and the diflference between this and Leigh's case, as
well as the others cited, is that the original taking was no trespass.
It was by the implied license of the owner, and the same thing as if he
had been entrusted by the prosecutor with the possession of the goods.
Williams, Talfoukd, and Crompton, JJ., concurred.
Conviction affirmed.
^ Argument of counsel is omitted.
SECT. II.] STATE V. COOMBS. 605
STATE V. COOMBS. -j
Supreme Judicial Court of Maine. 1868.
[Reported 55 Maine, 477.]
DiCKERSON, J.^ Exceptions. The prisoner was indicted for the
larceny of a horse, sleigh, and buffalo robes. The jury were instructed J
that, if the prisoner obtained possession of the team by falsely and/
fraudulently pretending that he wanted it to drive to a certain place/
and to be gone a specified time, when in fact he did not intend to g*
to such place, but to a more distant one, and to be absent a longer
time, without intending at the time to steal the property, the team waa
not lawfully in his possession, and that a subsequent conversion of it
to his own use, with a felonious intent while thus using it, would b^
larceny.
It is well settled that where one comes lawfully into possession of
the goods of another, with his consent, a subsequent felonious conver-
sion of them to his own use, without the owner's consent, does not
constitute larceny, because the felonious intent is wanting at the time
of the taking.
But how is it when the taking is fraudulent or tortious, and the
property is subsequently converted to the use of the taker with a
felonious intent? Suppose one takes his neighbor's horse from the
stable, without consent, to ride him to a neighboring town, with the
intention to return him, but subsequently sells him and converts
the money to his own use, without his neighbor's consent, is he a mere
trespasser, or js he guilty of larceny? In other words, must the
felonious intent exist at the time of the original taking, when that is
frstfraiilent or tortious, to constitute larceny? ' ~~--~
~WTOn property is thus obtained, the taking or trriii[iiii>iH in (imdiiii
eus. The wrong-doer holds it all the while without right, and against
trie"right and without the consent of the owner. Tf at this point no
other element is added, there is no larceny. But if to mifh t^ln'n".
there be subsequentlv^uperadded a foi^nirMio j,|]|t^"f that is, an intent
to deprive the owner of his property permanently without color of
right, or excuse, and to rnjiKe it the property- of the taker without the
owner's consent, the cnme of larceny is complete. "A felonious
intent," observes BSron Parke, in Eegina v. iioiiow'ay, 2 C. & K., 942,
"means to deprive the owner, not temporarih", but permanently of
his own propertj', without color of right or excuse for the act, and to
convert it to the taker's use without the consent of the owner."
The case of Eegina v. Steer, 2 0. & K., 988, is in harmony with
this doctrine. The prosecutor let the prisoner have his horse to sell for
him ; he did not sell it, but put it at a liverj' stable. The prosecutor
directed the keeper of the stable not to give up the horse to the prisoner,
1 The opinion only Is given ; it sufficiently states the case.
606 STATE V. COOMBS. [CHAP. VIII.
and told the prisoner he must not have the horse again ; to which the
prisoner replied, "Well." The prisoner got possession of the horse
by telling a false story to the servant of the keeper of the stable, and
made off with him. The ease was reserved, and the court held the
prisoner guilty of larcenj'. Commonwealth v. White, 11 Cash. 483.
In the case at bar, the prisoner obtained possession of the propertj""
by fraud. This negatives the idea of a contract, or that the possession
of the prisoner was a lawful one when he sold the horse. He was not
the bailee of the owner, but was a wrong-doer from the beginning ; and
the owner had a right to reclaim his propertj^ at any time. It has been
decided that when a person hires a horse to go to a certain place, and
goes beyond that place, the subsequent act is tortious and that trover
may be maintained, on the ground of a wrongful taking and con-
version. Morton v. Gloster, 46 Maine, 520.
In f"riWrip1fiti^n "f IfiWj^the wronp;fii1 af-t, was ^continuous, and
when to that act the priprinpr sjil^fj^gnpntly ni^floH tiia fpjr^niniisj intpnt,
TEat is, the purpose tn rlpprivp thp r.wfi(^i-.nf l^is property permanently,
wtthetrlrcslor ofTight or excuse, and to convert it to his owiTuse^ith-
— ent'tSe'consent of the owner, the larceny became compleIe~Trom~ that
moment. The color of consent to the possession obtained by fraud,
does not change the character of the oflfence from larceny to trespass
or other wrongful act. In such case it is not necessary that the feloni-
ous intent should exist at the time of the original taking to constitute
larcenj-, the wrongful taking being all the while continuous. •
It is to be observed that this principle does not applj' in cases where
the owner parted with his property, and not the possession merely, as.
in the case of a sale procured by fraud or false pretences. In such
instances there is no larceny, however gross the fraud by which the
property was obtained. Mawrey v. Walsh, 8 Cowen, 238; Eoss v.
The People, 5 Hill, 294. "It is difficult to distinguish such a case
from larceny," remarks Mr. Justice Cowen, in Ross v. The People;
" and were the question res nova in this court, I, for one, would follow
the decision in Rex v. Campbell, 1 Mood. Cr. Cases, 179. The deci-
sions, however, are the other way, even in England, with the single
exception of that case, and they have long been followed here. There
is nothing so palpably absurd in this as to warrant our overruling
them."
We are unable to discover any error in the instructions of the
presiding judge. Exceptions overruled.
Judgment for the State.
Kent, Walton, Barrows, Danforth and Tapley, JJ., concurred.^
1 Ace. Weaver v. State, 77 Ala. 26; Com. v. White, U Cush. 483. —Ed.
SECT. II.] ANONYMOUS. 607
WARD V. PEOPLE.
Supreme Court of New York. 1842.
{Reported 3 Hill, 395.]
Eerok to the Oneida general sessions, where Ward was convicted of
petit larceny, second offence. The indictment charged the prisoner
with having stolen twenty-five pounds of butter, the property of one
John Flagg. On the trial Flagg testified that he bought the butter in
question of the captain of a canal boat. The prisoner's counsel pro-
posed to ask the witness if he, or if he and the canal boat captain
tosfetner^id not steartEe~Butter. TEis question was objected to,
and the objection sustained, whereupon the prisoner's counsel ex-
cepted.^ It appeared in the course of the trial that the butter stolen
from Flagg had been previously stolen from firkins on a canal boat, and
the evidence tended strongly to connect Flagg with the larceny.
W. M. Allen, for the plaintiff in error.
W. C. Noyes, for the people.
By the Court, Nelson, C. J. The question put to Flagg was pro-
perly overruled. If the question had been answered in the afHrmative,
the fact would have been immaterial, because possession of property
in^tha-tbicf is auflfeiant to makeit the subject of larceny ; and the titfe
may Be Jfliiii "itb"'' Ja^the owner oT the thief, inus "if A. steal goods
from B., and C. afterwards steal the same" goods from A., C. is a felon
both as to A. and B. 2 East's Or. L. 654 ; 2 Russ. 156 ; 1 Hale's
P. C. 607.^
ANONYMOUS.
King's Bench. 1406.
[Reported Year Book 7 Hen. IV., 43, pi. 9.]
A MAN was appealed of larceny in Middlesex, while the felony was
done in London. And the court was informed that the appellee after
the felony done had carried the goods into the county of Middlesex.
And the court said that for that reason the appeal was well taken, for
when a mart- rilllH JHInther ^f h'S rrnnr^a^ anrl r^aryipa fhr-ni iuto dJYfir"
"2IlI!J:^°^i ^^ fin*^"^'^" th" r"bhrrj in rnrh nnnntyj and the appeal is
maintainable in whatever county the plaintiff will. And note that the
felon with the mainor was taken in London, and the body and the
mainor were made come before the king.
1 Only so much of the case as relates to this exception is given.
2 Affirmed 6 Hill, 144, Foster, Sen., dissenting on this point. See ace. Eegina »
Wade, 1 C. & K. 739; Com. v. Finn, 108 Mass. 466. — Ed.
608 ANONYMOUS. [chap. VIII,
ANONYMOUS.
Exchequer Chamber. 1489.
[Reported Year Book 4 Hen. VII., 5, pi. I.]
One was arraigned upon an indictment, for that he had stolen cer-
tain goods, etc., in the countj- of Surrej'. And the defendant said
that he was indicted for talfing^thesame goods on -the-samB_iiaxJ^i ^''"
county of Middlesex, and"was acquitted, which was the same felony.
And prayed judgment, if 'for that, etc.
Fisher. It is no plea, because it shall be taken most beneficially
for the king, and they may have been stolen twice well enough.
Frowike, to the contrary. For where goods are stolen in one countj-,
and carried into another countj', he maj' be indicted in each county,
and shall have judgment of life ; and therefore it is reason that if he
should be acquitted in one county, he should be acquitted in the other
county. And if one should be beaten in one countj-, and after die in
another count}-, and indictment in both counties, it is reason that if he
should bo acquitted in one county that should help him in the other
county, etc.
HrssEY, C. J. It seems no plea. And as I understand, trespass
for battery committed in one county cannot be found in another county
on pain of attaint ; and the same law of goods taken and carrfed out
of the county where they were taken, it can be found only in the county
where the taking occurred, and that on pain of attaint. But the
law is otherwise in appeal ; for there he may bring an appeal in each
county where the goods are carried. And this has been a diversity,
for the appeal is to recover his goods, and affirms property continually
in the party, etc., but it is otherwise of trespass ; for it is not to recover
the goods, but damages for the goods, etc. And, sir, I take it, if one
steals mj' goods, and another steals the goods from him, I shall have
an appeal against the second felon ; but it is otherwise of trespass.
/And notwithstanding the appeal lies in each count}' where the goods
are carried, stiU becannot..be> indjcted except wliere_the_ taking[_waa
made, for the indictment is not to have the goods, etc. ; and that has
beeli the diversity between indictment and appeal. And so here, not-
withstanding he submits tliat it is the same felony, that cannot be
tried ; for if it should be tried, it ought to be tried by both counties,
and here neither of them can give evidence to the other, for the takings
are so several that one cannot give evidence nor notice to the other ;
and therefore, notwithstanding mischief shall happen to the party, such
mischief shall be borne ; for in one county, etc., without cause ; and
yet he ought to answer.
Fairfax, J., agreed to the diversity between appeal, indictment, and
trespass, etc., and said that the allegation that it is the same felonv
could not be tried by both counties when he is acquitted in one county.
SECT. II.] EEX V. POWEES. 609
and those of that county cannot give evidence of any felony in that
county.
And then Mordant pleaded the plea, and prayed that it be allowed ;
and as to the felony, not guilty.
And the Chief Justice said that he should have the plea, because it
is matter in law, and the other matter in fact. .© tota Gurla contra
eum.
And it was held by all the justices and barons that in a writ of
trespass in Middlesex it is no plea to say that he has recovered for a
trespass committed in the county of Surrey, because it could not be
understood as the same trespass ; but some at the bar held that it is
different in felony, because it is felonj' in every county where the goods
are, or come, etc.
Frowike said : For the same reason that they may And him guilty in
appeal for a felony in another count}', for the same reason they shall
acquit of felony conceived in another county. E. See T. 25 E. 3 f. 44.
A. 8 H. 5}
REX V. POWERS.
Crown Case Reserved. 1832.
[Reported 1 Moodij C. C. 349.]
The prisoner was tried and convicted before Mr. Selwyn, K. C. , at
the ^spring Assizes for the County of Dorset in the year 1832, and
ordered to be transported for seven years ; but the execution of the
sentence was respited in order that the opinion of the judges might
be taken on the case.
The indictment charged the prisoner with stealing at Dorchester, in
the county of Dorset, a quantity of wearing apparel, the propert}- of
Thomas Cundy. The things had been taken bv the prisoner from a
box of the prosecutor's at St. Helier's in the island of Jersey, while
the prosecutor was absent at his work at a short distance, and without
his leave ; thej' were shortly afterwards found in the possession of the
prisoner at Weymouth, in the county of Dorset, where he' had been
apprehended on another charge.
A doubt occurred whether the original taking was such whereof the
common law could take cognizance ; and if not whether the case fell
within the statute 7 & 8 Gr. IV. c. 29, s. 76 ; or in other words whether
the island of Jersej' could [be] considered as part of the United King-
dom. 2 Russell, 175. If the nrip-inal taking be '^""h wh<>rpr>f tho
common law f>annf>t, tah-o ntjf^nizance, as if the goods be stolen at sea,
the thief cannot he inrliotpd in fl^rynnnnt.y into which he may carry
JllfifflL—S Inst. 113; 1 Haw. P. C. SSTsTVT. — A SlUnlar exception pre-
^ See 22 Lib. Ass. pi. 32. —Ed.
610 COMMONWEALTH V. HOLDER. [CHAP. VIII.
vailed formerly where the original taking was in Scotland or Ireland ;
and it appears to have been holden that a thief who had stolen goods
in Scotland could not be indicted in the county of Cumberland, where
he was taken with the goods. Eex v. Anderson and others, Carlisle
summer Assizes, 1763; and before the judges, November, 1763; 2
East, 772, c. 16, s. 156.
This case was considered at a meeting of all the judges (except Lord
Lyudhurst, C. B., and Taunton, J.) in Easter Term, 1832; and they
held unanimously that the conviction was wrong and that the case was
not within 7 & 8 G. IV. c. 29, s. 76. ^
PEOPLE V. GARDNER.
Supreme Court of New York. 1807.
[Reported 2 Johnson, 477.]
The prisoner was indicted and convicted of felony at the sessions in
Washington County, for stealing a horse. On the trial it appeared
that the original taking of the horse was in the State of Vermont, but
that the prisoner was apprehended in Washington County, with the
horse in his possession. The question was submitted to the court,
whether the prisoner could be tried and punished in this state for the
felony.
Per Curiam. We are of opinion that the prisoner cannot be tried
for this offence in this state. Whpnjj;^e "'•'g'""! laking is gut of the
jurisdiction of this state, the offence does not «wrtii^]]p on^ oTip^jf^j^riy
the-Tiossession of*^" ^h^^^ °^o1fin, n° 't ^"°° '"M^" case where a thing
te^gfolen in one countj', and the thief is found with the propert}^ in
another county. 2 East's Pleas of the Crown, 774. The prisoner cafi
be considered only as a fugitive from justice, from the State of
Vermont.
COMMONWEALTH v. HOLDER.
Supreme Judicial Court of Massachusetts. 1857.
[Reported 9 Gray, 7.]
Indictment for stealing at Milford in this county goods of Henry W.
Dana. At the trial in the Court of Common Pleas there was evidence
that the defendant broke and entered the shop of said Dana at
1 Ace. Case of the Admiralty, 13 Coke, 51 ; Eex v. Andereon, 2 East P. C. 772;
Beg. n. Debruiel, 11 Cox C. C. 207 ; Beg. v. Carr, 15 Cox C. C. 131 n. —Ed.
SECT. II.] COM.MOSWKALTH V. HOLDER. 611
Smithfield in the State of Rhode Island, and stole the goods mentioned
in the indictment, and brought them into this county. The defendant
asked that the jury might be instructed that the indictment could not
be maintained, because the courts of this state could not take cogni-
zance of a larcenj' committed in another state. But Mellen, C. J.,
refused so to instruct the jury, and instructed, them that the evidence,
if believed, was sufficient to support the indictment. The defendant
being convicted alleged exceptions.
O. F. Verry, for the defendant.
J. S. Clifford (Attorney General), for the Commonwealth.
Shav?, C. J. A majority of the court are of opinion that this case
must be considered as settled by the case of Commonwealth v. Up-
richard, 3 Gray, 434, and the principles stated and the precedents
cited. Though to some extent these colonies before the Revolution
were distinct governments and might have different laws, it was not
unreasonable, as they all derived their criminal jurisprudence from the
English common law, to regard the rule applicable to a theft in an
English county of goods carried by the thief into another as analogous,
and adopt it. We are of opinion that Massachusetts did adopt it, and
this is established by judicial precedent, before and since the Revolu-
tion, and is now settled by authority as the law of this state.
Thomas, J. The real question in this case is, whether the defendant
can be indicted, convicted, and punished in this Commonwealth for a
larcenj- committed in the State of Rhode Island. If it were a new
question, it would be enough to stale it. The obvious, the conclusive
answer to the indictment would be that the offence was committed
within the jurisdiction of another, and, so far as this matter is con-
cerned, independent state, of whose law only it was a violation, and
• of which its courts have exclusive cognizance. By the law of that
state the offence is defined and its punishment measured ; by the law
which the defendant has violated he is to be tried. Whether the acts
done by him constitute larceny, and, if so, of what degree, must be
determined by that law. Its penalties only he has incurred ; its means
of protection and deliverance he may justly invoke, and especially a
trial by a jury of his peers in the vicinage where the oflfence was
committed.
This obvious view of the question will be found upon reflection, I
think, to be the only one consistent with the reasonable security of the
subject or the well-defined relations of the states. It is well known
that the laws of the states upon the subject of larceny materially differ.
In most of them the common law of larceny has been greatlj' modified
by statutes. The jurisprudence of all is not even based on the common
law ; in several the civil law obtains.
In cases where a difference of law exists, by which law is the defend-
ant to be judged, — the law where the oflfence (if any) was committed,
or where it is tried? For example, the defendant is charged with
taking with felonious intent that which is parcel of the realty, as the
612 COMMONWEALTH V. HOLDER. [CHAP. VIII.
gearing of a mil] or fruit from a tree. By the St. of 1851, c. 151, tlio
act is larcenj- in this Commonwealth. If it appears that in the state
where the act was done it was, as under the common law, but a tres-
pass, which law has the defendant violated and- by which is he to be
tried ? Or suppose the defendant to be charged with the stealing of
a slave, — a felonj' in the state where the act is done, but an offence
not known to our laws. The difficulty in both cases is the same. You
have not only conflicting jurisdictions, but different rules of conduct
and of judgment.
But supposing the definitions of the offence to be the same in the
two states, the punishments ma^' be ver}' different. Where such differ-
ence exists, which penalty has the defendant justly incurred, and which
is he to suffer? For example, the offence is punishable by imprison-
ment in Rhode Island, say for a year ; in this state the same offence is
punishable b}' imprisonment from one to five years ; is the defendant
liable to the heavier punishment? Or suppose he has been convicted
in Rhode Island, and in consideration of his having indemnified the
owner for the full value of the goods taken, his punishment has been
move mercifully measured to him, can he, after he has suffered the
punishment, and because the goods were, after the larcenj', brought
into this state, be made to suffer the penaltj' of our law for the same
offence? Or suppose him to have been convicted in Rhode Island and
a full pardon extended to him, can he be tried and convicted and pun-
ished here?
Again : the power to indict, convict, and punish the offence in this
state proceeds upon the ground that the original caption was felonious.
If the original taking was innocent or but a trespass, the bringing into
this state would not constitute a larceny. You must, therefore, look at
the law of the state where the first caption was made. And how is the ■
law of another state to be ascertained ? What is the law of another
state is a question of fact for the jury. The jury in this way are in a
criminal case made not only to pass upon the law, but to pass upon it
as a matter of evidence, subject, strictly speaking, neither to the
direction nor the revision of the court.
Again : the defendant is indicted here for the larceny committed in
Rhode Island ; while in custody here awaiting his trial, he is demanded
of the Executive of this state by the Executive of Rhode Island as
a fugitive from the justice of that state, under the provisions of the
Constitution of the United States, art. 4, § 2, and the U. S. St. of
1793, c. 45. Is he to be tried here, or surrendered up to the state
where the offence was committed, and tried there? Or if he has been
already tried and convicted and punished in this state, is he to be sent
back to Rhode Island to be tried and punished again for the same
offence? And would his conviction and punishment here be any
answer to the indictment there? Or if he has been fully tried and
acquitted here, and then demanded by the Executive of Rhode Island.
is he, upon requisition, to be sent to that state to be again tried, to
SECT, n.] COMMO:^WEALTH V. HOLDER. 613
be twice put in jeopardy for the same oflfence? It is quite plain no
ground in law would exist for a refusal to surrender.
The defendant was indicted for larceny, not for the offence of bring-
ing stolen goods into the Commonwealth. He was, under the instruc-
tion of the presiding judge, tried for the larcenj' in Ehode Island, was
convicted for the larceny in Rhode Island, and must be punished, if
at g,ll, for the larcenj' in Rhode Island. And under the rule given to
the jury is presented a case where, for one and the same moral act,
for one and the same violation of the rights of property, the subject
may be twice convicted and punished. Naj', more, if a man had stolen
a watch in Rhode Island and travelled with it into every state of the
Union, he might, under the rule given to the jury, if his life endured
so long, be indicted and punished in thirtj'-two states for one and the
same offence.
And it is well to olDserve that it is the retention of the property
whicli is the cause of the new offence, and the carrying of it from the
place of caption into another state. If the defendant had stolen prop-
erty in Rhode Island and consumed or destroyed it, and then had
removed to Massachusetts, but one offence would have been committed,
and that in Rhode Island.
Such are some of the more obvious difficulties attending the position
that an offence committed in one state may be tried and punished in
another. The doctrine violates the first and most elementary princi-
ples of government. No state or people can assume to punish a man
for violating the laws of another state or people. The surrender of
fugitives from justice, whether under the law of nations, treaties with
foreign powers, or the provisions of the Constitution of the United
States, proceeds upon the ground that the fugitive cannot be tried
and punished by any other jurisdiction than the one whose laws have
been violated. Even in cases of the invasion of one country by the
subjects of another, it is the violation of its own laws of neutrality
that the latter country punishes, and not the violation of the laws of
the country invaded. The exception of piracy is apparent rather than
real. Piracj' may be punished bj- all nations because it is an offence
against the law of nations upon the seas, which are the highwaj's of
nations.
The ruling of the learned Chief Justice of the Common Pleas was, I
may presume, based upon the decisions of this court in Commonwealth
V. Cullins, 1 Mass. 116, and Commonwealth v. Andrews, 2 Mass. 14.
It is certainly the general dutj- of the court to adhere to the law as
decided. Especially is this the case where a change in the decision
would impair the tenure by which the rights and propertj' of the sub-
ject are held. But even with respect to these, where it is clear a case
has been decided against the well settled principles of law and of
reason, it is the duty and the practice of the courts to revise such
decision, and to replace the law on its old and solid foundation. This
is peculiarly the duty of the courts where such decision works its in-
614 COMMONWEALTH V. HOLDER. [cHAP. VIII.
justice by impairing ttie personal rights of the citizen, or by subjecting
him to burdens and penalties which he never justly incurred.
In my judgment, the courts of this Commonwealth have not, and
never had, under the Constitution of the United States or otherwise,
the rightful power to try a man for an offence committed in another
state. It is in vain, it seems to me, to attempt to preserve and make
rules of conduct decisions founded upon wholly erroneous views of the
relations which the states of the Union bear to each other under the
Constitution, and in conflict with well settled principles of constitu-
tional and international law.
I should be content to rest my dissent from the judgment of the
court in the case at bar upon the principles affirmed in the recent case
of Commonwealth v. Uprichard, 3 Graj', 434. In effect that case
overrules, as its reasoning thoroughly undermines, the earlier cases.
They cannot stand together.
But as the decision in the case at bar rests upon the authority of
the cases in the first and second of Massachusetts Reports, it may be
well to examine with care the grounds upon which thej^ rest. Such
an examination will show, I think, not only that the cases were put
upon erroneous views as to the relation of the states, but that they
were also unsound at common law.
In the case of Commonwealth v. CuUins, a jur3- trial where three
judges of the court were present, the evidence showing that the goods
were taken in the State of Rhode Island, Mr. Justice Sedgwick, who
charged the jury, said that " the court were clearh- of opinion that
stealing goods in one state and conveying stolen goods into another
state was similar to stealing goods in one count}- and conveying the
stolen goods into another, which was always holden to be felony in
both counties." Whatever the points of similarity, there was this
obvious and vital difference, to wit, that conviction in one countj' was
a bar to conviction in another, and that conviction in one state is no
bar to conviction iu another state.
It was a doctrine of the common law that the asportation of stolen
goods from one county to another was a new caption and felonj- in
the second countj-, — a legal fiction devised for greater facility in con-
victing the offender where it was uncertain where the first caption took
place. The foundation of the rule was that the possession of the owner
continued, and that every moment's continuance of the trespass may
constitute a caption as well as the first taking. But in what respect
was the taking in one state and conveying into another state similar to
the taking in one count}' and conveying into another count}'? It could
only be " similar" because the legal relation which one state bears to
another is similar to that which one county bears to another ; because,
under another name, there was the same thing. If a man is to be con-
victed of crime by analogy, the analogy certainly should be a close
one. Here it was but a shadow. In the different counties there was
one law, one mode of trial, the same interpretation of the law, and the
SECT. II.J COMMONWEALTH V. HOLDER. 615
same punishment. The rule, mode of trial, and jurisdiction were not
changed.
The states of the Union, it is quite plain, hold no such relation to
each other. As to their internal police, their law of crimes and punish-
ments, thej' are wliollj' independent of each other, having no common
law and no common umpire. The provision indeed in the Constitu-
tion of the United States for surrendering up fugitives from justice bj-
one state to another is a clear recognition of the independence of the
states of each other in these regards. It excludes the idea of any
jurisdiction in one state over crimes committed in another, and at the
same time saves any necessity or reason for such jurisdiction. Nor
is there any provision in the Constitution of the United States which
impairs such independence, so far as the internal police of the states
is concerned. On the other hand, the widest diversity exists in the
institutions, the internal police, and the criminal codes of the several
states, some of them, as Louisiana and Texas, having as the basis
of their jurisprudence the civil and not the common law. In the
relation which Louisiana holds to this State can any substantial analogy
be found to that which Surrey bears to Middlesex?
An analog)' closer and more direct could have been found in the
books when Commonwealth v. Cullins was decided. It was that of
Scotland to England, subject both to one crown and one legislature ;
yet it had been decided that when one stole goods in Scotland and
carried them to England, he could not be convicted in the latter
country. Eex v. Anderson (1763), 2 East P. C. 772; 2 Russell on
Crimes (7th Amer. ed.), 119. Or an analogy might have been found
in the cases of goods stolen on the high seas and brought into the
counties of England, of which the courts of common law refused to
take cognizance because they were not felonies committed within their
jurisdiction. 1 Hawk. c. 33, § 52 ; 3 Inst. 113. In these cases a
test would have been found, applicable to the alleged larceny of Cullins,
to wit, the offence was not committed in a place within the jurisdiction
of the court, but in a place as foreign to their jurisdiction, so far as
this subject-matter was concerned, as England or the neighboring
provinces. The case of Commonwealth v. CulKns has no solid principle
to rest upon.
The case of Commonwealth v. Andrews, two years later, may . be
held to recognize the rule laid down in Commonwealth v. Cullins,
though it was an indictment against Andrews as the receiver of goods
stolen by one Tuttle in New Hampshire ; and though there is, at the
least, plausible ground for saying that there was a new taking by
Tuttle at Harvard in the count}- where the defendant was indicted and
tried. Indeed, Mr. Justice Parlcer takes this precise ground ; though
he adds that " the common-law doctrine respecting counties maj' well
be extended by analogy to the case of states united, as these are,
under one general government.'' If that union was with reference to
or concerned the internal police or criminal jurisprudence of the several
616 COMMONWEALTH V. HOLDKR. [CHAP. YIII.
States ; if it was not obviously for other different, distinct, and well
defined purposes ; and if we could admit the right of the court to
extend by analogy the piovisions of the criminal law and so to enlarge
its jurisdiction, — there would be force in the suggestion. As it is, we
must be careful not to be misled by the errors of wise' and good men.
..fudge Thatcher puts the case wholly on the felonious taking at
Harvard.
Mr. Justice Sedgwick, though having the same view as to the taking
at Harvard, does not rest his opinion upon it, but upon the ground
that the continuance of the trespass is as much a wrong as the first
taking. This doctrine applies as well where the original caption was
in a foreign country as in another state of the Union. If 30U hold
that every moment the thief holds the property he commits a new
felon'-, you may multiply his offences ad infinitum ; but in so carrying
out what is at the best a legal fiction, j'ou shock the common-sense of
men and their sense of justice. Mr. Justice Sedgwick will not admit
the force of the objection that the thief would be thus twice punished,
but regards with complacency such a result. But as we are to pre-
sume that the punishment is graduated to the oflTence, and, as far as
punishment ma}', expiates the wrong, the mind shrinks from such a
consequence. But saj-ing that whatever he might think upon this
question if it were res integra, he puts his decision upon the case of
Paul Lord, decided in 1792, and that of Commonwealth v. Cullins.
Chief Justice Dana relies upon the cases before stated and a
general practice, and also upon the principle that everj^ moment's
felonious possession is a new caption.
Such was the condition of the law in this state when the case of
Commonwealth v. Uprichard came before the court. In that case the
original felonious taking was in the province of Nova Scotia. The
bringing of the stolen goods into this Commonwealth was held not to
be a larceny here. But If it be true that every act of removal or change
of possession is a new caption and asportation, that every moment's
continuance of the trespass is a new taking, — if this legal fiction has
an}- life, it is difficult to see why the bringing of the goods within
another jurisdiction was not a new offence. No distinction in principle
exists between this case and a felonious taking in another state and
bringing into this. So far as the law of crimes and punishments is
concerned, the states are as independent of each other as are the States
and the British Provinces.
The case of Commonwealth v. Uprichard rests, I think immovably,
upon the plain grounds that laws to punish crime are local and limited
to the boundaries of the States which prescribe them ; that the com-
mission of a crime in another State or country is not a violation of our
^aw, and does not subject the offender to any punishment prescribed by
our law. These are principles of universal jurisprudence, and as sound
as they are universal.
It is sometimes said that after all the offender is only tried and con-
SECT. II.J STANLEY V. STATE. 617
victed for the offence against our laws. This clearly is not so. It is
only by giving force to the law of the country of the original caption
that we can establish the larceny. It is the continuance of the caption
felonious by the law of the place of caption. In the directions given
to the jury such effect is given to the laws of Rhode Island. The jury
were instructed that if the defendant broke and entered into the shop
of Henry W. Dana in Smithfield in Khode Island and thence brought
the goods into this county, the indictment could be maintained. The
felonious taking in Rhode Island is the inception and groundwork of
the offence. The proceeding is in substance and effect but a mode of
enforcing the laws of and assuming jurisdiction over offences committed
in another state.
For the reasons thus imperfectly stated, I am of opinion that the
instructions of the Court of Common Pleas were erroneous, that the
exceptions should be sustained, the verdict set aside, and a new trial
granted. Msceptions overruled.
STANLEY V. STATE.
Supreme Court op Ohio. 1873.
[Reported 24 Ohio State, 166.]
McIlvaine, J.^ At the November term, 1873, of the Court of
Common Pleas of Cuyahoga County, the plaintiff in error, William
Stanley, was convicted of the crime of grand larceny, and sentenced
for a term of years' to the penitentiarj-.
The indictment upon which he was convicted charged " that William
Stanley, late of the county aforesaid, on the twentieth day of June, in
the jear one thousand eight hundred and sevent^'-three, at the county
aforesaid, with force and arms," certain silverware, " of the goods and
chattels and property of George P. Harris, then and there being, then
and there unlawfully and feloniously did steal, take, and carry away,"
etc.
The following facts were proven at the trial : 1. That the goods
described in the indictment belonged to Harris, and were of the value
of one hundred and sixty-five dollars. 2. That they were stolen from
Harris on the *20th of June, 1873, at the city of London, in the domin-
ion of Canada. 3. That they were afterward, on the 26th day of same
month, found in the possession of the defendant, in said county of
Cuyahoga. It is also conceded that, in order to convict, the jury must
have found that the goods were stolen by the defendant in the dominion
of Canada, and carried thence by him to the State of Ohio.
Upon this state of facts, was the prisoner lawfully convicted ? In
1 The opinion only is given ; it sufficiently states the case.
618 STANLEY V. STATE. [CHAP. VIII.
Other words, if property' be stolen at a place bej'ond the jurisdiction of
this state and of the United States, and afterward brought into this
state bj' the thief, can he be lawfully convicted of larceny in this
state ?
In view of the free intercourse between foreign countries and this
state, and the immense immigration and importation of propert3- from
abroad, this question is one of very great importance ; and I may add
that its determination is unaided by legislation in this state.
In resolving this question we have been much embarrassed hy a
former decision of this court, in Hamilton v. The State, 11 Ohio, 435.
In that case it was held by a majorit}' of the judges that a person
having in his possession in this state property which had been stolen
by him in another state of the Union, might be convicted here of
larceny.
The decision appears to have been placed upon the ground " that a
long-sustained practice, in the criminal courts of this state, had settled
the construction of the point, and established the right to convict in
such cases."
Whether that decision can be sustained upon the principles of the
common law or not, it must be conceded that for more than thirty
years it has stood, unchallenged and unquestioned, as an authoritative
exposition of the law of this state. And although it has received no
express legislative recognition, it has been so long followed in our
criminal courts, and acquiesced in by other departments of the govern-
ment, that we are inclined to the opinion that it ought not now to be
overruled ; but, on the other hand, its rule should be applied and sus-
tained, in like cases, upon the principle of stare decisis.
Before passing from Hamilton v. The State, it should be added that
the same question has been decided in the same way by the courts of
several of our sister States. The State v. Ellis, 3 Conn. 185 ; The
State V. Bartlett, 11 Vt. 650 ; The State v. Underwood, 49 Maine, 181 ;
Watson V. The State, 36 Miss. 593 ; The State v. Johnson, 2 Oregon,
115 ; The State v. Bennett, 14 Iowa, 479 ; Ferrell v. Commonwealth,
1 Duvall, 153; Commonwealth v. Cullins, 1 Mass. 116. The same
point has been decided the same way in several subsequent cases in
Massachusetts.
The exact question, however, now before us has not been decided by
this court ; and we are unanimously of opinion that the rule laid down
in Hamilton v. The State should not be extended to cases where the
property was stolen in a foreign and independent sovereigntj^
We are unwilling to sanction the doctrine or to adopt the practice,
whereby a crime committed in a foreign country, and in violation of
the laws of that country only, may, by construction and a mere fiction,
be treated as an offence committed within this state and in violation of
the laws thereof. In this case the goods were stolen in Canada. They
were there takeii from the custody of the owner into the custodj^ of the
thief. The change of possession was complete. The goods were
SECT. II.J STANLEY V. STATE, 619
afterward carried by the thief from the Dominion of Canada to the
State of Ohio. During the transit his possession was "continuous and
uninterrupted. Now, the theory upon which this conviction is sought
to be sustained is that the legal- possession of the goods remained all
the while in the owner. If this theorj' be true, it is true as a fiction of
the law only. The fact was otherwise. A further theory in support
of the conviction is that as soon as the goods arrived within the State
of Ohio, the thief again took them from the possession of the owner
into his ovrn possession. This theory is not supported by the facts,
nor is there any presumption of law to sustain it.
That the right of possession, as well as the right of property,
remained aU the time in the owner is true as matter of law. And it is
also true, as a matter of fiction, that the possession of the thief,
although exclusive as it must have been in order to make him a thief,
is regarded as the possession of the owner, for some purposes. Thus,
stolen goods, while in the possession of the thief, ma}- be again stolen
by another thief; and the latter may be charged with taking and carry-
ing away the goods of the owner. And for the purpose of sustaining
such charge, the possession of the first thief will be regarded as the
possession of the true owner. This fiction, however, in no way changes
the nature of the facts which constitute the crime of larceny.
What we denj' is that a. mere change of place b^' the thief, while he
continues in the uninterrupted and exclusive possession of the stolen
property, constitutes a new " taking " of the property, either as matter
of fact or of law.
Larceny, under the statute of this state, is the same as at common
Jaw, and may be defined to be the felonious taking and carr^-ing away
of the personal propertj' of another. But no offence against this stat-
ute is complete until every act which constitutes an essential element
in the crime has been committed within the limits of this state. The
act of "taking" is an essential element in the crime, and defines the
act bj' which the possession of the propertj- is changed from the owner
to the thief. But the act of " taking " is not repeated after the change
of possession is once complete, and while the possession of the thiei
continues to be exclusive and uninterrupted. Hence, a bailee or finder
of goods, who obtains complete possession without any fraudulent
intent, cannot be convicted of larcenj' by reason of an}' subsequent
appropriation of them.
We fully recognize the common-law practice, that when propert}' is
stolen in one county, and the thief is afterward found in another
county with the stolen propertj- in his possession, he may be indicted
and convicted in either county, but not in both. This practice obtained
notwithstanding the general rule that every prosecution for a criminal
cause must be in the county where the crime was committed. The
reason for the above exception to the general rule is not certainly
known, nor is it important in this case that it should be known, as it
relates to the matter of venue only, and does not affect the substance
G20 STANLEY V. STATE. [CHAP. VIII.
of the offence. "We are entirely satisfied, however, that the right to-
prosecute the thief in anj' county wherein he was found in possession
of the stolen property, was not asserted by the Crown, because of the
fact that a new and distinct larceny of the goods was committed when-
ever and wherever the thief might pass from one county- into another.
His exemption from more than one conviction and punishment makes
this proposition clear enough. The common law provided that no
person should be twice vexed for the same cause. It was through the
operation of this principle that the thief who stole propertj' in one
count}', and was afterward found with the fruits of his crime in another,
could not be tried and convicted in each countj-. He was guilty of one
offence only, and that offence was complete in the county where the
property was first " taken " by the thief, and removed from the place
in which the owner had it in possession.
When goods piraticallj' seized upon the high seas were afterward
carried by the thief into a county of England, the common-law judges
refused to take cognizance of the larceny, " because the original act —
namely, the taking of them — was not any offence whereof the com-
mon law taketh knowledge ; and by consequence, the bringing them
into a countj' could not make the same a felony punishable bj- our
law." 13 Coke, 53 ; 3 Inst. 113 ; 1 Hawk. c. 19, sec. 52.
The prisoner was charged with larcenj- at Dorsetshire, where he had
possession of the stolen goods. The goods had been stolen by him in
the island of Jersey, and afterward he brought them to Dorsetshire.
The prisoner was convicted. All the judges (except Raymond, C. B.,
and Taunton, J., who did not sit) agreed that the conviction was-
wrong. Rex v. Prowes, 1 Moody C. C. 349.
Property was stolen by the prisoner in France, and was transported.
to London, where it was found in his possession. Parke, B., directed
the jury to acquit the prisoner on the ground of the want of jurisdic-
tion, which was done. Regina v. Madge, 9 Car. & P. 29.
A similar decision was made in a 6ase where the property was stolen
in Scotland and afterward carried by the thief into England. 2 East>
P. C. 772, c. 16, sec. 156.
This rule of the common law was afterward superseded, in respect ta
the United Kingdom, by the statutes of 13 Geo. III., c. 21, sec. 4, and
7 and 8 Geo. IV., c. 29, sec. 76, wherebj* prosecutions were authorized
in any county in which the thief was found, in possession of property
stolen bj' him in any part of the United Kingdom.
In Commonwealth u. Uprichard, 3 Gray, 434, the property had been
stolen in the province of Nova Scotia, and thence carried bj- tlie thief
into Massachusetts. Tlie defendant was convicted of larceny charged,
to have been committed in the latter state. This conviction was set-
aside by a unanimous court, although two decisions had been made b^-
the same court affirming convictions where the property had been
stolen in a sister state, and afterward brought by the thief into that
commonwealth. Without overruling the older cases, Chief-Justice-
SECT. II.J STANLEY V. STATE. 621
Shaw, in delivering the opinion of the court, distinguished between the
two classes of cases.
The following cases are in point, that a state, into which stolen
goods are carried by a thief from a sister state, has no jurisdiction to
convict for the larceny of the goods, and a fortiori when the goods
were stolen in a foreign country: In New York: People v. Gardner,
2 Johns. 477 ; People v. Schenk, 2 Johns. 479. The rule was after-
ward changed in that state by statute. New Jersey : The State v.
Le Blan-ch, 2 Vroom, 82. Pennsylvania : Simmons v. Commonwealth,
5 Binn. 617. North Carolina: The State v. Brown, 1 Hayw. 100.
Tennessee: Simpson v. The State, 4 Humph. 456. Indiana: Beall v.
The State, 15 Ind. 378. Louisiana : The State v. Beonnals, 14 L.
An. 278.
There are two cases sustaining convictions for larceny in the States,
where the propertj' had been stolen in the British Provinces : The
State V. Bartlett, 11 Vermont, 650, and The State v. Underwood, 49
Maine, 181. In Bartlett's case, the principle is doubted, but the prac-
tice adopted in cases where the property was stolen in a sister state
was followed, and the application of the principle thereby extended.
Underwood's case was decided bj' a majorit}- of the judges.
After reviewing the cases, we think the weight of authoritj' is against
the conviction and judgment below. And in the light of principle, we
have no hesitancy in holding that the court below had no jurisdiction
over the offence committed by the prisoner.
The judgment- below is wrong, unless every act of the defendant
which was necessary to complete the offence was committed within
the State of Ohio and in violation of the laws thereof This proposition
is not disputed. It is conceded by the prosecution that the taking as
well as the removal of the goods animo furandi, must have occurred
within the limits of Ohio. It is also conceded that the first taking, ais
well as the first removal of the goods alleged in this case to have been
stolen, was at a place beyond the limits of the state, and within tho
jurisdiction of a foreign and independent sovereignty. Now, the doc^
trine of all the cases is that the original " taking " and the original
asportation of the goods by the prisoner must have been under sucb
■circumstances as constituted a larceny. If the possession of the goods
by the defendant before they were brought into this state was a lawful
possession, there would be no pretence that the conviction was proper.
The same, if his possession was merel}' tortious. The theory of the
Jaw upon which the propriety of the conviction is claimed is based on
the assumption that the property was stolen in Canada hy the prisoner.
By what rule shall it be determined whether the acts of the prisoner,
whereby he acquired the possession of the goods in Canada, consti-
tuted the crime of larceny? 'Ry the laws of this state? Certainly-
not. The criminal laws of this state have no extra-territorial opera-
tion. If the acts of the prisoner, whereby he came in possession of
the property described in the indictment, were not inhibited bj- the
622 STANLEY V. STATK. [CHAP. VIII.
laws of Canada, it is perfectly clear that he was not guilty of larceny
there. It matters not that they were such as would have constituted
larceny if the transaction had taken place in this state.
Shall the question whether or not the ' ' taking " of the property by
the prisoner was a crime in Canada be determined by the laws of that
country? If this be granted, then an act which was an essential ele-
ment in the combination of facts of which Stanley was found guilt3'
was in violation of the laws of Canada, but not of this state ; and it
was because the laws of Canada were violated that the prisoner was
convicted. If the laws of that countrj- had been different, though the
conduct of the prisoner had been the same, he could not have been
convicted. I can see no way to escape this conclusion, and if it be
correct, it follows that the acts of the prisoner in a foreign country, as
well as his acts in this state, were essential elements in his offence;
therefore, no complete offence was committed in this state against the
laws thereof.
I have no doubt the legislature might make it a crime for a thief to
bring into this state property stolen by him in a foreign countrj'. And
in order to convict of such crime, it would be necessary to prove the
existence of foreign laws against larceny. The existence of such
foreign laws would be an ingredient in the statutory offence. But that
offence would not be larcenj' at common law, for the reason that larceny
at common law contains no such element. It consists in taking and
carrying away the goods of another person in violation of the rules of
the common law, without reference to any other law or the laws of any
other country.
It may be assumed that the laws of meum et tuum prevail in every
country, whether civilized or savage. But this state has no concern in
them further than to discharge such duties as are imposed upon it by
the laws of nations, or through its connection with the general govern-
ment, by treat}' stipulations.
Our civil courts are open for the reclamation of property which may
have been brought within our jurisdiction, in violation of the rights of
the owner ; but our criminal courts have no jurisdiction over offences
committed against the sovereignty of foreign and independent states.^
Judgment reversed and cause remanded.
Day, C. J., Welch, Stone, and White, JJ., concurring.
1 In addition to the cases cited in this opinion see the following : That conviction
may not he had when the property was first taken outside the jurisdiction, Lee v.
State, 64 Ga. 203 ; People w. Loughridge, 1 Neh. 11. That conviction may he had,
Stinson v. People, 43 111. 397 ; Worthington v. State, 58 Md. 403 ; State u. Newman, 9
Nev. 48 ; State v. Hill, 19 S. C. 435. See also State v. Somerville, 21 Me. 14. — Ed.
SECT. III.] EEX V. EAVEN. 623
SECTION III.
Taking after Delivery.
(a) Laecent by Bailee.
1 Hawkins Pleas of the Crown (7th ed.,
where the delivery of _the property is made i
Larticular purpose, the possession l3 tjLill atipposed to reside
parti
gf[ jn tho firf:|f pTTipriotr.;^ itieretOre
watch delivered to him to clean (O. B. 1779, No. 83) ; or if one steal
clothes delivered for the purpose of being washed (O. B. 1758, No. 18) ;
or goods in a chest delivered with the key for safe custody (O. B. 1779,
No. 83) ; or guineas delivered for the purpose of being changed into
half-guineas (Ann Atkinson's Case, Leach Crown Cas. 247, notes) ; or
a watch delivered for the purpose of being pawned (Leach Crown Cas.
320) ; in all these instances, the goods taken have been thought to
remain in the possession of the proprietor, and the taking of them away
held to be felony.^
EEX V. RAVEN.
Newgate Sessions. 1662.
[Reported Kelyng, 24.]
Mart Raven, alias Aston, was indicted for stealing two blankets,
three pair of sheets, three pillowbiers, and other goods of William
Cannon. And upon the evidence it appeared that she had hired lodg-
ings and furniture with them for three months, and during that time
conveyed away thp goods which she had hired with her lodp;infrs. and
she herself ran away at the same time. And it was agreed by my
Lord Bridgeman, myself, and my brother Wylde, Recorder of London,
then present, that this was , no felonv. because she had a special prop-
erty in them by her contract, and so there could be no trespass ; and
there can be no felony where there is no trespass, as it was resolved in
the case of Holmes, who set fire on his own house in London, which
was quenched before it went further.
1 These cases were first cited in the 6th edition of the treatise (1787) in the nottes
and were brought up into the text in the 7th edition. The citations of the cases are all
(with perhaps one exception) wrong, and it is difficult to identify them. The first
case appears to be Rex v. Vansas, O.' B. 1779, No. 88. The prisoner was journeyman
to a watchmaker, and was given the watch by him to repair, and pawned it ; in his
defence he said, " The watch was given into my care ; I appeal to your Lordship and
the jury whether this is stealing." He was convicted. The second case cannot be
identified. The third case is really Eex v. More, O. B. 1758, No. 18. A woman who
had been sent to prison gave the key of her chest to the defendant, who stole goods
from it ; the chest was apparently left in the prosecutor's house. Atkinson's Case was
a case of larceny bv a servant. The last case cannot be found in Leach, but is Rex v.
Bradley, O. B. 1784, No. 613. It is a case of larceny by trick. — Ed.
624 EEX V. BANKS. [CHAP. Mil.
LEIGH'S CASE.
Crown Case Reserved. 1800.
[Reported 2 East P. C. 694.]
Elizabeth Leigh was indicted at Wells assizes, in the summer of
1800, for stealing various articles, the property of Abraham Dyer. It
appeared that the prosecutor's house, consisting of a shop containing
muslin and other articles mentioned in the indictment, was_on_Sj;e ; and
that his neighbors had in general assisted at the time in removing his
goods and stock for their security. The prisoner probably had removed
all the articles which she was charged with having stolen when the
prosecutor's other neighbors were thus employed. And it appeared
that she removed some of the muslin in the presence of the prosecutor
and under his observation, though not by his desire. Upon the prose-
cutor's applying to her next morning, she denied that she had any of
the things belonging to him ; whereupon he obtained a search warrant,
and found his property in her house, most of the articles artfully con-
cealed in various waj-s. The jur}' found her guilty ; but it was sug-
gested that_ahe ©Kgirtaiiy-i;ook-tbe articles with an honect purpose, as
hef neighbors had done, and that she would not otherwise have taken
some of them in the presence and under the view of the prosecutor ;
and that therefore the case did not amount to felony. The jury were
instructed that whether she took them originallj' with an honest
intent was a question of fact for their consideration ; that it did not
necessarily follow from the circumstances mentioned that she took
■them with an honest intent. But even if they were of that opinion,
[yet that her afterwards hiding the goods in the various ways proved,
fland denying that she had them, in order to convert them to her own
'use, would still support the indictment. The jury found her guilty;
but said that, in their opinion, when she first took the goods from the
shop she had no evil intention, but that such evil intention came upon
her afterwards. And upon reference to the judges, in Michaelmas
Term, 1800, all (absent, Lawrence, J.) held the conviction wrong-; for ij
the "rigin^i fai^inp; W'-p-""*^ ™<^ jn'i''"'^^ to g*^^'"'l,.lhe subsequent con-
vereionwas no felony, but a y^r-o^^ u^ ti-nai i
REX V. BANKS. ,
Crown Case Reserved. 1821.
[Reported Russell ^ Ryan, 441.]
The prisoner was tried and convicted before Mr. Justice Bayley, at
the Lancaster Lent Assizes, in the year 1812, for horse-stealing.
1 Ace. Reg. V. Keeves, 5 Jur. N. S. 716. — Ed. ,
SECT. III.] EEGINA V. THEISTLE. 625
It appeared that the prisonet-befTOwed-a-Jjorse, under pretence of
carrying a child to a neighboring surgeon. Whether he carried the
child thither did not appear ; but the day following, flftqr ttiP pMrp"Rp
for which he borrowed the horse was over, he took the horse in a
different directiorian3~SoWit.
The prisoner did not offer the horse for sale, but was applied to to
sell it, so that it was possible he might have had no felonious intention
till that application was made.
The jury thought the, prisoner had no felonious intention when , he
took the horse,; but as it was'borrowed for a special purpose, and that
purpose was over when the prisoner took the horse to the place where
he sold it, the learned judge thought it right upon the authority of
2 East P. C. 690, 694, and 2 Russ. 1089, 1090,^ to submit to the con-
sideration of the judges whether the^ubsequent disposing of the horse,
when the purjjose for which it was borrowed was no longer In view, 'did
not in la/w- include in it^Telrinlnns-taking.
In JDaster Term, 1821, tlie judges met and considered this case.
They were of opinion that the doctrine laid down on this subject in
■i East P. C. 690 & 694, and 2 Russell 1089 & 1090, was not correct.
They held that if the prisoner had not a felonious intention when he
originally took the horse, his subsequent withholding and disposing of
it did not constitute a new felonious taking, or make him guilty of
felony ; consequently the conviction could not be supported.
REGINA V. THRISTLE.
Crown Case Reserved. 1849.
[Reported 3 Cox C. C. 573.]
The two following cases were reserved by the Worcestershire Court
of Quarter Sessions : —
FIRST case.
The prisoner, William Thristle, was indicted at the Worcester Quar-
ter Sessions, loth October, 1849, for stealing one watch, the property
of Robert Warren.
It appeared in evidence that the prosecutor, in 1848, met the pris-
oner, who was a watchmaker at Malvern. The prosecutor asked pris-
oner if he was going as far as prosecutor's house ; the prisoner said
1 In 2 Russ. 1089, it is said that, " In the case of a delivery of a hor.ie upon hire or
loan, if such delivery were obtained bond fide, no subsequent wrongful conversion
pending the contract will amount to felony ; and so of other goods. But when the
purpose of the hiring or loan for which the delivery was made has been eniled,
felony may be committed by a conversion of the goods." — Rep.
626 EEGINA V. THRISTLE. [CHAP. VIII.
"yes," if the prosecutor had anything for him. The prosecutor said
his watch^antpH rfifrnlatintr. if prisoner would call.
. The prisoner went to'Ehe prosecutor's house, and after examining
the watch, told the prosecutor's wife that he could do nothing with it
there, but must take it to his own house. The prisoner then toak it
and on his waj- home met the__£ros^piitor, to whom he mentioned that
he was-tafeing^tie watch to his own house and would return it in two
or three days. Prnsftcntnr vf\a.i\f^ lift nhjectinn.
In a few weeks anerTprisoner left the neighborhood without returning
prosecutor's watch, and it was not afterwards heard of. The prisoner,
on being taken into custody, said, "I have disposed of the property,
and it is impossible to get it back."
The jury returned a verdict of guilty, but the chairman being of
opinion that there was no evidence of a feloniotts taking when the
prisoner first took the watch from the prosecutor's" house, with the
knowledge and in the presence of the prosecutor's wife, and entertain-
ing doubt whether the prisoner's subsequent appropriation of the watch
could under the circumstances above detailed, constitute larceny, re-
quests the opinion of this court as to the correctness oi the conviction
in point of law.
SECOND CASE.
The same prisoner was also indicted at the same Sessions for steal-
ing one watch, the property of the prosecutor, Thomas Reynolds. It
appeared in evidence that the prisoner, who was a watchmaker at Mal-
vern, received from the prosecaitor some time in January, 1848, his
silver watch to repair. The prisoner returned it to the prosecutor. A
few days after the prisoner had so returned it the prosecutor told the
prisoner that the watch gained. The prisoner said that_i£-±he prose-
cutor would let him have it agaiirrHe would regfulate-ilL and return it
in a dayoFTtwo. The prosecutor thereupon gave the watch to the
prisoner, who in eight or nine daj's left Malvern with the prosecutor's
watch in his possession, and was not again heard of until he was
arrested on the present charge some time afterwards.
The prosecutor was unable to say whether he had paid for the repairs
of his watch or not, but stated that the prisoner, when he left Malvern,
had other repairs of the prosecutor's on hand and unfinished.
The prisoner, when taken into custody, said, "I have disposed of
the property, and it is impossible to get it back."
The jury found a verdict of guilty, but the chairman being of opinion
that there was no oY'^^^njl? ft^ S f°i""in"° taking on the part of the
prisoner when he_jeceived the watch from the prosecutor to regulate
it, an(J=enteftairiing a doubt wBether the subsequent departure ' of the
prisoner from Malvern with the prosecutor's watch in his possession
could under the circumstances above detailed, constitute larceny, re«
quests the opinion of this court, as in the former case.^
' The statement of authorities in point is omitted.
SECT. III.J REGINA V. PRATT. 627
These cases were not argued by counsel but were considered by the
following judges : Pollock, C. B., Patteson, J.jWightman, J., Piatt, B.,
and Talfourd, J.
Pollock, C. B., delivered the judgment of the court. The indict-
ment was fpr stealing a watch, and the circumstances set out in the
case do not, on the question of fact, justify the verdict of guilty ; but
in giving our judgment that the conviction is wrong, we do not proceed
merely upon the facts stated. The question put to us in the conclusion
of the case seems to be this : The chairman doubted whether a subse-
quent appropriation could malje the entire transaction a larceny, there
not having been at the time of the taking any animus furandi ; and
I think we are bound to take it that he directed the jury that the
subsequent appropriation might render the transaction larceny-, though
there was not any intention to steal at the time of the taking ; and in-
deed, the chairman's opinion seems to have been that there was not
the animus furandi at the time of the taking; and the question is,
■whether he was right in his direction. We think not, for unless there
was a taking animo furandi, no dishftufst p'n^r^riPit^r^n p^'tpr.gs.''^''
^e it larceny. . 'Conviction reversed}
REGINA V. PRATT.
Ckowk Case Reserved. 1854.
[RepoHed 6 Cox C. C. 373.]
The prisoner was tried at the last January Sessions for the borough
of Birmingham, upon a charge of having feloniously stolen, taken, and
carried awaj- on the 18th May, in the 16th year of our Sovereign Lady
the Queen, one die lathe, the goods of Edward Barker and another ;
and on the 19th May, in the same year, ten lathes, the property of the
said Edward Barker and another, the goods and chattels of the prose-
cutors ; and was found guilty.
The prisoner was a thimble-maker and manufacturer, carrj'ing on his
business in two mills, one a thimble-n)ill and the other a rolling-mill ,U
in the borough of Birmingham ; and before the occurrence hereinafter*
mentioned he was the owner and proprietor of the property mentioned '
in the indictment.
On the 14th of May, 1853, the prisoner, being in pecuniary difficul-
ties, arranged with the prosecutors, Edward Barker and William Wayte,
creditors of the prisoner, and with Mr. Collis, an attorney-at-law who
acted on their behalf, to execute an assignment to trustees for the
1 Ace. Reg. V. Eeynolds, 2 Cox C. C. 170; Reg. v. Hey, 3 Cox C. C. .583 (overruling
Reg. V. McNamee, 1 Moo. C. C. 368, and Reg. v. Jackson, 2 Moo. C. C. 32) ; State v.
England, 8 Jones, 399; Hill v. State, 57 "Wis. 377. See Murphy o. People, 104 111
528, and cases cited (statutory). — Ed.
628 EEGINA V. PRATT. [CHAP. VIII.
benefit of his creditors ; and on the 18th of May a deed of assignment
was executed by him, whereby the prisoner assigned to the prosecutors,
as trustees for the purposes therein mentioned, certain property hy the
description following: '• all and every tlie engines, lathes, boilers, fur-
naces, horses, carts, machiner3-, tools, and implements of trade, the
stock-in-trade, goods, wares, mercliandise, household furniture, fixtures,
plate, linen, china, books of account, debts, sum and sums of money,
and all securities for mone}', vouchers, and other documents and writ-
ings, and all other the personal estate and effects whatsoever and
wheresoever, save and except leasehold estates of the said David Pratt,
in possession, reversion, remainder, or expeetancj', together with full
and free possession, right and title of entry in and to all and every of
the mills, works, messuages, or tenements and premises wherein the
said several effects and premises then were : to have and to hold the
said engines, and other the premises, unto the said William Barker
and William Wayte, their executors, administrators, and assigns,
absolutely."
Tlie deed was executed by the prisoner in the presence of, and was
attested bj- James Rous, who was a clerk of Mr. Collis, and who was
not an attorney or solicitor.
On the 29th of Ma}' the said deed was again executed bj' the prisoner
in the presence of the said Mr. Collis and in all respects in conformity
with the provisions of the 68th section of the Bankrupt Law Consolida-
tion Act, 1849, with the view of preventing the deed from operating as
an act of bankruptcy. The deed had been duly stamped on its first
execution, but no second stamp was affixed on its second execution,
/ which omission was made the ground of objection to its receipt in evi'
dence. I admitted it, however, subject to the opinion of this honorable
' court, which I directed should be taken if it became necessary. At the
time of the first interview with Mr. Collis on the 14th May, the pris-
oner said he had stopped work altogether, but on the 16th it was
arranged between him and Mr. Collis that the rolling business should
be allowed to go on to complete some unfinished work. Mr. Collis
then told him to keep an account of the wages of the men employed on
the rolling work and to bring it to the trustees. This the prisoner did,
on the 19th May, when the wages were paid by the trustees and the
rolling business finally stopped.
In the nights of Monday, the 16th May, and of every other day
during that week, the pHamipr rpmnvPf^ propertv conveyed bv the deed
— including the articles mentioned in the indictment — from the thimble
and rolling mills (some of the heavier machines being taken to pieces
for the purpose of removal), and hid them in the cellar and other parts
of the house of one of his workmen. Some time afterwards, and after
the sale by the trustees of the remainder of the property, a Mr. Walker,
who had been a large purchaser at the sale, recommenced the business
Ut the thimble and rolling mills, and the prisoner acted as his manager,
/ when the property which formed the subject of the indictment was by
the prisoner's directions brought back at intervals to the mills.
SECT. III.] EEGINA V. PRATT. 629
ors
-I
mei
No manual possession of the property was taken by the prosecutors
prior to its removal from and back to the mills, but the prisoner
mained in possession after the execution of the deed, in the same
manner as before.
I asked the jury three questions : 1st. Did the prisoner remove the
property after the execution of the deed of assignment? 2dly. Did
he so act with intent fraudulently to deprive the parties beneficially
entitled under the deed of the goods? 3dly. "Was he at the time of
such removal in ,the care of and custody of such goods as the agent of
the trustees under the deed ?
I put these three questions to the jury separately, and they separatel}'
answered them as follows : 1st. He did remove the property after the
execution of the assignment. 2dly. He did so remove it with fraudu-
lent intent. And, lastly, he was not in the care and custody of the
goods as the agent of the trustees. And thereupon (being of opinion
that the two affirmative answers would suppoM a conviction, notwith-
standing the third answer in the negative), I directed the jurj* to find
the prisoner guilty, which they did.
The questions for the opinion of the court are : 1st. Whether the
deed of assignment ought to have been received in evidence. 2d.
Whether mj- direction to the jury was correct. And, lastlj', whether
the conviction is valid.
JiUtleston {Field with him), for the prisoner. The conviction is
wrong. 1st. The prisoner was in lawful-possession of the-233ods, and
a taking bj- him did not constitute larceny. Furtwm non est ubi
initium habet detentionis per dominum rei. The trustees h"d not
even a constructiye possession for this purpo^f , thr'Mgli_|^°y pjubahlj:
bad^for the mirpese of maintaining a civil acti'^n "f tif^fj^n"" against
rf~ttiird -poroon. — Tbe^^aoctrine of constructive possessitJh underwent
consideration m K. v. Reed, 23 L. J. 25, M. C, where a servant was
sent to fetch coals ; and it was held that the servant's possession was
only determined when he had placed the coals in his master's cart,
which was the same thing for that purpose as the master's warehouse.
If this case is put upon the ground that the prisoner was a bailee and
broke bulk the jury have negatived a bailment. 2d. Under the 68th
section of the Bankrupt Act, the re-execution constituted a material
alteration of the deed, which therefore required to be restamped. [Lord
Campbell, C. J. — Was not the re-execution a mere nullity ?] Probably
that is so. ^^—^'~- »
A. Wills, contra. This is a case of bailment. The trustees per-
mitted the prisoner to continue in possession, and by so doing consti-
tuted him a bailee. [Lord Campbell, C. J. — The jury have found the
contrary.] They have only found that he was not their agent ; and
there is a distinction between an agent and a bailee.
Lord Campbell, C. J. It is found that he had not the care or cus-
tody of the goods as their agent ; and that clearly negatives a bailment ;
and that is the only ground upon which this case could be put. The
630 caeriee's case. [chap. viii.
prisoner, therefore, was in lawful possession of the goods and cannot
be convicted of larceny.
Aluerson, B. This is a case of a man stealing goods out of his
own possession. Conviction quashed.
SECTION III. (continuecT).
(6) Larceny by Breaking Bulk, &c.
CAERIEE'S CASE.
Stae Chamber and Exchequer Chamber. 1473.
[Reported Year Book, 13 Ed. IV., 9, pi. 5]. i
In the Star Chamber before the King's Council such matter was
shown and debated : where one has bargained with another to carry
certain bales with, etc., and other things to Southampton, he took them
and carried them to another place and broke up (debrusa) the bales
and took the goods contained therein feloniously, and converted them
to his proper use, and disposed of them suspiciously ; if that may be
called felonj' or not, that was the case.
Brian, C. J. I think not, for where he has the possession from tha
party by a bailing and deliverj- lawfullj-, it cannot after be called felony
nor trespass, for no felony can be but with violence and vi et armis,
and what he himself has he cannot take with vi et armis nor against the"
peace ; therefore it cannot be felony nor trespass, for he may not have
any other action of these goods but action of detinue.
Hussey, the King's Attorney. Felony is to claim feloniously th«
property without cause to the intent to defraud him in whom the prop-
erty is. animo furandi, and here notwithstanding the bailment uf
supra the property remained in him who bailed them, then this property
can be feloniously claimed bj' him to whom they were bailed as well as
by a stranger ; therefore it may be felony well enough.
The Chancellor [Booth]. Felony is according to the intent, and
his intent may be felonious as well here as if he had not the possession
Molineux, ad idem. A matter lawfully done may be called felony
or trespass, according to the intent ; sc. if he who did the act do not
pursue the cause for which he took the goods, as if a man distrain for
damage feasant or rent in arrear, and then he sell the goods and kill the
beasts, this is tort now where at the beginning it was good. So If a
man come into a tavern to drink it is lawful ; but if he carry away the
piece or do other trespass, then all is bad. So although the taking was
lawful in the carrier ut supra, etc., yet when he took the goods to
1 Traiivslation of Pollock and "Wright, Possession, p. 134.
SECT. III.J carrier's CASE. 631
another place ut supra he did not pursue his cause, and so by his act
after it may be called felony or trespass, according to the intent.
Brian, C. J. Where a man does an act out of his own head, it
may be a lawful act in one case and in another not, according to his act
afterwards, — as in the cases which you have put, — for there his intent
shall be judged according to his act ; but wHpj:^. J have goods by your
bailmei^t. this taking cannot be made bad after by anything.
Vavisour. Sir, our case is better than a bailment, for here the
things were not delivered to him, but a bargain that he should carry the
goods to Southampton ut supra, and then if he took them to carry
them thither he took them warrantably ; and the case put now upon the
matter shows, that is, his demeanor after shows, that he took them as
felon and to another intent than to carry them, ut supra, in which case
he took them without warrant or cause, for that he did not pursue the
cause, and so it is felony.
Choke, J. I think that where a man has goods in his possession
by reason of a bailment, he cannot take them feloniously, being in pos-
session ; but still it seems here that it is felon}"^, for here the things
which were within the bales were not bailed to him, — only the bales as
an entire thing were bailed ut supra to carry, — in which case if he had
given the bales or sold them, etc., it is not felony ; but when he broke
them, and took out of them what was within, he did that without war-
rant, — as if one bailed a tun of wine to carry ; if the bailee sell the tun
it is not felony nor trespass ; but if he took some out it is felony ; and
here the twenty pounds were not bailed to him, and peradventure he
knew not of them at the time of the bailment. So is it if I bail the
key of my chamber to one to. guard my chamber, and he take my
goods within this chamber, it is felony ; for they were not bailed to
him.
It was then moved that the case ought to be determined at common
law.^ The matter was afterwards argued before the judges in the
Exchequer Chamber.
And there it was holden by all but Nedham, J., that where goods
are bailed to a man he cannot take them feloniously ; but Nedham
held the contrary, for he might take them feloniously as well as an-
other ; and he said it had been held that a man can take his own goods
feloniously, as if I bail goods to a man to keep and I come privily —
intending to recover damages against him in detinue — and I take the
goods privily, it is felony. And it was holden that where a man has
possession and that determines, he can then be felon of the things, as
if I bail goods to one to carry to my house and he bring them to m3'
house and then take them thereout, it is felony, for his possession is
determined when they were in mj- house ; but if a taverner serve a man
with a piece, and he take it away, it is felony, for he had not possession
of this piece, for it was put on the table but to serve him to drink
1 So much of the case as relates to this motion is omitted.
•632 tunnaed's case. [chap. viii.
And so is it of my butler or cook in my house ; they are but ministers
to serve me, aud if they carry it away it is felony ; for the}- had not
possession, but the possession was all the while in me ; but otherwise
pevad venture if it were bailed to the servants so that they are in pos-
session of it.
Laicon, J. I think there is a diversity between bailment of goods
aud a bargain to take and carry, for by the bailment he has deliverj^ of
possession ; but by the bargain he has no possession till he take them,
and this taking is lawful if he takes them to carry, but if he take them
to another intent than to carry them, so that he do not pursue his cause,
I think that shall be called felony well enough.
Brian, C. J. I think that it is all one, a bargain to carry them and
a bailment, for in both cases he has authoritj' of the same person in
whom the property was, so that it cannot be called felony, M. 2 E.
III., in an indictment "felonice ahduxit untnn equum is bad, but it
should be cepit ; so in eyre at Nott., 8 E. III. ; and in this case the
taking cannot be feloniously, for that he had the lawful possession ; so
then the breaking the bales is not felonj-, vide 4 E. II. in trespass, for
that plaintiff had bought a tun of w^ine of defendant, and while it was in
defendant's guard defendant came with force and arms and broke the
tun and carried away parcel of the wine and filled up the tun with
water.
And for that it appeared he had possession before, the writ, being
vi et armis, was challenged ; and yet it was held well, and he pleaded
not guilty, and then the justices reported to the Chancellor in Council
that the opinion of the most of them was that it was felony.^
TUNNARD'S CASE.
Old Bailey. 1729.
[Reported Leach {ith ed.) 214, n.]
John Tunnaeb was tried before Lord Chief Justice Raymond, pres-
ent Mr. Baron Hale and Mr. Justice Denton, for stealing a brown
mare, the property of Henry Smith. It appeared in evidence the
prosecutor lived in the Isle of Ely ; that he lent the prisoner the mare
to ride to a place three miles distant ; but that instead of riding three
Ifiiles according to agreement the prisoner rode her up to London, and
sold her. Lord Chief Justice Raymond left it with the jury quo animo
he had ridden the mare to London, and they found him guilty.
Tee Court. The finding of the jury will make this case felony bg^
1 Ace. State u. Fairclough, 29 Conn. 47 ; Robinson v. State, 1 Coldw. 120. See
Kelyng, 82 ; 2 East P. C. 695 : Chaplin Crira. Cas. 298 ; 6 Harv. L. Rev. 250. — Ed.
SECT. III.J -REX V. MADOX. ■ 633
cause hea'ode the mare fartlie£_than he had agreed-toMJo ; for if there
h'a'd been no special agriement tne privity would have remained, and
it could not have been felony.
REX V. MADOX.
Ckown Case Reserved. 1805.
[Reported Russell Sf Rt/an, 301.]
This was an indictment for a capital offence on the 24 G. II. c. 45,
tried before Mr. Baron Graham at the summer Assizes at Winchester,
in the year 1805.
The first count was for stealing at "West Cowes six wooden casks
and one thousand pounds' weight of butter, value £20, the goods of
Richard Bradley and Thomas Clayton, being in a certain vessel called
a sloop in the port of Cowes, the said port being a port of entry and
discharge, against the statute. The second count was for grand lar-
ceny. The third count was like the first except as to the property
in the goods, which was laid in one Richard Lashmore ; and the
fourth count was for grand larceny of the goods of the said Richard
Lashmore.
The butter stolen was part of a cargo of 280 firkins 6r casks,
shipped at Waterford, in Ireland, .gn^oard a sloop, theji^finjagin,"
of which the prisoner was master and owner, bound to Shoreham and
Newhaven in Sussex, — two hundred and thirty of the casks being
consigned to Bradley and Clayton at Shoreham, and fifty of them to
Lashmore at Brighthelmstone.
It appeared that the ordinary length of this voyage, with fair winds,
was a week or nine days, but in winter sometimes a month or five
weeks. In the present instance the voyage had been of much longer
duration.
The vessel first touched at Sheepshead, in Ireland, in distress. The
prisoner went on shore at Beerhaven, wliere he signed a protest, bear-
ing date on the 20th December, 1804. From thence they proceeded to
Lundy Island and to Tenby in Wales, where they arrived in February,
1805, and at which place the prisoner went on shore and stayed four
or five weeks, the winds being foul. From thence they proceeded to
Scilly and then to Cowes, where they arrived on the last day of
March or the 1st of April, 1805. Cowes was in their course, but they
had previously met with very foul weather and had been driven to the
westward of Madeira, during which time the vessel had been often in
great distress ; but no part of the butter had at any time been thrown
overboard. Upon the arrival at Cowes the prisoner went on shore
and shortly afterwards applied to one Lallow, a sailmalcer, for a suit of
634 EEX V. MADOX. [CtiAV. VIII.
sails. Lallow went aboard the vessel and took measure for the sails ;
and after his return to Cowes the prisoner called upon him again and
bespoke a hammock, and then stated that he had thirteen casks of
butter onJ)oard--the-yee3cl, bclo^fflng to himself, and requested Lallow
to send for them and deposit them in JiiS sail-lott until the prisoner
returned from Newhaven. At the same time he gave Lallow a note
or order for the mate of the vessel, by which the mate was required
to deliver thirteen casks of butter to the bearer. Lallow dispatched
some of his men with the order and a boat to the vessel, where they
arrived in the night, and after having delivered the order to the mate,
received from him seven casks of butter in the first instance, being as
much as the boat would carry ; and upon their return to the vessel,
during the night, received from the mate the other six casks. The
order did not require the mate to deliver any particular casks ; and it
appeared by the evidence of the mate that he took them as they came
to hand. The casks had been originally stowed in the hold and upon
the half-decks as they came on board, and those delivered to Lallow's
men were taken from the half-decks, the others being battened down.
The seven casks first delivered by the mate were taken to Lallow's
premises and deposited there ; the other six casks were seized by the
custom-house officers. The prisoner was at Cowes and was informed
by Lallow of the seizure, at which he expressed anger, speaking of the
seizure as a robbery and of the casks so seized as his own property
and venture. He also spoke of going to claim his property, and after-
wards told Lallow that he would give him an order to claim it, as he
must himself go away. The prisoner afterwards went to the vessel
and passed the rest of the night on board. The remainder of the
cargo was delivered at Shoreham and Newhaven.
The protest made by the prisoner, and bearing date at Beerhaven,
the 20th of December, 1804, purported, among other things, that
the prisoner had been obliged to thrQs_QEcrboai^ several casks of
butterX-aSd. it appeared that he had held the same languagS~tD the
consignees as his excuse for delivering short of their respective
consignments.
Upon this case the counsel for the prisoner raised two objections :
first, that no larceny had been committed by the prisoner ; and sec-
ondly, that the offence was not capital, — the larceny, if any, being of
goods in his own vessel.
Upon the first objection it seemed to be admitted that if the mate,
by the order of the prisoner, had broken bulk by taking tV" ^"gi^a
tromVy^fii^ whifh nyerft batt.pned^ dowtijjt might have been larceny in
1?he"prrsoi:iei; ; and the learnedjudge thought, tnat as the casks were
faEenfrom the half-deck, where they were originally stowed, there was
no material difference. It was then contended that the prisoner went
into Cowes without any necessity, and out of the course of his voyage ;
and the case was compared to those wherein it had been held, that if
goods are delivered to a carrier to carry to a certain place, and he
SECT. III.] EEGINA. «. POYSEE. 635
carries them elsewhere and embezzles them, it is no felony. 1 Hale,
504, 505 ; 2 East P. C. 693, 696, 696. But the learned judge thought
that the severance of a part from the rest, and the formed design of
doing so, took the case out of those authorities, if they could be conf
sidered as applying to the present case. j
Upon the second objection, those cases were cited wherein it had
been held that the 12 Anne St. 1, c. 7, against larceny in a dwelling-
house, to the value of forty shillings, does not extend to a stealing by
a man in his own house (2 East P. C. 644) ; but the learned judge
thought, that though this might be the law as to a person stealing the
goods of another under the protection of his own house, yet the case
of a man stealing the goods of another laden on board his own vessel
was different, as in such case the vessel for the voyage might be con-
sidered as the vessel of the freighter ; and that if the owner should
take the command of the vessel, the stealing the goods committed
to his care would be an aggravation of his offence. And he further
observed that the words and occasion of the two statutes would admit
of a distinction.
The whole case was therefore left to the jury, who found the pris-
oner guilty ; but the sentence was respited, in order that the opinion of
the judges might be taken.
In Michaelmas term, 1805, the case was considered by the judges,
who were of opinion that Jt was not larceny ; and that if it were
larceny, it would not have amounted to a capital offence within the
statute 24 G-. II. c. 45.
REGINA V. POYSER.
Ckown Case Reserved. 1851.
{Reported 2 Denison C. C. 233.]
The prisoner was tried before Mr. Baron Alderson, for larceny, at
the spring Assizes, a. d. 1851, for the county of Leicester. It ap-
peared at the trial that the prisoner was employed by the prosecutor,
who was a tailor, to sell clothes for him about the country, and upon
the following terms: The prosecutor fixed the price of each article,
and the prisoner was entrusted to sell them at that fixed price, and
when he had done so he was to bring back the money and the re-
mainder of the clothes unsold, and was to have three shillings in the
pound on the moneys received for his trouble. On the 12th of February
last he took away a parcel of clothes upon these terms, and instead of
disposing of them according to the above arrangement, he fraudulently
pawned a portion of them for his own benefit, and having so done he
afterwards frauduleflT^appropriated the residup t." h\i^ r^wn nao These
facts having appeareST, the learned baron directed the jury, that the
636 ' EEGINA V. POYSEE. [CHAP. Till.
original bailment of the goods by the prosecutor to the prisoner was
etermined by his unlawful act in pawning part of them, and that the
jbsequent fraudulent appropriation by the prisoner of the residue of
ae goods to his own use would in point of law amount to larceny,
[pon this direction the prisoner was found guilty, and the question
' this court was, whether this direction was right.
'On the 26th of April this case was argued by O'Brien, for the
prisoner.
The contract with the prisoner was distinct and separate with regard
to each article entrusted to him. The fact of his receiving all the
articles at one time was a mere accident, which makes no legal differ-
ence in the case ; each article had a separate price affixed to it. After
he had pawned some of the articles, when was the original bailment of
the others determined?
Lord Campbell. The case states, that on the 12th of February, he
took away aj^a^el o^ eln^ies ; we must, therefore, regard the delivery
of that parcel as r^r^f hgilTnpnt »f gll t.hp artu-lpg f^nTTtainpfl-rn the
parcsi— - —
O'Brien. The prisoner had authority to break the bulk ; the con-
tract imposed on him the necessity of opening it in order to take out
each article and deal with it separately.
Coleridge, J. Why may not there be a single contract embracing
several particulars, as for instance, where a carrier is entrusted with
carious articles to leave at different places, all of which articles are
placed in one bag ; if he wrongfully deals with any one, is it not a
breaking bulk of the whole ?
O'Brien. The doctrine of breaking bulk turns on there being no
authority to open the parcel and deal with any one of the articles
separately from the rest.
Alderson, B. If you can make out this to be like the case of a
carrier entrusted with several parcels under several distinct contracts,
then certainly it is no larceny.
Lord Campbell, C. J. I think the conviction was right. The case
/must be considered as though it was a single bailment. If there had
[been several bailments, then the wrongful dealing with one of the
I articles so bailed would not affect the case as to any other article. But
(it makes no difference that in one parcel there were several articles.
The law has resorted to some astuteness to get rid of the difficulties
that might arise in the case of a wrongful dealing with one or more of
several articles, all of which, when entrusted, had been contained in
one bulk.
Alderson, B., and Platt, B., concurred.
Coleridge, J. The fact of different prices being afSxed to each
article makes no difference in the case.
SECT. III.J COMMONWEALTH V. JAMES. 637
COMMONWEALTH v. JAMES.
SupEEME Judicial Coort op Massachusetts. 1823.
[Reported 1 Pickeriny, 375.]
An indiotment was found in this case as follows : ^ "• The jurors,
etc., present, that Noah James, of, etc., miller, on, etc., at Boston afore-
said, with force and arms, three tons weight of barilla of the value, etc.,
of the goods and ciiattels of one Thomas Park, in his possession then
and there being, did then and there feloniously steal,'' etc.
The prisoner was convicted and sentenced at the Municipal Court
and he appealed to this court.
At the trial in November term, 1822, before Parker, C. J., it was
in evidence that. Park having a quantity of barilla which he wished to
have ground, sent it to a mill kept by the prisoner for grinding plaster
of Paris, barilla, and other articles ; that after it was ground, a mixture
consisting of three-fourth parts of barilla and one-fourth part of plaster
of Paris was returned by the same truckman who carried the barilla to
the mill, he being on both occasions in the emplojment of Park.
The prisoner's counsel contended, that it appearing that the barilla
was sent to and brought from the mill b}' a truckman, who for aught
appearing in the case was alive and within the reach of the process of
the court at the time of trial, without his testimony there was no legal
proof that the barilla was ever delivered to the prisoner or the mixture
received from him. But there being evidence that the barilla was
ground at the prisoner's mill, by his order, he being sometimes present,
and a bill of the expense of grinding having been made out and pre-
sented by him, and the money received by him, there being also evi-
dence tending strongly to show that he had practised a fraud upon thft
barilla, the objection was overruled ; and whether the mixture was,
accidental or fraudulent, and whether it was caused bv the prisoner oi
not, were questions left to the jury to decide, upon a great deal of cir-
cumstantial evidence, no person having seen him do it, and the laborei
who had the immediate charge of the grinding having , sworn that no
mixture was made except what was accidental.
It was likewise contended, that supposing the facts to be as the evi-
dence on the part of the government tended to prove them, the case
made out was not larceny but only a breach of trust, or at most a fraud,
with which the prisoner was not charged in the indictment. On thisj
point the jury were instructed that if they were satisfied from the evi-|
dence that the prisoner had taken from the parcel of bai'illa an}' quan-
tity with a view to convert it to his own use, introducing into the mass '
an article of inferior value for the purpose of concealing the fraud, he/
was guilty of larceny.
^ The caption of the indictment is omitted.
638 COMMONWEALTH V. JAMES. [CHAP. VIII.
The jury having found a verdict against the prisoner, he moved for a
new trial on account of these directions of the judge. ^
Putnam, J., delivered the opinion of the court.
To constitute the crime of larceny, there must be a felonious taking
and carrying away of the goods of another. It is supposed to be vi et
armis, invito domino. But actual violence is not necessary ; fraud
ma}' supply the place of force.
The jury have found that the defendant took the goods with an intent
to steal them ; and tlie verdict is well warranted, if at tlie time the
defendant took them, thej' were not lawfully in his possession with the
consent of the owner, according to a subsisting special contract, in con-
sequence of an original delivery obtained without fraud. If that was
the case, the inference which the counsel for the defendant draw would
follow, that such a taking would not be felon}- but a mere breach of
trust, for which a civil action would lie, but concerning which the pub-
lic have no right to inquire by indictment.
The counsel for the defendant have referred us to 13 Ed. IV., fol. 9,
as the authoritj- upon this point. The case was as follows.''
1 have been thus minute in examining this case, as it is referred to as
the foundation upon which man}- subsequent decisions rest. It will be
perceived that here maj' be found the distinctions which are recognized
in the text books upon this subject. Thiig^f the pg-rtv obtain the
delivery_Q£-Uic guudu uiiginiiilly vii !>»-"•■<•. an intfi'*' ^" g^-ooij <■ gnVipognotif
conversion of thpm tn hia own use while the contract subsisted would
not "befelony ; but if the originalintent was to steal, and the means
used^W[o5tiinJJie-4div«iy-wertiiIie^L'ely uuluitrbley-a taking under such
circumstances would bejjeloays- So if the goods were delivered origi-
4ially-»pwrarspecial contract, which is determined b}- the fraudulent
act of him to whom thej"^ were delivered, or by the completion of the
contract, a taking animo furandi afterwards should be adjudged to be
felon}'.
In the application of these general rules to the cases which arise, it
is obvious that shades of difference, like the colors of the rainbow, so
nearly approach each other as to render it extremely difficult to dis-
criminate them with satisfactory precision. The humane rule of the
jlaw is, that in cases of doubt the inclination should be in favor of the
defendant. The seeming, perhaps real, contradictions to be met with
in the English decisions may have been influenced by the desire to save
human life.
The case of Eex v. Channel, 2 Str. 793, cited for the defendant, was
an indictment against a miller employed to grind wheat, stating that
he with force and arms unlawfully did take and detain part of it.
The indictment was held bad upon demurrer. The reasons assigned in
the book are, that there was no actual force laid and that this was a
' Arguments of counsel and part of the opinion not relating to the question of
larceny, have been omitted.
2 The learned judge here stated the Carrier's case, supra.
SECT. III.J COMMONWEALTH V. JAMES. 639
matter of a private nature ; but a better reason seems to us to have
been that there was no averment that the defendant took the wheat
feloniously.
The case of The King v. Haynes, cited for the defendant from 4 M.
& S. 214, was an indictment for a fraud against a miller for delivering
oatmeal and barley' instead of wheat which was sent to be ground. It
is not for a felony. The court thought no indictable offence was set
forth. The question whether if the miller had taken any of the corn,
which was sent to be ground, with an intent to steal it, was not then
under* consideration.
In the case at bar, the goods came lawfully' into the hands of the
defendant by the delivery of the owner. If he is to be convicted, it
must be on the ground that he took the goods as afelon after the spe-
cial contract was determined. '
In Kelyng, 35, a silk throwster had men to work in his own house,
and delivered silk to one of them to work, and the workman stole awaj'
part of it ; and it was held to be felony notwithstanding the delivei'y.
East, in his Crown Law, supposes that if the silk had been delivered to
be carried to the house of the workman, and he had there converted a
part of it to his own use, it could not have been felon_v ; but that as it
was to be worked up in the house of the owner, it might be considered
as never in fact out of his possession. But Kelj-ng seems to put the
case upon the ground of the special contract, " that the silk was deliv-
ered to him onlj' to work, and so the entire property remained in the
owner."
But whatever may be the true ground of decision in that case, there
is a case in 1 Roll. Abr. 73, pi. 16, which is recognized as good law by
Hawkins, East, and other writers, which is very applicable to the case
at bar. " If a man says to a miller who keeps a corn mill, thou hast
stolen three pecks of meal, an action lies; for although the corn was
delivered to him to grind, nevertheless if he steal it, it is felony, being
taken from the rest." Langley v. Bradshawe, in Error, 8 Car. B. R.
That decision proceeded upon the ground of a determination of the
privity of the bailment. Hawkins observes (bk. i. c. 33, § 4) that such i
possession of a part distinct from the whole was gained by wrong and/
not delivered by the owner; and also, that it was obtained basely,|
fraudulently, and clandestinely.
This remark is peculiarly applicable to the case at bar; forthere is
no evidence that the owner intended to divest himself of his property
by the delivering of it to the defendant. The defendant did not pursue
the purpose for which it was delivered to him, but separated a part fmm
the rest, for his own use, witliout pretence of title ; and by thnt int thr
contract was determined. From thencelorward the legal possession
was in the owner, and a taking of the part so fraudulently separated
from the rest, animo furandi, must be considered as larcenj-.
1 The learned judge here stated the case of Rex v. Charlewood, 2 East P. C. 689. —
Ed.
640 EEX V. SHARPLESS. [CHAP. VIII.
SECTION IV.
^,r Taking imth Consent.
~" (o) What Constitutes Consent.
HEX V. SHARPLESS.
Ckown Case Eeserved. 1772.
[Reported Leach (4th ed.), 92.]
At the Old Bailey in Ma3- Session, 1772, John Sharpless and Samuel
Greatrix were convicted before Mr. Justice Gould, present Mr. Baron
Adams, of stealing six pair of silk stockings, the property of Owen
Hudson ; but a dnijhf -irising whether the offence was not rather a
JVaM_jJiaiuafeIom-, the judgment was respited, and the question
referred to the consideration of the judges upon the following case :
On the 14th March, 1772, Samuel Greatrix, in the character of
servant to John Sharpless, left a note at the shop of Mr. Owen
Hudson, a hosier in Bridge Street, Westminster, desiring that he
would send an assortment of silk stockings to his master's lodgings, at
the Eed Lamp in Queen Square. The hosier took a variet}' of silk
stockings according to the direction. Greatrix opened the door to him,
and introduced him into a parlor, where Sharpless was sitting in a
dressing-gown, his hair just dressed, and rather more powder all over
his face than there was any necessity for. Mr. Hudson unfolded his
wares, and Sharpless looked out three pair of colored and three pair
of white silk stockings, the price of which, Mr. Hudson told him, was
14s. a pair. Sharpless then desired Hudson to fetch some silk pieces
for breeches, and some black silk stockings with French clocks.
Hudson hung the six pair of stockings whiidi-SJiarpless had looked
out, on theTiack of a chair, and went home for theot-jier goods ' Tviit, no
positive agreement hadtaken place respecting the stockings. During
T-Tnrlann'a^ g|hgpnpp Sliarr^''S'i_^n'l GrPH'tvi-f dpnfiimpedj^ith the six pair
'of stockings, which were proved to have been afterwards pawned bj-
Sharpless and one Dunbar, an accomplice in some other transactions
of the same kind, for which the prisoners were indicted.
I The judges were of opinion that the conviction was right ; for the
Iwhole of the prisoners' conduct maniff°<°'^ "^original and preco5Certed
design to obtain a tortious_posse§^ipi fff th? prnprrty 'I'lip rrrdiirt of
the jury imports that in their belief the evil intention preceded the
leaving of the goods ; but, independent of their verdict, there does not
^appear a suflScient delivery to change the possession of the property.*
1 Ace. TJ. S. V. Eodgers, 1 Mack. 419. — Ed.
SECT,
IV.] ^ EEGINA V. EDWARDS. 641
REGINA V. LOVELL.
Crown Case Reserved. 1881.
[Reported 8 Queen's Bench Division, 1 85.]
The foUotving case was stated for the opinion of this court by the
Chairman of the Worcestershire Quarter Sessions : -^
The prisoner was tried before me at the last Worcestershire Quarter
Sessions on an indictment which charged him in the first count witli
stealing the sum of os. %d., the property of Eliza Grigg, and in the
second count with demanding with menaces from the said Eliza Grigg
the sum of 5s. Qd. with intent to steal the same. The facts were these :
The prisoner was a travelling grinder. He ground two pairs of scis-
sors for the prosecutrix, for which he charged her fourpence. She then
handed him six knives to grind. He ground them and demanded
5s. 6c?. for the work. She refused to pay the amount on tue ground
tbafthe Charge wasexcessive. The grisOTertlien-a.ssiimed_ajnenacing
attitude, kneeling on one knee, and threatened prosecutrix, saying,
"You had better pay me, or it will be worse for you," and " I will
make you pay." The prosecutrix was frightened and in consequence
of her fears gave the prisoner the sum demanded. Evidence was given
that the trjiic rh^rcr fnr grindipg the si-»- ij-niyoa would bP 1''-^^
It was contended for the prisoner that as some money was due, the
question rested simply on a quantum meruit, and that there was no
larceny or menacing demand with intent to steal.
I overruled the objection and directed the jury on the authority of
Eegina v. M'Grath, Law Rep. 1 C. C. R. 205, that if the money -was
obtained by frightening the owner, the prisoner was guiltj' of larceny.
'i'he jurj' found that the money was oDtainea trom the prosecutrix by
menaces and that the prisoner was guilty.
I reserved for the consideration of this court the question whether
upon the facts stated he was properly convicted.
Per Curiam. The conviction in this case was right. Regina v.
M'Grath is conclusive of the matter.''
EEGINA V. EDWARDS.
Crown Case Reserved. 1877.
[Reported 13 Cox C. C. 384.]
The prisoners were tried at the West Kent Quarter Sessions, held at
Maidstone, on the 6th of Januarj-, 1877, on an indictment charging
1 Ace. Reg. ,,. MacGrath, 11 Cox C. C. 347 ; Reg. «. Hazell, 11 Cox C. C. 597;
State V. Bryant, 74 N. C. 124. See U. S. v. Murphy, McA. & M. 375. —Ed.
642 EEGINA V. EDWAKDS. [CHAP. VIII.
them with stealing three dead pigs, the property of Sir William Hart
Dyke, Bart.
The evidence was to the following effect : The three pigs in question
having been bitten by a mad dog, Sir William Hart Dyke, to whom
they belonged, directed his steward to shoot them. The steward
thereupon shot them each through the head and ordered a vuan named
Paylis to bury them behind the barn. The steward stated that he had
no intention of digging them up again or of making any use of them.
Paylis bLiriedthe.4iig§j_pursuant to directions, behind the barn on land
belong ing to Sir William Hart Dyke, in a place where a brake-stack
is usually placed. The hole in which the pigs were buried was three
feet or more deep, and the soil was trodden in over them.
The prisoner Edwards was employed to help Paylis to burj' the pigs.
Edwards was seen to be covering the pigs with brakes, and in answer
to Paylis's question why he did so, said that it would keep the water
out, and it was as well to bury them " clean and decent."
The two prisoners went the same evening and dug up the pigs, and
took them to the railway station, covered up in sacking, with a state-
ment that they were three sheep, and sent them off for sale to a sales-
man in the London Meat Market, where they were sold for £9 3s. 9(?.,
which was paid to the prisoners for them.
The counsel for the prisoners submitted that there was no evidence
in support of the charge to go to the jury, on the following grounds :
firstly, that the property was not proved as laid in the indictment, as
Sir William Hart Dyke had abandoned his property in the pigs ;
secondly, that under the circumstances the buried pigs were of no
value to the prosecutor ; an 1, thirdly, that under the circumstances
the buried pigs were attached to the soil, and could not be the subject
of larceny.
The Chairman, however, thought that the case was one for the jurj-,
and directed them, as to the first point, that in his opinion tbere had
been no abandonment, as Sir William's intention was to prevent the
pigs being made any use of ; but that if the jury were of opinion that
hAjm*^ flhandnriRd the property tbey..ahould acquit the prisoners. He
also told the jury that he thought there was nothing in the other two
objections.
The jury found the prisoners guilty.
The question for the consideration of the court is whether, having
reference to the objections taken bj' prisoners' counsel, there was evi-
dence on which the jury were justified is convicting the prisoners of
larceny.
If the answer to this question be in the negative, then the conviction
to be quashed, otherwise aflBrmed.
No counsel appeared to argue on either side.
By the Coukt : Convictioti affirmed.
SECT. IV.] REGINA V. HANDS. 643
REGINA V. HANDS.
Crown Case Reserved. 1887.
[Reported 16 Cox C. C. 188.]
Case reserved by the Quarter Sessions for the County of Gloucester
as follows: —
Prisoners Hands and Phelps were severally indicted for that on the
29th day of November, 1886, they did feloniously steal, take, and carry
away one cigarette, of the goods and chattels of Edward Shentou,
against the peace of our said Lady the Queen.
Prisoner Jenner was indicted for an attempt to steal, etc.
Prisoners Jenner and Phelps pleaded guilty.
Prisoner Henry Hands pleaded not guilty and was given in charge to
the jury.
This is a case of larceny from what is known as an " automatic box,"
and the circumstances are as follows : —
Mr. Edward Shehton is the lessee of the Assembly Eooms at Chel-
tenham, and has fixed against the wall of the passage leading from the
High Street to the rooms an " automatic box."
This box presents the appearance of a cube of about eight or ten
inches, and in the upper right-hand corner (facing the operator) of the
front face there is a horizontal slit, or opening, of sufficient size to admit
a penny piece.
In the centre of the face is a projecting button or knob about the
size of a shilling.
In the lower left-hand corner is a horizontal slit, or opening, of suffi-
cient size to allow of the exit of a cigarette.
There is an inscription on the face of the box: " Only pennies, not
halfpennies."
Also : " To obtain an Egyptain Beauties cigarette, place a penny in
the box and push the knob as far as it will go."
If these directions are followed a cigarette will be ejected from the
lower slit on to a bracket placed to receive it.
- The box is the property of the Automatic Box Company. The cig-
arettes with which it was charged belonged to Mr. Shenton.
For some time past Mr. Shenton has found on clearing the box,
which he did once or twice a day, that a la!rge number of metal disks
(brass and lead) of the size and shape of a penny had been put in, and
a corresponding number of cigarettes had been taken out.
In consequence of,this discovery a watch was set upon the box, and
upon the day named in the indictment, the box having been previously
cleared, two gentlemen were seen to go to it ; each put something in
and each took a cigarette as it appeared.
644 EEGINA V. HANDS. [CHAP. VIII.
The box was then examined and found to contain one English penny
and one French pennj'. These coins were left in. The box was locked
and the watch was again set.
Shortly after this, three lads (afterwards proved to be the three pris-
oners) were seen to come to the entrance of the passage. One of them
came in, went to the box, put something in, obtained a digarette, and
then rejoined the other two at the entrance. This was repeated a
second time. Tlie third time it was observed that the box would not
work, and while the lad, who afterwards was found to be the prisoner
Jenner, was pushing at the knob the watchman came from his place of
concealment and put his hand upon him.
The box was then opened and a piece of lead was discovered stuck
in the " valve," which had the effect of preventing the machinery of the
box from working.
It was then found that the box contained (besides the English and
French pennies already mentioned) two disks of brass about the size
and shape of a penn}'.
No other coin or metal piece was Ibund in the box, and no one (but
the three lads as above mentioned) had approached it after the two
gentlemen who had put in the English and French pennies.
The prisoner Jenner was given in charge to the police, and the two
other prisoners were subsequentlj' apprehended.
Upon being brought together at the police station the prisoners all
made statements more or less implicating themselves and each other.
The prisoner Hands said : " Me and Jenner met Phelps about 7.45
p. M. Phelps said : ' I want to go to Dodwell's.' I did not go and we
went down into the High Street. Phelps and Jenner stopped by the
Assembly Rooms and went in ; I remained outside. I believe Jenner
was caught at the box. Mr. Shenton's man took him inside. I after-
wards put a penny in the box and had a cigarette myself. Tlic pieces
of brass produced are cut in our shop, the blacksmith's shop at Mr.
Marshall's."
In leaving the case to the jury the learned chairman told them that
they would have to consider : First, was there a theft committed ; that
is, was Mr. Shenton unlawfully deprived^f his property, withniit his
knowledge or consent? Secondly, if that were so, were they satisfied
that the prisoner (Hands) took any part in the robbery? He also told
them that if they thought that the prisoner was one of the three lads-
who came to the entrance of the passage, and that he was there with the
otliers for the common purpose of nnlawfully taking the cigarettes from
the box ; or that he afterwards partook of the proceeds of the robherj- ;
br that he had taken a part in making the disks, knowing for what
/purpose they were to be used, — that they would be justified in find-
ling him gniltj' although he might not actually have put the disks into
/the box or have taken out a cigarette.
The jury found the prisoner (Hands) guilty, and upon motion in ar-
rest of judgment on the ground that " the facts as disclosed by the evi-
SECT. IV.] MITCHUM V. STATE. 645
dence were not sufficient to constitute a larceny," all the prisoners were
allowed to stand out on bail until the next Quarter Sessions.
The question for the court was whether the facts as disclosed by the
evidence were sufficient to constitute a larceny.
No one appeared on either side.
Lord Coleridge, C. J. In this case a person was indicted for com-
mitting a larceny from what is known as an " automatic box," which
was so constructed that if you put a penny into it and pushed a knob
in accordance with the directions on the box a cigarette was ejected on
to a bracket and presented to the giver of the penny. Under these
circumstances there is no doubt that the prisoners put in the box a
piece of metal which was of no value, but which produced the same
effect as the placing a pennj' in the box produced. A cigarette was
ejected, which the prisoners appropriated ; and in a case of that class
it appears to me there clearly was larcen}-. The means bj' which the
cigarettejas— made_tocome outofthe box were fraudulent and the
cigarette so made to cotne out was appropriateTT It is perhaps as well
to yiiy LhaL Uie learned chairman somewhat improperl}- left the question
to the jur}-. He told them that if they thought that the prisoner Hands
was one of the three lads who came to the entrance of the passage and
that he was there with the others for the common purpose of unlawfully
taking the cigarettes from the box, or that he afterwards partook of the
proceeds of the robberj-, they would be justified in finding him guilty,
— he did not say larcenously or feloniously; and he further directed
them that if thej- thought the prisoner had taken a part in making the
disks, knowing for what purpose they were to be used, the}- would be
justified in finding him guilty although he might not actually have put
the disks into the box or have taken out a cigarette. Now I am not
quite sure that simply the fact of doing an unlawful thing, as joining in
the manufacture of a disk that some one else was to use, would make
him guiltj- of larcen.y. He might be guilty of something else, but I
doubt very much whether he could be convicted of larceny. As upon
the facts of the case, however, I do not think that the jury could have
been misled, and as upon the facts there was undoubtedlj- a larceny
committed, I am not disposed to set aside the conviction.
Pollock, B., Stephen, Mathew, and Wills, JJ., concurred.
Conviction affirmed.
MITCHUM V. STATE.
Supreme Court of Alabama. 1871.
[Reported 45 Alabama, 29.]
Appeal from Circuit Court of Shelby. Tried before Hon. Charles
Pelham. The facts material to the point decided will be found in the
nmmoTi.
646 MITCHUM V. STATE. [CHAP. VIII.
Cobb & Lewis, for appellant. The testimony shows that the
matches were placed upon the counter for the use of the public, and
the accommodation of the public, that anj- and everj- person had the
right to take the matches without limit, to light their pipes and cigars.
The defendant certainly had the right to take the matches to light his
pipe or cigar, and he had the right to use the entire box in this way.
The fact that he may have used them for a different purpose would not
make the taking felonious. There can be no larceny where the owner
consents to the taking. The taking must be without authority and
against the will of the owner. If the taking is not felonious, although
the property maj' be converted to an improper use, yet the defendant
is not guilty of larceny.
John W. A. Sanford, Attorney General, contra.
Saffold, J. The defendant was indicted for petit larceny. On
the trial the evidence material to the exception taken by him was that
the box of matches, the subject of the larceny, was placed on the
counter of the store, to be used by the publicin lighting their piges and
/-inforajrij^tio ynf"" ""'^ fOTlhcir ~accomm;^anon, and was taken there-
from bythedefendant. The court was requested by the prisoner to
'Charge the jury that if the matches were placed on the counter of the
store-house for the use of customers, or the public, and they were
taken while there for such use, the defendant was not guilty. The
charge was refused, and the defendant excepted.
Larceny may be committed of property under the circumstances
attached to the box of matches. The owner had not abandoned his
right to them. The^' could onlv be a^ropriated in .i. partipnlnT mannpr
and i'na__v;pry limitefl j^uantity with his consent. Taking them by the
boxfulwithout felonious intent would have been a trespass, and with
it, a larceny. The ownership was sufficiently proved.
The judgment is affirmed.
SECT. IV.] BEX V. PEAB. 647
SECTION IV {continued).
Taking with Consent.
(6) liAKCENY BY TkICK.
EEX V. PEAR
Crown Case Reserved. 1779.
^Reported 2 East P. C. 685.]
John Pbae was indicted for stealing a black mare, the property of
Samuel Finch. On the 2d July, 1779, the prisoner hired the mare of
Finch, who lived in London, for that day, in order to go to Sutton in
Surrey, and told him that he should return at eight o'clock the same
evening. Finch, before he let the prisoner the mare, inquired of him
where he lived, and whether he were a housekeeper ; to which he
answered, that he lived at No. 25 in King Street, and was only a lodger.
The prisoner not returning as he had promised, the prosecutor went
the next day to inquire for him according to the direction he had given ;
but no such person was to be found. It turned out that the prisoner
had in the afternoon of the same 2d of July sold the mars in Smitlifjplrl
In summing up this evidence to the jury, Mr. Justice Ashhurst, who
tried the prisoner, told them that if thej' were of opinion that the pris-
oner hired the mare with an intent of taking the journey mentioned,
and afterwards changed that intention, then as she was sold whilst the
privity of contract subsisted, they ought to acquit the prisoner. But
if they were of opinion that the journey was a mere pretencg_tQ_geli_the
mare into his possession, and thatjie hired her with an intention of
steaTTng h°''i tilT'Y '>"gi''t t'^ flnrl him guilty : and he would save the
point for the opinion of the judges. The jury found the prisoner guilty.
This case underwent a great deal of discussion, and the judges delivered
their opinion seriatim upon it, on the 4th February, 1780, at Lord C.
J. De Grey's house ; and on the 22d of the same month —
Mr. Baron Perryn delivered their opinion at the O. B. as follows : "
(After stating the indictment, evidence, and finding of the jury as above
1 Ace. Com. 1/. Brown, 4 Mass. 580 ; Nichols v. People, 17 N. Y. 114. — Ed.
2 This judgment was settled and approved by several of the judges before it was
delivered, (East's note.)
648 KEX V. PEAE. [chap. VIII.
stated.) This ease has been maturely considered by all the judges,
and eleven ^ of them, who met for the purpose, delivered their opinions
at large upon the subject : seven of them held the offence to be a clear
felony ; two of them were of opinion that it was not felony ; and the
other two entertained great doubts at the last; which doubts were
founded upon two statutes v^hich he should take notice of. Three out
of the four dissenting judges agreed with the seven, that by the princi-
ples of the common law this was felony. But the doubts and opinions
of those four judges were founded chiefly on the statutes 33 H. 8 and 30
G. 2, against obtaining goods by false tokens or false pretences. Two
of the judges thought that as the delivery of the mare was obtained
from the owner by means of asserting that which was false, viz. that
the prisoner wanted to go a journey which he never intended to take
at all ; and as the two statutes before mentioned had made the offence
of obtaining goods by false tokens or fa,lse pretences punishable as
a misdemeanor only, and the stat. 33 H. 8, had distinguished the
case of obtaining goods by false tokens from the case of obtaining
goods by stealth ; they were bound by those statutes to say, that the
prisoner's offence was not felony. One of them also held that this
was not felony by the common law ; because thfere was no actual tak-
ing of the mare by the prisoner. But ten out of the eleven judges
held it to be clear that the offence would have been felony by the
common law, if the statutes had never existed ; and seven of them held
that it was not within or at all affected by the statutes of H. 8 or G. 2.
That larceny was defined by Lord Coke to mean a felonious and fraud-
ulent taking and carrying away of the goods of another. But it was
settled by old authorities, that the taking need not be by force. If a
carrier or porter received goods to carry from one place to another, and
he opened the pack and sold them, that was felonj- ; yet in that case
there was no taking by force, but on a delivery by the owner. That
the reason assigned for the determination in Kel. 82 was because the
opening and disposing of them declared that his intent originally was
not to take the goods upon the agreement and contract of the partj-,
but only with a design of stealing them. So if A. cheapened goods of
B.'s, and B. delivered them to A. to look at, and A. ran away with them,
this was felony by the apparent intent of A. T. Eay. 276 ; Kel. 82. So
if a horse were upon sale, and the owner let the thief mount him in
order to try him, and the thief rode away with him, it was felon}-. Kel.
82. So in the case of one Tunnard, tried at the O. B. in October
Sessions, 1729, who was indicted for stealing a brown mare of Henry
Smith's:, and upon the evidence it appeared, that Smith lived in the
Isle of Ely, and lent Tunnard the mare to ride three miles ; but he,
instead of riding three miles only, rode her up to London and sold her :
this was holden to be felony. And Lord C. J. Raymond, who tried
1 Mr. Justice Blackstone, the other judge, who was absent on account of illness,
always held that it was felony. (East's note. )
SECT. IV.] EliX V. rEAR. 649
the prisoner, left it to tlie jurj- to consider, "Whether Tunnard rode away
with her with an intent to steal her? and the jury found him guilt}-.
That here the same directions were given to the jury by the learned
judge who tried the prisoner, and the jury had given the same verdict.
That even in the case of burglary, which the law defined to be the
breaking into a house in the night time with intent to commit felony, if
a man procured the door of a house to be opened by fraud, and by that '
means entered into the house through the door-way without any actual
brealiing, it had been adjudged to be burglar}-. That in all these cases
the intention was the tiling chiefl}- regarded, and frandanpplied ^he
place "f ffi'-"° n That what was the intentioh was a^ct, which in every
case must be left upon the evidence to the sound judgment of a jury.
And in this case the jur}- had found that at the time when the prisoner
obtained the possession of the mare, he intended to steal her. That
the obtaining the possession of the marc, and afterwards disposing of
her in the manner stated, was in the construction of law such a taking
as would have made the prisoner liable to an action of trespass at the
suit of the owner, if he had not intended to steal her. For she was
delivered to the prisoner for a special purpose onl}-, viz. to go to Sutton,
which he never intended to do, but immediatel}- sold her. That in tliis
light the ease would be similar to what was laid down by Littleton, sect.
71, who says, " If I lend to one m\- sheep to dung his land, or mj-
oxen to ploiigh the land, and he killeth my cattle, I maj^ have trespass
notwithstanding the lending." That if in such a case trespass would
have lain, there could be no doubt but that in this case, where the
felonious intent at the time of obtaining the possession was found by
the jury, that it was felon}- by the common law. That ten of the
judges out of the eleven, therefore, were of opinion, that jf a person
obtained the delivery of a thing by fraud and falsehood, intending at
the'lime that he so obtained the delivery to "steal it ^ upon thp. pHnfiplp
of'the common la^and the adiudged "cases which had been mentioned,
if thejtatutes had not evisted. his offence would be felony.^ That the
next question was, "Whether this offence were within or at all affected
by the statutes of H. 8 and G. 2.^ Seven of the judges were of
opinion that it was not. That the stat. pf H. 8 was confined to the
1 On the debate of this case, Ashurst, J., said, " Wherever there is a real and bona
fide contract and a delivery, and afterwards the goods are converted to the party's
own use, that is not felony. But if there be no real and bona fide contract, if the
understanding of the parties be not the same, the contract is a mere pretence, and the
taking is a taking with intent to commit felony. (East's note.)
2 On the debate in this case Eyre. B., adverting to these statutes, said he doubted
if there were not a distinction in this respect between the owner's parting wit(i the
possession and with the property in the thing delivered. That where goods were de-
livered upon a false^token, and the owner meant to part with the property absolutely
and never expected to have the goods returned again, it might be difficult to reach the
case otherwise than through the statutes ; aliter, where'he parted with the possession
only : for there if the possession were obtained by fraud, and not taken according to
the agreement ; it was on the whole a taking against the will of the owner; and if
done animo furandi, it was felony. (MS. BuUer, J.)
630 EEGINA V. BUNOE. [CHAP. VIII.
cases of obtaining goods in other men's names, by false tokens or
counterfeit letters, made in any other man's name. The stat. of G.
2 extended that law to all cases where goods were obtained by false
pretences of any kind. But both tliesp stntiitPFi wpr° f"iifip°^ *'^ rfiil""
where credit was obtained in the name olU^ third osi^son ; and did not
estend to cases where a man, on his own account, got goods with an
intention to steal th«m. That besides, the seven judges held that
neither of those statutes were intended to mitigate the common law,
or to make that a lesa oflfence which was a greater before. On the
contrary, the legislatuie, by those statutes, meant to inflict a severer
punishment in the casea of fraud than the common law had done. That
in many cases it was extremely difficult, and sometimes impossible to
prove what the ofTendeu's original intention was. The circumstances
evidencing a felonious intent, or the contrary, were so various, that
Hale, p. 509, says it is impossible to prescribe them ; they must be left
to the consideration of V judge and jury. That^ whpi-p an nriginal
felonious intent appearedAthe iiLiliil liil iiul iil'j'lj Where no such
intent appeared, if the means mentioned in the statutes were made use
of, the legislature had made the offender answerable criminally, who
before by the common law of the land was only answerable civilly.
That in the-pricionci '.s t^asK liln^'intpntion wn,n appnjent, and thp. jnrv
had rightly found_that_it- wao foloniouo. The crime then was felony,
'and uf a haLure~which the statute law had made punishable with
death.^
REGINA V. BUNCE.
Oxford Assizes. 1859.
[Reported 1 Foster Sf Finlason, 523.]
The prisoner, a gypsy woman, surrendered to take her trial upon a
charge of stealing £10 9s. 4,d., and various articles, the property of
John Prior, at Witney, on the 13th of January, 1859.
It had been usual, on this circuit, to charge offences of this nature
as obtaining money by false pretences ; but on this occasion, in defer-
ence to a suggestion thrown out by Crompton, J., in addressing the grand
jury, the offence was charged as one of larceny, as consisting in obtain-
ing possession of the goods by a trick or fraud.
R. Sawyer appeared for the prosecution.
Griffits defended the prisoner.
The prisoner was a gypsy woman who had succeeded in getting a
^ Ace. Rex V. Semple, Leach, 691 ; State w. Woodruff, 47 Kas. 151 ; .Justices v. People,
90 N. Y. 12 ; State v. Gorman, 2 N. & McC. 90 ; Starkie v. Com., 7 Leigh, 752. Contra
Felter v. State, 9 Yerg. 397 ; but see Defrese v. State, 3 Heisk. 53 ; Holl u. State, 6
Baxt. 522 (statutory). — Ed.
SECT. IV.] EEGINA V. BUNCE. 651
large amount of property from the wife of the prosecutor, by pretead-
ingthat she poaseaserl snpp.riigitural powers and was able to procure
for her dupe the sum of £170. On the 12th of January' last, the pris-
oner went to the house of the prosecutor (who was out), saw his wife,
and addressed her, saying, "Mrs. Prior, you are looking yevy ill. I
have got something to tell jou. .There is some property left for you
that you have been cheated out of, and I can get it for you." The
prisoner then said that she had got a book, and she could raise the
spirits and lay them if Mrs. Prior would put half a crown on a certain
spot in the book which she pointed out. Mrs. Prior said to the pris-
oner that she had heard of such things, and she thought that spirits
could be raised, and was induced to put some money in the book.
The prisoner went away, and returned the next day, and said she had
been working all night, and that her husband's money would not do,
and she must have sovereigns ; and she then required her to give her
all the money she had got, and promised she would bring it baxjk-the
next Monday, and also the sum of £170, which she said belonged to
her. On these representations, the wife gave her all the money she
could get, amounting to £10 9s. 4:d. Mrs. Prior, who appeared to be
a verj' nervous woman, and afraid, even now, to look at the prisoner
in the dock, said she was so frightened at what the prisoner told her,
that she felt she must go and get the monej- she wanted, and that she
let her have it because she believed from what she said she could do
hergood or evil and was so afraid of her! When 'Mas. Prior gave the
prisoner the money, she required a shift to wrap the money up in, and
also Mrs. Prior's shawl. These were given her, on her promise to
return them on the Monday. The prisoner then wanted a cloth to
fasten it all up in, saying she must bury it. This was given, and also
Mrs. Prior's gold wedding-ring, a silver thimble, a brass ring, and five
old silver coins, the prisoner saying she must have everything Mrs.
Prior had got that was valuable. All these things wpre given to the
prisoner on her promise to bring them all back on the Monday, to-
gether with the £170, and to have a cup of tea. The prisoner was to
have £5 for her trouble. She never returned, and was taken into cus-
tody, on the 12th February, with Mrs. Prior's shawl upon her. On her
cross-examination, Mrs. Prior said the prisoner always came when her
husband was out, and that she had never told him anything about it.
A friend of the prisoner's had since returned £5 to the prosecutor, and
had promised £3 more.
Griffits submitted that there was no case for the jury.
Channell, B., after consulting Crompton, J., ruled that there was.
Griffits {to the jury) contended there was nothing to show that she
had got possession of the goods with a felonious intent, but only with a
view to practice her art as a witch, in which the prosecutrix, hke manj'
other people, was foolish enough to believe, and possibly the prisoner
may have believed. And if this was the original intention, then,
although it was afterwards altered, there would be no larceny.
652 SMITH V. PEOPLE. [CHAP. VIII.
\ Channell, B., to the jury. It is for j-ou to say whether or not the-
prisoner obtained possession of the goods with a felonious intent. If
the original intention was as sugfi;ested. there would be nojarcenj' j but
if it was a mere trick to get the goods witl\jio intention to return them
it Would be larceny.*' " ' Verdict guilty.
SMITH V. PEOPLE.
Court of Appeals of New York. 1873.
[Reporle'd 53 New York, 111.]
Error to the General Term of the Supreme Court in the first
judicial department to review judgment, affirming judgment of the-
Court of General Sessions in and for the city and county of New York,
entered upon a verdict convicting plaintiff in error of the crime of
grand larceny.
Upon thp 19th day of July, 1872, the plaintiff in error called upon
one Sarah March and infirrmed hqr that her husband, Charles March,
was arrested and locked'upo'h a charge of striking a man over the head
with a chair, and that her husband had sent him to .her to get, some
money, twelve dollars, aiidTfnleSs she sent it he would be locked up all
"night. Not having any money, and, upon the solicitation of the pri-
soner, believing his statement to be true, she gave him a watch, chain,
and a locket or cross, and two dollars in monej-, belonging to her
husband, which property he was to pawn and give the ticket and money
to her husband. The property was given to him and. he left. The-
statement of the prisoner was^alse. Charles March, the husband7
neveFTiad been arrested, never sent him for anj' money, and did not
know him. The plaintiff in error appropriated the property so obtained
to his own use.
The court charged the jurj', in substance, that if they believed the-
evidence of the prosecution, and that the prisoner at the time oj; the
taking had the felonious intent to 'i,ppr"r"°^'^~t^g property, irwa&
lafceuy, to which the prisoner's counsel excepted. The jury rendered
■arvsrciict or guuty.''
William F. Kintzing, for the plaintiff in error.
Benjamin K. Phelps, for the defendants in error.
Allen, J. The accused obtained the custody of the chattels and'
money of the prosecutor from his wife by a fraudulent device and trick,
and for a special purpose, connected with the falsely represented!
necessities of the owner, with the felonious intent to appropriate the-
same to his own use. He did not pawn or pledge the goods, as he
1 See Cantwell v. Peo. (111.), 28 N. E. 964. — Ed.
2 Arguments of counsel are omitted.
SECT. IV.] SMITH V. PEOPLE. 653
proposed to do, but did appropriate tlie same to his own use, in
pursuance of the felonious intent with which he received them.
This constitutes the crime of larceny. The owner did not part with
the property in the chattels, or transfer the legal possession. The ac-
cused had merely the custody ; the possession and ownership remain-
,ing in the original proprietor. The proposition is elementary that
(larceny may be committed of goods obtained from the owner hy
delivery, if it be done animo furandi. Per Cowen, J., Gary v.
HotaiUng, 1 Hill, 311 ; Am. Grim. Law, by Wharton, § 1847, et seq. ;
Eeg. V. Smith, 1 G. & K. 423 ; Reg. y. Beaman, 1 C. & M. 595 ; Reg.
11. Evans, id. 632.
The rule is, that when the delivery of goods is madeforj,-*ertain
special and parttctilaf purpose, thejQssession is stiJLsupposed to reside,
not parted witb, in tlie nrsc proprietor. It is stated that if a wateh-
maker steal a watch delivered him to clean, or if a person steals clothes
delivered for the purpose of being washed, or guineas delivered for the
purpose of being changed into half guineas, or a watch delivered for
the purpose of being pawned, the goods have been thought to remain
in the possession of the proprietor, and the taking them away held to
be a felony. 1 Hawk. P. G. 33, § 10 ; 2 Russell on Crimes, 22. A
distinction is made between a bare charge or special use of the goods,
and a general bailment ; and it is not larceny if the owner intends
to part with the property, and deliver the possession absolutely,
although he has been induced to part with the goods by fraudulent
means. If by trick or artifice the owner of property is induced to part
with the custody or naked possession to one who receives the property
animo furandi., the owner still meaning to retain the right of property,
the taking will be larceny ; but if the owner part with not only the
possession, but the right of property also, the offence of the party
obtaining them will not be larceny, but that of obtaining goods by false
pretences. Ross v. People, 5 Hill, 294; Lewer v. Gommonwealth, 15
S. & R. 93 ; 2 Russell on Crimes, 28. Here the iurv have found the
intent to steal at the time of taking, which is all that fs required to
"constitute larceny^ whP''° th° "■"Eg. possession is obiamed by iraud or
^t.rifk Wilson V. People, 39 n! Y. 459 ; Peopl6 v. t!all,'~i Tien.
120; People v. McDonald, 43 N. Y. 61.
The conviction was right, and the judgment must be afHrmed.
All concur. Judgment affirmed}
1 Ace. Soltau V. Gerdau, 119 N. Y. 380; State v. McEae, 111 N. C. 665; State v.
1/indenthall, 5 Eich. 237. — Ed.
654 COMMONWEALTH V. KUBIN. [CHAP. VIII.
COMMONWEALTH v. RUBIN.
Supreme Judicial Court of Massachusetts. 1896.
[Reported 165 Mass. 453.]
Holmes, J. The defendants have been convicted on a count for
larceny of a horse, the property and in the possession of one Perkins,
in Natick, in the county of Middlesex. The question presented b}^ the
exceptions is whether the evidence justified a conviction. The horse
had been bought for Perkins, and a boy had been engaged by Perkins's
servant to take it from the sale stable in Boston to Framingham. On
his way the boy fell in with the defendants driving, and thej' took him
into their wagon. While driving, they said they would deliver the
horse for him. He assented. They paid him what he was to receive
from Perkins, and he left the horse with them at Wellesley, in the
county of Norfolk. The defendants misappropriated the horse which
afterwards was found on their premises at Natick. The boy was
innocent.
If the boy had converted the horse, inasmuch as it had been delivered
to him by a third person and had not reached its destination, the offence
would not have been larcenj' by reason of the ancient anomaly sanc-
tioned by Commonwealth v. King, 9 Gush. 204, and explained in Com-
monwealth V. Ryan, 155 Mass. 523. But that is in consequence of
the ambiguous attitude of the law toward his custody, which prevents
it from regarding his conversion as a trespass. There is no such
trouble when a third person converts the chattel. It is larceny equally
when he takes the thing from a bailee, from a servant, or from the
owner himself. Commonwealth v. O'Hara, 10 Gray, 469. Common-
wealth V. Lawless, 103 Mass. 426. Commonwealth v. Sullivan, 104
Mass. 552. Of course the title had passed to Perkins, and for most
purposes the possession also, and this being so, either there is no ques-
tion of pleading or variance, or the statute disposes of it, if a larceny
is proved. Pub. Sts. c. 214, § 14.
But the horse was delivered to the defendants, and the question
remains whether their conduct falls under any recognized exception to
the requirement of a taking by trespass. One such exception is when
the possession of a chattel, but not the title, is gained by a trick or
fraud with intent to convert it. Commonwealth v. Barry, 124 Mass.
325. Commonwealth v. Lannan, 153 Mass. 287, 289. It may be
assumed that acceptance of a chattel upon a contract or promise, with
intent not to carry out the promise but to convert the chattel, is within
this exception. Commonwealth v. Barry, ubi supra. 2 Bish., Crim,
Law, (8th ed.) § 813. So that the question is narrowed to whether
there was any evidence of intent at the time when the defendants re-
ceived the horse, the only fact bearing upon the matter being what
SECT. IV.] COMMONWEALTH V. RUBIN. 655
they did shortly afterwards.. This has been settled, so far as precedent
can settle it, from very early days, although thp principle has l>een
disguised in an arbitrary seeming form. The rule that, if a man abuse
an authority given him by the law, he becomes a trespasser ab initio,
although now it looks like a rule of substantive law and is limited to a
certain class of cases, in its origin was only a rule of evidence by which,
when such rules were few and rude, the original intent was presumed
conclusively from the subsequent conduct. It seems to have applied
to all cases where intent was of importance. Hill, J., in Y.B. 11 Hen.
IV. 76, pi. 16 ; 13 Ed. IV. 9, pi. 5. The Six Carpenters' case, 8 Co.
Eep. 146 a, b. See Y. B. 9 Hen. VI. 29, pi. 34. (Compare as to bur-
glary, 1 Hale P. C. 559, 560 ; Stark. Cr. PI. 177; 2 East P. C. 509,
610, 614.) This rule was mentioned in the well known case in which
it was decided that a carrier breaking bulk is guilty of felony : Y. B.
13 Ed. IV. 9, pi. 5 ; and in the time of Charles II. even was thought
to explain the decision there. J. Kel. 81, 82. It is true that this ex-
planation hardly can be accepted. 2 East P. C. 696. It was repu-
diated by the judges who decided the case. But seemingly the reason
for the repudiation was that at that time the intent of the bailee was
supposed to be always immaterial, and that as yet, and indeed as late
as Lord Coke and Lord Hale, no exception had been made to the gen-
eral rule that delivery by the owner prevents a conversion from being
felonj'. Y. B. 13 Ed. IV. 9, pi. 6. See 8 Co. Eep. 146 b ; 1 Hale P.
C. 504 ; Y. B. 12 Ed. IV. 8, pi. 20 ; 21 Ed. IV. 75, 76, pi. 9. Prob-
ably the first suggestion that intent can be important when there is a
bailment is in J. Kel. 81, 82, just cited, and there are many cases in
the past where the intent of the bailee was open to question but was
not tried : e. g. Raven's case, J. Kel. 24 ; Tunnard's case, 2 East P.
C. 687, 694. Since the law has changed or has been developed, the
carrier's case in 13 Ed. IV. 9, sometimes has tended to make confusion.
2 East P. C. 695-698, c. 16, § 116. The rule as to trespass ab initio
having been held not to apply to bailments when the intent of the
bailee made no diflierence, still was not applied to them after the intent
was held material. In this way it became ossified and took on the
appearance of a limited and technical rule of a substantive law. See
Esty V. Wilmot, 16 Graj^, 168; Smith v. Pierce, 110 Mass. 35, 38.
But since it has been settled that the intent may be decisive as to lar-
ceny, the less extreme and more rational proposition which led to the
technical rule, namely, that the subsequent conduct is some evidence
of the original intent, has been acted on frequently in England by
leaving the case to the jur3' when the whole evidence consisted of an
ambiguous receipt and a subsequent conversion. J. Kel. 81, 82. Pear's
case, 2 East P. C. 685, 687. The King v. Charlewood, 1 Leach (4th
ed.) 409 ; S. C. 2 East P. C. 689. Leigh's case, 2 East P. C. 694 ; S.
C. 1 Leach, (4th ed.) 411 note (a). Armstrong's case, 1 Lewin, 195.
Spence's case, 1 Lewin, 197. Rex v. Gilbert, 1 Moody C. C. 185. The
656 EEGINA V. MICDLETON. [CHAP. VIII.
Queen v. Cole, 2 Cox C. C. 340. See also Chisser's case, T. Ra3'm. 275,
276, and 2 East P. C. 697, citing 2 MS. Sum. 233. Cases like those
mentioned in 1 Hawk. P. C. Larceny, c. 33, § 10, of a watchmaker steal-
ing a watch delivered to him to clean, and the like, cannot be explained
on the ground suggested, that the possession remains in the owner,
but it would seem must be accounted for on the same ground as the
last. See 2 East P. C. 683, 684, c. 16, § 110.
In the case at bar, the conversion followed hard upon the receipt of
the horse, and the inference is not unnatural that the intent existed
from the beginning, as it is proved to have existed a very short time
afterwards. There is the less cause for anxiety upon the point, in view
of the merely technical distinction between larceny and embezzlement.
Of course, if the defendants received the horse with felonious intent
in Norfolk, and carried it away into Middlesex, they could be indicted
in the latter county. Exceptions overruled.
SECTION IV {continued).
(c) Delivery by MiarAKB.
EEGINA V. MIDDLETON.
Crown Case Reserved. 1873.
[Reported Law Reports, 2 Crown Cases Reserved, 38.]
Case stated by the Common Sergeant of London.
At the session of the Central Criminal Court held on Monday, the
23d of September, 1872, George Middleton was tried for feloniously
stealing certain money to the amount of £8 16s. lOd. of the moneys of
the Postmaster-General.
The ownership of the money was laid in other counts in the Queen
and in the mistress of the local post-offlce.
It was proved by the evidence that the prisoner was a depositor in a
post-oflBce savings-bank, in which a sum of lis. stood to his credit.
SECT. IV.] KEGINA V. MIDDLETON. G57
In accordance with the practice of the banlt, he duly gave notice to
withdraw 10s., stating in such notice the number of his depositor's book,
the name of the post-office, and the amount to be withdrawn.
A warrant for 10s. was dulj' issued to the prisoner, and a letter of
advice was duly sent to the post-office at Netting Hill to paj- the pris-
oner 10s. He presented himself at that post-office and handed in his
depositor's book and the warrant to the clerk, who, instead of referring
to the proper letter of advice for 10s., referred by mistake to another
letter of advice for £8 16s. lOd., and placed upon the counter a £5
note, three sovereigns, a half-sovereign, and silver and copper, amount-
ing altogether to £8 16s. lOd. The clerk entered the amount paid, viz.,
£8 16s. lOd. in the prisoner's depositor's book and stamped it, and the
prisoner took up the money and went away.
The mistake was afterwards discovered, and the prisoner was brought
back, and upon his being asked for his depositor's book, said he had
burnt it. Other evidence of the prisoner having had the money was
given.
It was objected bj- counsel for the prisoner that there was no larceny,
because the clerk parted with the- property and intended to do so, and
because the prisoner did not get possession by any fraud or trick.
The juiy found that the prisoner had, the animus furandi at the mo-
ment of taking the monej' from the counter, and that he knew the money
to be the money of the Postmaster-General when he took it up.
A verdict of guilty was recorded, and the learned Common Sergeant
reserved for the opinion of the Court for Crown Cases Reserved the
question whether under the circumstances above disclosed the prisoner
was properl}' found guilty of larceny.
Nov. 23, 1872. The Court [Kelly, C. B. Martin, B., Brett, Grove,
and Quain, JJ.] reserved the case for the opinion of all the judges.
Jan. 25, 1873. The case was argued before Cockburn, G. J., Bovill,
C. J., Kelly, C. B., Martin, Bramwell, Pigott, and Cleasby, BB.,
Blackbnrn, Keating, Mellor, Brett, Lush, Grove, Quain, Denman, and
Archibald, JJ.
No counsel appeared for the prisoner.
Sir J., J). Coleridge, A.G-. {Metcalfe and Slade with him), for the
prosecution.
The arguments and the cases cited sufficiently appear from the
judgments.
Jan. 28. Per Curiam. The majority of the judges think that the
conviction ought to be affirmed, for reasons to be stated hereafter.
June 7. The following judgments were delivered : —
Bovill, C. J., read the judgment of Cockburn, C. J., Blackburn,
Mellor, Lush, Grove, Denman, and Archibald, JJ., as follows : ^ —
We agree that according to the decided cases it is no felon}' at com-
mon law to steal goods if the goods were already lawfully in the pos-
' Part of this opinion is omitted.
658 KEGINA V. MIDDLETON. [CHAP. VIII.
session of the thief," and that, therefore, at common law a bailee of
goods, or a person who finds goods lost, and not knowing or having the
means of knowing whose they were, takes possession of them, is not
guilty of larceny if he subsequently, with full knowledge and felonious
intention, converts them to his own use.
It is, to say the least, very doubtful whether this doctrine is either
wise or just ; and the legislature, in the case of bailees, have by statute
enacted that bailees stealing goods, &c., shall be guilty of larceny, with-
out reference to the subtle exceptions engrafted by the cases on the old
law- But in such a case as the present there is no statute applicable,
and we have to apply the common law.
Now, we find that it has been often decided that where the true owner
did part with the physical possession of a chattel to the prisoner, and
therefore in one sense the taking of the possession was not against his
will, yet if it was proved that the prisoner from the beginning had the
intent to steal, and with that intent obtained the possession, it is suffi-
cient taking. We are not concerned at present to inquire whether
originally the judges ought to have introduced a distinction of this sort,
or ought to have left it to the legislature to correct the mischievous nar-
rowness of the common law, but only whether this distinction is not now
established, and we think it is. The cases on the subject are collected
in Russell on Crimes, 4th ed. vol. 2, p. 207 ; perhaps those that most
clearly raise the point are Rex v. Davenport, 2 Russell on Crimes, 4th
ed. at p. 201, and Rex v. Savage, 5 C. & P. 143, 2 Russell on Crimes,
4th ed. at p. 201.
In the present case the finding of the jury, that the prisoner, at the
moment of taking the money, had the animus furancU and was aware
of the mistake, puts an end to all objection arising from the fact that
the clerk meant to part with the possession of the monej\
On the second question, namely, whether, assuming that the clerk
was to be considered as having all the authority of the owner, the in-
tention of the clerk (such as it was) to part with the property prevents
this from being larceny, there is more difficulty, and there is, in fact, a
serious difference of opinion, though the majority, as already stated,
think the conviction right. The reasons which lead us to this conclu-
sion are as follows : At common law the property in personal f ood&
passes by a bargain and sale for consideration, or a gift of them accom-
panied by delivery ; and it is clear from the very nature of the thing,
that an intention to pass the property is essential both to a sale and to
a gift. But it is not at all true that an intention to pass the property,,
even though accompanied by a delivery, is of itself equivalent to either
a sale or a gift. We will presently explain more fully what we mean,
and how this is material. Now, it is established that where a bargain
between the owner of the chattel has been made with another, by which
the property is transferred to the other, the property actually passes,
though the bargain has been induced by fraud. The law is thus stated
in the judgment of the Exchequer Chamber in Clouo-h v. London and
SECT. IV.] EEGINA V. MIDDLETON. 659
Northwestern Ry. Co., Law Rep. 7 Ex. 26, at pp. 34, 35, where it is
said, " We agree completely with what is stated by all the judges be-
low, that the property in the goods passed from the London Pianoforte
Co. to Adams by the contract of sale ; the fact that the contract was
induced by fraud did not render the contract void, or prevent the prop-
erty from passing, but merely gave the party defrauded a right, on dis-
covering the fraud, to elect whether he would continue to treat the
contract as binding, or would disaffirm the contract and resume his prop-
erty.- . . . We think that so long as he has made no election, he retains
the right to determine it either way, subject to this, that if in the inter-
val, whilst he is deliberating, an innocent third party has acquired an
interest in the property, or if, in consequence of his delay, the position
even Of the wrong-doer is affected, it will preclude him from exercising
his right to rescind."
It follows obviously from this that no conversion or dealing with the
goods, before the election is determined, can amount to a stealing of
the vendor's goods ; for they had become the goods of the purchaser,
and still remained so when the supposed act of theft was committed.
There are, accordingly, many cases, of which the most recent is Reg. v.
Prince, Law Rep. 1 C. C. 150, which decide that in such a case the
guilty party must be indicted for obtaining the goods by false pre-
tences, and cannot be convicted of larceny. In that case, however,
the money was paid to the holder of a forged check payable to bearer,
and therefore vested in the holder, subject to the right of the bank to
divest the property.
In the present case the property still remains that of the Postmaster-
General, and never did vest in the prisoner at all. There was no con-
tract to render it his which required to be rescinded ; there was no gift
of it to him, for there was no intention to give it to him or to any one.
It was simply a handing it over by a pure mistake, and no property
passed. As this was money, we cannot test the case by seeing whether
an innocent purchaser could have held the property. But let us sup-
pose that a purchaser of beans goes to the warehouse of a merchant
with a genuine order for so many bushels of beans, to be selected from
the bulk and so become the property of the vendee, and that by some
strange blunder the merchant delivers to him an equal bulk of coffee.
If that coffee was sold (not in market overt) by the recipient to a third
person, could he retain it against the merchant, on .the ground that he
had bought it from one who had the property in the' coffee, though sub-
ject to be divested? We do not remember any case in which such a
point has arisen, but surely there can be no doubt he could not ; and
that on the principle enunciated by Lord Abinger, in Chanter v. Hop-
kins, 4 M. & W. at p. 404, when he says : " If a man offers' to buy peas
of another, and he sends him beans, he does not perform his contract,
but that is not a warranty ; there is no warranty that he should sell
him peas ; the contract is to sell peas, and if he sends him anything
else in their stead, it is a non-performance of it."
660 KEGINA V. MIDDLETON. [CHAP. VIII,
"We admit that the case is undistinguishable from the one supposed
in the argument, of a person handing to a cabman a sovereign by mis-
talve for a shilling ; but after carefully weighing the opinions to the
contrary, we are decidedly of opinion that the property in the sovereign
would not vest in the cabman, and that the question whether the cab-
man was guilty of larceny or not. would depend upon this, whether he,
at the time he took the sovereign, was aware of the mistake and had
then the guilty intent, the animus furandi.
But it is further urged that if the owner, having power to dispose
of the property, intended to part. with it, that prevents the crime
from being that of larceny, though the intention was inoperative, and
no property passed. In almost all the cases on the subject, the property
had actually passed, or at least the court thought it had passed ; but
two cases, Eex v. Adams, 2 Russell on Crimes, 4th ed. at p. 200, and
Rex V. Atkinson, 2 East P. C. 673, appear to have been decided on
the ground that an intention to pass the property, though inoperative,
and known by the prisoner to be inoperative, was enough to prevent
the crime from being that of larceny. But we are unable to perceive
or understand on what principles the cases can be supported if Rex v.
Davenport, 2 Russell on Crimes, 4ta ed. at p. 201, and the others in-
volving the same principle are law ; and though if a long series of cases
had so decided, we should think we were bound by them, yet we think
that in a court such as this, which is in effect a court of error, we
ought not to feel bound by two cases which, as far as we can perceive,
stand alone, and seem to us contrary both to principle and justice.
BoviLL, C. J., delivered the judgment of himself and Keating, J., as
follows : —
The proper definition of larceny according to the law of England,
from the time of Bracton downwards, has been considered to be the
wrongful or fraudulent taking and carrying away by any person of the
personal goods of another, from any place, without any color of right,
with a felonious intent to convert them to the taker's own use, and
make them his own property, without the consent and against the will
of the owner. And the question for our consideration is, whether the
facts of the present case bring it within that definition.
Under the act for establishing post-ofHce savings-banks, 24 & 25
Vict. c. 14, deposits are received at the post-ofHces authorized by virtue
of that act, for the purpose of being remitted to the principal office
(§ 1). By § 2 the Postmaster-G-eneral is to give an acknowledgment
of such deposits, and b}- the 5th section all moneys so deposited with
the Postmaster-General are forthwith to be paid over to the Commis-
sioners for the Reduction of the National Debt. By the same section
all sums withdrawn by depositors are to be repaid out of those monevs
through the office of the Postmaster-General. By § 3 the' authoritv of
the Postmaster-General for such repayment shall be transmitted to the
depositor, who is to be entitled to repayment at a post-office within ten
days.
SECT. IV.J EEGINA V. MIDDLETON. 661
It appears to us that the monej^s received by the postmasters at
their respective offices, by virtue of this act, are the property of the
Crown or of the Postmaster-General, and that neither the postmasters,
nor the clerks at the post-offices, have any power or authoritj- either
general or special, to part with the property in, or even the possession
of, the monejs so deposited, or anj* part of them, to any person except
upon the special authority of the Postmaster-General.
In this case the prisoner had received a warrant or authority from
the Postmaster-General, entitling him to repayment of 10s. (being part
of a sum of lis. which he had deposited) from the post-office at Not-
ting Hill, and a letter of advice to the same effect was sent by the
Postmaster-General to that post-office, authorizing the payment of the
10s. to the prisoner.
Under these circumstances we are of opinion that neither the clerk
to the postmistress, nor the postmistress personally, had any power or
authority to part with the £5 note, three sovereigns, the half-sovereign,
and silver and copper, amounting to £8 16s. lOc?., which the clerk
placed upon the counter, and which was taken up bj- the prisoner.
In this view the present case appears to be undistinguishable from
other cases where obtaining articles animo furandi from the master of
a post-office, though he had intentionallj- delivered them over to the
prisoner, has been held to be larcenj-, on the principle that the post-
master had not the propert}' in the articles, or the power to part with
the property in them. For instance, the obtaining the mail bags by
pretending to be the mail guard, as in Kex v. Pea-rce, 2 East P. C.
p. 603 ; the obtaining a watch from the postmaster by pretending to be
the person for whom it was intended, as in Reg. v. Kay, Dears. & B.
Or. C. 231 ; 26 L. J. (M. C.) 119 (where Rex v. Pearce, 2 East P. C.
p. 603, was relied upon in the judgment of the court) ; and the obtain-
ing letters from the postmaster under pretence of being the servant of
the party to whom the}' were addressed, as in Reg. v. Jones, 1 Den.
Cr. C. 188, and in Reg. v. Gillings, 1 F. & F. 36, were all held to be
larceny.
The same principle has been acted upon in other cases, -where the
person having merely the possession of goods, without any power to
part with the property in them, has delivered them to the prisoner,
who has obtained them animo furandi ; for instance, such obtaining of
a parcel from a carrier's servant by pretending to be the person to
whom it was directed, as in Rex v. Longstreeth, 1 Mood. Cr. C. 137 ;
or obtaining goods through the misdelivery of them by a carman's ser-
vant, through mistake, to a wrong person, who appropriated them
animo furandi^ as in Reg. v. Little, 10 Cox Cr. C. 559, were, in like
manner, held to amount to larceny.
In all these and other similar cases, many of which are collected in
2 Russell on Crimes, 211 to 215, the property was considered to be
taken without the consent and against the will of the owner, though the
possession was parted with by the voluntary act of the servant, to
662 KEGINA V. MIDDLETON. [CHAP. VIII.
whom the property had been intrusted for a special purpose. And
where property is so taken by the prisoner knowingly, with intent
to deprive the owner of it and feloniously to appropriate it to himself,
he may, in our opinion, be properly convicted of larceny.
The case is very different where the goods are parted with by the
owner himself, or by a person having authority to act for him, and
where he or such agent intends to part with the property in the goods ;
for then, although the goods be obtained by fraud, or forgery, or false
pretences, it is not a taking against the will of the owner,. which is
necessary in order to constitute larceny.
The delivery of goods by the owner upon an order which was in fact
forged, as in Reg. v. Adams, 1 Den. Cr. C. 38, the payment of money
by a banker's cashier on a check which turned out to be a forgery, as
in Eeg. v. Prince, Law Rep. 1 C. C. 150, and the delivery up of pledges
by a pawnbroker's manager by mistake and through fraud, as in Rex
V. Jackson, 1 Mood. Cr. C. 119, are instances of this kind, and where
the intent voluntarily to part with the property in the goods, by a per-
son who had authority to part with the property in them, prevented the
offence being treated as a larceny.
In the present case, not only had the postmistress or her clerk no
power or authority to part with the property in this money to the pris-
oner, but the clerk, in one sense, never intended to part with the
£8 16s. lOd. to the person who presented an order for only 10s., and
he placed the money on the counter by mistake, though at the time he
(by mistake) intended that the prisoner should take it up, and by mis-
take entered the amount in the prisoner's book. When the money was
lying upon the counter the prisoner was aware that he was not entitled
to it, and that it could not be, and was not, reallj' intended for him ;
yet, with a full knowledge on his part of the mistake, he took the
money up and carried it away, intending at the time he took it to
deprive the owner of all property in it, and feloniously to appropriate it
to his own use.
There was, therefore, as it seems to us, a wrongful an<J fraudulent
taking and carrying away of the whole of this money by the prisoner,
without any color of right, animo furandi, and against the will of the
real owner; and for these reasons, and upon the authorities before
stated, we think the prisoner was properly convicted of larcenj-.^
PiGOTT, B. I agree in the judgment of the majority of the court,
except that I do not adopt the reasons which are there assigned for
holding that the mistaken intention of the clerk did not, under the cir-
cumstances here, prevent the case from being one of larceny on the
part of the prisoner. T quite accede to that proposition, but my rea-
son is that, in the view I take of the facts, the intention and acts of the
clerk are not material in determining the nature of the prisoner's act
and intent, because the transaction between them stopped short of
1 Kellt, C. B., delivered an opinion concurring with that of Bovill, C. J.
SECT. IV.] KEGINA V. MIDDLETON. 663
placing the money completely in the prisoner's possession, and could in
no way have misled the prisoner.
The case states that the clerk placed the money on the counter. He
then entered the amount of it in the prisoner's book and stamped it.
This, no doubt, gave the prisoner the opportunity of taking up the
money, and he did so in the presence of the clerk ; but before doing so
he must have seen by the amount that the clerk was in error, and that
the money could not really be intended in payment of his order, and
therefore was not for him, but for another person. It was with full
knowledge of this mistake that he resolved to avail himself of it, and in
fact to steal the money. The interval afforded him the opportunity of
conceiving, and he did in fact conceive, the animus furandi, while as
yet he had not got the money in his manual possession.
The dividing line may appear to be a fine one, but it is, I think, very
distinct and well defined in fact, for it was with this formed intention
in his mind that he took possession of the money. If complete posses-
sion had been given by the clerk to the prisoner, so that no act of the
latter was required to complete it after his discovery of the mistake and
his own formed intention to steal it, I should not feel myself at liberty
to affirm this conviction. In that case the prisoner would have done
nothing to defraud the clerk, and the latter, intending (to the extent to
which he had such intention) as much to pass the propertj' as the
possession in the monej', there would be nothing to deprive the matter
•of the character of a business transaction fully completed.
I desire to adhere to the law as stated in the 3d Institute, page 110 :
" The intent to steal must be before it cometh to his hands or posses-
sion, for if he hath the possession of it once lawfully, though he hath
animus furandi afterwards and carrieth it away, it is no larcen}'."
But the facts satisfy me, and the juj'y have found upon them, that the
prisoner had the animus furandi while the monej' was yet on the
counter, and that at the moment of taking it up he knew the money to
be the Postmaster-General's. The case is therefore very much like that
of a finder who, immediately on finding it, knows, or has the means of
knowing, the owner, j'et determines to steal it. 2 Russell on Crimes,
4th ed. p. 169. The same facts satisfy the requirements in the defi-
nition of larceny, that the taking must be invito domino. The loser
does not intend to be robbed of his property, nor did the clerk in this
case, and the prisoner's conduct is unaffected by the clerk's apparent,
consent in ignorance of its real nature. I affirm the conviction.
Bramwell, B. As the prisoner has now undergone his nominal
sentence, I should think it better that the small minority in this case,
of whom I am one, should give up their opinions to the majority, if the
case turned on its own particular circumstances and no principle was
involved. But in my opinion great and important principles not only of
our law but of general jurisprudence arise here, on which I feel bound
to state my views.
It is a good rule in criminal jurisprudence not to multiply crimes, to
664 EEGINA V. MIDDLETON. [cHAP. VIII.
make as few matters as possible the subject of the criminal law, and
to trust as much as can be to the operation of the civil law, for the pre-
vention and r«medj- of wrongs. It is also a good rule not to make
that a crime which is the act, or partly the act, of the party complain-
ing. Volenti noih fit mjm'ia : As far as he is willing, let it be no
crime. Here the taking was consented to. This is undoubtedly- a rule
of the English common law. Obtaining goods by false pretences was
no offence at common law. Ordinary cheating was not. Embezzle-
ment, &c., bj' servants was not larcenous. Breaches of trust by trus-
tees and bailees were not. So also fraudulently simulating the husband
of a married woman, and having connection with her, was not. And
most particularly was and is this the case in larceny, for the definition
of it is that the taking -must be invito domino.
Whether this law is good or bad is not the question. We are to
administer it as it is. I think those statutes that have made oifences
of such matters as I have mentioned improved the law, because the
business of life cannot be carried on without trusting to representations
that we cannot verify, and without trusting goods to others in such a
way that the owner loses all power' of watching over them ; and it is
reasonable that the law should protect persons who do so, bj- making
criminals of those who abuse that confidence. But something was to
be said in favor of the old law, viz., that the opportunitj- for the crime
was afforded by the complainant. Further, there is certainly a differ-
ence between the privy taking of property without the knowledge of
the owner, or its forcible taking, and its taking with consent by means
of a fraud. The latter, perhaps, may properly be made a crime ; but
it is a different crime from the other taking.
I say, then, that on principles of general jurisprudence, on the gen-
eral principles of our law, and on the particular definition of larceny, the
taking must be invito domino. That does not mean contrary to or
against his will, but without it. All he need be is invitus. This
accounts for how it is that a finder of a chattel may be guilty of lar-
ceny. The dominus is invitus. So in the case of a servant who steals
his master's property. There are certain cases apparently inconsistent
with this, but which are brought within the rule indeed, but by reason-
ing which ought to have no place in criminal law. I mean such cases
as where a carrier broke bulk and stole the contents or part, and was
guilty of larceny, but would not have been had he taken the whole
package, and cases where possession was fraudulently obtained, animo
furandi, from the owner, who did not intend to part with the property.
In such cases it has been held that the breach of trust by the carrier
in breaking bulk re-vested the possession in the owner; and in the
other case the obtaining of possession was a fraud, and so null ; and
that therefore in such cases the possession reverted to or remained in
the true owner, and so there was a taking invito domino. So also
cases where the custody is given to the alleged thief, but not pos-
session or property, as when the price of a chattel delivered is to be
SECT. IV.j KEGINA V. MIDDLETON. 665
paid in ready money. Reg. v. Cohen, 2 Den. Cr. C. 249. These are
not exceptions to the rule, but are brought within it by artificial, tech- ■
nical, and unreal reasoning. But where the dominus has voluntaril}'
parted with the possession; intending to part with the property in the
chattel, it has never 3'et been held that larcenj- was committed, what-
ever fraud may have been used to induce him to do so, nor whatever
may be tlie mistake he committed ; because in such case the dominus is
not iuvitus. So also where the possession has been parted with in such
way as to give the bailee a special property. See 2 Russell on Crimes,
4th ed. p. 191, citing 2 East P. C. p. 682 ; Reg. v. Smith, 2 Russell on
Crimes, 4th ed. p. 191 ; Reg. v. Goodbody, 8 C. & P. 666. It is not
necessary that the property should pass, the intent it should is enough.
See Rexv. Coleman, 2 East P. C. 672.
But it is argued that here there was no intent to part with the prop-,
erty, because the post-office clerk never intended to give to Middleton
what did not belong to him. A fallacy is involved in this way of
stating the matter. No doubt the clerk did not intend to do an act of
the sort described and give to Middleton what did not belong to him,
yet he intended to do the act he did. What he did he did not do
involuntarily nor accidentally, but on purpose. See what would follow
from such reasoning. A. intends to kill B. ; mistaking C. for B., he
shoots at C. and kills .him. According to the argument, he is not
guilty of intentional murder ; not of B., for he has not killed him ; not
of C, for he did not intend to kill him. There is authority of a very
cogent kind against this argument. A man in the dark gets into bed
to a woman, who, erroneously believing him to be her husband, lets him
have connection with her. This is no rape, because it is not without her
consent, yet she did not intend that a man not her husband should
have connection with her. I have noticed this above as another illus-
tration of how the common law refuses to punish an act committed
with the consent of the complainant.
To proceed with the present matter : If the reasoning as to not
intending to give this money is correct, then, as it is certain that the
post-office clerk did not intend to give Middleton 10s., it follows that
he intended to give him nothing. That cannot be. In truth, he in-
tended to give him what he gave, because he made the mistake. This
matter may be tested in this way : A. tells B. he has ordered a wine
merchant to give B. a dozen of wine ; B. goes to the wine merchant,
bond fide receives, and drinks a dozen of wine. After it is consumed
the wine merchant discovers he gave B. the wrong dozen, and demands
it of B., who, having consumed it, cannot return it. It is clear the
wine merchant can maintain no action against B., as B. could plead
the wine merchant's leave and license. But it is said that if B. knew
of the mistake, and took the wine animo furandi, then he would have
taken it invito domino ; so that whether the dominus is invitus or not
depends, not on the state of his own mind, but of that of B.
It is impossible to say that there was ^ taking here sufficient to con-
666 EEGINA V. MIDDLBTON. [CHAP. VIII.
stitute larceny because the money was picked up, but that if it had
' been put in the prisoner's hand there was not such a talsing.
But for the point, then, I am about to mention, I submit the domi-
nus was not invitus, that he consented to the taliiug, and that it was
partly his act. No doubt the prisoner was a dishonest man, maybe
what he did ought to be made criminal, but his act was different from
a privy or forcible taking ; he was led into temptation ; the prosecutor
had ver}' much himself to blame, and I certainlj* tliink that Middleton,
if punished, should be so on different considerations from those which
should govern the punishment of a larcenous thief.
But a point is made for the prosecution on which I confess I have
had the greatest doubt. It is said that here the dominus was invitus ;
that the dominus was not the post-office clerk, but the Postmaster-
General or the Queen ; and that therefore it was an unauthorized act
in the post-office clerk, and so a trespass in Middleton invito domino.
I think one answer to this is, that the post-office clerk had authority to
decide under what circumstances he would part with the money with
which he was intrusted. But I also think that, for the purposes of
this question, the lawful possessor of the chattel, having authority to
transfer tlie property, must be considered as the dominus within this
rule, at least when acting bond fide. It is unreasonable that a man
should be a thief or not, not according to his act and intention, but
according to a matter which has nothing to do with them, and of which
he has no knowledge.
According to this, if I give a cabman a sovereign for a shilling by
mistake, he taking it animo furandi., it is no larcenj' ; but if I tell my
servant to take a shilling out of my purse, and he by mistake takes a
sovereign, and gives it to the cabman, who takes it animo furandi,
the cabman is a thief. It is ludicrous to say that if a man, instead of
himself paying, tells his wife to do so, and she gives the sovereign for
a shilling, the cabman is guilty of larceny, but not if the husband gives
it. It is said that there is no great harm in this ; that a thief in mind
and act has blundered into a crime. I cannot agree. I think the
criminal law ought to be reasonable and intelligible. Certainly a man
who had to be hung owing to this distinction might well complain, and
it is to be remembered that we must hold that to be law now which
would have been law when such a felony was capital. Besides, juries
are not infallible, and may make a mistake as to the animus furandi,
and so find a man guilty of larceny when there was no theft and no
animus furandi. Moreover, Reg. v. Prince, Law Rep. 1 C. C. 150, is
contrary to this argument, for there the banker's clerks had no author-
ity to pay a forged check if they knew it ; they had authority to
make a mistake, and so had the post-offlce clerk. And suppose in this
case the taking had been bona fide, — suppose Middleton could neither
write nor read, and some one had made him a present of the book
without telling him the amount, and he had thought the right sum was
given him, — would his taking of it have been a trespass? I think
SECT. IV. J . EEGINA V. MIDDLETON. 667
not, and that a demand would have been necessary before an action
of conversion could be maintained.^
Cleasby, B.^ The cases establish that, where there is a complett
dealing or transaction between the parties for the purpose of passing
the property, and so the possession parted with, there is no taking,
and the case is out of the category of larceny.
I tjelieve the rule is as I have stated, and that it is not limited to
cases in which the property in the chattel actually passes by virtue of
the transaction. I have not seen that limitation put upon it in any text-
book on the criminal law, and there are, unless I am mistaken, many
authorities against it. The cases show, no doubt, beyond question that
where the transaction is of such a nature that the property in the chat-
tel actually passes (though subject to be resumed by reason of fraud
or trick), there is no taking, and therefore no larceny. But they do
not show the converse, viz., that when the property does not pass
there is larceny. On the contrary, they appear to me to show that
where there is an intention to part with the property along with the
possession, though the fraud is of such a nature as to prevent that
intention from operating, there is still no larceny. This seems so
clearly to follow from the cardinal rule that there must be a taking
against the wUl of the owner, that the eases rather assume that the
intention to transfer the property governs the case than expressly
decide it. For how can there be a taking against the will of the
owner where the owner hands over the possession, intending by doing
so to part with the entire property ?
As far as my own experience goes, many of the cases of fraudulent
pretences which I have tried have been cases in which the prisoner has
obtained goods from a tradesman upon the false pretence that he
came with the order from a customer. In these cases no property
passes either to the customer or to the prisoner, and I never heard
such a case put forward as a case of larceny. And the authorities are
distinct, upon cases reserved for the judges, that in such cases there
is no larceny. In Eeg. v. Adams, 1 Den. Cr. C. 38, the prisoner was
indicted for stealing a quantity of bacon and hams, and it appeared
that he went to the shop of one Aston, and said he came from Mr.
Parker for some hams and bacon, and produced the following note,
purporting to be signed by Parker : —
Have the goodness to give the bearer ten good thick sides of
bacon, and four good, showy hams, at the lowest price. I shall be in
town on Thursday next, and will come and pay you.
Yours respectfully, T. Parker.
Aston, believing the note to be the genuine note of Parker (who
occasi<Hially dealt with him), delivered the articles to Adams. The
1 The remainder of the opinion is omitted. Martin and Cleasby, BB., and
Bkbtt, J., delivered concurring opiniona.
' Part only of the opinion is given.
668 WOLFSTEIN V. PEOPLE. [CHAP. VIII.
jury convicted, but upon a ease reserved, upon the question whether
the offence was larceny, the judges were all of opinion that the con-
viction was wrong. Rex v. Coleman, 2 East P. C. p. 672, is to the
same effect. In that case the prisoner got some silver as change,
falsely pretending to come from a neighbor for it ; and it was held not
to be a case of larceny. Rex v. Atkinson, 2 East P. C. p. 673, was
a similar one, and the prisoner was convicted ; but on a reference to
the judges after conviction, all present held that it was no felony, ou
the ground that the property was intended to pass by the delivery
of the owner.
I do not think a man ought to be exposed to a charge of felony
upon a transaction of this description, which is altogether founded
upon an unexpected blunder of the clerk. The prisoner was undoubt-
edly at the office for an honest purpose, and finds a larger sura of
money than he demanded paid over to him and charged against him.
A man may order and pay for certain goods, and by mistake, a larger
quantity than was paid for may be put in the package and he may
take them away. Or he may pay in excess for that which is ordered
and delivered. Is the person receiving to be put in the peril of a con-
viction for felony in all such cases, upon the conclusion which may be
arrived at as to whether he knew, or had the means of knowing, and
had the animus fur andi? I think not; I think such cases are out of
the area of felony, and therefore the animus furandi is inapplicable,
and ought not to be left to the jury. And any conclusion, founded
upon the finding of the jury upon a question which ought not to be
left to them must be erroneous, because the foundation is naught. I
think the conviction was against law and ought to be quashed.
Conviction affirmed?
"WOLFSTEIN V. PEOPLE.
Supreme Court of New York. 1875.
[Repmted 6 Hun, 121.]
Writ of error to the Court of General Sessions for the city and
county of New York, to review the conviction, of the plaintiff in error,
of the crime of grand larceny.
Charles W. Brooke, for the plaintiff in error.
Benjamin K. Phelps, for the defendants in error.
Westbrook, J. The plaintiff in error having been convicted in the
Court of General Sessions of the city and county of New York during
the month of April, 1875, of the crime of grand larceny, has, by writ
of error, brought the proceedings into this court for review.
1 But see Com. o. Hays, 14 Gray, 62. — Ed.
SECT. IV.] WOLFSTEIN V. PEOPLE,
By the evidence given upon, the trial and the verdict of the jur}-, the
following facts were established : The prisoner was the possessor of a
draft, dated February loth, 1875, drawn pajable to his order by one L.
Boell, on Heidelbach, Frank, & Co., for the sam of sevonty-four dollars
in gold. It was accepted by the parties upon whom it was drawn, on
the 9th day of March, 1875, and made payable on demand at the
German American Bank. On the day of its acceptance it was presented
by the accused at the bank for pa3-ment, and the paying teller, who was
unable to read the French language in which it was written, and who
read the figures upon the draft as $742, paid to the prisoner that sum
of money in gold. The party to whom the money was paid, knowing
that he was entitled to receive only seventy-four dollars, took the larger
sum (1742) thus paid to him by mistake, and, without disclosing the
error, concealed and denied the over-payment, and feloniously appro-
priated it to his own use.
The case then presents this question : If a party who receives from
another money to which he knows he is not entitled, and which he
knows has been paid to him by mistake, should conceal such over-
payment and appropriate the money to his own use, intending thus to
cheat and defraud the owner thereof, would he or not be guilty of the
crime of larceny? If it be answered that he would not, can the ele-
ment needed to make it such, and which is absent, be pointed out?
The money, in excess of that which he is entitled to receive, is taken
without the owner's consent, and that which is thus taken is appropri-
ated to the taker's use with intent, fraudulently, to deprive the owner
thereof These two elements make the crime of theft, and they are
both present here.
It will not do to s^iy that the owner parts with the propert}' volun-
tarily, and therefore there is no unlawful taking. There may be tlie
pliysical act of the owner handing tliat which is his to another, but
there is absent the intellectual and intelligent assent to the transfer,
upon which the consent must necessarily depend. Where money or
property is obtained from the owner by another upon some false pre-
tence, for a temporary use only, with the intent to feloniousl}' appro-
priate it permanently, the taking, though with the owner's consent,
is larceny. Wherein do the cases differ ? In both there is a physical
delivery b}- the owner, and in both the taker knows that it was given
for no such purpose as he has in mind, and j'ct he, unhiwfull}' and
wickedly,. in both cases, seeks to deprive the owner thereof. If the one
case is larceny, the other is also.
So, too, the finder of property, if he knows the owner and conceals
such finding, and appropriates it to his own use, with intent to deprive
the owner thereof, is guilty of larceny. So in this case, if the prisoner
found, on counting the money, that in his possession to wiiich he knew
lie was not entitled, and which he also knew the owner did not intend
to deliver to him, he was bound to return it to the owner, and if he did
not, but concealed its possession and sought to deprive the owner
thereof, the crime was complete.
670 WOLFSTEIN V. PEOPLE. [CHAP. VIII.
From the evidence in this case, and the verdict rendered, we are
bound to assume that the mistake was noticed and discovered b3- the
prisoner at some time. If the over-payment was observed in the bank
when the money was delivered, and the prisoner took it with the intent
to cheat and defraud the owner, the crime was then complete. If, how-
ever, the error was not then noticed, but was afterward, .and the intent
of felonious appropriation was then formed and executed, the legal
guilt of the prisoner was at that time incurred. As in the case of the
finder of the lost article, the original taking may be lawful, but legal
accountability as for crime begins when the owner is discovered and
the intent formed unlawfully and feloniously to deprive him of the
possession thereof.
The questions which the ease involves, and the points to be found by
the jury before a verdict of guilty could be rendered, were properly stated
by the recorder, and the finding was well warranted by the testimonj'.
The request to charge, made hy the counsel of the prisoner at folio
eighty-two, was amended, and as amended was charged. There is no
error here. The conviction of the prisoner is therefore affirmed.
Davis, P. J., and Dakiels, J., concurred.'
Conviction affirmed.
1 See Com. o. Eichelberger, 119 Pa. 254. — Ed.
SECT. IV. j RIGINA. V. LITTLE. 671
EEGINA V. LITTLE.
Central Criminal Court. 1867.
[Reported 10 Cox C. C. 559.]
George Cohen Little and William Eustace were charged with
stealing 276 yards of carpet, the property of the Midland Railway
Compan3\
Three bales of carpet were entrusted to Froome, a carman in the
service of the Midland Railway Company, for delivery to Easten &
Co., Addle Street. From something Froome heard in Addle Street he
went to 7 Philip Lane, which leads out of Addle Street. There was no
name up at No. 7, but it appeared as if it had been newly done up.
At No. 7 Froome saw the prisoner Little and asked him whether that
was Easten's of Addle Street. Little said, " Yes.'' Froome told him
he had three trusses of carpet, and showed him the way-bill, which indi-
cated that three bales marked E. 959-61 were to be delivered to Eas-
ten & Co. of Addle Street. Little told him to bring them in, and they
were brought in and signed for by " T. C. Little." Eustace appeared
to have rented the premises on which the goods were left, and became
acquainted with the fact of their being in his house shortly after thej'
were so left, and according to his own account had sold them to a man
from whom he had received no money, although by his own statements
to a witness he had said they had been left at this place in mistake, and
did not belong to him.
Sleigh, on behalf of Eustace, submitted that there was no case of
larceny made out, — the Railway Companj', in whom the propertj- was
laid, having parted not onlj' with the possession, but also with the prop-
erty in the goods, and no trick having been shown to have been used
by Eustace in order to get possession of them.
Poland contended that the Railway Company, having authorit}' to
deliver to Easten & Co., had no power to part with the property in the
goods to any other parties ; that the mistake of the carman in leaving
them at the wrong premises did not deprive the company of their prop-
erty in them ; and that the subsequent conversion of them by Eustace
to his own purposes was in fact a larcen}- of the goods of the company,
just as much as if he had taken them out of the cart himself.
Besley, on the same side, argued that as the goods came into the
possession of Little, he by accepting possession of them might be
deemed a bailee for the owner, and that directly Eustace became ac-
quainted with the circumstances and co-operated with him he was acces-
sary with him as bailee ; and then if, contrary to that bailment, the}'
jointly converted ' the goods to their own purposes, a case of larceny
would be established. He referred to Regina v. Robson, 9 Cox C. C. 29,
The Recorder said he should leave the case to the jury, not upon
the ground that the prisoners were bailees, but that the property in the
672 EEx V. MOOEE. [chap. viii.
goods had not been parted with. The carman had the limited author-
itj' to part with them to Easten & Co. only, and by leaving them in
mistake the propertj; was not really parted with.
Gruilty.
SECTION- V.
Transfer ef Title.
REX V. MOORE.
Crown Case Reserved. 1784.
[Reported Leach (Uh ed.), 314.]
This was a case reserved for the opinion of the twelve judges by Mr.
Sergeant Adair, Recorder, at the Old Bailey, in April Session, 1784,
upon the trial of an indictment for stealing twenty' guineas, and four
pieces of foreign gold coin called doubloons, the property of John
Field, in the dwelling-house of John Brown.
The material circumstances of this case, as thej' appeared in evidence,
were as follow : The prosecutor, John Field, a soldier, just returned
from the war in America, was walking along James Street, Covent
Garden, when a stranger joined company with him. As they walked in
friendly conversation with each other down Long Acre, the stranger sud-
denl}- stopped and picked up a purse which was Ijing at a door. After
they had proceeded about fortj" yards, " Come," saj-s the stranger, " we
will go and drink a pot of porter, and see what we have picked up.''
The prosecutor was persuaded to comply ; and the}- accordinglj' went
into a private room in an adjacent public house, where the stranger
pulled out the purse, and from one end of it produced a receipt, signed
"W. Smith," for £210 '-for one brilliant diamond-cluster ring," and
from the other end he pulled out the ring itself. A conversation
ensued upon the subject of their good fortune, during which time the
prisoner, Humphrey Moore, entered the room ; and being shewed the
ring, he praised the beauty of its lustre, and offered to settle the divi-
sion of its value. Upon the stranger's lamenting that he had no money
about him, the prisoner asked the prosecutor if he had anj-. The prose-
cutor replied that he had forty or fifty pounds at home. " Tliat sum
will just do,"said the prisoner. A coach was immediately called, and
all three were driven to the prosecutor's lodgings at Chelsea. The
prosecutor and the stranger went into the house together, leaving the
prisoner at the Five Fields. The prosecutor took his money from his
bureau, put it into his pocket, and returned with the stranger to a
public house in the Five Fields, Chelsea, kept by John Brown, where
they again met the prisoner, who said, " I will give you your share of
the ring, if you will be content till to-morrow." The prosecutor put
down twenty guineas and four doubloons, which the- stranger took up,
SECT, v.] EEX V. MOOEE. 673
and in return gave the prosecutor the ring, desiring that he wou^.d
meet him at the same place on the next morning at nine o'clock, and
promising that he would then return the twenty guineas and the four
doubloons to the prosecutor, and also one hundred guineas for his share
of the ring. The prisoner and the stranger went away together. The
prosecutor attended the next morning pursuant to the appointment,
but neither of the parties came. Tiie ring was of a very trifling value.
It was left with the jury to consider whether the prisoner and the
other man were not confederated together, for the purpose of obtaining
money on pretence of sharing the value of the ring, and whether he
had not aided and assisted the other man to obtain the monej' hy the
means that were used for that purpose. And the jury were of opinion
that the prisoner was confederating with the person unknown for the
purpose of obtaining the money by means of the ring, and did therefore
aid and assist the person unknown in obtaining the twenty guineas and
the four doubloons from the prosecutor. They accordinglj' found him
guilty of stealing, but not in the dwelling-house, subject to the opinion
of the twelve judges whether it was felon j'.
On the first day of Michaelmas Term, 1784, all the judges, except
Lord Mansfield, assembled at Lord Loughborough's chambers to con-
sult upon tliis case ; and in the December Session following, Mr. Jus-
tice WiLLES delivered their opinion at the Old Bailey to the following
effect : all the judges agreed that in considering the nature of larcenj'
it was necessary to attend to the distinction between the parting
•with the possession only, and the parting with the property ; that in
the first case it is felony, and in the last case it is not. Upon the cir-
cumstances of the present case- two of the judges ' were of opinion
that the doubloons were to be considered as money, and that the whole
was a loain on the security of the ring, which the prosecutor believed to
be of much greater value than the money he advanced on it, and there-
fore that he had voluntarilj' parted with the property as well as with
the possession of the doubloons. But nine of the judges were clearly
of opinion that it was felony, for they thought the twenty guineas and
the four doubloons were deposited in the nature of a pledge till the half
of the supposed value of the ring was paid to the prosecutor, and not as
a loan ; and therefore he had parted with the possession only, and not
with the property, — more especially as to the doubloons, which he
clearly understood were to be returned the next day in specie ; and they
could not distinguish this case from The King v. Patch in this court in
February Session, 1782, and the King v. Pear, in September Session,
1779. The majorit}- of the judges, therefore, were of opinion that
this case had been proper!}' left to the jury, and that the prisoner was
guilt}' of felony.
The prisoner was accordingly transported.
1 Lord Loughborough, and Skinner, C. B.
674 EEGINA V. PEINOE. [CHAP. VIII.
REX V. ATKINSON.
Crown Case Reserved. 1799.
[Reported 2 East P. C. 673.]
James William Atkinson was indicted for stealing two bank-notes,
the property of William Dunn, against the statute. It appeared that
the prisoner sent one Dale (to whom he was unknown) with a letter
directed to Dunn; bidding Dale to tell Dunn that he brought the
letter from Mr. Broad, and to bring the answer to him (the prisoner)
in the next street, where he would wait for him. Dale accordingly
carried to Dunn the letter, which was written in the name of Broad,
a friend of Dunn's, soliciting the loan of £3 for a few days, and
desiring that the money might be inclosed back in the letter imme-
diately. Dunn thereupon sent the bank-notes, in question, inclosed in
a letter directed to Broad, and delivered the same to Dale, who deliv-
ered them to the prisoner as he was first ordered. The letter turned
out to be an imposition. It was objected at the trial that this was no
felony, because the absolute dominion of the property was parted
with by the owner, though induced thereto by means of a false and
fraudulent pretence. And on reference to the judges after conviction,
all present held that it was no felony, on the ground that the property
was intended to pass by the delivery of the owner ; and that this case
came within the Stat. 33 H. 8. c. 1, against false tokens, which partic-
ularly speaks of counterfeit letters.'
REGINA V. PRINCE.
Ckown Case Reserved. 1868.
[Reported Law Reports 1 Crown Cases Reserved, 150.]
The following case was stated by the Common Sergeant : —
The prisoner was tried before me at the August session of the Cen-
tral Criminal Court on an indictinent charging him, in the first count,
with stealing money to the amount of £100, the property of Henry
Allen ; in the second count, with receiving the same, knowing it to
have been stolen ; and in two other counts the ownership of the money
was laid in the London and Westminster Bank.
It appeared in evidence that the prosecutor, Henry Allen, had paid
moneys amounting to £900 into the London and Westminster Bank
on a deposit account in his name, and on the 27th of April, 1868, that
1 Ace. Hex 0. Colman, Leach (4th ed.) 303 n. ; Kelly v. People, 6 Hnn, 509;
Kellogg V. State, 26 Oh. St. 15. See Keg. v. Middleton, L. R. 2 C. C. 38, ante. — Ed.
SECT. V.J EEGIN,\. V. PEIXCE. fi75
sum was standing to his credit at tiiat bank. On that day the wife of
Henry Allen presented at the bank a forged order purporting to be
the order of the said Henry Allen, for payment of the deposit, and the
cashier at the bank, believing the authority to be genuine, paid to
her the deposit and interest in eight banknotes of £100 each, and other
notes. Among the notes of £100 was one numbered 72,799, dated the
19th of November, 1867.
On the first of July, 1868, the wife of Henry Allen left him and
his house, and she and the prisoner were shortly afterwards found on
board a steamboat at Queenstown on its way from Liverpool to New
York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her
possession nearly all the remainder of the notes obtained from the
bank. The note for £100, No. 72,799, was proved to have been paid
away by the prisoner in payment for some sheep in May, 1868, and
he said he had it from Mrs. Allen.
Upon this evidence it was objected by prisoner's counsel that the
counts alleging the propertj- to be in Henry Allen must fail, as the note
had never been in his possession ; and that as to the other counts the
evidence did not show anj' larceny of the note from the bank by the
wife, but rather an obtaining by forgery or false pretences by her, and
that the receipt by the prisoner from her was not a receipt of stolen
property. I held, however, that the forged order presented by the wife
was under the circumstances a mere mode of committing a larceny
against the London and Westminster Bank, and that the prisoner was
liable to be convicted on the fourth count.
The jury found the prisoner guilt}' on that count and I respited judg-
ment and reserved for the consideration of the court the question
whether the obtaining the note from the bank by Mrs. Allen under the
circumstances stated was a larceny by her ; if not, the conviction must
be reversed.^
BoviLL, C. J. I am of opinion that this conviction cannot be sus-
tained. The distinction between larceny and false pretences is mate-
rial. In larceny the taking must be against the will of the owner. That
is of the essence of the offence. The cases cited by Mr. Collins on be-
half of the prisoner are clear and distinct upon this point, showing that
the obtaining of property from its owner or his servant absolutely au-
thorized to deal with it by false pretences will not amount to larceny.
The cases cited on the other side are cases where the servant had only
a limited authority from his master. Here, however, it seems to me
that the bank clerk had a general authority to part with both the prop-
erty in and possession of his master's money on receiving what he be-
lieved to be a genuine order, and that as he did so part with both the
property in and possession of the note in question the offence commit-
ted by Mrs. Allen falls within the cases which make it a false pretence
and not a larceny, and therefore the prisoner cannot be convicted of
knowingly receiving a stolen note.
1 Arguments of counsel are omitted.
G76 EEGINA V. PRINCE. [CHAP. VIII.
Chankell, B. I am of the same opinion. The eases cited on one
side and the other are distinguishable on the ground that in one class
of cases the servant had a general authority to deal with his master's
propertj-, and in the other class merely a special or limited authority.
If the bank clerk here had received a genuine order he would have paid
the money for his master and parted with the property, and the trans-
action would have reallj' been what it purported to be. If, however,
the clerk makes a mistake as to the genuineness of a signature, never-
theless he has authority to decide that point ; and if he paj's money on
a forged order the property therein passes from the master and cannot
be said to have been stolen.
Btles, J. I am of the same opinion. I would merely say that I
ground my judgment purelj' on authority.
BLACKBDEJf, J. I also am of the same opinion. I must saj' I can-
not but lament that the law now stands as it does. The distinction
drawn between larceny and false pretences — one being made a felony
and the other a misdemeanor, and yet the same punishment attached
to each — seems to me, I must confess, unmeaning and mischievous. .
The distinction arose in former times, and I take it that it was then held
in favor of life that in larcenj- the taking must be against the will of the
owner, larceny then being a capital offence. However, as the law now
stands, if the owner intended the property to pass, though he would not
so have intended had he known the real facts, that is sufficient to pre-
vent the offence of obtaining another's propertj' from amounting to
larceny ; and where the servant has an authority co-equal with his
master's and parts with his master's property, such property cannot be
said to be stolen inasmuch as the servant intends to part with the
property in it. If, however, the servant's authority is limited, then he
can onlj- part with the possession, and not with the property ; if he is
tricked out of the possession the offence so committed will be larcenj-.
In Regina v. Longstreeth, 1 Moodj', C. C. 137, the carrier's servant had
no authority to part with the goods except to the right consignee. His
authority was not generallj' to act in his master's business, but limited
in that way. The offence was in that case held to be larceny on that
ground, and this distinguishes it from the pawnbroker's case Regina v.
Jackson, 1 Moody C. C. 119, which the same judges, or at anj- rate
some of them, had shortly before decided. There the servant from
whom the goods were obtained had a general authoritj' to act for his
master, and the person who obtained the goods was held not to be
guilty of larceny. So in the present case the cashier holds the money
of the bank with a general authority from the bank to deal with it.
He has authority to part with it on receiving what he believes to be a
genuine order. Of the genuineness he is the judge ; and if under a
mistake he parts with money he none the less intends to part with
the property in it, and thus the offence is not, according to the cases,
larceny, but an obtaining by false pretences. The distinction is in-
scrutable to my mind, but it exists in the cases. There is no statute
BEOT. v.] KEGINA V. BUOKMASTEK. 677
enabling a count for larceny to be joined with one for false pretences ;
and as the prisoner was indicted for the felony the conviction must be
quashed.
LosH, J. I also agree that the conviction must be quashed. I
ground my judgment on the distinction between the cases which has
been pointed out. The cashier is placed in the bank for the very pur-
pose of parting with the monej- of the bank. He has a general author-
ity to act for the bank, and therefore that which he does, his masters the
bankers do themselves through him. \ Conviction quashed}
REGINA V. BUCKMASTER.
Ckown Case Reserved. 1887.
[Reported 16 Cox C. C. 339.]
This was a case stated for the opinion of the Court by the Chair-
man of the Court of Quarter Sessions for the County of Berks, which
was as follows : —
1. At the General Quarter Sessions for the County of Berks, held on
the 27th day of June, 1887, Walter Buckmaster was tried before me
upon an indictment, omitting formal parts, which charged that he
did on the 9th day of June, 1887, feloniously steal, take, and carry
away certain money of the moneys of John Rymer.
2. It was proved that the prisoner and another man, at about 3 p. m.
on the 9th day of June last, during the Ascot Race Meeting, were the
only persons standing upon a platform or stand made to represent
" safes," or iron safe chests. The words " Griffiths, the Safe Man,"
were- printed upon it. The stand was outside the course, on a spot on
Ascot Heath where carriages were placed, and was not within any
betting inclosure or ring.
3. The prisoner, with a book in his hand, was calling out, " Two to
one against the field," just before a race was about to be run. Rymer
went up to him and asked, " What price Bird of Freedom? " to which
he replied, " Seven to one to win." Rymer then deposited five shillings
with Buckmaster, who told him that if the horse won he (Rymer) would
win thirty-five shillings and get his own five shillings back. He also
deposited another five shillings with Buckmaster, who told him that he
would have fifteen shillings back, including his own five shillings, if the
horse was first or second. The man who was with Buckmaster and
was acting with him, received the money, and the latter, with whom
all the conversation took place, appeared to take down the bet in his
book, and gave Rymer a card-ticket with the words " Griffiths, Safe
Man " upon it.
1 See People v. McDonald, 43 N. Y. 61. — Ed.
678 KEGINA V. BUOKMASTER. [CHAP. VIII,
4. While the race was being run, the prisoner and the other man
were seen by one of the witnesses to walk quietly away. They were
followed for about twenty yards, and on the witness at once returning,
the stand had gone. The horse Bird of Freedom won the race,
and thereupon Rymer went back to the place where the stand had been,
and he found that the prisoner and the other man had gone. He waited
there for half an hour and then left. Much later in the afternoon
Rymer saw the prisoner on another part of Ascot Heath and said, " I
want £2 15«. from you." The prisoner said he knew nothing about it.
Upon being told by Rymer that he would be detained, he admitted the
bet and said he had not the money, but that he was only the clerk
and could take the prosecutor to the man who had it. He was then
taken into custody, and upon. him were found card-tickets with the
words " Griffiths, the Safe Man" upon them. It was elicited from
Rymer in cross-examination that he would have been satisfied if he did
not receive back the same particular coins he had deposited.
5. At the close of the case for the prosecution, on behalf of the
prisoner it was submitted that Rymer having parted voluntarily with
the money there was no evidence of larceny nor of any taking by
prisoner, and none of obtaining by false pretence or trick.
The learned chairman declined to withdraw the case from the jury,
but assented to state this case. No evidence at all was called on the
part of the prisoner, and a verdict of guilty was returned.
The question for the opinion of the court was whether there was any
evidence to be left to the jury.
Keith-Frith, for the prisoner. In this case the prisoner might per-
haps have been convicted of obtaining money by false pretences. But
he has not been indicted for false pretences ; and although upon an
indictment for false pretences a prisoner can be convicted of larceny,
he cannot upon an indictment for larceny be convicted of false pre-
tences. There was no larceny here, because here there was no taking
invito domino. [Lord Coleridge, C.J. — Why cannot it be larceny
by a trick?] In larceny by trick, although the possession is parted
with, the ownership does not pass. But here the prosecutor did intend
to part with the ownership of the specific coins he gave the prisoner,
and therefore the ownership in them passed. [Hawkins, J. — No ; the
prosecutor merely intended to give the prisoner the coins as a deposit
to abide the event of the race.] If that were so, then the person who
makes a bet with a Geo. III. sovereign can insist upon that particular
coin being returned to him if he wins. [Smith, J. — Although the
whole thing was a sham, do you say that the prosecutor intended to
part with his coin ?] No ; but if the ownership was obtained by means
of a trick as well as the possession, the prisoner ought to have been
indicted for false pretences. Here the prosecutor said he would have
been satisfied had he not got the same coins back ; therefore he clearly
intended that the property in the particular coins should pass. [Hav7-
KiNS, J. — Is not Rex v. Robson, Russ. & Ry. 413, an authority that the
SECT, v.] EEGINA V. BUCKMASTEE. 679
property did not pass under the circumstances?] No; for there the
notes were never intended to be changed ; they were merely deposited
as a stake. Suppose here that Bird of Freedom had lost, the
prisoner would have been entitled to keep the 5s. and could not have
been indicted for stealing his own property ; and therefore as the
property passed, there could be no larceny, and the conviction should
be quashed.
No counsel appeared on behalf of the prosecution.
LoED Coleridge, C. J. I am of opinion that in this case the con-
viction is right and should be affirmed.. The only question left to us
by the learned chairman is, whether there was any evidence that the
prisoner had been guilty of larceny to be left to the jury. In my
opinion there was abundant evidence from which the jury might infer
that the prisoner was guilty. On behalf of the prisoner it has been
argued that there is no doubt that the money was intended to be parted
with, and that not only was the possession of the money parted with
but the property in it was also intended to be parted with ; and that
"therefore, as the property was intended to be parted with, there could
be no larceny, but only the offence of obtaining money by false pre-
tences ; and that, although the prisoner, if he had been indicted for the
false pretences, could have been convicted of larceny, the converse does
not hold good, and he cannot, upon an indictment for larceny, be con-
victed of obtaining money by false pretences. To that there seems to
me to be two answers : the first, that, supposing there was an intention
on the part of the prosecutor to part with the property in the coin, in
order to pass the property from him to the prisoner there must have
been a contract under which it could pass ; for a change of property
could only have taken place by virtue of a contract of some sort, and
a contract, by the very meaning of the word, must be the bringing
together of two minds. Now, here there never was any bringing
together of the minds of the prosecutor and the prisoner in the shape
of a contract ; for supposing the prosecutor to have intended to have
parted with his money, he only intended to do so on the assumption
that the prisoner intended to deal honestly with the money ; whereas,
on the contrary, the prisoner never intended to do that, but as the
evidence shows clearly, intended to do that which the prosecutor never
for a moment consented to. No contract ever existed therefore ; and
there is high authority that, under such circumstances, the property in
the article does not pass. In Rex v. Oliver, Russ. on Crimes, vol. ii.
p. 170, which was a case tried before Wood, B., the prosecutor there
had a quantity of bank-notes, which he wanted to change, and the
prisoner offered to change them for him. The prosecutor gave him the
bank-notes, on which the prisoner decamped, and the prosecutor never
got any money in return. It was argued that, as the prosecutor clearly
intended to pass the property in the bank-notes to the prisoner, he
could not be convicted of larceny. But Wood, B., held that the case
clearly amounted to larceny if the jury believed that the intention of
680 REGINA V. BUCKMASTER. [CHAP. VIII.
the prisoner was to run away with the notes and never to return with the
gold, and that whether the prisoner had at the time the animus furandi
was the sole point upon which the question turned, for if the prisoner
had at the time the animus furandi, all that had been said respecting
the property having been parted with by the delivery was without
foundation, as the property in truth had never been parted with at all.
The learned judge further said that " a parting with the property in
goods oould only be effected by contract, which required the assent of
two minds ; but that in this case there was not the assent of the mind,
either of the prosecutor or of the prisoner, the prosecutor only meaning
to part with his notes on the faith of having the gold in return, and the
prisoner never meaning to barter, but to steal." It appears to me that
that is not only good sense but very sound law, and it is decisive of
the point raised here. I am of opinion therefore that there is evidence
of larceny here, and that the true view to take of this case is that the
property did not pass. The second answer appears to me to be found in
the case of Rex v. Robson, Russ. & Ry. 413, which is even more like this
case than the case I have already cited. In Rex v. Robson the prose-
cutor was induced by the prisoner's confederates to make a bet with one
of them and to part with a number of bank-notes to another of the
confederates, who passed it on to the prisoner to hold as stake-holder.
The prosecutor having apparently lost the bet, the money was given by
the prisoner to the confederate with whom the bet was made, and he
went away. Upon these facts it was held that, where there is a plan
to cheat a man of his propert}- under color of a bet, and he parts
with the possession only to deposit the property as a stake with one of
the confederates, the taking by such confederates is felonious. The
case was tried by Bayley, J., who told the jury that if they thought,
when the notes were received, there was a plan and concert between
the prisoners that the prosecutor should never have them back, but
that they should keep them for themselves, under the false color and
pretence that the bet had been won, he was of opinion that in point of
law it was a felonious taking by all. The jury convicted, but the
learned judge thought proper, as the case came very near Rex v.
Nicholson, 2 East P. C. 669, to submit it to the consideration of the
judges, making the distinction between the cases that in Rex v. Robson,
at the time the prisoners took the prosecutor's notes, he parted with
the possession only and not the property ; and that the property was
only to pass eventually, if the confederate really won the wager ; and
that the prosecutor expected to have been paid had the confederate
guessed wrongly. Ten of the judges considered the case and held the
conviction right, because at the time of the taking the prosecutor
parted only with the possession of the money. Now, the true view of
the case here is exactly like the view which the judges took in that
case. In this case the prosecutor deposits money with the prisoner,
never intending to part with that money, but being told that in a certain
event he was to have that money and something more added to it given
SECT, v.] EEGINA V. BUCKMASTEE. 681
back to him. The prisoner, on the other hand, took the money, never
intending to give it back, and decamped with it. It appears to me,
therefore, that the possession only of the money was parted with, and
that the prosecutor never intended to part with the property in it. No
doubt had he had money given back to him, he would not have inquired
into the question whether his own 5s. came back to him or not. But
that does not affect the, question whether, when he placed the coins
in the prisoner's hands, he intended to pass the property in them to the
prisoner. At all events there was plenty of evidence from which
the jury could find that such was not his intention ; and in my opinion
the conviction should be affirmed.
Pollock, B. I have nothing to add.
Manistt, J. I have very few words to say. I take it on the author-
ities cited by my Lord that it is settled law that if a man parts with the
possession of money but does not intend to part with the property in
it, and the person receiving the money intends at that time to steal the
money in a certain event, that there then is larceny. That is the
ground on which I think that, as in this case the prosecutor never
intended to part with his 5s. except in the event which did not occur
and the prisoner never intended to return the money, the prisoner was
guilty of larceny.
Hawkins, J. The only question for our determination is, whether
there was any evidence to go to the jury. I am of opinion that there
was abundant evidence. I think the evidence pointed to this, that the
whole of the prisoner's conduct pointed to an original and preconcerted
plan of the prisoner to obtain possession of and keep the money of
the prosecutor ; and that the prosecutor never intended on such terms
to part with the property in his 5s. I think therefore that there was
abundant evidence of larceny in this case, and that the conviction should
be affirmed.
Smith, J. I think that it is clear the prosecutor never intended to
part with the property in the 5s. except on condition that a bona fide
bet was made. I think also that there is evidence that at the time the
prosecutor handed the 5s. to the prisoner, the prisoner intended to keep
possession of the money", whether Bird of Freedorii lost or won. He
therefore obtained the possession of the prosecutor's money by means
of a preconcerted and premeditated fraud ; in other words, by a trick.
There was therefore abundant evidence of larceny, and in my opinion
the conviction should be affirmed.' Conviction affirmed.
^ Stinson v. People, 43 111. 397 ; Grunson v. State, 89 Ind. 533 ; Miller v. Com.,
'% Ky. 15 ; People v. Shaw, 57 Mich. 403 ; Loomis v. People, 67 N. Y. 322. But sea
Rex V. Nicholson, Leach (4th ed.), 610; Reg. v. RUey, I Cox C. C. 98. — Ed.
682 EEGINA V. SOLOMONS. [CHAP. VIII.
EEGINA V. SOLOMONS.
Crown Case Eesekved. 1890.
{Reported 17 Cox C. C. 93.]
Case stated by the Deputy-chairman of the London County Quarter
Sessions, as follows : — ■
The above prisoner was tried before me on the 20th day of February,
1890, upon an indictment which charged that he " did on the 2d day of
February, 1890, feloniously steal, take, and carry awaj' three shillings
and sixpence, the property of Edward Davj'." The second count
charged him " with feloniously receiving the same, well knowing it was
stolen."
The prosecutor Edward Davy deposed as follows : —
That on the 2d day of February in this j'ear I was near Aldgate,
when the prisoner came up to me. At that time there was another man
standing a little way off selling purses. The prisoner said, " I '11 show
you how the trick is done." He then opened a purse which he had in
his hand, and putting three shillings in his other hand said, " You see
there are three shillings there." I said, ' ' Yes." He then dropped them,
or appeared to do so, into the purse. He then asked me if I would
give him one shilling for the three shillings and the purse. I hesitated,
but afterwards gave him a shilling for the three shillings and the
purse, and put the purse into my pocket. He then pulled out another
purse, and showing two half-crowns in his hand, put them, or appeared
to put them, into the purse, and asked me if I would give him half a
crown for the two half-crowns and the purse. I gave him half a crown.
The prisoner then said, " Just to show that I am not cheating, and to
let the public see it, you had better give me one-and-sixpeuce for my-
self," which I did. I then walked a little distance away and opened
the first purse which he had said contained three shillings, and found
only three halfpence. In the second purse, which was said to contain
two half-crowns, I found two penny pieces only.
In cross-examination the prosecutor stated that the prisoner prom-
ised him three shillings for one shilUng, that he bought the three
shillings and the purse, that he did not buy on speculation, and that
he was willing to take the half-crown, if the prisoner was willing to
part with it ; that he never said that he parted with his money to see
how the trick was done, and that at the time he was on his way to the
Tabernacle to hear Mr. Spnrgeon.
Another witness, named Norfolk, in every particular corroborated the
story, but his evidence will be unnecessary to give in detail.
A constable named Burnett was also called, and stated that he took
tlie prisoner into custody for stealing three shillings and sixpence.
Prisoner in reply said, " Serve him right; more fool he to buy them."
On being searched there were found on prisoner seven purses and
eleven shillings in silver. The prosecutor on being recalled stated that
SECT. Y.] EEGINA V. SOLOMONS. 683
he did not care for the purses, but that he wanted the money which
the prisoner promised.
Upon this state of facts it was argued bj' counsel for the prisoner
that the prisoner ought not to have been indicted for larceny, because
the prosecutor voluntarily parted with his money, both the possession
and the ownership, in return for the money which he hoped to get-
Cases were quoted in support of this statement.
I overruled the objection, and pointed out that in my opinion there
was no difference between the present state of facts and the crime of
larceny as committed in the case of " ring dropping," and that although
the indictment might have been framed for obtaining money by false
pretences, the present one was equally good to maintain the crime of
larceny by a trick.
The verdict was as follows : " We find the prisoner guilty of ' ob-
taining ' the money by a trick."' I asked the jury what they meant;
did they mean that the prisoner committed the crime of larceny by
a trick as explained by me ? and thej' answered in the affirmative.
I, considering it of importance to have it determined whether this
form of crime came within the misdemeanor of obtaining goods by false
pretences, or whether it was a felony, decided to state this case, which
I respectfully do, for the consideration of the Court of Criminal
Appeal.
The question for the opinion of the court is, whether I was right in
holding and directing the jury that the prisoner might be convicted of
larceny by trick.
Keith Frith, on behalf of the prisoner. There was no larceny or
trick here, for wherever the ownership as well as the possession of
goods is parted with, there can be no larceny. The prisoner should
have been indicted for obtaining the coins by false pretences. "Where
it has been held that there has been larceny by a trick, such as the
•confidence trick, the possession and not the ownership has been parted
with. [Lord Coleridge, C.J. — In Reg. v. Robson (R. & R. 413)
money was deposited for a pretended bet, and it was held to have
been a case of larcen3'.] That was because there the money was only
deposited, and though the possession was parted with the ownership
of the monej' did not pass. In Reg. v. Wilson (8 C. & P. Ill), the
ring-dropping case, it was held to be a case of false pretences. [The
court here adjourned, and upon re-assembling on the 17th daj- of May,
called upon the counsel for the prosecution to support the conviction.]
May \1th. Slade Butler for the prosecution. The question here
is, whether or not this particular trick comes within the definition of
larcenj'. It is said that it does not, because the prosecutor intended
to part with the ownership of the coins. But the intention in the mind
of the prosecutor cannot alter the nature of the crime. The question is
really what was the intention of the prisoner when he took the coins ;
and there can be no doubt but that he intended to obtain them wrong-
fully. The point is concluded by the case of Reg. v. Middleton (28 L. T.
Rep. N. S. 777 ; 12 Cox C. C. 417 ; L. Rep. 2 C. C. R. 38 ; 42 L. J. 73.
684 EEGINA V. SOLOMONS. [CHAP. VIII.
M. C). There must be a geuuine contract in order to pass the prop-
ei'ty, and here there was never any contract. The prosecutor here
never intended to contract for what he obtained. He also cited Reg. v.
Buckmaster (57 L. T. Rep. N. S. 720 ; 16 Cox C. C. 339 ; 20 Q. B.
Div. 182; 57 L. J. 25, M. C).
Lord Coleridge, C.J. This case is really upon consideration too
clear for me to entertain any doubt about it. Of course one hesitates
to let off a man if he is guilty of a gross fraud, and it is matter for
regret to have to let off a man who is really guilty of something. But as
long as we have to administer the law we must do so according to the
law as it is. We are not here to make the law, and by the law of
England, though it is enacted by 24 & 25 Vict. c. 96, s. 88, that a man
indicted for false pretences shall not be acquitted if it be proved that
he obtained the property with stealing which he is charged in anj' such
manner as to amount in law to larcen}', unfortunately the statute stops
there, and does not go on to say that if upon an indictment for larceny
the offence committed is shown to be that of false pretences, the prisoner
may be found guilty of the latter offence. The statute not having said
it, and the one offence being a misdemeanor while the other is a felonj',
you cannot according to the ordinary principles of the common law
convict for the misdemeanor where the prisoner Is indicted for the
felony. Now the law is plain that, where the propertj- in an article is
Intended to be parted with, the offence cannot be that of larceny. Here
it is quite clear that the prosecutor did intend to part with the property
in the piece of coin, and the case is not like anj' of those cases in which
the prosecutor clearlj' never intended to part with the property- in the
article alleged to have been stolen. Whether or not the prosecutor
here intended to part with the propertj- in the coin does not signify if
what he did was in effect to part with it for something which he did
not get. I have already said that you cannot convict of false pretences
npon an indictment for larceny, and as the offence here was, if anj'-
thing, that of false pretences, and the indictment was for larceny, it
follows that this man must get off upon this indictment. I am there-
fore of opinion that this conviction must be quashed.
Hawkins, J. I cannot mj-self imagine a clearer illustration of the
difference between the offence of false pretences and that of larceny
than is afforded by this case. It is perfectly clear that the prosecutor
intended to part with the property in the coins, and that being so, the
case is clearly not that of larceny. The conviction must therefore be
quashed.
Mathew, J. This is a case of false pretences, if anything, and not
of larceny ; and I am of opinion therefore that the conviction must be
quashed.
Day, J. I entirely concur with mj' Lord.
Grantham, J. I am of the same opinion.
Conviction quashed.^
1 Ace. Reg. V Williams, 7 Cox C. C. 355 ; Reg. v McKale, 11 Cox C. C. 32 ; Reg. v.
Twist, 12 Cox C. C. 509; Reg. t,. HoUis, 15 Cox C. C. 32. — Ed.
SECT, v.] KEGINA V. KUSSETT. 685
EEGINA V. RUSSETT.
Crown Case Reserved. 1892.
[Reported [1892] 2 Q.B. 312.]
Case stated by the Deputy-chairman of the Gloucestershire Quartei-
Sessions : —
The prisoner was tried and convicted upon an indictment, charging
him with having feloniously stolen on March 26, 1892, the sum of £8
in money of the moneys of James Brotherton. It appeared from the
facts proved in evidence that on the day in question the prosecutor
attended Winchcomb fair, where he met the prisoner, who offered to
sell him a horse for £24 ; he subsequently agreed to purchase the
horse for £23, £8 of which was to be paid down, and the remaining
£15 was to be handed over to the prisoner either as soon as the pros-
ecutor was able to obtain the loan of it from some friend in the fair
(which he expected to be able to do) or at the prosecutor's house at
Little Hampton, where the prisoner was told to take the horse if the
balance of £15 could not be obtained in the fair. The prosecutor, his
son, the prisoner, and one or two of his companions, then went into a
public house where an agreement in the following words was written
out by one of the prisoner's companions, and signed by prisoner and
prosecutor: " 26th March, G. Russett sell to Mr. James and Brother
[sic] brown horse for the sum of £23 Os. Od!. Mr. James and Brother
pay the sum of £8, leaving balance due £16 Os. Od. to be paid on
delivery." The signatures were written over an ordinary penny stamp.
The prosecutor thereupon paid the prisoner £8. The prosecutor said
in the course of his evidence : " I never expected to see the £8 back,
but to have the horse.'' The prisoner never gave the prosecutor an
opportunity of attempting to borrow the £15, nor did he ever take or
send the horse to the prosecutor's house ; but he caused it to be
removed from the fair under circumstances from which the jury in-
ferred that he had never intended to deliver it.
It was objected on behalf of the prisoner that there was no evidence
to go to the jury, on the ground that the prosecutor parted absolutely
with the £8, not only with the possession but with the property in it ;
and, consequently, that the taking by the prisoner was not larceny,
but obtaining money by false pretences, if it was a crime at all ; the
objection was overruled. In summing up. the Deputy-chairman directed
the jury that if they were satisfied from the facts that the prisoner
had never intended to deliver the horse, but had gone through the
form of a bargain as a device by which to obtain the prosecutor's
money, and that the prosecutor never would have parted with his £8
had he known what was in the prisoner's mind, they should find the
prisoner guilty of larceny.
686 EEGINA V. EUSSETT. [CHAP. VIII.
The question for the court was whether the Deputy-chairman was
right in leaving the case to the jury. '
Owynne James, for the prisoner. The conviction was wrong. The
only offence disclosed was that of obtaining money by false pretences.
There was no evidence to go to the jury upon a charge of larceny.
The property in the money passed to the prisoner at the time when it
was handed to him by the prosecutor, who admittedly never expected to
see it again ; the receipt given for the money is strong evidence of the
change of property. The case is distinguishable from Eeg. v. Buck-
master, 20 Q. B. D. 182 ; for in that case the question was whether
the prosecutor expected to have his money back. There is in the
present case a breach of contract, for which the prosecutor has a civil
remedy, and it is immaterial that the prisoner in making the contract
had a fraudulent intent. Rex v. Harvey, 1 Leach, 467. For the fact
that the contract was induced by fraud did not render the contract
void, or prevent the property from passing. Clough v. London and
North Western Ry. Co., Law Rep. 7 Ex. at p. 34. The principle of
law is stated in Roscoe's Criminal Evidence, 11th ed. at p. 620, where it
is said : " The doctrine is clearly established that, if the owner intends
to part with the property in the goods, and in pursuance of such inten-
tion delivers the goods to the prisoner, who takes them away, and the
property becomes his, this is not larceny, even though the prisoner has
from the first a fraudulent intention."
Stroud, for the prosecution, was not called upon.
Lord Coleridge, C. J. I am of opinion that this conviction must
be supported. The principle which underlies the distinction between
larceny and false pretences has been laid down over and over again,
and it is useless for us to cite cases where the facts are not precisely
similar when the principle is always the same. When the question is
approached it wUl be found that all the cases, with the possible excep-
tion of Rex V. Harvey, 1 Leach, 467, as to which there may be some
slight doubt, are not only consistent with, but are illustrations of, the
principle, which is shortly this : if the possession of the money or
goods said to have been stolen has been parted with, but the owner did
not intend to part with the property in them, so that part of the trans-
action is incomplete, and the parting with the possession has been
obtained by fraud — that is larceny. This seems to me not only good
law, but good sense, and this principle underlies all the cases. If,
however, authority be wanted, it is to be found in two cases which we
could not overrule without the very strongest reason for so doing : the
first is Reg v. McKale, Law Rep. 1 C. C. 125, where Kelly, L.C.B.,
said, " The distinction between fraud and larceny is well established.
In order to reduce the taking under such circumstances as in the
present case from larceny to fraud, the transaction must be complete.
If the transaction is not complete, if the owner has not parted with
the property in the thing, and the accused has taken it with a fraudu-
lent intent, that amounts to larceny." The distinction, in which I
SECT. V.J REGINA V. EUSSETT. 687
entirely concur, is there expressed in felicitous language by a very
high authority. The other case is that of Reg. v. Buckmaster, 20
Q. B. D. 182, which seems to me directly in point; that decision was
grounded on Rex v. Oliver, 2 Russell on Crimes, 170, and Rex v.
Robson, Russ. & Ry. 413, where the same principle was applied, and
the same conclusion arrived at.
Pollock, B. I agree in the conclusion at which the court has
arrived, and would add nothing to the judgment of my Lord but that I
wish it to be understood that this case is decided on a ground which
does not interfere with the rule of law which has been so long
acted on : that where the prosecutor has intentionally parted with the
property in his money or goods as well as with their possession there
can be no larceny. My mind has therefore been directed to the facts
of the case, in order to see whether the prosecutor parted with his
money in the sense that he intended to part with the property in it.
In my opinion, he certainly did not. This was not a case of a payment
made on an honest contract for the sale of goods, which eventually
may, from some cause, not be delivered, or a contract for sale of a
chattel such as in Rex v. Harvey, I Leach, 467 ; from the first the
prisoner had the studied intention of defrauding the prosecutor ;
he put forward the horse and the contract, and the prosecutor, believ-
ing in his bona fides, paid him £8, intending to complete the purchase
and settle up that night. The prisoner never intended to part with the
horse, and there was no contract between the parties. The money
paid by the prosecutor was no more than a payment on account.
Havfkins, J. I am entirely of the same opinion. In my judgment
the money was merely handed to the prisoner by way of deposit, to
remain in his hands until completion of the transaction by delivery
of the horse. He never intended, or could have intended, that the
prisoner should take the money and hold it, whether he delivered the
horse or not. The idea is absurd; his intention was that it should be
held temporarily by the prisoner until the contract was completed,
while the prisoner knew well that the contract never would be com-
pleted, by delivery ; the latter therefore intended to keep and steal the
money. Altogether, apart from the cases and from the principle which
has been so frequently enunciated, I should not have a shadow of
doubt that the conviction was right.
A. L. Smith, J. The question is whether the prisoner has been
guilty of the offence of larceny by a trick or that of obtaining money
by false pretences ; it has been contended on his behalf that he could
only have been convicted on an indictment charging the latter offence ;
but I cannot agree with that contention. The difference between the
two offences is this : if possession only of money or goods is given,
and the property is not intended to pass, that may be larceny by a
trick ; the reason being that there is a taking of the chattel by the
thief against the will of the owner ; but if possession is given and it
is intended by the owner that the property shall also pass, that is not
688 ' EEX V. TIDESWELL. [CHAP. VIII.
larceny by a trick, but may be false pretences, because in that case
there is no taking, but a handing over of the chattel by the owner.
This case, therefore, comes to be one of fact, and we have to see
whether there is evidence that, at the time the £8 was handed over,
the prosecutor intended to pass to the prisoner the property in that
sum, as well as to give possession. I need only refer to the contract,
which provides for payment of the balance on delivery of the horse, to
shew how impossible it is to read into it an agreement to pay the £8
to the prisoner whether he gave delivery of the horse or not ; it was
clearly only a deposit by way of part payment of the price of the
horse, and there was ample evidence that the prosecutor never intended
to part with the property in the money when he gave it into the
prisoner's possession.
Wills, J. I am of the same opinion. As far as the prisoner is
concerned, it is out of the question that he intended to enter into a
binding contract ; the transaction was a mere sham on his part. The
case Is not one to which the doctrine of false pretences will apply, and
I agree with the other members of the court that the conviction must
be affirmed. Conviction affirmed}
EEX V. TIDESWELL.
COUBT FOR CeOWN CaSES RESERVED. 1905.
1
[Reported 1905, 2 K. B. 273.]
Case stated by the chairman of the Staffordshire Quarter Sessions
for the consideration of the Court for Crown Cases Reserved.
1. The prisoner was tried on an indictment charging him —
(a) With feloniously stealing 1 ton 10 cwt. of casters' ashes on Jan-
uary 28, 1904, the propert}- of Allen Everitt & Sons, Limited.
(V) With receiving the said goods on the date aforesaid well knowing
them to have been stolen.
(c) With feloniouslj- stealing 1 ton 6 cwt. of casters' ashes on April
21, 1904, tlie property of the said Allen Everitt & Sons, Limited.
(d) With receiving the last-mentioned goods on the said date well
knowing them to have been stolen.
2. It was proved that the prisoner had been a customer of Allen
Everitt & Sons, Limited, for a number of years, purchasing waste and
residual metal products from tliem. A man named Ephraim Kaye was
emplo3-ed bj' Allen Everitt & Sons, Limited, as general metal weigher,
and it was his duty to weigh out waste and residuals, and to enter in a
book, called the residual metal book, a record of such weights for the
purpose of enabling the customers to be charged in the books of the
company witli the proper weights. It was also the dutj' of Ephraim
Kiivp to kcop .another book, called the receipt book, in which he took
1 Ace. People v. Eae, 66 Cal. 423. See People v. Easchke. 73 Cal 378. — Ed
SECT. T.] REX V. TIDESWELL. 689
from the customers signed receipts for the weights of waste and resid-
uals taken by them.
3. On January 23, 1904, Ephraim Kaye weighed and delivered into
truclfs of the railway company a quantity of casters' ashes, a residual
raetal product, the property of Allen Everitt & Sons, Limited, weighing
111 fact 32 tons 13 cwt. Ephraim Kaye made out a receipt for these
casters' ashes by the prisoner in his receipt-book, describing them as
weighing 31 tons 3 cwt. only, and this receipt was, on January 23,
signed by the prisoner, who was charged with that amount only in the
books of the company. On January 20 and 23 the prisoner made out
1 wo consignment notes to the railway company in his own handwriting
for 19 tons 9 cwt. and 13 tons 4 cwt. respectively of casters' ashes,
umounting togetlier to 32 tons 13 cwt.
4. On April 21, 1904, Ephraim Kaye weighed and delivered into
two trucks of the railway company a quantit}' of casters' ashes, the
property of Allen Everitt & Sons, Limited, weighing in fact 12 tons 16
cwt. 2 qrs. The prisoner on April 20 signed a receipt made out by
Ephraim Kaye in his receipt-book for 11 tons 10 cwt. 2 qrs. only, and
was charged with that weight in the books of the coLipany. The pris-
oner on April 21 made out a consignment note to the railway company
in his own handwriting for 12 tons 16 cwt. 2 qrs. of casters' ashes.
5. Ephraim Kaye, who, on being charged with the aforementioned
felonies before magistrates at petty sessions, pleaded guilty, and was
sentenced to three months' imprisonment, was called on behalf of the
prosecution, and stated that he entered the lesser weights in the resid-
ual metal book and receipt-book intentionally, and that he kept a pri-
vate book, to whicli he referred at the trial, in which he entered all the
correct weights of goods weighed out to the prisoner, who obtained
these correct weights from him, or through being present at the time
they were entered. He said that he had no previous arrangement or
understanding with the prisoner that he was to be charged for less
■ casters' ashes than were to be sent, and that he could not say that he
had ever told the prisoner that he was being charged for less than the
actual weights on any occasion, and that there was no understanding as
to any particular deduction from weiglils, though (he added) deductions
were as a matter of fact made ; but the prisoner had given him sums
of money from time to time as a reward for these services generallj-,
though not as a payment in respect of any particular transaction. All
the casters' ashes that were put into the railway company's trucks were
loaded in the ordinary course of business between Allen Everitt & Sons,
Limited, and the prisoner.
6. On this evidence it was objected b3' counsel for the prisoner that
the indictment was not supported by the evidence, on the ground that
there was no proof of the larceny or receiving bj- the prisoner of any
specific goods.
7. I overruled the objection, but consented to reserve the point for
the consideration of the Court for Crown Cases Reserved. I told the
690 EEX V. TIDESWELL. [CHAP. Till.
jury that if they believed the evidence for the prosecution, their duty
was to find the prisoner guiltj-. The jury found the prisoner guilty.
March 18. Vachell, for the prisoner. The ashes put into the trucks
were never divided, so that it was impossible to saj' which particular
tons or hundredweight were stolen. " In lareenj- some particular arti-
cle must be proved to have been stolen ; " per Alderson, B., Reg. v.
Lloyd Jones (1838), 8 C. & P. 288. Secondly, the evidence shews that
the property in the whole of the ashes weighed out by Kaye passed fromi
the prosecutors. Sale of Goods Act, 1893, § 18, rule 3.
a. W. Coventry, for the prosecution. It is enough to specify the
amount stolen, although it forms part of a larger bulk. Kaye had no
authority from the prosecutors to transfer the propertj' in &ny portion
of the ashes except to the extent of the entr^- made by him in the resid-
ual metal book. And the prisoner, knowing that he had no such
authority, got no property in the excess. Reg. v. Hornby (1844),
I C. & K. 305.
The Court ordered the case to be remitted to the quarter sessions
with directions that the following questions should be answered : —
(a.) Was there any previous or contemporary contract between the
prisoner and Allen Everitt & Sons, Limited, or any authorized agent
or servant of Allen Everitt & Sons, Limited, other than Kaye, either
for the sale of these ashes or the sale of any quantities of ashes ? If so,
the particulars of the terms of the contract should be set out.
(ft) Was there any contract between the prisoner and Kaye for the
sale of the ashes on either of the dates laid in the indictment ? If so,
the particulars of the contract should be set out.
In accordance with that order the chairman stated as follows : —
The evidence at the trial did not disclose any such contract as re-
ferred to in paragraph (a) or in paragraph (b). The managing director
of the prosecutors stated in evidence that the prisoner was a customer
as buj'er of residuals, and that he had sold as much as 3000Z. in value
to the pi'isoner, and that he had known the prisoner fifteen j-ears in
the way of business. The practice appears to have been that when
Allen Everitt & Sons, Limited, had an accumulation of waste residuals
or ashes they sent for the prisoner, who saw the managing director and
arranged verbally with him to buy so much as he should require of the
bulk at so much per ton. No specific quantities would be mentioned,
the understanding being that the quantities purchased should be de-
fined by the weighing. The ashes, the subject of the indictment, formed
part of one of these accumulations.
May 20. B. W. Coventry, for the prosecution.
Vachell, for the prisoner. The property in the whole of the truck-
loads passed to the prisoner as soon as they were separated from the
bulk and weighed and put into the trucks for the prisoner. For noth-
ing else remained to be done to pass the property. Whatever fraud
was afterwards perpetrated could not alter the fact. The prosecutors
intended the whole of the goods to go to the prisoner, for, by the terma
SECT, v.] REX V. TIDESWELL. 691
of the arrangement, he was to take as much as he pleased. What tlie
prosecutors were deprived of was not a certain quantity' of goods, but
a part of the price.
Lord Alverstone, C. J. Upon the point reserved for our consid-
eration upon the case as originally stated, namely, whether the indiet>
ment for larcenj' could be supported in the absence of proof of larceny
of any specific portion of the goods, I entertained no doubt whatever.
But in the course of the argument a question was raised as to whether
the property in the goods had not already passed to the prisoner at the
time of the fraudulent entry in tbe weight-boolf, and whether conse-
quently, whatever other criminal offence he might have committed, he
could be properly charged with larceny ; and as we thought the case
did not sufficiently state the facts with respect to that matter, we sent
it back to be restated. The question whether the prisoner's offence
amounts to larcenj' must depend upon the circumstances under which
he received the goods. Suppose the owner of a flock of sheep were to
offer to sell, and a purchaser agreed to buy, the whole flock at so
much a head, the owner leaving it to his bailiff to count the sheep and
ascertain the exact number of the flock, and subsequently- the purchaser
were to fraudulently arrange with the bailiff that whereas there were in
fact thirt3' sheep they should be counted as twenty-five, and the pur-
chaser should be charged with twenty-five only, there would be no
larceny, because the property would have passed to the purchaser
before the fraudulent agreement was entered into. On the other hand,
if the owner were to leave it to his bailiff to arrange the sale, author-
izing him to sell as man}' sheep out of the flock as the purchaser should
be willing to buy, then if the contract of sale arranged between the
bailiff and the purchaser was expressed to be for twenty-five sheep,
and the whole thirty were fraudulently' delivered to the purchaser, the
obtaining possession of the five sheep as to which there was no contract
of sale would amount to larceny. In the present case, as restated, it
appears that there was no contract with the managing director that the
prisoner should buy the whole of the ashes in the trucks, but only such
a quantity as should be defined by the weighing ; in other words, there
was no contract of purchase except that made with Kaye. That being
so, the case is governed by the principle of Reg. v. Hornby, 1 C. & K.
305, where the prisoner received goods from the servant of the owner
under color of a pi-etended sale, and it was held that the fact of his
having received the goods with the knowledge that the servant had no
authority to sell, and was in fact defrauding his master, was suflScient
to support an indictment for larceny. I am of opinion that the convic-
tion in this case must be upheld.
Lawbance, J. \ am of the same opinion.
692 REX V. TIDESWELL. [CHAP. VIII.
Kennedy, J. I agree in the statement of the law by mj' Lord, and
I also think that upon the case as originally stated it was not clear
that the facts shewed the prisoner to have been guilty of larceny within
that statement. It was contended that what took place was an ar-
rangement whereby the property passed to the prisoner. If there had
been a completed contract with the managing director, or some other
official of the companj' covering all the goods in the trucks, then no
doubt the propertj' would have passed, and no subsequent fraud would
make the receipt of the goods larceny. The offence in such a case
would be only a conspiracj' to defraud the sellers of, part of the price.
But here, on the facts as now stated, there was no intention by the
prosecutors to pass the property except in such goods as should be
ascertained hy the weighing, — that is to s&y, in the smaller quantity.
Conseqently there was a larceny of the balance.
Channell, J. I agree. It appears to me that the question whether
the prisoner could properly be convicted of larceny depends upon
whether there was a contract between Allen Everitt & Sons, Limited,
and the prisoner for the sale of the casters' ashes other than a contract
made through the agency of the fraudulent man Kaye. To take the
illustration given during the argument of the sale of sheep. If a farmer
sells all the sheep in a field to a purchaser at so much per head, but not
knowing for certain how many sheep there are, sends his servant with
the purchaser to count them, and the servant and the purchaser fraud-
ulently agree to sa}' that there were onlj' nineteen sheep when there
really were twenty, there is no larcenj' because all the sheep have been
sold by their owner to the purchaser, but the purchaser and the servant
have conspired to defraud the owner of the price of one sheep. If,
liowever, a farm bailiff, having authoritj' to sell his master's sheep in
the ordinary way, says to a purchaser, " There are twenty sheep in the
field belonging to my master, but he does not know how manj' there
are ; you can take them all. I will tell my master you had nineteen
only, and you can pay him for nineteen and give me a present for
myself," there is clearly a larceny of one sheep, and that whether the
bailiff professes to sell the twenty sheep, or whether he professes to sell
nineteen only, for the fraud of the servant is known to the purchaser,
and no property passes in the twentieth sheep bj- the act so known to
be fraudulent, even if the bailiff professes to part with the property in
it. Reg. V. Hornby, 1 C. & K. 305, is a distinct authority for this. It
is a decision of Coltman, J., alone, but it appears to be good law. Reg.
V. Middleton (1873), L. R. 2 C. C. 38, also supports this view, and so
do all the cases as to what is usually called larceny by a trick. In the
case supposed it would be impossible to say which of the twenty sheep
was the one which had been stolen, but it could not be said that that
would prevent a conviction. The suggested difficulty in the present
SECT. YI.] liEX V. WILKINSON. 693
case of identifying the ton and a half of casters' ashes which was stolen
is, in my opinion, no more fatal than the difficult}' as to the sheep
would be. In the present case the jury must be taken to have found
that the prisoner was a party to the fraud, and though he may not have
known what quantity was on any particular occasion to be given to him
without paying for it, or even that on a particular parcel being handed
to him some part would be so given to him (for Kaye doubtless would
only commit the fraud when the circumstances presented a reasonable
probability of its being done without detection), yet the prisoner mnst
be taken to have known before the transactions the subjects of this
indictment that Kaye would probably do on this occasion what he had
clearly done on others, and in the cases when he did so there would be
a larceny committed by both, though in the other cases, when the stuff
was correctly weighed, there would be none. On these points I find
no difficulty, but in the case as originally stated there was nothing to
shew whether the whole transaction of the sale of the casters' ashes
was carried through b}- Kaye, or whether the limited company by any
other officer or agent made a contract for the sale.
PhillimorEj J. I entirely agree. Conviction affirmed.
SECTION VI.
Animus furandi.
EEX V. WILKINSON.
Ceown Case Eeserved. 1821.
[Reported Russell ^ Ryan, 470.]
The prisoners were tried before Mr. Justice Park (present Lord
Chief Justice Abbott) at the Old Bailey Sessions, October,' 1821, on
an indictment for stealing six thousand six hundred and ninety- six
pounds' weight of nux vomica, value thirty pounds, the property of
James Marsh, Henry Coombe, and John- Young, in a certain boat
belonging to them in the port of London, being a port of entry and
discharge:
It appeared in evidence that the prosecutors were lightermen and
agents, and were employed by a Mr. Cooper, a merchant, who delivered
them warrants properly filled up to enable them to pass the nux
vomica through the custom house for exportation to Amsterdam.
The quantity was thirty bales of nux vomica, consisting of seven
hundred and fifty bags.
For exportation this commodity paid no duty ; but for hoihe con-
sumption there was a duty of two shillings and sixpence on the pound
694 EEX V. WILKINSON. [CHAP. VIII.
weight, though the article itself was not worth aboVe one penny per
pound.
Messrs. Marsh & Co. entered the bales for a vessel about to sail to
Amsterdam, called the "York Merchant," then lying in the London
dock ; and having done what was necessary delivered back the cocket
bill and warrants to Cooper, considering him as the owner, and Marsh
& Co. gave a bond to Government with Cooper under a penalty to export
these goods. Marsh & Co. were to be paid for lighterage and for their
services.
After this Marsh & Co. employed the prisoner "Wilkinson as their
servant, who was a lighterman (and who had originally introduced
Cooper to them to do what was necessary respecting the nux vomica),
to convey the goods from Bon Creek, where they were, to the " York
Merchant " at the London docks, and lent their boat with the name
"Marsh & Co." upon it to enable him so to do.
The prisoner Wilkinson accordingly went and got the nux vomica by
an order commanding the person who had the possession of it to de-
liver it to Mr. John Cooper. The bales were marked C. 4 to 33.
When Wilkinson received the cargo, instead of taking it to the ' ' York
Merchant " he, one William Marsden, and the other prisoner, Joseph
Marsden, took the boat to a Mr. Brown's, a wharfinger at Lea Cut in
the county of Middlesex, and'there unloaded it into a warehouse which
William Marsden had hired three weeks before, and which they had
used once before. The two prisoners and William Marsden were
there employed a long time in unpacking the bales, taking out the
nux vomica, repacking it in smaller sacks, and sending it by a wagon
to London, and refilling the marked bales with cinders and other
rubbish which they found on the wharf.
The prisoner Wilkinson then put the bales of cinders, etc., onboard
the boat, took them to the "York Merchant," hailed the vessel, and
said he had thirty bales of nux vomica, which were put on board and
remained so for two or three days when the searcher of the customs
discovered the fraud.
Marsh & Co. admitted that they had not been called on for any du-
ties nor sued upon the bond, though the bond remained uncancelled.
The defence was, and which Cooper was called to prove, that the
goods were not his (Cooper's) , but that he had at William Marsden's
desire lent his name to pass the entry ; and that he had done so, but
did not know why ; that he did not know it was a smuggling trans-
action, or that the object was to cheat Government of the importation
duties.
If these were to be considered as the goods of Cooper then it should
seem a felony was committed upon them by Wilkinson and the two
Marsdens by taking them in the manner described out of the hands of
Marsh & Co. without their knowledge or consent, who as lightermen
or carriers had a special property in them, and who were also liable to
Government to see the due exportation of them.
SECT. VI.] KEGINA V. WKBSTER. 695
Even if they were the goods of William Marsden, who superintended
the shifting of them from the bales to the sacks, the question fox the
judges to consider was whether this can be done by an owner against
a special bailee who has made himself responsible that a given thing
shall be done with the goods, and which the owner, without the knowl-
edge or consent of such bailee, had by a previous act entirely
prevented.
The learned judge told the jury that he would reserve this point for
the opinion of the judges ; but desired them to say whether they
thought the general property, in the goods was in Cooper or "William
Marsden.
The jury found the prisoners guilty, and that the property was Wil-
liam Marsden's.
In Michaelmas Term, 1821, eleven of the judges (Best, J., being ab-
sent) met and considered this case. Four of the judges, namely,
RiCHAEDSON, J., Bdeeough, J., WooD, B., Geaham, B., doubted
whether this was larceny because there was no intent to cheat Marsh
■& Co. or to charge them, but the intent was to cheat the Crown,
Seven of the judges, namely, Gaeeow, B., Holeotd, J., Paek, J.,
Bayley, J., RiCHAEDS, C. B., Dallas, C. J., Abbott, L. C. J., held it
a larceny because Marsh & Co. had a right to the possession until the
goods reached the ship ; they had also an interest in that possession,
and the intent to deprive them of their possession wrongfully and
against their will was a felonious intent as against them, because it
exposed them to a suit upon the bond. In the opinion of part of the
seven judges this would have been larceny although there had been
no felonious intent against Marsh & Co., but only an intention to
defraud the Crown.^
REGINA V. WEBSTER.
Crown Case Reserved. 1861.
[Reported 9 Cox C. C. 13.)
Case reserved for the opinion of this court by the Chairman of the
West Riding Sessions, held at Sheffield.
William Webster was indicted at the West Riding of Yorkshire
Spring intermediate sessions, held at Sheffield, on the 22d May, 1861,
for stealing, on the ll.th of May, at Ecclesfield, three sovereigns and
one half-sovereign, the property of Samuel Fox and others.
It was proved on the trial that James Holt was in possession of a
«hop, where goods were sold for the benefit of a society called the
" Stockbridge Band of Hope Co-operative Industrial Society.'"
1 Fit^eFost. 124. — Rep.
696 EEGINA V. WEBSTER. [CHAP. VIII.
Each member of the society partook of the profit, and was subject
to the loss arising from the shop. Holt (being himself a member)
had the sole management, and was answerable for the safety of all
the property and money coming to his possession in the course of
such management. The prisoner, also a member of the society,
assisted in the shop withwit salary. ~~
Qn_thfi_ojicasi«a-e^he-^tteg5!tittrceny Holt had marked some sover-
eigns and half-sovereigns, and placed them in the till. The prisoner
was suspected of taking some of them, and when charged with this he
admitted that he had taken the coins which formed the subject of
this charge, and produced them from his pocket.
The prosecution failing to prove that this was a friendly society
duly enrolled, elected to amend the indictment by substituting the
name of James Holt for that of Samuel Fox and others, and the same
was amended accordingly.
The counsel for the prisoner put in a copy of the rules of the
society, with the name of John Tidd Pratt printed at the end thereof,
and proved that this copy had been examihed with the original copy,
signed and sealed by the registrar of friendly societies, but which was
not produced. He also put in a conveyance of the shop and premises
to Samuel Fox and other as trustees.
No other evidence of the trusteeship was given.
The counsel for the prosecution objected that in order to prove the
society to be a friendly society under the 18 & 19 Vict. c. 63, it was
necessary to produce the original copy signed by the registrar, or to
account for its absence sufficiently to justify the admission of secondary
evidence.
I overruled this objection, and admitted this evidence as proof that
the society was duly enrolled.
It was contended for the prisoner that Fox and others were the
trustees ; that this was a friendly society, and that the property should
be laid in Fox and others, and not in Holt, and that the prisoner
could not therefore be convicted on the indictment as amended ; that
as to any special property Holt might have in the money taken, he
was joint owner of it with the prisoner, and as partner with him was
equally in possession of it, and could not therefore be convicted.
The court overruled these last mentioned objections, and the
prisoner was convicted and sentenced to be imprisoned in the house
of correction at Wakefield for nine calendar months, subject to the
opinion of the Court of Criminal Appeal whether under the circum-
stances the conviction was right.
The prisoner was admitted to bail to await the decision of the Court
of Criminal Appeal.
A copy of the rules of the society accompanies this case, and is ta
be taken as incorporated therewith.
Wilson Overend, Chairman.
SECT. VI.J KEGINA V. WEBSTER. 697
T. Campbell Foster, for the prisoner. It is contended that the in-
dictment as amended was not proved, and that the property ought to
have been laid as in Fox and others, the trustees of the friendly
society. The prosecutor having failed to prove that the property was
rightly laid in Fox and others, and the court having amended the
indictment by substituting Holt's name instead of Fox and others, the
prisoner produced the proper evidence to show that Fox and others
were the trustees of the society, and then objected to the indictment as
amended, on the ground that by the 18 & 19 Vict., c. 63, s. 18, the
property of the friendly society was vested in the trustees. Sect. 19
empowers the trustees to bring or defend, or cause to be brought or
defended any action, suit or prosecution in any court of law or
equity, touching or concerning the property, right or claim to property
of the society, " and such trustees shall and may, in all cases con-
cerning the real or personal property of such society, sue and be
sued, plead and be impleaded in their proper names as trustees of
such society without other description."
Martin, B. What eviclence was there to show that Holt was not
in possession of these sovereigns as of his own lawful property?
WiGHTMAN, J. Again, he was a partner, and, had the personal
possession of these moneys.
T. Campbell Foster. It is submitted that the only possession Holt
had was that of a servant to the friendly society. If he had taken
and appropriated any of the moneys received by him, he might have
been indicted for embezzlement, and therefore he was a servant, and
his possession was tliat of the society his masters.
WiGHTMAN, J. He was not a servant ; he was an owner, and had
the sovereigns in his personal possession.
Martin, B. He had the sole management of the shop, and was
answerable for the safety of all the property and money coming to
his possession in the course of such management.
T. Campbell Foster. Then the prisoner-, being also a member of the
the society, was a partner, and could not be convicted of stealing his
own property.
Williams, J. There is the well-known case of a man, when the
hundred was liable, being convicted of stealing his own nioney from
his own servant. Foster, 123, 124.
WiGHTMAN, .T. These sovereigns were not part of the goods in the
shop, but money for which Holt had to account. He cannot be treated
as a servant, because it would then follow that he was one of the
persons appointing himself.
Martin, B. Holt had got the sovereigns in his own pocket, as it
were, and suppose that while walking in the street some one had
picked his pocket of them, could not the thief have been indicted
for stealing his money?
T. Campbell Foster. The prisoner was assisting in the shop as a
partner without salary.
698 ADAMS V. STATE. [CHAl'. VIII.
WiGHTMAN, J. No. Holt had the sole management of the shop.
Williams, J. How does this case differ from Rex v. Bramley, R.
& R. 478, where a member of a benefit society entered the room of a
person with whom a box containing the funds of the society was
deposited, and took and carried it away, and it was held to be
larceny, and the property to be well laid in the bailee?
Pollock, C. B. No doubt a man who has pawned his watch with a
pawnbroker may be indicted for stealing it from the pawnbroker.
The present case finds that Holt was in possession of the shop, and
had the sole management, and was answerable for the safety of all
the property and money coming to his possession in the course of such
management, and therefore he may, quoad hoc, be treated as the
owner.
By the Couet : Conviction affirmed.
ADAMS V. STATE.
SuPKEME Court of New Jersey. 1883.
[Reported 45 New Jersey Law, 448.]
Knapp, J. The plaintiff in error was indicted for grand larceny at
the May term of the Union Oyer and Terminer, the indictment charg-
ing her with having feloniously stolen certain goods and chattels as
the property of Thomas W. Sloan, above the value of $20. She was
tried before the Quarter Sessions of that county, convicted upon the
trial, and sentenced to nine months' imprisonment at hard labor, ^-^e
property was levied upon, by Sloan as the property of Catherine
AdamsTunder an'eSecution which Sloan held, as constable, against
her •, the constable allowed the goods to remain at the house of the
plaintiff in error, the place of the levy, she being informed of the levy.
BefOTe_^.i]3.e_time for sale under the execution, the^pIaintiffi-iB— error
taokand disposed ontM good^ ,
The case comes upVon exceptions to the refusal of the court to
charge as requested, and upon the charge as made. The assignments
of error present the question whether larceny may be committed by the
general owner of property in taking it frpm one who has the special
■ownership, without felonious intent in such taking.
It is impossible, under ordinary circumstances, for one to commit
larceny in taking possession of his own property, and the general
owner of goods, in their lawful possession, has full dominion and con-
trol over such goods ; but it seems to be well settled in the law that
larceny may be committed by a man stealing his own property, if the
taking be animo furandi, or with a fraudulent design to charge the
bailee with the value of it. There is a passage found, as early as
the time of the Year Books, in which it is said, " If I bail to you
SECT. VI.] ADAMS V. STATE. 699
certain goods to keep, and then retake them feloniously, that I should
be hung for it, and yet the property was in me." ^ This passage is
found repeated in all the leading criminal treatises, but with the
addition that the goods be talten with the fraudulent design to charge
the bailee with their value. 1 Hale P. C. 513 ; 4 Bl. Com. 334 ; 2
East P. C. 558 ; Eos. Crim. Ev. 650. As if one delivers his goods to
"another, as his servant or bailee, and then steals them from such
servant or bailee, with a fraudulent intent to charge him with their
vaUie, this would be larceny in the owner, although he might have
had their possession through the lawful assertion of his title. On an
indictinent for larceny against such general owner, the property in the
goods stolen may be laid as that of the special owner. The general
property of goods levied on by execution is in the debtor, and remains
in him until they are sold for the purpose of satisfying the execution ;
but the officer who levies acquires a special property in those goods,
which entitles him to their possession until satisfaction be made of the
execution. Dillenback v. Jerome, 2 Cow. 293 ; Smith v. Burtis, 6
Johns. 196. The defendant asked the court to charge the jury that
ther^e was a variance in the allegation of property in Sloan, and the
proof upon the trial ; that, therefore, the defendant should not be
-convicted. This the court refused to charge, and the evidence is
brought here for examination as to the correctness of the court's
action in so refusing ; but upon the evidence it appears that Sloan, as
already-^stated, had a special property in the goods, and tBgf were
thei^fore properly laid as" his ^od«- in the indictment. There was
no 'errea— hr jef using -str^o-cbarge.^ "
The next exception is as to what the court did charge on the subject
of ownership. Bj' the bill of exceptions it appears that the court said
that by virtue of the execution and levy " the constable became the
owner of the goods levied upon until sold bj' him, and that if she took
the goods, or assisted any one else in the ,taking,^_she is guilty." The
part or tae charge contained in this^bill of exceptions is all weTiaVe of it.
It would seem to be a sufficient statement of the law defining the rights
which the constable acquires in virtue of a levy. It was made by the
court in answer to the objection that the true ownership was not alleged
in the indictment, and as respects that question the instruction of
the court was correct. The^constable's ownership was a qualified one,
it is .true, but it was snfflcient~t'o^s"upporC tEe averment. The further
isfaiement in that portion of the charge," namely, " that if she took the
goods or assisted any one else in taking them, she is guilty," maj- be
subject to more criticism. It certainly is not a full presentation of the
law. It is not every sort of taking of these goods that would make her
criminalh' liable. It might have amounted to no more than a trespass
or a conversion of the propert}- as against the officer. The goods were
4eft in her custody' by the officer. As between them she may have been
1 Y. B. 7 Hen. VI. 43. — Ed.
' dec. People V. Long, 50 Mich. 249 ; Palmer v. People, 10 Wend. 165. — Ep.
700 ADAMS V. STATE. [CHAP. VIII.
considered as a mere receiptor for the goods, with the right in the officer
to deprive her of her possession and assume it himself. But she not onlj'
had their actual custody, but was as well the general owner, and could
at any time before sale, b}- paying the judgment, remove the officer's
hands entirely from her propertj*. Now, unless her taking the goods
was under such drcumstances as in some way to fraudulently charge
him -witti;-t-fi[6ir value7TrTS~dttriuultj lu fli'id uiij I'UUogilizcdTulc of eriminal
law thnt w^tH-"'''''^'^'''^^'^'^'^"*'^hio f(-fi^i^-»onj
This case fails in resemblance to that of ?almer v. People, 10 Wend.
166, in this important feature : Palmer was convicted of having felo-
niously stolen property of one Jennings, who, as constable, had levied
upon property- by virtue of an execution against Palmer. The goods, by
the officer's consent, remained with Palmer, who subsequently sold the
shingles and charged the constable with having taken them away, and
brought suit against him for their value upon that false allegation.
This proof was held sufficient, on the ground that it charged a felo-
nious taking of his own property, with intent to charge the constable
with the value of it, bringing the case within the rule above stated as
the ground of criminal liability. In this charge is found the broad
proposition that an3' sort of taking or conversion bj' the general owner
of propertj' left in her possession by a constable possessed of the rights
which a levy gives him, is a criminal act, and that of larceny. No
fraudulent or evil design existing in the mind of the defendant is
charged or intimated to be a necessary element of guilt. It would not
be every taking by a mere stranger of these goods from the possession
of the constable that would amount to larceny. A felonious intent
would be a requisite ingredient in such crime. -A oonvcrgion &f-the
goods by a stranger who had_beea.ja.ppoint£d^th.eir Jjeeger by a con-
statTle7%ouId not have been a crime but a civil wrpngmerely. TTo hold
the-general owner in possession to a severer rule seems to me to savor
oMH«g^severity. _I am unable, -in^=4hfi-, researches I have made, to
fln^Tjiy case which warrants the ascription of criminality to such facts.
Tbie~csrse-Df-Rex u. -Wilkinson, -Ru8*;-&-^}^ 470, which goes as far as
any other that I have found, presented the features of flagrant fraud on
the part of the defendants, who were the real owners of the property,
upon either the prosecutors or upon the Crown. As to which, the judges
were divided in opinion. If we are permitted to look into the evidence
which is handed us with the record, one can scarcely escape the conclu-
sion that if the rule had been stated to the jury with the proper quali-
fication, they must have failed to find in it evidence of such felonious
design as would have raised the offence above that of a mere civil
injury.
Whether the judge in other parts of his charge qualified the expres-
sions in the opinion excepted to, we have no means of knowino- ; the
charge is not before us. We have nothing but this pointed statement
of his views of the law. We must assume that this embraced his entire
instruction to the jury upon the legal requisites of guilt, and it was
SECT.- VI.] EEX V. CABBAGE. 701
erroneous in a way that must have prejudiced the defendant in her
trial. I think the judgment, for this error, should be reversed and
a new trial ordered.
EEX V. CABBAGE.
Crown Case Reserved. 1815.
[Reported Russell Sj- Ryan, 292.]
The prisoner was tried before Thomson, C. B., at the Lent Assizes
for the county of Lancaster in the year 1815, on an indictment for
feloniously stealing, takings and leading away a gelding, the property
of John Camplin.
The second count charged the prisoner with feloniously, unlawfully,
wilfully, and maliciously killing and destroying a gelding, the property
of the said John Camplin, against the statute, etc.
The counsel for the prosecution elected to proceed upon the first
count.
It appeared that the gelding in question was missed hy the prosecu-
tor from his stables on Monday, the 28th of February, 1815. The
stable-door, it appeared, had been forced open. The prosecutor went
the same day to a coal-pit, about a mile from the stable, where he saw
the marks of a horse's feet. This pit had been worked out and had a
fence round it, to prevent persons from falling in ; one of the rails of
this fence had been recentlj- knocked off. A man was sent down into
the pit, and he brought up a halter, which was proved to be the halter
belonging to the gelding. In about three weeks after the finding of
the halter, the gelding was drawn up from the coal-pit in the presence
of the prosecutor, who knew it to be his. The horse's forehead was
ver}' much bruised, and a bone stuck out of it. It appeared that at
the time this gelding was destroj-ed, a person of the name of Howarth
was in custody for having stolen it in August, 1813, and that the prose-
cutor, Camplin, had recovered his gelding again about five weeks after
it was taken. Howarth was about to take his trial for this offence
when the gelding was destroyed in the manner stated. The prisoner
Cabbage was taken into custody on the 27th of March, 1815 ; and on
his apprehension he said that he went in company with Anne Howarth
(the wife of Howarth, who was tried for stealing the said gelding) to
Camplin's stable-door, and that they together forced open, the tioor and
brought the horse out. They then went along tjUi^imdJilL-thej" -came
to the coal-pifbefbre mentioned, and therejbe^^backed the horse into
the pit. ■
It was objected b}- the prisoner's counsel that the evidence in this
case did not prove a larceny committed of the horse ; that the taking
702 REX V. MOEFIT. [CHAP. VIII.
I appeared not to have been done with intention to convert it to the use
(of the taker, animo furandi et lucri causa.
Thomson, C. B. , overruled the objection, and the prisoner was con-
victed upon the first count of the indictment for steahng the horse.
Judgment was passed on him, but the learned Chief Baron respited the
execution to take the opinion of the judges as to the propriety of the
conviction.
In Piaster Term, 1815, the judges met to consider this case, and the
majority of the judges held the conviction right. Six of the learned
judges, namely, Eichards, B., Bayley, J., Chambre, J., Thomson,
C. B., GiBBS, C. J., and Lord Ellenborough, heldifc not^esseatialtO'
constitute, the pJFence qfjlajrceny_ that^ the taking. sbouldJie_ZMm causaj
^They thought a taking fraudulently, with an intent wholly to deprive
tffi^wher-' of the property, sufficient; but some of "thEr-sixr~tean]i&d
judges thought that in this case the object of protecting Howarth by
the destruction of this animal might be deemed a benefit, or lucri
causa. Dallas, J., Wood, B., Graham, B., Le Blanc, J., and Heath,.
J., thought the conviction wrong. ^
EEX V. MOEFIT.
Ckown Case Eeserved. 1816.
[Reported Russell ^ Ryan, 307.]
The prisoners were tried before Mr. Justice Abbott, at the Maid-
stone Lent Assizes, in the year 1816, upon an indictment for feloni-
ously stealing two bushels of beans, value five shillings, the goods, of
John Wimble.
On the trial it was proved that the prisoners were servants in hus-
bandry to Mr.Wimble and had the care oTbne of his teamsT"^tSatrMr.
Wimble's ba|Uff was in the habit^fiLdfilLEadEg out to the prisoners at
statecTperiods, from a granary belonging to him, and of which his-
bailiff kept the key, such quantity of beans as Mr. Wimble thought fit
to allow for the horses of this team. The beans were to be split and!
then given by the prisoners to the horses. It appeared that the gran-
ary-door was opened by means of a false key procured for that purpose,
which was afterwards found hid in the stable : and that about two.
bushels of beans were taken away on the day after an allowance had
been delivered out as usual, and nearly that quantity of whole beans
1 Ace. Williams v. State, 52 Ala. 411 ; People v. Juarez, 28 Cal. 380; Keely »,
State, 14 Ind. 36 (semhle) ; Warden v. State, 60 Miss. 638; Delk w. State, 64 Miss.
77 ; State v. Ryan, 12 Nev, 401 ; State v. Caddie, 35 W. Va. 73. Contra, Pence v
State, 110 Ind. 95 ; People v. Woodward, 31 Hun, 57. See also Hamilton v. State, 35
Miss. 214 ; State v. Slingerland, 19 Nev, 1?5 ; State v. Davis, 38 N. J. L. 176 ; State v.
Brown, 3 Strob. 508 {semble). — Ed.
SECT. VI.] EEX V. DICKINSON. 703
was found in a sack, concealed under some chaff in a chaff-bin in the
stable.
The learned judge desired the jui'j to sa}' whether they thought both/
the prisoners were concerned in taking the beans from the granary J
and also whether they intended to give them_ta_Mr. Wimblg's.hftrses.l
The jury ansvs[£i'S33lcrtit:qae*tioas-i31the iJSrmative.
Mr. Justice Bayley had, at the same Assizes, directed a verdict of
acquittal under circumstances of the like nature ; but Abbott, J., was
informed that the late Mr. Justice Heath had many times held this
offence to be larcenj- ; and that there had been several convictions
before him ; and also that to a question put by the grand jury at Maid-
stone to the late Lord Chief Baron Macdonald, he had answered that
in his opinion this offence was a larcenj*.
On account of this contrariety of opinion, the learned judge before
whom this case was tried thought it advisable to submit the question
to all the judges, the offence being a very common one ; a verdict of
guilty was taken, but judgment respited until the enstiing Assizes.
In Easter Term, 1816, eleven of the judges met and considered this
case. Eight of the judaes held thatthis. was felony ; tbnti thp piirpf>°°
to which the prisoners intended to apply the beans did 'not vary_the
caset It was, however, alleged by sorne"orTh"e jii'dges that the addi-
tional quantity of beans would diminish the work of the men who had
to look after the horses, so that the master not onlj- lost his beans, or
had them applied to the injurj' of the horses, but the men's labor was
lessened, so that the lucri causa, to give themselves ease, was an
ingredient in the case. Graham, B., Wood, B., and Dallas, J.,
thought this not a felony, and that the conviction was wrong.^
REX V. DICKINSON.
Crown Case Reserved. 1820.
[Reported Russell Sj- Ryan, 420.]
The prisoner was tried and convicted before Mr. Justice Bayley at
the summer Assizes for the county of Lancaster, in the year 1820, for
stealing a straw bonnet, some other articles of female apparel, and
a box. '
It appeared that the prisoner entered the house where the things
were in the night, through a window which had been left open, and took
the tilings, which belonged to a very young girl whom he had seduced,
and carried them to a hay-mow of his own, where he and the girl had
twice before been.
The jury thought the prisoner's object was^tojnduce the girlto go
* Ace. Reg. V. Privett, 1 Den. C. C. 193. See Stat. 26 and 27 Vict. c. 103, § 1 —Ed
704 EEGINA V. SPUEGEON. [CHAP. VIII.
again to the hay-mow that he might agalin meet her there, but that he
cli(J~n'cr(MireaTnilttm3tElj;;to deprive heT of them. ~ ^"~' ~
-¥ii-ctgaj5ecl judge doubted whether this was a felony, and discharged
the prisoner upon bail, and reserved the case for the consideration (jf
the judges.
In Michaelmas term, 1820, the judges met. They held that the
taking was not felonious, and directed application to be made for a
pardon.*
REX V. CRUMP.
Worcester Assizes. 1825.
[Reported 1 Carrington Sf Payne, 658.]
This prisoner was indicted for stealing a horse, three bridles, two
saddles, and a bag, the property of Henry Bateman.
It appeared that he got into the prosecutor's stable, and took away
the horse and the other property all together ; hut that, when he had
got to some distance, he turned the horse loose, and proceeded on foot
to Tewkesbury, where he was stopped attempting to sell the saddles.
Garrow, B., left it to the jury to say, whether the prisoner had any
lintention of stealing the horse ; for that, if he intended to steal the
pother articles, and only used the horse as a mode^of carrying og_the
other plunder more cpnvealeQtlyV and. aS it were, borrowed the horse
for that purpose^ he would not be, in point of law, guilty of stealing
the horse.
Verdict, Not guilty of stealing the horse; Chiilty of stealing the rest
of the property .^
REGINA V. SPURGEON.
Central Criminal Court. 1846.
[Reported 2 Cox C. C. 102.]
The prisoner was indicted for stealing a bag and some papers, the
property of John Philpotts. From the evidence it appeared that the
prosecutor, who was an attorney's clerk, had left the bag on a bench
in the outer room of the Master's office of the Queen's Bench while lie
went into the inner office to transact some business. On enterina; the
latter he saw the prisoner, who was asking charity, and who in a few
1 Ace. Cain v. State, 21 Tex. App. 21. And see Reg. i.. Jones, 1 Den. C. C. 18f»;
U. S. V. Durkee, 1 McAll. 196. — Ed.
2 Ace. Dove i\ State, 37 Ark. 261 ; State v. York, 5 Harr. 493. — Ed.
SECT. VI.] EBGINA V. GAKDNEK 705
minutes quitted the room. Shortlyafterwards the prosecutor, on re-
turning to the place where. the^tiag.hAd, been left, discovered that it
was gone. As hclvasreturning to his employer's chambers, he met
Vnfi prisoner in the street with the bag in his possession. On being
given into custody the prisoner said that he took the bag believing
that it had been accidentally left in the office by the owner, and that
his intention was to restore it to him. It appeared that on a former
occasion some papers which had been missed by the prosecutor were
brought to his office by the prisoner, who received a shilling for his
trouble.
The Eecorder (after consulting Mr. Justice Erie), in summing up\
the case to the jury. — You must be satisfied that the prisoner took I
this property against the consent of the owner, and fo^th,e,„piirpose f
of gain. I am of opinion that it is not essential to the sustaining this/
charge, Uiat he had an intention of converting this bag permanently
to his own use. 1 will_j^ yo.u,-fir8%- whetheiv.you J;hink he took ii
with thp intpnt tw flsaet-a-BeiEard from the owner f or J^ rjeatiiraLtion,*-
anji jsith-a-detePHaiiiatigQ Pot to restore it unless such reward were
gjvpj] him. If such is your view orttrrTtrntrnrstan'ces7 1 shall have no
hesitation in saying that the prisoner has committed larceny. Or,
secondly, do you think, that having reasonable grounds for believing
that the bag belonged to some person in the inner office, who had
deposited it there for a short time until he should return for it, the
prisoner took it with an intention of returning it absolutely, and at
all events taking the chance of any reward being given him for the
pretended service ? Even in this case I am of opinion that he would
be guilty of larceny ; but I would reserve that question for the opinion
o.f the judges before I passed sentence.
The jury returned the following verdict : —
Chiilty of taking the property in order to exact a reward, and the
prisoner would not have delivered it up without such reward.^
REGINA V. GABDNEE.
Crown Case Reserved. 1862.
[Reported 9 Cox C. C. 253.]
The following case was reserved at the Middlesex Sessions.
Edward Gardner was tried on an indictment charging him in the first
count with stealing one banker's cheque and valuable security for the
payment of £82 19s., and of the value of £82 19s., and one piece of
stamped paper of the property of James Goldsmith.
1 Ace. Reg. B. O'Donnell, 7 Cox C. C. 337 ; Cora. o. Mason, 105 Mass. 163 ; Berry 8
State, 31 Oh! St. 219. — Ed.
706 EEGINA V. GARDNER [CHAP. VIII.
In the second count the property was stated to be the property of
Thomas Boucher.
It appeared from the evidence of Thomas Boucher, a lad of fourteen,
that he found the cheque in question ; that having met the prisoner,
Gardner, in whose service he had formerly been, he showed it to him ;
that the prisoner (Thomas Boucher being unable to read) told him it
was only an old cheque of the Eoj'al British Bank : that he wished to
show it to a friend, and so kept the cheque ; that Boucher very shortly
on the same day went to prisoner's shop and asked for the cheque ;
that the prisoner from time to time made various excuses for not giving
up the cheque, and that Boucher never again saw the cheque.
It also appeared that the prisoner had an interview with Goldsmith,
in which he said that he knew the cheque was Goldsmith's, asked what
reward was offered, and upon being told 5s., said he would rather light
his pipe with it than take 5s.
The "cheque has never been received either by Goldsmith or Boucher,
though there was some evidence (not satisfactory) by the prisoner's
brother of its having been inclosed in an envelope and put under the
door of Goldsmith's shop.
The jury found ' ' That the prisoner took the cheque from Thomas
Boucher in the hopes of getting the reward ; and, if that is larceny, we
find him guiltj^."
Thereupon the judge directed a verdict of guilty to be entered, and
reserved for the opinion of this court whether upon the above finding
the prisoner was properly convicted.
November 15. Best (with him Besley) for the prisoner argued that
the finding of the jury disproved the felonious intent. In Eeg. v. York,
3 Cox Grim. Gas. 181, a similar finding of the jury was held to amount
to " Not Guilty." (He was then stopped.)
Kemp, for the prosecution. The defendant read the cheque, and
knew the owner. In this respect the case diflfers from Reg. v. Christo-
pher, 8 Cox Crim. Cas. 91 ; 28 L. J. 35, M. C, and resembles Reg. v.
Moore, 8 Cox Crim. Cas. 416 ; 30 L. J. 77, M. C. As against all the
world but the true owner, the boy, Boucher, was the owner, and the
prisoner took the cheque from him against his will, and may be con-
victed on the second count.
Pollock, C. B. That is the case of Armory v. Delamirie, Str. 505,
where a boy was held entitled to sue his master for a jewel which he
had found and his master had taken from him. It was not supposed
that the master was guilty of felony. There the jewel was not ear-
marked, but every one who can read can tell to whom a cheque
belongs. Properly speaking a cheque is not a chattel, and is not
the subject of larceny. We must take it that the cheque was stamped,
and being stamped it was not a piece of paper, — it was a cheque.
Cur. adv. vult.
November 22. Pollock, C. B. In this case the prisoner was con-
victed of stealing a cheque. He took the cheque away from a boy who
SECT. VI.] REGINA V. TEEBILCOOK. 707
found it, and did not immediately give information to the owner, but
withheld it in the expectation- of getting a reward. The taking of the
cheque from the finder was not a felonious taking, and the merely with-
holding it in the expectation of a reward was not a larceny.
The rest of the court concurring.' Conviction quashed.
EEGINA V. TREBILCOCK.
Ckown Case Reserved. 1858.
^Reported 7 Cox C. C. 408.]
At the General Quarter Sessions of the Peace holden in and for the
horough'of Plymouth, on the 1st day of January, 1858, before Charles
Saunders, Esq., Recorder, the prisoner, William Trebilcock, was tried
on an indictment which charged him, first, with a larceny upon the
Stat. 20 & 21 Vict. c. 54, § A,^ in having as bailee of plate, the property
of the prosecutor, fraudulently converted it to his own use ; secondly,
with a common larceny of the same plate. The jury found the prisoner
guilty on both counts of the indictment, but recommended him to mercy,
belieana-that ho iatearlerl , n],ti]matebutO-je.6Jia.rn the property. The
question for the opinion of the court is whether, consistently with the
ground upon which the jury recommended the prisoner to mercy, the
conviction was right upon both or either of the counts.
The case was this : The prosecutrix, Miss Palmer, resided at Ply-
mouth, and going to London for eight or ten days, deposited with the
prisoner, a tradesman at Plymouth, who had offered to take care of
anything for her during her absence, a chest of valuable plate for safe
custody till she returned. The prisoner had been told that the prose-
cutrix would leave a parcel with him, which he said that he would put
in his iron chest to keep for her. When the chest of plate was placed
in the prisoner's hands it was locked (the prosecutrix keeping the key),
then covered with a wrapper sewed together, and sealed in a great num-
ber of places, and then tied with cord. The prisoner was not informed
of the contents of this parcel, nor was any key given to him. In a day
or two after the prosecutrix left for London, he had uncorded the chest,
broken the seals, taken off the wrapper, procured a key, opened the
chest, and taken out a part of the plate, and offered it to one Woolf , at
Plymouth, as a security for the advance of jE50. The pawnbroker took
up one of the pieces of plate which bore the crest and also a superscrip-
1 Ace. Eeg. V. York, 3 Cox C. C. 181 ; Micheaux v. State, 30 Tex. App. 660. — Ed.
2 The section is as follows : " If any person being a bailee of any property shall
fraudulently take or convert it to his own use, or the use of any person other than
the owner thereof, although he shall not break bulk or otherwise determine the bail
ment, he shall be guilty of larceny."
708 RKGINA V. TREBILCOCK. [CHAP. VIII.
tion with the name of Sir George Magrath upon it, and expressing his
clisliKe to have anything to' do with it, the prisoner said that he was
under an engagement to be married to Lady Magrath. The prosecutrix
had lived with Sir George Magrath, and when he died the plate, among
other property, came into her possession. Woolf ultimately declined
any advance upon it. The prisoner then communicated by letter with
another pawnbroker named Druiff, at Newport in Monmouthshire, with
whom the prisoner had before had bill transactions. Druiflf came to
the prisoner at Plymouth and advanced him £200, taking bills for the
amount, and the whole chest of plate worth from £500 to £600, as a
collateral security for the loan. Druiff took the plate away with him
to Newport. The prisoner, by way of accounting to Druiff for the
possession of the plate, represented to him that he was going to get
married to the lady of the late Sir George Magrath, and that she had
given him the plate to take care of till they were married. The prose-
cutrix went to London on the 8th day of November,' and returned on
the 17th of the same month. On her return the prosecutrix tried often
to see the prisoner, but could not do so till the 26th. When she first
saw him and asked him for the parcel, the prisoner said he would send
it to her the same evening. It was not sent. The prosecutrix went
often backwards and forwards to the prisoner's shop and private resi-
dence to see the prisoner^ but could not see him again till the 2d ot
December, when the prosecutrix insisted upon instantly having hei
parcel. The prisoner said she could not have it as it was out of town, he
had sent it to Bristol ; then he said it was now farther than Bristol, that
it was in Wales, but that he would write a letter and she should have
it on Friday. The parcel did not arrive. The prisoner refused to telL
in whose hands it was, but the prosecutrix had learned from the
prisoner's father that Druiff had it. The inspector of police went to
Newport and found the chest of plate there, but Druiff refused to give
it up unless upon payment of the £200 for which it had been deposited
with him as security. The prisoner' goald^not^ redeem it, and upon the
facts being made known to the prosecutrix8h?EM' the prisoner taken
into custody on a charge of stealing, and the police took possession
of the chest of plate as stolen property.
Upon the finding of the jury, with the recommendation to mercy
above stated, the counsel for the prisoner contended that to support
either of the counts in the indictment, it was necessary that the pris-
oner should have intended permanently to deprive the prosecutrix of
her property, and that, as the jury believed that his intention was
ultimately to return it, the verdict was wrong.
The prisoner was committed to prison, and sentence deferred until
the opinion of the judges shall have been obtained upon the question
raised. If the court shall bo of opinion that the ground upon which
the jury recommended the prisoner to mercy may consist with the
verdict upon both or either of the counts of the indictment, the verdict
to stand upon both or either of the counts accordingly. If the recom-
SECT. YI.J EEGINA V. TREBiLCOOK. 709
mendation may not consist with the verdict on either count, then the
verdict to be set aside, and a verdict of not guilty to be recorded.
E. W. Cox, for the prisoner. The question is whether the recent
statute 20 & 21 Vict. c. 54, § 4, alters the general law of larceny in
any other respect than making a bailee liable.
Lord Campbell, C. J. If this was larceny at all, it was larceny at
common law. The statute would make no difference in this respect.
Coleridge, J. If not a larceny at common law, the new statute
would not make it such ; so that the only question is whether the pris
oner could properly be convicted of larceny at common law. The jury
have found him guilty
E. W. Cox. Yes ; but they recommended him to mercy on a
ground which shows that a verdict of guilty is wrong. They found
'i^hat he intended ultimately to return the property to the owner.
Crowder, J. That is, if he could get it back again.
E. W. Cox. The law on this subject is distinctly laid down in R. v.
\Iolloway,.3 Cox C. C. 145; and still more recently in R. v. Pool*
md Yeates, 7 Cox C. C. 373. In R. v. Holloway, Parke, B., said,
that in order to constitute' larceny there must be the intention to de-
prive the owner wholly of his property, to usurp the entire dominion
<over the chattels taken, and to make them his own ; and Lord Denman
xised similar language, putting the case of a man taking a horse, with
the intention of riding him throughout England, and then returning
him.
Coleridge, J. But in this case the jury do not say that at the time
of the taking the prisoner intended to return the plate.
Lord Campbell, C. J. On the contrary they negative it by finding
him guilty.
E. W. Cox. It is necessarily implied in their statement that when
he parted with it to the pledgee, he had it in his mind to get it back
again and restore it to the owner.
Lord Campbell, C. J. Your general proposition of law is right
enough, but it does not apply to this case.
£!. W. Cox. If the court interprets the expression used by the jury
as meaning only that at some time after the larceny the prisoner in-
tended to return the property, the argument founded on R. v. Holloway
necessarily fails. But that could not be the meaning of their finding.
The alleged larceny was complete at the moment of depositing the plate
with the pledgee. It was for that he was tried, and to that alone was
the attention or' the jury directed. They had nothing to do with any
subsequent intent. Their conclusion could have had reference only to
the felonious act charged in the indictment, and to the moment of
coramittingjt, and if they w£rfi,of opinion that he had then an inten-
tion to retui'n it. of which there i8"Tio~deubt. he is not guilty b'f
Ian
larter, for the prosecution, was not called upon.
Lord Campbell, C. J. The general proposition contended for by
710 EEGINl V. TEEBILCOOK. [CHAP. VIII.
Mr. Cox is perfectly correct. To constitute larceny, tliere-inustjbe an
intention on thB part of the thief conrplet'eTyto appfopriate the pioperty^
to his own use ; and if at the tim«-of iSffaspbrtatlon His intention is to
make a mere temporary use of the chattels taken, so that the dominus
should again have the.-use of them afterwards, that is a-teeepasSiJjut
not a felony ; but that law does not apply to this caseT^'Here there
was^lrnfiSant evidence of a larceny at common law ; abundant evidence
from which the jury might find that the prisoner feloniously stole the
plate ; and the jury have found a verdict of guilty. But they have
recommended him to mercy, and accompanied that recommendation with
a statement as to the prisoner's intention to return the stolen property.
Now, I doubt whether what the jury say in giving their reason for
recommending the prisoner to mercy, is to be considered as part of
their finding ; but even assuming it to be so, all that they say is, that
he intended ultimately to return the property ; not that at the time of
the wrongful taking he originally intended to make a merely temporary
use of it.
Coleridge, J. I am of the same opinion. There is no question
about the law in this case ; but the question is merely as to the facts.
And upon the facts it appears that the prisoner had put it out of his
power to return the plate which he had taken. Then what must we do
in order to make sense of the finding of the jury? It is to be observed
that the recommendation to mercy in itself assumes that the verdict of
guilty is correct ; but the jury seem to have thought that the prisoner
had it in his mind at some uncertain time, if he could get hold of it
again, to restore the property, and they might consider that a sufficient
reason for recommending him to mercy. That interpretation makes
sense of their finding, whilst the construction put upon it by Mr. Cox
renders their conduct quite inconsistent and insensible.
Martin, B. I am of opinion that the recommendation to mercy
and -the words which accompanied it were no part of the verdict at all,
and that when the jury said guilty there was an end of the matter, so
far as the verdict was concerned. But I also think that even if it did
form part of the verdict, it would not have the effect of bringing it
within the principle of the cases on which Mr. Cox relies. It seems to
me quite clear that this prisoner stole the plate, and then pledged it for
£200, and I think that in so doing he " usurped the entire dominion of
it " within the meaning of that expression as used by Parke, B., in the
case cited. If, therefore, a special verdict had been found in the very
terms used by the jury, when they recommended the prisoner to mercy,
I should have said that he was still guilty of larceny.
Crowder, J. It seems to me, also, that upon the facts of this case
no other rational conclusion could be arrived at, except that the prisoner
stole the plate. He broke open the box, and took out the plate, and
stole it, but the jury recommended him to mercy because they thought
that he had an intention of ultimately restoring it. Probably it very
often happens that when stolen goods are pawned, there is an intention
SECT. VI.] EEGINA V. HOLLOW AY. 711
to get them back again, if the person pawning them should ever be able
to do so, and in that case to return them ; but such an intention affords
no ground for setting aside a verdict of guilty, when the offence of
larceny is satisfactorily proved by the evidence.
"Watson, B. I also think that this is the clearest case of larceny
possible, though the jury have recommended the prisoner to mercy,
because they thought that he would ultimately have restored the
property if he could have got it back.
Conviction affirmed.^
REGINA V. HOLLOWAY.
Crown Case Reserved. 1849.
[Reported 3 Cox C. C. 241 .]
The prisoner, William Holloway, was indicted at the General Quar-
ter Sessions, holden in and for the borough of Liverpool, on Decem-
ber 4th, 1848, for stealing within the jurisdiction of the court one
hundred and twenty skins of leather, the property of Thomas Barton
and another.
Thomas Barton and another were tanners, and the prisoner was one
of many workmen employed by them at their tannery, in Liverpool, to
dress skins of leather. Skins when dressed were delivered to the fore-
man, and every workman was paid in proportion to and on account of
the work done by himself. The skins of leather were afterwards stored
in a warehouse adjoining to the workshop. The prisoner, by opening
a window and removing an iron bar, got access clandestinely to the
warehouse, and carried away the skins of leather mentioned in the in-
dictment, and which had been dressed by other workmen. The pris-
oner did not remove these skins from the tannery ; but they were seen
and recognized the following day at the porch or place where he usually
worked in the workshop. It was proved to be a common practice at
the tannery for one workman to lend work, that is to say, skins of
leather dressed by him, to another workman, and for the borrower in
such case to deliver the work to the foreman and get paid for it on his
own account, and as if it were his own work.
A question of fact arose as to the intention of the prisoner in taking
tlie skins from the warehouse. The jury found that the prisoner did
not intend to remove the skins from the tannery and dispose of them
elsewhere, but that his intention in taking them was to deliver them to
the foreman and to get paid for them as if they were his own work ;
and in this way he intended the skins to be restored to the possession y
of his masters.
1 See Reg. v. Phetheon, 9 C. & P. 552 ; Eeg. u. Medland. 5 Cox C. C. 292. — Ed.
712 KEGINA V. HOLLOWAT. [CHAP. VIII.
Tbe jury, under direction of the court, found the prisoner guilty ;
and a point of law raised on behalf of the prisoner was reserved, and
is now submitted for the consideration of the justices of either Bench
and barons of the Exchequer.
" The question is, whether, on the finding of the jury, the prisoner
ought to have been convicted of larceny.
" Judgment was postponed, and the prisoner was liberated on bail
taken for his appearance at the next or some subsequent Court of
Quarter Sessions to receive judgment, or some final order of the
court."
Lowndes, in support of the conviction. The finding of the jury
shows that the prisoner committed larceny.
Parke, B. Is not this case governed by R. v. Webb, 1 Moody
C. C. 431?
ZiOwndes. The cases are distinguishable. In that case, miners
employed to bring ore to the surface, and paid by the owners accord-
ing to the quantity produced, removed from the heaps of other miners
ore produced by them, and added it to their own heaps, the ore still
remaining in the possession of the master ; and it was held not to be a
larceny. Here the skins were removed from the place in which they
had been put by the master for custody into a place in which they
were, in fact, in the prisoner's custody. In R. v. Webb, the ore was
never out of the master's custody ; in this case, the skins were dis-
tinctly out of the master's custody.
Coleridge, J. In the case of R. v. Webb there was. the interval in
which the ore passed from one heap to the other ; was it not then out
of the master's custody?
Lowndes. There was no intent to injure the owner in that case.
Coleridge, J. There was the intent to obtain payment for ore
which ihe miner had not dug from the earth.
Parke, B. It is essential that the taking should be with the intent
to deprive the owner of the property in the thing taken ; the jury did
not find that in this case, but only that the intention of the prisoner
vas to get paid for the skins, as if they had been his own work.
Lowndes. It is not necessary that there should be the intention
wholly to deprive the owner of the property; it is enough if the
chattel is taken for the purpose of getting, a benefit different from the
mere use of it. In this case, though there was an intention to return
the skins, there was not the intention that the owner should be put
into the situation in which he was before the taking ; for though he
was to have the skins, he was to have them minus the wages.
Parke, B. The taking must be with intent to acquire the entire
dominion to the taker.
Lowndes. The taking must be treacherous, — for evil gain.
Parke, B. East's definition is, " The wrongful or fraudulent taking
or carrying away by any person of the mere personal goods of another
person anywhere, with a felonious intent to convert them to his (the
SECT. VI.J EEGINA. V. HOLLOWAY- 713
taker's) own use and make them his property, without the consent of
the owner." 2 East PI. Cr. 553.
Lowndes, In 3 Inst. 107, Lord Coke defines larceny to be "the
felonious and fraudulent taking and carrying away, by any man or
woman, of the mere personal goods of another, neither from the person
nor by night in the house of the owner." Bracton and Fleta describe
it as " Contractatio rei alienee fraudulenta, cum animo furandi, invito
illo domino, cujus res ilia fuerat." Bracton, lib. iii. c. 32, fol. 150 ;
Fleta, lib. i. c. 36 ; Glanville, lib. vii. c. 17 ; lib. x. c. 15 follows Brac-
ton. The "Mirror" gives the word " treachereusement ; " that is,
without a bona fide claim. In 4 Blackst. Com. 232, it is said that the
taking must be "felonious; that is, done animo furandi, or, as the
civil law expresses it, lucri causa." Blackstone, therefore, uses these
phrases as synonymous.
Lord Denman, C. J. Suppose a man takes the horse of another
with intent to keep him for a year, ride him through all the counties
of England, and then return him; is that a larceny?
Parke, B. There must be an intention in the taker to acquire the
whole dominion over the thing, to make it his own ; to do what he
likes with it.
Lowndes. The facts in this case show a taking lueri causa.
Parke, B. The case of R. v. Webb has decided otherwise.
Alderson, B. This is rather an obtaining money by false pretences
than a larceny.
Lowndes. If this is not a larceny it would follow that if chattels
were taken for the purpose of obtaining money for them by false
pretences from the owner, and in that way converted to the use of
the taker, he would not commit larcenj'. If the statement does not
suflSciently show what offence has been committed, the case may be
restated.
Lord Denman, C. J. No. The facts on which we are to decide
must be stated at once. This court is not to be used to keep these
cases alive.
Alderson, B. This will not prevent you from bringing an indict-
ment for obtaining money under false pretences.
Lowndes. No money was obtained.
Alderson, B. The attempt to commit a misdemeanor is a misde-
meanor ; and if the removal of the skins amounted to such an attempt,
the indictment may be preferred. The only question here is, whether
the Recorder ought to have directed the jury to find a verdict of not
guilty.
Lord Denman, C. J. If I thought the question was open after the
authorities, I must say that a great deal might be urged in support of
the proposition that these facts show a larceny to have been com-
mitted ; because the owner is deprived of his property for some time,
and the probability is that the intent distinguishing the case from lar-
ceny may be altered. The case which I put, of borrowing a horse for
714
EEGINA V. HOLLOW AY. [CHAP. VIII.
a year, without the owner's consent, with intent to ride it through
England and then return it, shows this. But if we say that borrowing
alone would constitute larceny, we are met by similar cases the other
way. With regard to the definition of larceny, we have of late years
said that there must be an intention to (Jeprive the owner permanently
of his property, which was not the intention in this case. We are not
disposed to encourage nice distinctions in the criminal law ; yet it is an
odd sort of excuse to say to the owner, " I did intend to cheat you in
fact and to cheat my fellow-workmen afterwards." This, however, is
not an act which is not punishable ; for if it is not a misdemeanor,
which at the first sight it appears to be, it is an act done toward com-
mitting that misdemeanor. We must abide by former decisions, and
hold that a conviction for larceny cannot in this case be supported.
Parke, B. I am of the same opinion. We are bound by the authori-
ties to say that this is not larceny. There is no clear definition of lar-
ceny applicable to every case ; but the definitions that have been given,
as explained by subsequent decisions, are sufficient for this case. The
definition in East's " Pleas of the Crown " is, on the whole, the best ;
but it requires explanation, for what is the meaning of the phrase
"wrongful and fraudulent"? It probably means "without claim of
right." All the cases, however, show that, if the intent was not at the
moment of taking to usurp the entire dominion over the property and
make it the taker's own, there was no larceny. If therefore a man
takes the horse of another with intent to ride it to a distance and not
return it, but quit possession of it, he is not guilty of larceny. So in
R. V. Webb, in which the intent was to get a higher reward for work
from the owner of the property. If the intent must be to usurp the
entire dominion over the property, and to deprive the owner wholly of
it, I think that that essential part of the offence is not found in this
case.
Alderson, B. I cannot distinguish this ease from R. v. Webb.
Coleridge, J., concurred.
CoLTMAN, J. We must not look so much to definitions, which it is
impossible apriori so to frame that they shall include every case, as to
the cases in which the ingredients that are necessary to constitute the
offence are stated. If we look at the cases which have been decided,
we shall find that in this case one necessary ingredient — the intent to
deprive entirely and permanently — is wanting.
Conviction reversed.^
i Ace. Eex V. Webb, 1 Moo. C. C. 431 ; Eeg. v. Poole, 7 Cox C. C. 373. Contra-
Fort V. State, 82 Ala. 50. — Ed.
SECT. VI.] EEGINA V. HALL. 715
REGINA V. HALL.
Crown Cases Reserved. 1849.
[Reported 3 Cox C. C. 246.]
The following case was reserved by the Recorder of Hull : —
John Hall was tried at the last Epiphany Quarter Sessions for the
borough of Hull on an indictment charging him with stealing fat and
tallow, the property of John Atkin.
John Atkin, the prosecutor, is a tallow-chandler., and the prisoner
at the time of the alleged offence was a servant in his employment.
On the morning of the 6th of December last, the prosecutor, in conse-
quence of something that had occurred to excite his suspicions, marked
a quantity of butcher's fat, which was deposited in a room immedi-
ately above the candle-room in. his warehouse. In the latter room was
a pair of scales used in weighing the fat, which the prosecutor bought
for the purposes of his trade. At noon the foreman and the prisoner
left the warehouse to go to dinner, when the former locked the doors
and carried the keys to the prosecutor. At that time there was no fat
in the scales. In about ten minutes the prisoner came back and asked
for the keys, which the prosecutor let him have. The prosecutor watched
him into the warehouse and saw that he took nothing in with him. In
a short time he returned the keys to the prosecutor and went away.
The prosecutor then went into the candle-room and found that all the
fat which he had marked had been removed from the upper room, and
after having been put into a bag had been placed in the scales in the
candle-room. The prosecutor then went into the street and waited
until a man of the name of Wilson came up, who was shortly followed
by the prisoner. The latter on being asked where the fat came from
that was in the scales, said it belonged to a butcher of the name of
Robinson ; and Wilson, in the prisoner's presence, stated that he had
come to weigh the fat which he had brought from Mr. Robinson's.
The prosecutor told Wilson that he would not pay him for the fat until
he had seen Mr. Robinson, and left the warehouse for that purpose.
Wilson immediately ran away, and the prisoner, after offering to the
prosecutor's wife if he was forgiven to tell all, ran away too, and was
not apprehended until some time afterwards, at some distance from
Hull.
I told the jury that if they were satisfied that the prisoner removed
the fat from the upper room to the candle-room, and placed it in the
scales with the intention of selling it to the prosecutor as fat belong-
ing to Mr. Robinson, and with the intention of appropriating the
proceeds to his own use, the offence amounted to larceny.
The jury found the prisoner guilty.
Bearsley, for the prisoner. There was no larceny in this case.
The offence was an attempt to commit a statutable misdemeanor, and
716 EEGINA V. BEECHAM. [CHAP. VIII.
only punishable as such. The case of R. v. Holloway, 13 Cox C. C.
241, decides it. There was an asportation, but no intention to dispose
of the property, for it was part of the very scheme that the owner
should not be deprived of his property in the fat. There must to con-
stitute larceny be a taking with intention of gain and of depriving the
owner of the property forever. The last ingredient is wanting here.
(He cited R. v. Morflt, R. & R. 307.)
Alderson, B. If a man talces my bank note from me, and then
brings it to me to change, does he not commit a larceny?
Dearsley. A bank note is a thing unknown to the common law, and
therefore the case- put could not be larceny at common law.
Lord Denman, C. J. The taking is admitted. The question is.
whether there was an intention to deprive the owner entirely of Ms-
property ; how could he deprive the owner of it more effectually thaa
by selling it? To whom he sells it cannot matter. The case put of
the bank note would be an ingenious larceny, but no case can be more
extreme than this.
Parke, B. In this case there is the intent to deprive the owner of
the dominion over his property, for it is put into the hands of au
iutended vendor, who is to offer it for sale to the owner, and if the
owner will not buy it, to take it away again. The case is distinguish-
able from that of R. v. Holloway by the existence of this intent, and
further by the additional impudence of the fraud.
Aldekson, B. I think that he who takes property from another
intends wholly to deprive him of it, if he intend that he shall get it
back again under a contract by which he pays the full value for it.
Coleridge, J., and Coltman, J., concurred.
Conviction affirmed.
%
REGINA V. BEECHAM.
Oxford Assizes. 1851.
[Reported 5 Cox C. C. 181.]
The indictment in the first count charged the prisoner with the
larceny, on the 8th of February, 1851, of three railway tickets of the
value of six pounds three shillings, and three pieces of pasteboard of
the value of one penny, the property of the London and North Western
Railwaj- Company.
In a second count the tickets were described as the property of the
station-master at the Banbury Road station.
It appeared in evidence that the prisoner was employed by the rail-
way company as a porter in the goods department of the Banbury
1 Ace. Reg. V. Manning, 6 Cox C C- 86. — Ed.
SECT. VI.] KEGINA V. BBJiCHAM. 717
Road station. On the evening of the 8th of February he was drinking
beer at the station with a witness of the name of Hazell, who was a
horselseeper employed at the station by an innlieeper. The station-
clerk having about half-past eiglit o'clock in the afternoon left his office
to work the electric telegraph in another compartment of the station,
the prisoner went into the ticket-office, took out three first-class tickets
for the journey from Banbury Road station to York, and stamped them
in the machine for the " 8th February." The last train for York for
that day had been despatched a considerable time, and the jprisoner
tried to alter the stamping machine so as to re-stamp the tickets with
another date, but failed in the attempt. He then gave one of the tickets
to Hazell, saying, " There, you fool, when 3'ou want to go a long
journey you need not pay ; come here and do this."
Hazell mentioned the circumstance on the following daj- to the
station-clerk, who went to the prisoner and taxed him with the offence,
saj-ing, "You have railway tickets in your pocket." The prisoner at
first denied it, then said if he had them he did not know it, and eventu-
ally took the two tickets from his pocket. He immediately afterwards
went to the station-master and told all the matter to him ; the
latter said the prisoner should pay for the tickets or be reported. A
few days afterwards he was suspended from his employment and given.
into custody on this charge. It appeared in evidence that tickets
stamped for one day might be re-stamped for another day and so
become available.
At the close of the case for the prosecution,
Williams, for the prisoner, submitted that the second count of the in-
dictment could not be sustained. The station-master had no property
in the tickets, as he was the servant of the railway company, and
merely had the custody of the tickets.
Patteson, J., expressed his assent to that proposition.
Williams then objected with respect to the first count, that as the
prisoner must have intended, supposing he took the tickets with a view-
to their use, that they should be returned to the company at the end of
the journey, there was no such absolute taking away without an inten-
tion of restoration as was necessary' to constitute a felony.
Patteson, J., said his opinion was that it was a question for the jury
to say whether the prisoner took the tickets witli an intention to con-
vert them to his own use and defraud the company of them.
Williams then addressed the jury, submitting to them that the pris-
oner took the tickets in a foolish incautious way as a joke, and without
any intention whatever to defraud the companj'.
The learned judge in summing up told the jury that if the prisoner
took the tickets with intent to use them for his own purposes, whether
to give to friends or to sell them or to travel by means of them,
it would not be the less larceny though they were to be ultimately
returned to the company at the end of the journey.
Verdict, not guilty.
718 NELSON V. KEX. [OHAP. VIII.
NELSON V. REX.
Judicial Committee of the Privt Council. 1902.
[Reported 1902, A. C. 250.]
Appeal from a conviction by the above Court (Nov. 19, 1900) on
an indictment charging the appellant with unlawfuUjr and fraudulently
taking and applying to his own use and benefit moneys and securities
belonging to the Dumbell's Banking Company, Limited, of which he
was a director, and aga,inst the sentence of five years' penal servitude
passed upon such conviction by the said Court. That charge was
made under s. 218 of a Statute of the Isle of Man Legislature, which
section is as follows : — .
" Whosoever being a director, member, or public officer of any body
corporate or public company shall fraudulently take or apply for his
own use or benefit or for any use or purposes other than the use or
purposes of such body corporate or public company any of the property
of such body corporate or public company shall be guilty of a misde-
meanor, and being convicted thereof shall be liable at the discretion of
the Court to anj' of the punishments which the Court may award as
hereinbefore last mentioned."
The charge related to sums drawn upon an account called the
" C. B. Nelson Trust Account " between April 5, 1887, and August 7,
1892. It appeared that the cheques were openly drawn at the head
office at Douglas upon this account. The account was open to inspec-
tion of the bank officials, and was returned amongst other accounts,
weekly or monthly, to the head offlice in Douglas ; and in the returns
the name of the account and its total amount of indebtedness were set
forth.
The overdraft on this account was for the purpose of the purchase of
AUsopp's Brewery shares ; and on each occasion of the resale of these
shares the amount was placed to the credit of the account, and up to
December, 1892, moneys were paid into and out of this account.
The appellant at the trial put in, and proved, a statement shewing
his financial position on December 31, 1893 (more than sixteen months
after the drawing of the last cheque set out in the indictment upon
which he was convicted), by which it appears that at that time the
appellant's assets exceeded his total liabilities by the sum of 19,123Z.
Thereupon Deemster Shee remarked, "I don't see the materiality of
all this. It does not matter what wealth a man has if he illegally uses
the money of the bank." In summing up, he said: "Nelson made
a strong point : how could he have been fraudulent when he took these
overdrafts ; he was solvent. If the jury thought it a satisfactory
answer that it was not fraudulent, it was their duty to say so, and he
was entitled to a verdict of ' Not guilty.' But that was a dangerous
doctrine. Supposing these securities had been deposited with the
SECT. VI.J NELSON V. KEX. 719
bank, the argument would have been stronger. It was a dangerous
doctrine to allow one director to do what another director could not ;
even though he thought himself solvent though he was not."
The jury, after being absent for six hours, informed the Court they
were divided and unable to come to a verdict. The foreman said,
" We differ on what in this case constitutes fraud within the meaning
of the law. Some of the jurors are of opinion the defendants were
solvent at the time of incurring the liabilities, and therefore not guilty
of fraud." Deemster Shee thereupon said, "Is that the only difficulty
you have?" and the foreman replied, "I think so, practically."
Whereupon the Deemster gave the following ruling: — ■
Deemster Shee : " Well, solvency alone would not be sufficient evi-
dence they were not guiltj^ It might be a matter for you to consider,
but in my opinion solvency alone would not be evidence they were
not guilty of fraud. It is an element for you to consider whether
there was fraud. You have to consider the whole of the circumstances
in the case : the date of the account ; the fact that there were other
overdrafts of the defendants ; the size of the overdrafts ; the way in
which they were kept ; and the account the prisoners have given of
how they embarked in these transactions. All the circumstances in
the case have to be taken into your consideration. To say, simply
because one of the defendants was solvent that therefore he could not
be guilty of fraud, would not be right. You must consider about the
circumstances ; and, considering the importance of the case, I should
advise his Excellency to ask you to retire to consider your verdict
again."
Finally a verdict was returned, " Guilty on the Nelson Trust A.c-
count only," with a recommendation to mercy.
The judgment of their Lordships was delivered by
Lord Halsburt, Lord Chancellor. This was a charge against
the defendant of having fraudulently appropriated to his own use
money of the Dumbell's Banking Company. Their Lordships are of
opinion that there was no sufficient legal evidence against the defend-
ant of that offence, and under those circumstances their Lordships wiU
recommend that this part of the conviction, the only one on which
leave to appeal has been given, should be set aside.
It is impossibe not to notice that the mode in which the question has
been propounded from time to time, both by counsel and, one regrets
to say, also by the learned Deemster himself, who presided, confuses
what is the nature of the charge made with the general charge of
irregularity in the conduct of the proceedings of the bank. That is
not the criminal charge which was preferred by the indictment, and
which ought to have been found by the jury. The charge was of
fraudulently appropriating money of the bank.
The facts sufficiently^ shew that for a period of some j'ears, beginning
at all events as early as 1887, and going down to 1893, the person con-
victed was in the habit of drawing partly upon his own private account
720 NELSON V. EEX. [CHAP. VIII.
and partly on an account which was called a trust account, but still in
his name, and that from time to time tliat account was operated upon
in the ordinarj' and natural way in which the account of a customer of
a bank is treated. Money was paid in and money was paid out, at .
one time a very large overdraft, and at another time that overdraft
reduced to an amount of something like 300^. or 4001., down to the
period of two or three years after the trust account had first begun.
Then it is suggested that after a period of six years altogether has
elapsed it is possible to pick out some of the earlier drafts that have
been made under the circumstances, and treat a particular draft as
having been itself an offence — that is to sav, a misappropriation of
the money of the bank to the use and purposes of the person who
drew it. The real truth is that, if what is suggested as the offence
had been committed, every cheque was itself a theft. I use the phrase
compendiously, because, although it is not stealing in the language of
the statute, the elements of stealing must exist in it, and, in order to
determine whether this offence has been committed in tiie sense which
the law requires in order to sustain tlie conviction, one must sec
whether it is true to say that every one of those cheques so drawn, and
the money obtained by reason thereof, was a theft.
Their Lordships are of opinion that there was no legal evidence of
any such proposition. It may have been extremely irregular, an:!
may liave been wrong, and was wrong under the circumstances, of
this bank to allow the account to have been entered into at all. The
board ought to have been consulted, and the board ought to have
given its consent in writing that such an account should be entered
into, or, at all events, that overdrafts should not have been allowed on
it; but that each of these transactions wliich is made the subject of
indictment was practically a stealing of the money obtained by'tlie
cheque there appears to be no evidence whatever, and their Lordships
are unable to see that the question was ever properly before the jury
at all. It was a natural and proper inquiry by the jury which they
made of the learned Deemster, whether or not they ought to have
some guidance as to what was a fraud within the meaning of the law,
because, as they explained, they were anxious to learn. Some of them
thotight there could be no fraud at the time, because the person wa?
solvent who was drawing these cheques, to which inquiry no answe
apparently was given by the learned Deemster in the language which
the jury required, but he goes on to say that it is not conclusive that
the defendant was not guilty because he was solvent — ^an entire inver-
sion, their Lordships regret to observe, of what ought to have bt'on
told the jury at the time. Strictly, and as a matter of verbal accu-
racy, indeed it is not conclusive that the person was not guilty; but
the question which the jurymen obviously desired to have answered
was whether or not, given the circumstances of this case, the man
being perfectly solvent at the time and having ample assets to answer
the clieque whicli he was drawing, they ouglit to infer from the nature
SECT. VI.j PEOPLE EX RELATIONE PERKIXS V. MORSE. 721
of the transaction that it was a taking or misappropriation within the
meaning of the statute. Upon that it is impossible to say the jury
received any guidance whatever.
In the result their Lordships are of opinion that there maj' have
been ample . evidence that the account was improperly obtained, and
it may have been in one sense fraudulently obtained, but there is no
evidence justifying the charge that this monej' was appropriated to the
use of the person who drew the cheque in fraud of the right of the
bank to have the money, and therefore that the offence contemplated
by the statute was committed, or at all events there was no evidence
of its being committed so as to justify the verdict of " guilty." For
these reasons their Lordships will humbly advise His Majesty that the
conviction of November 19, 1900, should be set aside.
There will be no order as to costs against the Crown.
PEOPLE ex relatione PERKINS v. MORSE.
Court op Appeals op New York. 1907.
[Reported 187 N. Y. 410.]
Appeal from an order of the Appellate Division of the Supreme
Court in the first judicial department, entered May 26. 1906, which
reversed an order of Special Term dismissing a writ of habeas corpus
and directed the discharge of the relator from custodj-.^
Gray, J. . . . If the magistrate issued the warrant of arrest without
sufficient evidence in the particular case, the process is a nullity. The
question, always, must be whether the magistrate acquired jurisdiction
to cause an arrest of the person and the court, upon the habeas corpus
proceeding, will look back of his warrant and see if the facts stated in
the depositions of the prosecutor and his witnesses support his warrant.
(Code Crim. Proc. sec. 149; Church Hah. Corp. sec. 236.) If they
did not furnish reasonable and just ground for a conclusion that the
crime charged had been committed and that the defendant committed
it, then jurisdiction was lacking to hold the prisoner in custody for any
time. (Code Crim. Proc. sec. 160.)
The relator had the absolute right to question, in this waj-, the suffi-
ciency of the facts laid before the magistrate to constitute the crime of
larceny. That crime is defined in section 528 of the Penal Code, which
reads, as far as material, as follows : " A person who, with the intent
to deprive, or defraud the true owner of his property, or of the use and
benefit thereof, or to appi'opriate the same to the use of the taker, or of
any other person, . . . having in his possession, custody, or control,
as a bailee, servant, attorne}', agent, clerk, trustee, or officer of any
person, association, or corporation, . . . any money, property, evi-
1 The detailed statement of facts is omitted ; the facts will be found stated iu the
opinions. Hart of each opinion is omitted. — Ed.
722 PEOPLE EX EELA.TIONE PERKINS V. MORSE. [CHAP. VIII.
[lenoe of debt or contract, article of value of any nature, or thing ia
action or possession, appropriates the same to his own use, or that of
any person other than the true owner or person entitled to the benefit
thereof, steals such property, and is guilty of larceny."
It is apparent that what constitutes the crime of taking the property
of another for the use of the taker, or of that of any other person than
the legal owner, is the intention with which the act is eotnmittert.
Under the statute, the crime of larceny no longer necessitates a tres-
pass ; but it does need, as an essential element, that the " intent to
deprive or defraud " the owner of his property, or of its use, shall
exist. The intent, by necessary impHcation, as from its place in the
penal statute, must be felonious ; that is to say, an intent without an
honest claim of right. It is not now essential, as it was under the
Roman and early English law, that the intention of the taker shall be
to reap anj' advantage from the taking. The statute makes the crime
to consist in the intent to despoil the owner of his property. That is.
necessary to complete the offence, and if a man, under the honest im-
pression that he has a right to the property, takes it, it is not larceny
if there be a colorable title. (See Code Crim. Proc. sec. 548 ; People
V. Grim, 3 N. Y. Cr. Rep 317; Bishop's Crim. Law, sees. 297, 851;
Wharton's Crim. Law, sees. 883, 884.) The charge of stealing prop-
erty is only substantiated by establishing the felonious intent. Without
it there is no crime ; for it would be a bare trespass. It is the criminal
mind and purpose going with the act which distinguish the criminal
trespass from a mere civil injury. (1 Hale's P. C. 509 ; McCourt v.
People, 64 N. Y. 583.) Doubtless, if the particular act was specified
in the penal statute, an honest belief that it was right, while it would
purge the act from immorality, would not relieve it from indictabilit}'.
But when there is no statute on the subject and the act is not one which
concerns the State directly, because affecting the peace, order, comfort,
or health of the communit}-, then the wrong done is private in its
character and must be redressed by private suit. The act of the presi-
dent of the insurance company, which the relator may be regarded as
abetting (Sec. 29, Penal Code), that is the contribution of corporate
funds for the purposes of a political campaign, was not malum pro-
hibitum, or a prohibited wrong; for it was not until two j'ears later
that it was made a misdemeanor by the law of 1906. (L. 1906. ch.
239.) The legislature may make that criminal which was not so before,
but we may not reason back of the enactment and predicate crime of
an act which was lacking in criminal intent. It is of the very nature
of crime that the criminal act shall involve the violation of a public law,
or a wrong, which, because grossly immoral and vicious, affects the
public injuriously.
If we turn then to a consideration of the facts, upon which the mag-
istrate ordered the relator to be arrested, it is impossible, reasonably
speaking, to find that criminal element which the statute makes a neces-
sary one, the intent of the accused to steal.
SECT. TI.] PEOPLE EX KELATIONE PERKINS V. MORSE. 723
When summed up the evidence amounts to this : that tlie president of
the company, in whom was vested, and who had for years been exercising,
the power to make disbursements of the corporate funds upon his sole
authoritj', had agreed that the insurance company would contribute to
the presidential campaign fund of the Republican national committee
up to the amount of $50,000 and that, to protect the company against
other demands for political purposes, he requested the relator, one of
the cpmpany's trustees, to personally carry out the agreement by ad-
vancing the moneys. The relator acquiesced in the president's request,
advanced the money, and, subsequently, the president brought up the
subject of his reimbursement informally before a full attendance of the
members of the finance committee of the company. The president's
purpose was not that the finance committee should take official action
in the matter, but that the trustees should be informed of what he had
done, and that he might have their opinions upon the matter. It was
the general opinion that the president should cause the relator to be
reimbursed for his advances out of the corporate funds. The facts
stated by the witnesses showed that what was brought before this body
of the company's trustees was the claim, or right, of Mr. Perkins to be
repaid the monej-s which he had paid out bj' the procurement of the
president, in order that the latter's agreement on behalf of the company
might be carried out, and that the president, exercising the executive
power, with which he appears to have been clothed, directed the
treasurer of the company to draw the check for the amount of the
relator's claim. Furthermore, the prosecution in making use before
the magistrate of the relator's letter to the district attornej- as an admis-
sion of the facts of the transaction complained of, not onlj- made the
fact clear that the moneys were paid out to satisfy the relator's claim,
but, also, caused It to appear, affirmatively, that the relator had acted
in the honest belief that he was benefiting the companj- and had derived
no personal advantage. The magistrate was not bound to accept the
letter as establishing the innocence of the accused, but as a part of
the evidence used to make out the charge, he had his statements explain-
ing the transaction and stating his honest motives. It was equivalent
to his examination.
It is unquestionably true that the purpose for which the monej-s of
the company were promised was foreign to the chartered purposes of the
corporation ; but that fact does not make the payment a criminal act.
The act not being malum prohibitum, nor m,alum in se, the innocent
motive of indirectly promoting the corporate affairs, through the sup-
posed advantage of the continuance in power of the Republican admin-
istration, purged the act of immorality, and it lacked the criminal intent
The company had not the right, under the law of its existence, to agree
to make contributions for political campaigns any more than to agree to
do other things foreign to its charter ; but it had capacity to make
agreements, if not prohibited or inherently wicked. Its act would
affect the interests of those concerned with the conduct of the corporate
724 PEOPLE EX RELATIONE PERKINS V. MORSE. [CHAP. VIII.
business and effect a private wrong ; but it would not be a public
offence, or illegal, in the sense of violating any public interest. (Bis-
sell V. M. S. & N. I. R. R. Co., 22 N. Y. 258 ; 'Holmes v. Willard, 125
ib. 75 ; Moss v. Cohen, 158 ib. 240.) If making the agreement to
contribute from the corporate funds was an illegal act, it was because
of the limitations upon the corporate powers and not because of eon-
•siderations of the disadvantage to the company of the act. There are
a great manj' things which those intrusted with the management of
corporate properties are known to do and which they ought not to do,
whatever their good motives, not because some statute forbids, but
because they are not within the scope of the chartered powers. Their
own sense of rectitude and of what is due to those who trust them
should admonish them of the wrongful nature of their conduct. It has
been well observed that the ultimate welfare of the citizen demands
that he shall conform his conduct to the moral law, and it concerns him
that every one else should conform to it. A moral obligation should be
none the less authoritative in the conduct of life that it is binding only
upon the conscience of the person as a duty, and is imperfect in law
from the absence of legal sanction. Courts, however, may not sit to
judge the conduct of a defendant by an^' moral code or rules of ethics.
Their sphere is to ascertain if the facts shown establish the crime
charged against him. In the facts stated in these depositions, I find
none upon which criminalitj- can be predicated. The essential element
of the "intent to deprive and defraud" is nowhere to be found, and
there is no just basis for the inference. There was no concealment
about the transaction, and knowledge of it was conveyed to the other
trustees. That the relator may have made a mistake of law, which will
not relieve him from liability in a civil action, may be true, and he
expressly disclaimed in his letter any intention to dispute such a
liability ; but this was a ca.se where the intent, or good faith, was in
issue and then knowledge of the law is immaterial. (Knowles v. City
of N. Y., 176. N. Y. at p. 439 ; Goodspeed v. Ithaca St. Ry. C, 184
ib. at p. 354.) The relator came to the aid of the president of the com-
pany who, as such, had agreed to contribute moneys to the campaign
fund, and advanced the moneys temporarily. Having done so, for no
other reason than for the supposed advantage of the company, his
claim to be reimbursed from the treasury of the company is openly
presented and it is paid. But within the spirit, if not the letter, of
section 548 of the Penal Code, that was not larceny. The section pro-
vides that " upon an indictment for larceny it is a sufficient defence
that the property was appropriated openly and avowedlj-, under a claim
of title preferred in good faith, even though such claim is untenable."
This section is an expression of the emphasis which the statute lays
upon the intent with which the property of another is taken. It is a
qualification of the provisions of section 528 of the Penal Code, defining
what shall constitute the crime of larceny. It is of considerable sig-
11 ficance, as illustrating the legislative understanding, that when, in
SECT. VI.] PEOPLE EX RELATIONE PERKINS V. MORSE. 725
1906, the legislature dealt with the question specifically the offence was
declared to be a misdemeanor, not a larceny.
The question in this case was whether the facts evidenced the com-
mission of a crime, and that was a question of law, which went to the
jurisdiction of the magistrate. They showed that the design to injure,
the motive to despoil the company, the wrongful purpose, were all lack-
ing in the information which was laid before the magistrate, and upon
which the warrant issued. This being so, the act of the magistrate was
wholly without jurisdiction, and the warrant and all proceedings under
it were absolutely void. (Hewitts. Newberger, 141 N. Y. 538, 543).
For these reasons I advise the affirmance of the order appealed from.
HiscoCK, J. I concur with Judge Gray in the affirmance of the
order appealed from.
Stripped of any collateral and immaterial considerations, such as
that of the consequences which may result to the magistrate issuing a
warrant without any legal basis therefor, the naked question is whether
anj- evidence was presented to such magistrate which showed reason-
able ground for believing that the defendant had committed the crime
of larceny. Unquestionably if there was no evidence justifying the
inference of such guilt, the magistrate was without, jurisdiction and the
relator should be discharged.
This court seems to be wholly or practically unanimous in the opin-
ion that the evidence presented to the magistrate would not be sufficient
to sustain a conviction of the defendant for the alleged crime, and that
he should be discharged if convicted thereon. The nature of this
case, the attention which it has received, and the facts and circum-
stances disclosed render not at all violent the presumption that the
district attorney has now presented all the evidence within his reach,
and, therefore, it is quite probable that the really practical question
involved is whether the relator shall be discharged at the present or at
a subsequent stage of the proceedings. But however this may be, it
will be conceded, as is argued in behalf of the appellants, that if even
a slight degree of evidence of the relator's guilt was produced — " some-
thing upon which the judicial mind was called upon to act in determin-
ing the question of probable caiise," the magistrate had jurisdiction,
the warrant was valid and the order appealed from should he, revereed.
We are all agreed upon certain fundamental principles pertaining to
this case. The contribution by the president of the New York Life
Insurance Company from its funds of f50,000 to a political campaign
committee, even in the absence of any statutory prohibition, was abso-
lutely beyond the purposes for which that corporation existed, and was
wholly unjustifiable and illegal. And while the contribution was sug- '
gested and made bj' the authority and direction of the president of the
companj' rather than by the relator, still the latter was so a party to
the execution of the act that he must be regarded as having aided and
abetted it, and, therefore, is criminally responsible if the crime was
committed.
726 PEOPLE EX KELATIONE PERKINS V. MORSE. [cHAP. Till.
Further than this, the assumption will be made without critical
analysis of its correctness in all respects, that because the relator
understood when he advanced his own funds to Mr. Bliss that the same
would be repaid to him with moneys of the corporation, he was from
the beginning a party to the plan to appropriate such corporate funds
to an unauthorized purpose, and that, therefore, when payment was
made to him he did not occupy the position of a hona fide though mis-
taken claimant, and does not come within those provisions of section
548 of the Criminal Code which provide that it is a defence to ah indict-
ment for larceny " that the property was appropriated openly and
avowedly under a claim of title preferred in good faith, even though
such claim is untenable."
But, confessedly, these facts and considerations alone are insuflicient
tojustify the charge which has been laid against the relator. At the
time of his arrest there was no statute making the contribution of cor-
. porate funds to political purposes of itself a crime, and, therefore, there
must be some evidence that the relator in doing what he did was
actuated by a felonious, criminal intent. It is agreed upon all sides
that the crime of larceny may not be committed unintentionally, uncon-
sciously or by mistake, but that in order to accomplish it the perpe-
trator must have the intent referred to. It may be difficult at all times
exactly and satisfactorilj' to define this intent, but the requirement for
it as applicable to this case means that when the relator took part in
the appropriation of the moneys in question, he must have had in some
degree that same conscious, unlawful, and wicked purpose to disregard
and violate the property rights of another which the ordinary burglar
has when he breaks into a house at night with the preconceived design
of stealing the propertj- of its inmates. There is, as there ought to be
in the absence of statutorj' enactment, a long distance between the act
which is unauthorized and illegal, and which subjects the trespasser to
civil liability, and the one which is really wicked and criminal and
which subjects the offender to imprisonment. It is on this point of
criminal intent that I think the district attorney has failed to furnish
anj' evidencf whatever on which the magistrate might act, although the
burden affirmatively rested upon him ^o to do.
At the outset it must be borne in mind that some of the circumstances
which surround this charge are merely accidental and superficial, and
not at all decisive. The fact that this contribution was made by the
officers of one of those corporations whose management recently has
been subjected to grave criticism, and even that it was made for a pur-
pose properly subjected to condemnation and now absolutely prohibited,
are of no legal significance. However public opinion or ethics might
distinguish them, the legal principles which control the consideration
of this case are the same which would be applicable if the president of
a manufacturing corporation had contributed from its funds toward the
erection of a church supposed to be for the benefit of its employees, or
the officers of a railroad company had contributed its funds or the use
SECT.VI.J PEOPLE EX EELATIONE PEllKINS V. MORSE. 727
of its property and transportation facilities for ttie temporary relief of
the suflferers from some sudden and great calamity. We probably
should be compelled to say in each case ibat the contribution was
beyond the purposes of the corporation and unauthorized and illegal,
and the oflSeers making the same civilly liable, but it certainly would be
a matter of grave import to hold, in the absence of something else,
that they might be prosecuted for stealing.
It, therefore, seems to me that we are justified in scrutinizing with
care the depositions presented to the magistrate for the purpose of ascer-
taining whether they do in fact disclose any intent to commit a crime.
These facts are all established and must be accepted by the prosecu-
tion as true, and there is wanting every one of those circumstances of
personal gain, furtive secrecy in the commission of the act and of con-
cealment after commission which, as essential elements, ordinarily
attend the crime of larceny, and if there is any evidence here of a
criminal intent, it is found simply and solely in the fact that the officers
of the corporation have contributed some of its funds to an unauthor-
ized purpose. As already indicated it does not seem to me that this
feet is sufficient to sustain the burden thus cast upon it.
In McCourt v. People (64 N. Y. 583) the plaintiff in error stopped at
a house and asked the daughter of the owner for a drink of cider, offer-
ing to pa}' for it. She refused to let him have it, and he thereupon
opened the cellar door, and, although forbidden to do so by her, went in
and drew some cider. He was indicted for burglary and larceny, and
it was held that the trial court committed error in refusing to direct his
acquittal. It was said : ' ' Every taking by one person of the personal
property of another without his consent is not larceny ; and this,
although it was taken without right or claim of right, and for the pur-
pose of appropriating it to the use of the taker. Superadded to this,
there must have been a felonious intent, for without it there was no
•crime. It would, in the absence of such an intent, be a bare trespass,
which, however aggravated, would not be a crime. It is the criminal
mind and purpose, going with the act which distinguishes a criminal
trespass from a mere civil injury." And then further, as applicable
to the particular circumstances of that case, ' ' There was not only
nn absence of the usual indicia of a felonious taking, but all of the
circumstances proved are consistent with the view that the transaction
was a trespass merely. To find this transaction a larceny it is neces-
sary to override the ordinary presumption of innocence and to reject a
construction of the prisoner's conduct, which accounts for all the
circumstances proved without imputing crime, and to impute a criminal
intention in the absence of the ear marks which ordinarily attend and
characterize it."
It is true that this was said with reference to the evidence produced
upon a trial, but a decision denying as matter of law to given facts the
requisite probative force must be applicabi<; at any other stage where
there is need for such proof.
728 PEOPLE EX RELATIONE PERKINS V. MOUSE. [CHAP. VIII.
CnLLEN, C. J. ... Something is also said in the opinion below of
the beneficent character of the purpose to which the monej- was appro-
priated. Of that we can hardly take judicial notice. Probabl3- at all
times it would be regarded as beneficent in Vermont and maleficent
in Georgia, while in New York its character would vary from year to
year. The meritorious character of the object to which the money was
appropriated has no bearing on the question of larcen3^ The gist of
that oflFence is not the application of money to a bad purpose, but
taking money that does not belong to the taker to appropriate to an
object good or bad. It is the fraudulent deprivation of an owner of his
propertj' that constitutes larcenj'. It is a crime to steal, even though
with the intent to give away in charitj' and relieve distress. (Regina
V. White, 9 C. & P. 434.) I do not assert that it is immaterial which
party is in control of the government of the nation, and that the subject
is a matter of indifference to the citizen. If this were so, the profession
of political faith would be mere hypocrisj'. If the citizen, with his
own means, contributes to legitimate political expenses to secure the
success of the party which he deems will most inure to the welfare of
the nation, his action is laudable, and even if tlie inducement be the
belief that the success of that part^' will inure to the advancement of
his personal interest, as distinguished from that of the country at large,
it ma}' be justifiable ; but to applj' the mone\- of another without liis
consent to such an object is neither laudaiile nor justifiable, but dis-
honest. The money given to Bliss belonged neither to the president
nor to the relator, but was simpl}- in their custody'. Its legal owner
was the artificial being, the corporation ; its beneficial owners were the
policy-holders. With the immense business carried on bj- the corpora-
tion, policies issued in ever}- part of the country and to persons of every
political party, both the relatoi- and the president must iiave well known
that the universal assent of the policy-holders, the only tiling wliicii could
have justified, even morallj' (not legally), the payment to Bliss, could
never be obtained and that at all times a substantial rainoritj- would be
opposed to such payment. But though there was an illegal misappro-
priation of the corporate funds by the relator, this does not necessarily
prove that he was guilty of larceny. It may have been simplj- a tres-
pass for which he is only civilly liable. I agree with Judge Gray that
to constitute larceny there must be what is termed a felonious intent,
but we do not make progress towards the determination of the question
before us unless we ascertain what is a felonious intent. The question
has given rise to much discussion in text books and in judicial opinions.
Whether "intent" is the proper term to employ ma}- be doubted.
Though a man may commit many statutory offences unwittingly, no
one can become a thief or an embezzler accidentally or by mistake.
To constitute the offence there must be in the perpetrator the con-
sciousness of the dishonesty of the act. This, however, as frequently
turns on the knowledge or belief of the party as to his authority as on
his intent regarding the disposition of the property. Tt is not neces-
SECT. TI.]. PEOPLE EX RELATIONE PERKINS V. MORSE. 729
sarj- either at common law or under the statute that the intent should
be the profit of the taker, for as alreadj' said, it is theft to take prop-
ert}- to give away as well as to keep for oneself. In the present case
no one will doubt that had a clerk' taken from the company's till a sum
of money to give to the Republican club of his ward, it would have
been larceny. Whatever distinction there may be between the hypo-
thetical ease and that of this relator does not lie in the object for which
the moneys were appropriated, for tliat in each case would be the same,
but in the difference between, the authority over the corporate funds
possessed by the mere clerk and by the president and vice-president.
The clerk, of course, would know that he had no authority to so divert
the corporate funds ; the president and the relator might, though they
should have known to the contrarj', possibly have entertained a dif-
ferent view on the subject. This brings us to the real and, to my
mind, the only question in this case. As has been alreadj' said, the
relator and the president of the companj-, without the authority of the
corporation and knowing that all the beneficial owners would never
assent to the act, took the moneys of the company without considera-
tion and appropriated them to the exclusive dse of a third partv. Tlie
relator must be presumed to have known the law and to have intended
the natural consequences of his acts, which was to deprive tlie company
of the money. If he knew the illegality of his act and his intention waf;
solely to benefit either Mr. Bliss personally or the political organization
which he represented, then he was guilty of larcen}-. If, however, as
asserted iti his statements to the district attorney, he believed that tlie
expenditure would be for the benefit of the companj' and that the presi-
dent had the power to make the same, then, however mistaken on the
subject, he was not guiltj-. This was necessarily and properly a ques-
tion of fact to be determined by the magistrate, not one of law. Though
the prosecution put in evidence before the magistrate the written state-
ment of the relator, the magistrate was at liberty to believe it or to
reject it in whole or in part. (People v. Van Zile, 143 N. Y. 368,"
Becker v. Koch, 104 id. 394 ; President, etc., Manhattan Co. v. Phil
lips, 109 id. 383.) The indirect method in which the payment to Blisi
was made and the fact concealed by having the money in the first in-
stance advanced by the relator instead of by the company, and tlie
method in which the relator was reimbursed by a check, not to him
personally, but to the order of J. P. Morgan & Company, a banking'
firm witli which the corporation may have large legitimate dealings,
casts suspicion on the good faith of the relator, and might be considered
by the magistrate as militating against liim. The explanation of this
coin-se offered by the relator, that it was to relieve the president from
solicitations from other political parties, might also be discredited. It
is difHcult to imagine how the representatives of other parties would
have access to the company's books ; nor would the scheme of pay-
ment enable the officers of tlie company when solicited to saj' that tlie
company had made no contributions to other parties, because such an
730 PEOPLE EX RELATIONE PERKINS V. MORSE. [CHAP. Till.
answer would be as essentiall}- a falsehood as if the money had been
paid by the company in the first instance. The concealment of the
payment as described would warrant the magistrate in finding that the
parties were conscious of wrongdoing in making it and feared exposure.
The relator asserts that he was ignorant of the character of the entries
made in the company's books, and there is no proof to the contrary of
this statement. But he must have known that the cheque to pay him
was drawn, not to himself, but to Morgan & Company. On the other
hand, there is, doubtless, to be considered in the relator's favor the fact
that he made no pecuniary profit by the transaction, and that he after-
wards openly admitted his participation in it. All this, however, merely
raised a question of fact to be passed on by the magistrate, with whose
determination other courts cannot interfere in this proceeding. . . -^
O'Bribn and Edward T. Bartlett, JJ. , concur with Gray and His-
COCK, JJ. ; Chase, J., concurs with Cullen, Ch. J., and Werner, J.
Order affirmed.
1 Weener, J., delivered a dissenting opinion. — Bix
.SECT VII.] EEX W. FRANCIS. 731
SECTION VII.
Aggravated Larceny.
(o) EOBBEKY AND LAECENY FROM THE PERSON.
EEX V. FRANCIS.
King's Bench. 1735.
[Reported 2 Strange, 1015.]
The defendants were indicted at the Assizes in Somersetshire, for
that they feloniously made an assault on Samuel Cox in the king's
highway, and put him in fear, and £9 in money from the person of
Cox did take, steal, and carry away. Upon not guilty pleaded by all
the defendants, the jury find this special verdict : —
That Samuel Cox travelling on horseback on the king's highway to
Somerton Fair, on a place called King's Down Hill in the county of
Somerset, saw all the prisoners in company together, one of whom was
then lying on the ground ; that Cox passed by them, and one of them
(but which the jury do not know) called to Cox, and desired him to
•change half a crown, that they might give something to a poor Scotchman
then lying on the ground, who was one of the prisoners. Cox came
back, and putting his hand in his pocket to pull out his money in order'
to give them change as they desired, he pulled out four moidores and a
Portugal piece, value £3, 12 s., and having the pieces of gold in his
hand, John Francis, one of the prisoners, gentlj' struck Cox's hand, in
which he held the gold, by means whereof the gold fell on the ground ;
that thereupon Cox got off from his horse, and said to the prisoners
that he would not lose his money so ; and the said Cox then and there
offering to take up the pieces of gold, which were then upon the ground,
and in Cox's presence ; the prisoners then and there swore that if he
touched the pieces of gold they would knock his brains out ; whereby
he was then and there put in bodilj'fear of his life, and then and
there desisted from taking up the pieces of gold. That the prisoners
then and there immediately took up the gold, and got on their horses,
and rode off with the gold : that Cox immediately thereupon pur-
sued them, and rode after them for about half a mile ; and then the
prisoners struck him and his horse, and swore that if he pursued them
any farther they would kill him ; bj^ reason of which menace he was
afraid to continue his pursuit anj' farther ; but whether upon the whole
matter the prisoners are guilty of the felony and robbery charged on
them the jury doubt, and pray the advice of the court. Et si, &c?-
^ Upon a second argument it was determined that the special verdict did not state
«ith sufBcient certainty whether the taking was in the presence of the prosecutor — Ed.
732 KEGINA V. SELWAY. [CHAP. VIII.
This special verdict and the prisoners were removed into the King's
Bench, where it was twice argued at the bar. And upon the first argu-
ment the only question was, whether a taking in the presence be in
point of law a taking from the person, and it was unanimouslj deter-
mined that it was.^
REGINA V. SELWAY.
Central Criminal Court. 1859.
^Reported 8 Cox C. C. 235.]
The prisoners were indicted for robbery and stealing from the per-
son.^ The evidencje showed that the prosecutor, who was paralyzed,
received, while sitting on a sofa, in a room at the back of his shop, a
violent blow on the head from one of the prisoners, whilst the other
went to a cupboard in the same room, and stole therefrom a cash box,
with which he made off.
Orridge, for the prisoners, submitted that on this evidence there
was no proof of a stealing from the person. The cash box at the time
it was stolen was at some distance from the place where the prosecutor
■was sitting, and could not be said, therefore, to be about his person.
MoMnson, for the prosecution, contended that it was quite suflS-
cient for the purposes of the indictment to show that the cash box was
under the protection of the prosecutor ; it need not be in his bodily
possession. He was near enough to it to protect it, at least by raising
an alarm. It was laid down in 1 Hale P. C. 533, " If a thief put a man
in fear, and then in his presence drive away his cattle, it is a robber^'.
So, if a man being assaulted by a robber throw his purse into a busli,
or flying from a robber let fall his hat, and the robber in his presence
take up the purse or hat and carry it away, this would be robbery."
The Common Sergeant, having consulted Mr. Justice Crowder and
Mr. Baron Channell, held that although the cash box was not taken
from the prosecutor's person, yet it being in the room in which he was
sitting, he being aware of that fact, it was virtually under the pro-
tection of his person. He should under the circumstances leave this
question to the jury : Was the cash box under the protection of the
prosecutor's' person at the time when it was stolen ?
The jury found that it was. Guilty.'
1 Ace. U. S. V. Jones, 3 Wash. C. C. 209, 216. See Clements v. State, 84 Ga.
660; State v. Calhoun, 72 la. 432. — Ed.
2 " Whosoever shall roh any person, or shall steal any chattel, money, or valuable
security from the person of another, shall be guilty of felony." 24 & 25 Vict. c. 96, a
40, re-enacting 7 Wm. IV. and 1 Vict. c. 87, s. 5. — Ed.
» See Com. v. Dimond, 3 Gushing, 235. — Ed.
SECT. VII.] COMMONWEALTH V. HARTNETT. 733
SECTION VII. (continued.)
(6) Lakceny from a Building.
COMMONWEALTH v. HARTNETT.
Supreme Judicial Court op Massachusetts. 1855.
[Reported 3 Grai/, 450.]
Indictment on St. 1851, c. 156, § 4, for larceny in a building ot
Timothy Hartnett. At the trial in the municipal court, it appeared
that the said Timothy was the husband of the defendant ; and the
defendant contended that she could therefore be convicted of simple
larceny only. But Hoar, J., ruled that the evidence was sufficient to
sustain the charge of larceny in a building. And to this ruling the
defendant, being found guilty, alleged exceptions.
t7! A. Andrew, for the defendant.
J'. IT. Clifford (Attorney General), for the Commonwealth.
Mbtcalf, J. The defendant is convicted of larceny in a building
owned by her husband ; and as the indictment does not aver that it
was committed in the night time, it must be taken to have been com-
mitted in the daytime. St. 1843, c. 1, § 2. The question is whether
the defendant is liable to the punishment prescribed by St. 1851, c. 156,
§ 4, for larceny " in an}' building,'' or only to the punishment elsewhere
prescribed for simple larceny.
Larceny in the da3-tirae, in a dwelling-house and in certain ' othe*
buildings, not broken into, was first subjected, in Massachusetts, to
greater punishment than if not committed therein, by St. 1804, c. 143,
§ 6 ; to wit, solitarj- imprisonment of the offender, in the state prison,
not exceeding six months, and confinement there afterwards to hard
labor, not .exceeding five years. By St 1830, c. 72, § 3, courts wert
authorized to sentence such offender to confinement in the count}- jail,
not exceeding five years, or to the payment of a fine, according to the
nature and aggravation of the offence. By the Rev. Sts. c. 126, § 14,
it was thus enacted : "• Every person who shall steal, in the daytime, in
ail}' dwelling-house, office, bank, shop or warehouse, ship or vessel,
shall be punished by imprisonment in the state prison, not more than
five years, or by fine not exceeding three hundred dollars, and im-
prisonment in the country jail, not more than two 3-ears." By St. 1851,
c. 156, § 4, " every person who shall commit the offence of larceny, by
stealing in any building, shall be punished by imprisonment in the state
prison not more than five years, or by fine not exceeding five hundred
dollars, or imprisonment in the house of correction or county jail, not
exceeding three years." For simple larceny, that is, for theft not
aggravated l)y being from the person, nor by being committed in a
dwelling-house or other building, ship, or vessel, a lighter punishment
734 COMMONWEALTH V. HAETNETT. [CHAP. VIII.
is prescribed by the Rev. Sts. c. 126, § 17, and c. 143, § 5. Andi
we are of opinion that the defendant is liable only to that lighter
punishment.
We do not suppose that any English statutes for the punishment of
larceny were ever held to be in force in Massachusetts. 7 Dane Ab.
168. Yet the provisions of some of them, and the provisions of acts of
Parliament for the punishment of other offences, have been enacted hy
our legislature, in ever^' stage of our history. And in such cases (as
well as in eases wliere English statutes respecting civil concerns have
been enacted here), it has always been held that the construction previ-
ously given to the same terms, by the English courts, is the construction
to be given to them by our courts. It is a common learning, that the
adjudged construction of the terms of a statute is enacted, as well as-
the terms themselves, when an act, which has been passed by the legis-
lature of one state or countrj', is afterwards passed hj the legislature
of another. So when the same legislature, in a later statute, use the
terms of an earlier one which has received a judicial construction,
that construction is to be given to the later statute. And this
is manifestly right. For if it were • intended to exclude any known
construction of a previous statute, the legal presumption is, that its-
terms would be so changed as to effect that intention. 6 Dane Ab.
613 ; Kirkpatrick v. Gibson's Ex'ors, 2 Brock. 388 ; Pennock v.
Dialogue, 2 Pet. 18 ; Adams v. Field, 21 Verm. 266 ; Whitcomb v.
Rood, 20 Verm. 52 ; Rutland v. Mendon, 1 Pick. 156 ; Myrick v^
Hasey, 27 Maine, 17. There are many instances in which our legis-
lature have made punishable, as offences, acts which were first made so
by English statutes. Among others are our statutes concerning the
fraudulent obtaining of money or goods bj- false pretences. In all suck
cases, the construction given by the English courts is deemed to be the
true one, when the statutes are alike. And we have alread}' stated,
that the act of stealing in certain buildings was first made an aggravated
larceny, and subjected to a greater punishment than before, by St.
1804, c. 143. Yet by the English St. 12 Anne, c. 7 (passed in 1713,
and now repealed), it was enacted that " all and every person or persons
that shall feloniously steal any money, goods or chattels, wares or
merchandises, of the value of fort}' shillings or more, being in anj- dwell-
ing-house, or outhouse thereunto belonging, although such house or
outhouse be not actually broken by such offender, and although the
owner of such goods, or ainy other person or persons be or be not in.
such house or outhouse, being thereof convicted, shall he absolutely
debarred of and from the benefit of clergj-." And bj- the English St. 24
G. II. c. 45, a like provision was made in cases of conviction of the
offence of feloniously stealing goods, wares, or merchandise, of the
value of forty shillinga, in any ship, barge, lighter, boat, or other vessel,
upon any navigable river, or in any port of entry or discharge. But
it was early decided that the first of these statutes did not extend to a
stealing by one in his own house, nor to a stealing by a wife in her
SECT. VII.J COMMONWEALTH V. SMITH. 735
husband's house, which is the same as her own. The intention of the
statute was declared to be, to protect the Owner's property in his own
house from the depredation of others, or the property of others lodged
in his liouse ; thereby giving protection against all but the owner him-
self. It has also been decided that the property stolen must be such as
is usually under the protection of the house, deposited there for safe
custody, and not things immediately under the eye or personal care of
some one who happens to be in the house. 2 East P. C. 644-646 ; The
King V. Gould, 1 Leach (3d ed.) , 257 ; The King v. Thompson & Mac-
daniel, 1 Leach, 379 ; The King v. Campbell, 2 Leach, 642. See also
Rex V. Taylor, Euss. & Ry. 418 ; Rex v. Hamilton, 8 C. & P. 49 ;
Rex V. Carroll, 1 Mood. C. C. 89. And it has also been held that the
St. 24 G. II. c. 45, does not extend to stealing by the owner and
master of a vessel. Rex v. Madox, Russ. & Ry. 92.
We are of opinion that the purpose and intent of St. 1804, c. 143, § 6,
and of the Rev. Sts. c. 126, § 14, were the same as the purpose and
intent of St. 12 Anne, c. 7, and that they. must have the same con-
struction which was given to that before these were enacted. Indeed,
the attorney general frankly admits this, and that he cannot ask for
sentence against the defendant, as for an aggravated larceny, unless it
is required or warranted by St. 1851, c. 156, § 4. We think that
statute has not altered the law in this matter ; that it has only made
larceny "in any building," an aggravated offence, as former statutes
made it when committed in certain enumerated buildings ; and that it
has not subjected to the punishment therein prescribed an}^ larceny
which, if committed in either of those buildings, would not have been
liable to such punishment. The statute was passed in consequence of
the decision, in Commonwealth v. White, 6 Cush. 181, that the
passenger room of a railroad station was not an "office," within the
meaning of the Rev. Sts. c. 126, § 14.
Defendant to be sentenced for simple larceny.''-
COMMONWEALTH v. SMITH.
Supreme Judicial Court of Massachusetts, 1873.
[Reported 111 Massachusetts, 429.]
Indictment alleging that the defendant, on April 14, 1872," at Brain-
tree, certain bank notes " of the property, goods, and moneys of James
Gilbride, in a certain building there situate, to wit, the dwelling-house
of one Patrick McGuire, and then and there in the possession of the
1 Ace. Hex V. Gould, Leach (4th ed.), 257. Otherwise, in England, under Stat. 7
* 8 G. IV. ch. 29, § 12 ; Keg. v. Bowden, 2 Moo. C. C. 285. — Ed.
736 COMMONWEALTH V. SMITH. [CHAP. VJII.
said James Gilbride, being found, feloniously did steal, take, and carry
away."
At the trial in the Superior Court in Norfolk, before Putnam, J., the
Commonwealth introduced evidence tending to show that the defendant
and James Gilbride lodged together in the same room of McGuire's
house ; that Gilbride went to the room where the defendant was already
in bed, put the monej' in his trunk, locked the trunk, put the key of it in
his pocket, undressed, put his clothes on a chair, and went to bed ; that
the defendant got up in the night, took the key from the, pocket, opened
the trunk, took out the money, and returned the key to the pocket.
Gilbride testified that he was awakened in the night, and saw Smith
with a lighted match at one of the trunks iii the room, but did not know
it was his own trunk, and thought nothing more of it, until he missed
the monej'.
The defendant asked the judge to rule that upon this evidence the
jury could not find the defendant guilty of larceny in a building, but
only of simple larceny. The judge declined so to rule, and left it to
the jur}- under instructions which authorized them to find the defendant
guilty of larceny in a building. The jurj- returned a verdict of guilty.
The defendant then moved in arrest of judgment on the ground that
the indictment did not aver that the larcen\- charged was committed in
anj' building, but the judge overruled the motion.
The defendant alleged exceptions.
W. E. Jewell, for the defendant.
W. G. Colburn, Assistant Attorney General (C. S. Train, Attor-
ney General, with him), for the Commonwealth.
Gray, J. The indictment duly charges larceny in a building. The
allegation that the defendant stole property in the dwelling-house
described necessarily includes a statement that the act of stealing
was done in the building. And the whole charge was supported by
the proof. In order to constitute larcenj- in a dwelling-house or other
building, the property stolen must indeed be under the protection of
the house, and not under the eye or personal care of some one who
happens to be in the house. The King v. Owen, 2 Leach (4th ed.), 572 ;
Commonwealth v. Hartnett, 3 Gray, 450, 452. But mone}- of a lodger
in his trunk, as well as the key of the trunk in a pocket of his clothes,
is clearlj', while he is in bed, undressed, and asleep, not under his own
protection, but under the protection of the house. Eex v. Taylor, Russ.
& Ry. 418 ; Rex v. Hamilton, 8 C. & P. 49. The defendant was there-
fore rightly convicted of larcenj- in a building.
Exceptions overruled.'
1 Ace. Kex V. Taj'lor, Russ. & Ry. 418. — Ed.
SECT. \'II.] COMMONWEALTH V. LESTER. 737
COMMONWEALTH v. LESTER.
Supreme Judicial Court op Massachusetts, 1880.
[Reported 129 Massachusetts, 101.]
Ames, J.^ In an inclLctment founded upon the Gen. Sts. c. 161, § 15,
for larceny in a building, it is not enough to prove that the property
stolen was in a building at the time of the theft, and that the defend-
ant was the thief. It is neeessaiy to show also that the property was
under the protection of the building, placed there for safe keeping, and
not under the eye or personal care of some one in the building. The
watches in this case were a part of the owner's stock in trade, usually
kept bj' him in the building. But his testimony, which was the only
evidence to. the point, is to the effect that he was in charge of the prop-
ertj', when the defendant came in and asked to look at some watches,
and that he handed the watches to the defendant ; that he was not
sure whether the defendant held the watches in his hand, or whether
thej- were lying on the show-case ; and that they were stolen while
he turned partiallj- round to place something upon the shelf behind
him. If they were upon the show-case when stolen, it would be at
least doubtful whether thej' must not, under the circumstances, be con-
sidered as rather in the possession of the owner than under the pro-
tection of the building. If by the act of the owner they were in the
hands of the defendant, they certainly derived no protection from the
building. As the evidence left it wholly uncertain whether they were
on the show-case or in the defendant's own hands, it did not warrant a
conviction of larceny in a building ; and the jury should have been so
instructed. Rex v. Campbell, 2 Leach (4th ed.) 564 ; Rex v. Castle-
dine, 2 East P. C. 645 ; Rex v. Watson, 2 East P. C. 680 ; s. c. 2
Leach, 640 ; Rex v. Hamilton, 8 Car. & P. 49, 50, note ; Common-
wealth V. Smith, HI Mass. 429.
Exceptions sustained.^
1 The opinion only is given ; it sufficiently states the case.
^ Ace. Rex V. Campbell, Leach (4th ed.). 642. Contra, Simmons v. State, 73 Ga.
609. See Com. v. Nott, 135 Mass. 269. — Ed.
738 EBX V. HEADGB. [CHAP. IX.
CHAPTER IX.
EMBEZZLEMENT.
REX V. HEADGE.
Crown Case Reserved. 1809.
[Reported Russell Sf Ryan, 160.]
The prisoner was tried and convicted before Mr. Justice Bayley at
the Old Bailey Sessions, September, 1809, on the statute 39 G. III. c.
85, for embezzling three shillings, which he received for and on account
of his masters, James Clarke and John Giles.
It appeared from the evidence that the prosecutors desired a neigh-
bor, one Francis Moxon, to go to their shop and purchase some articles
in order that thej- might discover whether the prisoner put the money
which he received for the goods sold into the till ; the prosecutors sup-
plied Moxon with three shillings of their own money for this purpose,
which money they marked. Moxon went to the shop, bought the arti-
cles, and paid the prisoner the three shillings. The prisoner embezzled
this money.
It was urged on behalf of the prisoner that the prosecutors had con-
structively the possession of this money up to the time of the embezzle-
ment and that they had parted with nothing but the mere custody. The
prisoner it was contended might have been indicted for larceny at com-
mon law, but that the statute did not apply to cases where the money
before its delivery to the servant had been in the masters' possession
and might legally be considered the masters' at the time of such deliv-
ery, as Moxon in this case was the masters' agent and his possession
theirs.
The learned judge before whom this case was tried thought it de-
served consideration, and reserved the point for the opinion of the
judges.
In Michaelmas term, 1809, the judges met and held the conviction
right, upon the authority of Bull's ease, in which the judges upon simi-
lar facts held a common-law indictment could not be supported. It
seemed to be the opinion of the judges that the statute did not apply to
cases which are larceny at common law.
CHAP. IX.J EEGINA V. CULLUM. 739
REGINA V. CULLUM.
Crown Case Reserved. 1873.
[Reported Law Reports, 2 Crown Cases Reserved, 28.]
Case stated bj' the Chairman of the West Kent Sessions.
The prisoner was indicted as servant to George Smeed for stealing
£2, the property of his master.
The prisoner was employed by Mr. Smeed of Sittingbourne, Kent, as
captain of one of Mr. Smeed's barges.
The prisoner's duty was to take the barge with the cargo to London,
and to receive back such return cargo and from such persons as his
master should direct. The prisoner had no authority to select a return
cargo or take any other cargoes but those appointed for him. The
prisoner was entitled by way of remuneration for his services to half
the earnings of the barge after deducting half his sailing expenses.
Mr. Smeed paid the other half of such expenses. The prisoner's whole
time was in Mr. Smeed's service. It was the duty of the prisoner to
account to Mr. Smeed's manager on his return home after every voy-
age. In October last, by direction of Mr. Smeed, the prisoner took a
load of bricks to London. In London he met Mr. Smeed and asked if
he should not on his return take a load of manure to Mr. Pye of Cax-
ton. Mr. Smeed expressly forbade his taking the manure to Mr. Pye,
and directed him to return with his barge empty to Burham, and thence
take a cargo of mud to another place, Murston. Going from London
to Murston he would pass Caxton. Notwithstanding this prohibitioiAj
the prisoner took a barge-load of manure from London down to Mri i
Pye at Caxton, and received from Mr. Pye's men £4 as the freight. It »
was not proved that he professed to carry the manure or to receive the
freight for his master. The servant who paid the £4 said that he paid
it to the prisoner for the carriage of the manure, but that he did not
know for whom. Early in December the prisoner returned home to
Sittingbourne and proposed to give an account of his voyage to Mr.
Smeed's manager. The prisoner stated .that hahad-taken-the-bxicks to
London, and had returned Jm£ty_toJBurham, as directed by Mr. Smeed,
and ±ha*-thgfelieTiad loaded with mud for Murston.
In answer to the manager's inquiries the prisoner stated that he had
not brought back any manure in the barge from London, and he never
accounted for the £4 received from Mr. Pye for the freight for the
manure.
The jury found the prisoner guilty as servant to Mr. Smeed of em-
bezzling £2.
The question was whether, on the above facts, the prisoner could be
/properly convicted of embezzlement. 24 & 25 Vict. c. 96, § 68, enacts
' that " Whosoever, being a clerk or servant, or being employed for tlie
740 EEGINA V. CULLUM. [CHAP. IX.
purpose or in the capacity of a clerk or servant, shall fraudulently em-
bezzle any chattel, money, or valuable securitj* which shall be delivered
to or received or taken into possession bj' him for <vr2^ ♦'hfi ""'"^ "'I"*'
the account cjjfjusufliagt^ or employer, or any part thereof, shall be
deemed to have feloniously stolen the same from his master or emploj'er,
although such chattel, money, or security was not received into the pos-
session of such master or employer otherwise than \)\ the actual pos-
session of his clerk, servant, or other person so employed. . . ."
No counsel appeared for the prisoner.
E. T. Smith (with him Moreton Smith) for the prosecution. The
prisoner received this freight either " for" or " on account of his mas-
ter or employer," and therefore is within the terms of 24 & 25 Vict. c.
96, § 68. The words " by virtue of such emploj'ment," which were in
the repealed statutes relating to the same offence, have been " advisedly
omitted in order to enlarge the enactment and get rid of the decisions
on the former enactments." Greaves' Crim. Law Consolidation Acts,
p. 117.
[BoviLL, C. J. An alteration caused bj- the decision of Rex v. Snow-
ley, 4 C. & P. 390, which was a case resembling the present one.
Blackburn, J. How can the monej' here be said to have been
received into the possession of the servant so as to become the property
of the master?]
The prisoner was exclusively employed by the prosecutor. With his
master's barge he earned, and in the capacity of servant received, £4
as freight, which on receipt bj' him at once became the propert3' of his
master. Rex v. Hartley, Russ. & Ry. 139.
[Blackburn, J. But in this case the servant was disobeying orders.
Suppose a private coachman used, his master's carriage without leave,
/and earned half-a-crown bj' driving a stranger, would the money be re-
\^ceived for the master so as to become the property of the latter ?]
Such coachman has no authority to receive any monej' for his mas-
ter ; the prisoner, however, was entitled to take freight.
[Bovill, C. J. He was expresslj^ forbidden to do so on this
occasion.]
Can it be said that he may be guilty of embezzlement if in obedience
of orders he receives money, and yet not guilty of that crime if he is
acting contrary to his master's commands? See note to Regina v.
Harris, Dears. C. C. 344, in 2 Russell on Crimes, 4th ed., p. 453.
[Blackburn, J. In suggesting that case to be erroneous the editor
seems to assume that the decision proceeded on the words " by virtue
of his employment," whereas it did not.
Bkamwkll, B. Suppose the captain of a barge let his master's ves-
sel as a stand to the spectators of a boat-race and took pa3"ment from
them for thq use of it?]
Such use would not be in the nature of his business.
[Blackburn, J. In the note to this section by Mr. Greaves he
remarks: " Mr. Davis (Davis' Criminal Statutes, p. 70), rightly says
CHAP. IX.J EEGINA V. CULLUM. 741
that ' this omission avoids this technical distinction ; ' but he adds, ' still
it must be the master's mone}- which is received by the servant, and
not money wrongfully' received by the servant by means of false pre-
tences.' This is plainly incorrect." But in my opinion Mr. Davis was
plainly correct and Mr. Greaves wrong. Eegina v. Thorpe, Dears. & B.
C. C. 562.]
BoviLL, C. J. In the former act relating to this offence were the
words " by virtue of his employment." The phrase led to some diffi-
culty ; for example, such as arose in Regina v. Snowley, 4 C. & P. 390,
and Eegina v. Harris, Dears. C. C. 344. Therefore in the present
statute those words are left out, and § 68 requires instead that in order
to constitute the crime of embezzlement bj' a clerk or servant the
"chattel, mone}', or valuable security . . . shall be delivered to or
received or taken into possession by him, for or in the name or on
account of his master or emplo3-er."
Those words are essential to the definition of the crime of embezzle-
ment under that section. The prisoner here, contrarj' to his master's
orders, used the barge for his, the servant's, own purposes, and so
earned money which was paid to him, not for his master but for him-
self; and it is expressly stated that there was no proof that he pro-
fessed to carry for ihe master, and that the hirer at the time of paying
the money did not know for whom he paid it. The facts before us
would seem more consistent with the notion that the prisoner was mis-
using his master's propert}- and so earning money for himself and not
for his master. Under those circumstances the money would not be
received "for" or " in the name of " or " on account of " his master
but for himself, in his own name, and for his own account. His act
therefore does not come within the terms of the statute, and the convic-
tion must be quashed.
Bramwell, B. I am of the same opinion. I think in these cases we
should look at the substance of the charge and not merel}' see whether
the case is brought within the bare words of the Act of Parliament.
Now the wrong committed bj' the prisoner was not fraudulent or
wrongful with respect to monej', but consisted in the improper use of
his master's chattel. The offence is, as I pointed out during argument,
onlj' that which a barge-owner's servant might be guilty of, if when
navigating the barge, he stopped it, allowed persons to stand upon it to
view a passing boat-race, charged them for so doing, and pocketed the
raonej' they paid to him. There is no distinction between that case
and this save that the supposititious case is more evidentlj' out of the
limits of the statute.
The use of this barge by the prisoner was a wrongful act yet not dis-
honest in the sense of stealing. But I will add that I do not think this
case even within the words of the statute. The servant undoubtedly
did not receive the monej' " for" his master nor " on account of" his
master nor "in the name" of his master. Nevertheless I doubt ex-
tremelj- whether on some future day great difficulty may not arise as to
742 EEGINA V. BARNES. [CHAP. IX.
the meaning of these expressions in § 68, for I doubt whether, although
the servant had used his master's name, he would have been within the
terms of the Act of Parliament. " In the name of" his master is a verj-
curious expression. Suppose a person in service as a carter had also
a horse and cart of his own and employed them to do some or other
work, professing them to be his master's, and received hire for it "in
the name of" his master, would that be embezzlement? Could he be
rightly' convicted under this section ? I doubt it extremely. The words
" in the name of" his master, although inserted with a desire to obviate
difSculties, seem to me likely hereafter to raise them.i ,
REGINA V. BAENES.
' Devizes Assizes. 1858.
[Reported 8 Cox C. C. 129.]
Prisonee was indicted for that he being the servant of Joseph Hill
and others, did embezzle two sums of £68 10s., and £29 9s. Id., their
property.
Edlin, for the prosecution.
Cole, for the prisoner.
It was proved that prisoner, who was a coal and timber merchant, fell
into difficulties, and made an assignment of all his goods, effects, and
book debts. After the execution of this assignment, he^jseceived the
two sums of money in question, which had been de,bts_greyiously due
to him, and he had not accounted for thejrecfiipt^'_those sums. After
the execution of the deed the prisoner had been employed by the
trustees, at a salary, to conduct the business for the benefit of the
trustees.
Cole submitted that the debts being onlj' choses in action could not
be assigned in law, thej' could only be sued for and recovered in the
prisoner's name ; and in law he was the person entitled to receive
them ; in fact, he received his own monej'.
Edlin contended that immediately on the receipt of the monej- by the
prisoner it became the propert}' of the trustees, and then the prisoner
was guiltv of embezzlement.
Cole, in reply. Embezzlement is the stopping of money in transitu
to the employer. If rightly received by the prisoner, the keeping of
it afterwards was not embezzlement. He could not be guiltj- of
larceny unless the money was ear-marked, and if ear-marked, it was
the debt supposed to be assigned, but which had not passed in law,
only in equity.
1 Concurring opinions of Blackburn and Archibald, JJ., are omitted. See ace. Reg.
». Harris, 6 Cox C. C. 363 ; Reg. v. Read, 3 Q. B. D. 131 ; Brady ti. State, 21 Tex.
App. 659. See ex parte Hedley, 31 Cal. 108. — Ed.
CHAP. IX.] COMMONWEALTH V. HAYS. 743
Byles, J., said, the difHculty was to make out that, in point of law,
the prisoner was a clerk, or servant, or acting in the capacity of a
servant within the meaning of the- statute. It was cigar that these
debts were not assignable igjass^-j-they were choses in action, alETd" the
deed would onlyMnd him in equity. The moment he received these
moneys, they were his own moneys, — he received what, in point of law,
was his own money. How then, could he be guilty of embezzlement ;
or how could he be said to be clerk or servant to the trustees ? He
could not, in point of law, pass .the property in the debts due to him
before the deed was executed. His assignees were only , equitable
assignees ; they could only sue in his name. The-deed could £>nVy pass
that which he actuallj' had injysji^session at the time_thejdee3ni(as
executed;^,,j!i^aer th'ese circumstances' tire" indictment could not be
sustamedT
The prisoner was, therefore, acquitted.
COMMONWEALTH v. HAYS.
Supreme Judicial Coubt of Massachusetts. 1858.
[Reported 14 Gray, 62.]
Indictment on St. 1857, c. 233, which declares that " if any person,
to whom any money, goods, or other property, which may be the sub-
ject of larceny, shall have been delivered, shall embezzle, or fraudu-
lently convert to his own use, or shall secrete, with intent to embezzle
or fraudulently convert to his own use, such money, goods, or property,
or any part thereof, he shall be deemed, bj"" so doing, to have committed
the crime of simple larceny." The indictment contained two counts,
one for embezzlement, and one for simple larceny.
At the trial in the Court of Common Pleas in Middlesex, at October
term, 1858, before Aiken, J., Amos Stone, called as a witness by the
Commonwealth, testified as follows: "I am treasurer of the Charles-
town Five Cent Savings Bank. On the 17th day of October, 1857, the
defendant came into the bank, and asked to draw his deposit, and
presented his deposit book. I took his book, balanced it, and handed
it back to him. It was for one hundred and thirty dollars in one item.
I then counted out to him two hundred and thirty dollars, and said,
* There are two hundred and thirty dollars.' The defendant took the
money to the end of the counter, and counted it, and then left the room.
Soon after the defendant had left, I discovered that I had paid him one
hundred dollars too much. After the close of bank hours I went in
search of the defendant, and told him that I had paid him one hundred
dollars too much, and asked him to adjust the matter. The defendant
asked tne how T knew it. He asked me if I could read. I said ' Yes.'
744 COMMONWEALTH V. HAYS. [CHAP. IX.
He then showed me his book, and said, ' What does that say?' I took
it, and read in it one hundred and thirty dollars. The defendant then
said, ' That is what I got.' He exhibited two fifties, two tens, and a
ten dollar gold piece, and said, ' That is what I got.' I then said to
him, ' Do you say that is all and precisely what I gave you? ' He re-
plied, ' That is what I got.' I then said to him, ' I can prove that you
got two hundred and thirty dollars.' He replied, 'That is what I want ;
if you can prove it, you will get it; otherwise, 3'ou wont.' I intended
to paj' the defendant the sum of two hundred and thirt}' dollars, and did
so pay him. I then supposed that the book called for two hundred and
thirt}' dollars. Books are kept at the bank, containing an account with
depositors, wherein all sums deposited are credited to them, and all
sums paid out are charged to them."
The defendant asked the court to instruct the jury that the above
facts did not establish such a delivery or embezzlement as subjected the
defendant to a prosecution under the St. of 1857, c. 233, and did not
constitute the crime of larceny.
The court refused so to instruct the jury ; and instructed them " that
if the sum of two hundred and thirtj- dollars was so delivered to the
defendant, as testified, and one hundred dollars, parcel of the same,
was so delivered b}- mistake of the treasurer, as testified, and the de-
fendant knew that it was so delivered by mistake, and knew he was
not entitled to it, and afterwards the monej' so delivered by mistake
was demanded of him by the treasurer, and the defendant, having s,uch
knowledge, did fraudulently, and with a felonious intent to deprive the
bank of the money, convert the same to his own use, he would be
liable under this indictment." The jury returned a verdict of guilty,
and the defendant alleged exceptions.
JV. St. J. Green, for the defendant.
8. H. Phillips (Attorney General), for the Commonwealth.
BiGELOW, J. The statute under which this indictment is found is
certainly expressed in ver^^ general terms, which leave room for doubt
as to its true construction. But interpreting its language according to
the subject matter to which it relates, and in the light of the existing
state of the law, which the statute was intended to alter and enlarge,
we think its true meaning can be readily E!,scertained.
The statutes relating to embezzlement, both in this countrj- and in
England, had their origin in a design to supply a defect which was
found to exist in the criminal law. By reason of nice and subtle dis-
tinctions, which the courts of law had recognized and sanctioned, it
was difficult to reach and punish the fraudulent taking and appropria-
tion of money and chattels by persons exercising certain trades and
occupations, bj- virtue of which they held a relation of confidence or
trust towards their employers or principals, and thereby became pos-
sessed of their property. In such cases the moral guilt was the same
as if the offender had been guiltj' of an actual felonious taking ; but in
many cases he could not be convicted of larceny, because the property
CHAP. IX.] COMMONWEALTH V. HAYS. 745
which had been fraudulently converted was lawfulh' in his possession
by virtue of his employment, and there was not that technical taking
or asportation which is essential to the proof of the crime of larceny.
The King v. Bazeley, 2 Leach (4th ed.), 835 ; 2 East P. C. 568.
The statutes relating to embezzlement were intended to embrace this
class of offences ; and it may be said generally that thej' do not apply
to cases where the element of a breach of trust or confidence in the
fraudulent conversion of money or chattels is not shown to exist. This '
is the distinguishing feature of the provisions in the Rev. Sts. c. 126,
§§ 27-30, creating and punishing the crime of embezzlement, which
carefully enumerate the classes of persons that may be subject to the
penalties therein provided. Those provisions have been strictly con-
strued, and the operation of the statute has been carefiillj' confined to
persons having in their possession, by virtue of their occupation or
employment, the money or property of another, which has been fraud-
ulently converted in violation of a trust reposed in them. Common-
wealth V. Stearns, 2 Met. 343 ; Commonwealth v. Libbey, 11 Met. 64;
Commonwealth v. Williams, 3 Gray, 461. In the last named case it
was held, that a person was not guilty of embezzlement, under Rev.
Sts. c 126, § 30, who had converted to his own use money which had
been delivered to him by another for safe keeping.
The St. of 1857, c. 233, Was probably enacted to supply the defect
which was shown to exist in the criminal law by this decision, and was
intended to embrace cases where property had been designedlj' delivered
to a persdn as a bailee or keeper, and had been fraudulentlj' converted
by him. But in this class of cases there exists the element of a trust
or confidence reposed in a person by reason of the delivery of propertj'
to him, which he voluntarily takes for safe keeping, and which trust or
confidence he has violated bj- the wrongful conversion of the property.
Bej'ond tliis the statute was not intended to go. Where money paid or
property delivered through mistake has been misappropriated or con-
verted by the party receiving it, there is no breach of a trust or viola-
tion of a confidence intentionally reposed by one partj' and voluntarily
assurtied by the other. The moral turpitude is therefore not so .great
as in those cases usually comprehended within the offence of embezzle-
ment, and we cannot think that the legislature intended to place them
on the same footing. We are therefore of opinion that the facts proved
in this case did not bring it within the statute, and that the defendant
was wrongly convicted. Exceptions sustained.'^
1 See Reg. v. Robson, 9 Cox C. C. 29. — Ed.
746 COMMONWEALTH V. BERRY. [CHAP. IX
COMMONWEALTH v. BERRY.
Supreme Judicial Court of Massachusetts. 1868.
[Reported 99 Massachusetts, 428.]
Hoar, J.^ The bill of exceptions states that this indictment was
found under Gen. Sts. c. 161, § 41. It seems to be a good indictment
under that section, or under § 35 of the same chapter. Commonwealth
V. Concannon, 5 Allen, 506 ; Commonwealth v. Williams, 3 Graj', 461.
But the more important question is, whether, upon the facts reported,
an indictment can be sustained for the crime of embezzlement. The
statutes creating that crime were all devised for the purpose of punish-
ing the fraudulent and felonious appropriation of property which had
been intrusted to the person, b\' whom it was converted to his own use,
in such a manner that the possession of the owner was not violated, so
that he could not be convicted of larceny for appropriating it. Proof
of embezzlement will not sustain a charge of larceny. Commonwealth
V. Simpson, 9 Met. 138 ; Commonwealth v. King, 9 Cush. 284. In the
case last cited, it is said by Mr. Justice Dewey that " the offences are
by us considered so far distinct as to require them to be charged in such
terms as will indicate the precise offence intended to be charged." "If
the goods are not in thajictua.Lor. xjonstructive p^session of th.e_master,
at tSeTime they are taken, the offence of the^^ervant will be^mbezzle-
meftt, and riot larceny." We see no reason why the' converse oT~ElTe
proposition is not true, that, ifThe'^opertyls inTEe'aclual or'construc-
T;ive possession of the masl;er"at the time it is taken, the offence will be
larceny, and not embezzlement. And it has been so held in England.
Where the prisoner was the clerk of A., and received money from the
hands of another clerk of A. to pay for an advertisement, and kept
part of the money, falsely representing that the advertisement had cost
more than it had ; it was held that this was larceny and not embezzle-
ment, because A. had had possession of the mone}' by the hands of the
other clerk. Rex v. Murray, 1 Mood. 276 ; s. c. 5 C. & P. 145. The
distinction is between custody and possession. A servant who receives
from his master goods or monej' to use for a specific purpose has the
custody of them, but the possession remains in the master.
The St. 14 & 15 Vict. c. 100, § 13, provided that whenever, on the
trial of an indictment for embezzlement, it should be proved that the
taking amounted to larceny, there should not be an acquittal, but a
conviction might be had for larceny. We have no similar statute in
this Commonwealth.
In the present case, the defendant, who was emploj'ed as a servant,
was directed by one member of the firm who employed him to take a
sum of money from him to another member of the firm. He had the
' The opinion only is given, it sufficiently states the case
CHAP. IX.] COMMONWEALTH V. FOSTER. 747
custody of the money, but not any legal or separate possession of it.
The possession remained in his master. His fraudulent and feloni-
ous appropriation of it was therefore larceny, and not embezzlement.
Commonwealth v. O'Mallej', 97 Mass. 584 ; Commonwealth v. Hays,
14 Gray, 62; People v. Call, 1 Denio, 120; United States v. Clew, 4
Wash. C. C. 702.
In People ;>. Hennessey, 15 Wend. 147, cited for the Commonwealth,
the money embezzled bj- the defendant had never come into the posses-
sion of his master. And in People v. Dalton, 15 Wend. 581, the
possession of the defendant was that of a bailee.
Mcceptions sustained.^
J
COMMONWEALTH v. FOSTER.
Supreme Judicial Court of Massachusetts. 1871.
[Reported 107 Massachusetts, 221.]
Indictment for embezzlement, found at July term, 1870, of the
Superior Court in Suffolk.
At the trial, before Wilkinson, J., John Langley testified that about
May 13, 1870, being in need of money, he made two promissory notes
payable to his own order and indorsed by himself, payable in four and
six months respectively, for $1250 each, and delivered them to the de-
fendant upon the special agreement of the defendant to sell the notes
and deliver the proceeds to Nathan A. Langley, a brother of the wit-
ness, charging a commission for his services ; that at the same time,
and as a part of the transaction, the defendant gave to the witness, as
recd.pts,_thfi_defejQdant's own notes of the same tenor and date as tSoie
delivered to him by the witness, which were deposited by the witness
with his brother, to be by him given up to the defendant when the lat-
ter should deliver the proceeds of the witness's notes in pursuance of
the agreement before stated ; and that he did not know whether tlie
defendant was a broker or not, and did not deal with him as such.
It further appeared that the defendant sold the notes of John Lang-
ley to one Wilson for $1000 in cash, and a mortgage on real estate
valued at $1000 ; and that he had not delivepd anyjiarLsL the_pro-
ceeds to John-Lartiffl'&v- or ^his~brother, but, when asked for them by
the former, replied that he had used them and was unable to deliver
them. It did not appear that John Langley or his brother had ten-
dered to the defendant the notes given by him.
Upon the close of the evidence for the Commonwealth, the defend-
ant demurred thereto, as insufficient to support a verdict of guilty ; but
the judge overruled the demurrer. The defendant then testified that
he was a real estate broker ; and that he negotiated the notes in the
1 Ace. Rex V. Snllens, 1 Moo. C. C. 129; Reg. v. Masters, 3 Cox C. C. 178. — Ed.
748 PEOPLE V. ITURST. [CHAP. IX.
manner -testified to by John Langley, and used the money, partly in
business as a provision dealer, in which he was also engaged at the
time, and partly in paying his debts.
The judge thereupon instructed the jury " that it was a question of
fact, for them to decide upon the evidence, whether John Langley
Smployed the defendant as a broker ; that if the defendant was em-
loyed merely to sell the notes, receive the proceeds and pay over the
ame specifically to the brother, without any authority to mix them
dth his own funds, a fraudulent conversion of them would be em-
ezzlement ; but that if he was employed as a broker, to negotiate the
otes in the course of his business, with authority, derived from the
itiature of that business or otherwise, to mix the proceeds as aforesaid,
Ms use of them would not be embezzlement." The jury returned a,
' verdict of guilty, and the defendant alleged exceptions.
C. JR. Train, for the defendant.
C. Allen, Attorney General, for the Commonwealth.
By the Court. Under the instructions given them, the jury must
have found that the defendant was an agent within the statute, and
embezzled his employer's money. The notes given by him appear tO'
have been given to answer the purpose of receipts, and not for the
purpose of transferring to him any property in the notes received by
him, or the money received by him on the sale of the notes. Com-
monwealth V. Stearns, 2 Met. 343 ; Commonwealth v. Libbey, 11
Met. 64. Exceptions overruled.^
PEOPLE V. HURST.
SuPEEME Court op Michigan. 1886.
[Reported 62 Michigan, 276.]
Campbell, C. J. Respondent was convicted of embezzling $275,,
alleged to have been put in his hands by one Lena J. Smith as her
agent. Respondent was a lawyer, and also engaged more or less in
renting houses. Mrs. Smith formed his acquaintance while seeking to
rent a house. She got him to lend $400 for her, which he did on mort-
gage. She further said she had $1,100 more to lend. He said he had
a place for $700, which he actually lent on. first mortgage. He also
showed her a letter from a man who had a parcel of forty acres of
land to sell, and he wanted her to give him the money to buy it, as
he knew of a purchaser who would buy at an advance. Shfiahanded
him34ilQ-to-buy_thelaind,^and_said he might have -thfi profit. He told
her where the land was, but she could not remember, and did not tes-
1 See Mulford u. People, 139 111. .'586. — Ed.
CHAP. IX.] PEOPLE V. HUEST. 749
tify upon tliat point. This was on March 31, 1882. The embezzle-
ment is charged as of that day.
About the middle of April she saw him at his house, intoxicated.
She asked bini for her papers, and if he had invested the money, and ,
he shook his bead, and said he had been "on a drunk." She asked/
for her money, and he gave her $100, and a chattel mortgage which
he owned for $25. She asked him if that was all he had, and he said
it was, and promised to pay the balance in a month or two, and asked
her to wait on him. She called on him frequently, and in the fall he
oonveyed to her forty acres of land in Cheboygan County as security
until he could pay her. He said he was selling some land for a lady
in Springwells ; and, if he succeeded, his commissions would exceed
his debt to her, and he would pay her, and she could return the deed,
which she need not record, but he would pay for recording. She
agreed to wait on him, and hold the deed as security a little longer,
until he could sell the twenty-five acres referred to. She subsequently
dunned him frequently, and, finding he had an interest in a patent
right, asked him to assign that to her as security, which he did.
There was some other testimony which was material, in favor of
defendant, on which his counsel, made some points, which we do not
now think it necessary to decide.
In our opinion, the testimony did not make out a case of embezzle- 1
ment. Before that offence can be made out, it must distinctly appear/
that the respond^'t" has acted witlua, .felonious intent, and made an inJ-
tentionally wronj2Liiia.aaaaL,-indlca.tiiia- a design~1to""cE"Sat' and -dFCeiva
the oyrner. A mere failure to pay over is noFenoilglrif thatjgtent i^
not plainly mx>?\x°^ This was~decided in People v. Galland, 55 Mich.
628. See also Reg. v. Norman, 1 C. & M. 501 ; Reg. v. Creed, 1 C.
& K. 63 ; Rex v. Hodgson, 3 C. & P. 422 ; 2 Russ. Cr. 182 ; 2 Bish.
Crim. Law, §§ 376, 377.
In this case there was notlaag indicatingcconcealment or a felonious
disposition. A candid admission was made at once on inquiryj' and
partial payment was made and security given at different times, when
asked. The _de]it_ffiaa_aidBiJtted and recogaiaed— as..^ debt on both
sides. Whatever wrong may haveiSeen done, there was noTembezzle-
meht proven.
The conviction must be quashed, and the court below advised to
discharge the prisoner.
The other justices concurred. '
I Ace. People v. Wiidsworth, 63 Mich. 500. — Eft
750 BEGINA V. KILHAM. [CHAP. X
CHAPTER X.
OBTAINING PROPERTY BY FALSE PRETENCES.
SECTION I,
The Question of Title.
REGINA V. KILHAM.
Crown Case Reserved. 1870.
[Reported Law Reports, 1 Crown Cases Reserved, 261.]
Case stated by the Recorder of York.
Indictment under 24 & 25 Vict. c. 96, § 88, for obtaining goods by
false pretences.
The prisoner was tried at the last Easter Quarter Sessions for York.
The prisoner, on the 19th of March last, called at the livery stables of
Messrs. Thackray, who let out horses for hire, and stated that he was
sent by a Mr. Gibson Hartley to order a horse to be ready the next
morning for the use of a son of Mr. Gibson Hartley, who was a cus-
tomer of the Messrs. Thackray. Accordingly, the next morning the
prisoner called for the horse, which was delivered to him by the hostler.
The prisoner was seen, in the course of the same day, driving the
horse, which he returned to Messrs. Thackray's stables in the even-
ing. The hire for the horse, amounting to 7s., was never paid by the
prisoner.
The prisoner was found guilty.
The question was, whether the prisoner could properly be found
guilty of obtaining a chattel by false pretences within the meaning of
24 & 2.5 Vict. c. 96, § 88.
The case of Regina v. Boulton, 1 Den. C. C. 508, was relied on on
the part of the prosecution.
The case was argued before Bovill, C. J., Willes, Byles, and
Hannen, JJ., and Cleasby, B.
May 7. No counsel appeared for the prisoner.
Simpson, for the prosecution.^
1 The argnment is omitted.
•SECT. I.J EEGINA V. KILHAM. 751
BoviLii, C. J. We are of opinion that the conviction in this case
cannot be supported. The Stat. 24 & 25 Vict. c. 96, § 88, enacts
that, "whosoever shall, by any false pretence, obtain from any
other person any chattel, money, or valuable security, with intent to
defraud, shall be guilty of misdemeanor." The word "obtain" in
this section does not mean obtain the loan of, but obtain the property
in, any chattel, etc. This is, to some extent, indicated by the pro-
viso, that if it be proved that the person indicted obtained the prop-
erty in such manner as to amount in law to larceny, he shall not, by
reason thereof , be entitled to be acquitted; but it is made more clear
by referring to the earlier statute from which the language of § 88 is
adopted. 7 & 8 G. IV. c. 29, § 53, recites that " a failure of jus-
tice frequently arises from the subtle distinction between ' larceny
and fraud,' " and for remedy thereof enacts that " if any person
shall, by any false pretence, obtain," etc. The subtle distinction
which the statute was intended to remedy was this : That if a person
by fraud induced another to part with the possession only of goods
and converted them to his own use, this was larceny ; while if he
induced another by fraud to part with the property in the goods as well
as the possession, this was not larceny.
But to constitute an obtaining by false pretences it is equally essen-
tial, as in larceny, that there shall be an intention to deprive the
owner wholly of his property, and this intention did not exist in the
case before us. In support of the conviction the case of Regina v.
Boulton was referred to. There the prisoner was indicted for obtain-
ing by false pretences a railway ticket with intent to defraud the com-
pany. It was held that the prisoner was rightly convicted, though
the ticket had to be given up at the end of the journey. The reasons
for this decision do not very clearly appear, but it may be distin-
guished from the present case in this respect, — that the prisoner, by
using the ticket for the purpose of travelling on the railway, entirely
converted it to his own use for the only purpose for which it was
capable of being applied. In this case the prisoner never intended to
deprive the prosecutor of the horse or the property in it, or to appro-
priate it to himself, but only intended to obtain the use of the horse
for a limited time. The conviction must therefore be quashed.
Conviction quashed.*
» See Beg. v. Watson, 7 Cox C. C. 364. —Ed.
752 KEX V. ADAMS. [OHAT. X.
KEX V. ADAMS.
Ckown Case Reserved. 1812.
[Reported Russell ^ Ryan, 225.]
The prisoner was tried before Mr. Justice Chambre, at the Lent
Assizes held at Taunton, in the year 1812, for a grand larceny in
stealing it hat, stated in one count to be the property of Robert Beer
and in another count to be the property of John Paul.
The substance of the evidence was, that the prisoner bought a hat
of Robert Beer, a hat-maker at Ilminster. That on the 18th of Janu-
ary he called for it, and was told it would be got ready for him in half
an hour, but he could not have it without paying for it.
While he remained with Beer, Beer showed him a hat which he had
made for one John Paul ; the prisoner said he lived next door to him,
and asked when Paul was to come for his hat, and was told he was to
come that afternoon in half an hour or an hour. He then went away,
saying he would send his brother's wife for his own hat.
Soon after he went he met a boy to whom he was not known. The
prisoner asked the boy if he was going to Ilminster, and being told
that he was going thither, he asked him if he knew Robert Beer there,
telling him that John Paul had sent him to Beer's for his hat, but
added that as he, the prisoner, owed Beer for a hat which he had not
money to pay for, he did not like to go himself, and therefore desired
the boy (promising him something for his trouble) to take the message
from Paul and bring Paul's hat to him the prisoner ; he also told him
that Paul himself, whom he described by his person and a peculiarity
of dress, might perhaps be at Beer's, and if he was the boy was not to
go in.
The prisoner accompanied him part of the way, and then the boy
proceeded to Beer's, where he delivered his message and received the
hat, and after carrying it part of the way for the prisoner by his
desire, the prisoner received it from him, saying he would take it him-
self to Paul.
The fraud was discovered on Paul's calling for his hat at Beer's,
about half an hour after the boy had left the place ; and the prisoner
was found with the hat in his possession and apprehended.
From these and other circumstances, the falsity of the prisoner's
representation and his fraudulent purpose were sufficiently established ;
but it was objected on the part of the prisoner that the offence was not
larceny, and that the indictment should have been upon the statute
for obtaining goods by false pretences.
The prisoner was convicted, but the learned judge forbore to pass
sentence, reserving the question for the opinion of the judges.
SECT. II.] EEGINA V. ROBINSON. 753
In Easter term, 25th of April, 1812, all the judges were present
(except Lord EUenborough, Mansfield, C. J., and Lawrence, J.), when
they held that the conviction was wrong ; that it was not larceny, but
obtaining goods under a false pretence.^
SECTION n.
Property.
REGINA V. EOBINSON.
Crown Case Eesekved. 1859.
[Reported Belt C. C. 34.]
The following case was reserved by the Recorder of Liverpool.
The prosecutor, who resided at Hartlepool, was the owner of two
dogs, which he advertised for sale. The prisoner, Samuel Robinson,
having seen the advertisement, made application to the prosecutor to
have the ilogs sent to him at Liverpool on trial, falsely pretending that
he was a person who kept a man-servant. By this pretence the prose-
cutor was induced to send the. dogs to Liverpool, and the prisoner
there obtained possession of them with intent to defraud, and sold
them for his own benefit. The dogs were Pointers, useful for the
pursuit of game, and of the value of £5 each.
At the Liverpool Borough Sessions, holden in December, 1858, the
prisoner was indicted, convicted, and sentenced to seven years penal
servitude, under the statute 7 & 8 G. IV. c. 29, s. 53.
On behalf of the prisoner a question was reserved and is now sub-
mitted for the consideration, of the justices of either bench and barons
of the Exchequer, viz., whether the said dogs were chattels within the
meaning of the said section of the statute, and whether the prisoner
was rightly convicted.
The prisoner remains in Liverpool Borough Gaol under the sentence
passed at Sessions.
Gilbert Henderson,
Recorder of Liverpool.
This case was argued, on January 29, 1859. before Lord Campbell,
C. J., Martin B., Crowder, J., Willes, J., and Watson, B.
Brett appeared for the Crown, and Littler for the prisoner.^
' Ace. Reg. V. Butcher, 8 Cox C. C. 77; People v. Johnson, 12 Johns. 292. And
see Com. v. Jeffries, 7 All. 548. See the judgment of Cleasby, B , in Reg. !'. Middle-
ton, L. R. 2 C. C. 38, ante. As to the title to property obtained hy false pretences, see
Lindsay v. Cundy, 1 Q. B. D. 348, 2 Q. B. D, 96, 3 App. Cas.4o9; Bentley I'.Vilmont,
12 App. Cas. 47i. — Ed.
^ Arguments of counsel are omitted.
754 PEOPLE V. THOMAS. [CHAP. X
LoBV) Campbell, C. J. It is admitted tliat dog-stealing is not
larceny at common law, and a specific punishment of a milder charac-
ter has been enacted by the later statute, which makes the offence
a misdemeanor. That being so, it would be monstrous to say that
obtaining a dog by false pretences comes within the statute 7 & 8 6.
IV. c. 29, s. 63, by which the offender is liable to seven years penal
servitude. My brother Coleridge used to say that no indictment
would lie under that section unless, if the facts justified it, the pris-
oner could be indicted for larceny, and that is now my opinion.
Martin, B. I think this conviction cannot be sustained. The
question is one entirely of the construction of the statute.
WilijES, J. From the Year Books downwards, including the case
of Swans, 7 Rep. \b b, dogs have always been held not to be the sub-
ject of larceny at common law.
The other learned judges concurred.
Conviction quashed.^
PEOPLE V. THOMAS.
Supreme Court of New York. 1842.
[Reported 3 Hill, 169.]
Certiorari to the Oneida General Sessions, where Thomas was con-
victed of obtaining monej' by false pretences, of one Jones. The case
turned upon the sufficiency of the indictment, which charged substan-
tially the following facts : Jones, having executed his negotiable note
to Thomas for $28.28, dated the 19th of February, 1838, and payable
one day after date, the latter, in March afterward, called for payment,
\falsely pretending to Jones ihat the note had either been - lost or
''burned up ; by which false pretences Thomas unlawfully, etc., obtained
fl-cmTJones the sum of $28.28, with intent to cheat and defraud Jones ;
whereas in truth, etc., the note had not been lost or burned up, all
which the said Thomas, when he made the false pretence and obtained
the money, well knew, etc.
Evidence was given, at the trial, of the above facts ; and alsOj^ that
inJd^xdvi-84rO-,-ThQmas pegatiated, the note, for JKalue, to one Anson
Shove, without apprizing the latter that it had been paid. The. court
below instructed the jury that the proof was sufficient to convict ; to
which the defendant's counsel excepted. A verdict was rendered,
finding the defendant guilty.
C. Tracy ^ for the defendant.
T. Jenkins (district attorney), contra.
Per Curiam. Nan constat from the indictment, that Jones sus-
tained any damage by the false representation ; nor that there was an
1 Ace. State v. Barrows, U Ire. 477. — Ed.
SECT. II.J STATE V. BLACK. 755
intent on the part of Thomas, at the time of the representation, to
work any damage. The note was due ; and payment made. This
was the only consequence — a thing which Jones was bound to do.
A false representation, by which a man may bfl-cheatedJhito his duty.
i£notjsJjihin-*b«^«WCTr^ it was said in argument that the subsequent
negotiation of the note by Thomas obviated the difficulties adverted
to. The, note being_j2i£r_d.ue^ssLhea..|thB.-latter fact took glace^ it is
difficult to see ludicially. that Jones would be iniure^jajjjt. Whether
he wQsiitt of'would not, is merely specuTaETve^depending on his pre-
caution in providing himself with proper evidence. It is enough,
however, to say that the indictment does not charge the subsequent
act of negotiation as entering into the defendant's design when he
made the representation ; nor is the act itself even mentioned.
New trial ordered?
STATE V. BLACK. '">
Supreme Court of Wisconsin. 1890.
[Reported 75 Wisconsin, 490.]
Cassodat, J.^ Sec. 4423, E. S., punishes the obtaining of property
or a signature under the circumstances therein mentioned. The ques-
tion here, presented relates entirely to the obtaining of property. So
much of that section as pertains to that question reads : " Any person
who shall designedly, by any false pretense, or by any privy or false
token, and with intent to defraud, obtain from any other person any
money, goods, wares, merchandise, or other property, . . .shall be
punished," etc. To sustain a conviction under this section four things
must concur. It sufficiently appears from the record that three of
those things co-existed in the case at bar, — that is to say it sufficiently
appears that the defendant (1) " designedly," (2) by means of the
false pretense mentioned, (3) " and with intent to defraud," obtained
the board and lodging mentioned. The only question, therefore,
requiring consideration here is whether the obtaining of such board
and lodgtHg^'as, in legal effect, the obtaining of " money, goods,
jfpHres,"~m'ercliandise^ or 'dtKelT'property," within the meaning of the
section. "
From the very wording of the statute it is manifest that no complete
offense can be committed under it until the " money, goods, wares,
merchandise, or other property," is actually obtained by the offender.
This being so, it is equally obvious that if the statute applies to the
obtaining of board and lodging, then each meal of board obtained
constitutes a separate offense ; and the same would be true of each
1 Ace. In re Cameron, 44 Kas. 64 ; Com. v. McDufEy, 126 Mass. 467. — Ed.
^ The opinion only is given ; it sufficiently states the case.
756 ' STATE V. BLACK. [OHAP. X.
I ) night's lodging. If the section applies to board and lodging, then,
' /for the same reason, it would apply to almost any service or use.
Another serious difficulty with such application in the case at bar is
the absence from the record of any certain and definite description of
the property actually obtained. Many of the authorities hold that in
the information or indictment in such cases, " the property should be
described with as much accuracy and particularity as in indictments
for larceny." State v. Kube, 20 Wis. 225 ; s. c. 91 Am. Dec. 395.
Where the description of the property is uncertain, the defect is fatal.
Ibid. We are to remember that "it is a criminal statute we are con-
struing. It should not be so construed as to multiply crimes, unless
required by the context. The word "property" is, in many cases,
construed to include " things in action and evidences of debt." Subd.
3, 4, sec. 4972, R. S. But the words^lijther property," ialbe statute
quoted, must, under the "Familiar rule, noscitur a socwV^ be limited to
sucfi'Tahgibte classes of property^.s,^£e;^grem previously enumerated :
ttiS^isJto^ay^i-llJaaaey, .goods, war.QSj-meEfibaadisfe.-aHd other-prop-
erty ''of_that descritition. This rule has frequently been applied by
this court7 especially to penal statutes. Jensen v. State, 60 Wis.
582, and cases there cited. See, also, Gibson v. Gibson, 43 Wis. 33 ;
Estate of Kirkendall, 43 Wis. 179 ; Kelley v. Madison, 43 Wis. 645.
The principle governing the case at bar is somewhat similar to that
involved in People v. Haynes, 14 Wend. 546 ; s. c. 28 Am. Dec. 530.
In that case merchandise was purchased, and placed by the seller in a
box, marked with the buyer's name and address, and delivered to the
carrier named by the purchaser, to be delivered at his residence ; but
the seller, before delivering the shipper's receipt and invoice, having
learned that the purchaser was embarrassed, asked him in regard
thereto, whereupon the buyer made false and fraudulent represen-
tations as to his condition, and, in consequence thereof, the seller
delivered to the buyer the shipper's receipt and invoice, and did not
stop the goods in transitu; and it was held that the buyer was not
criminally liable for obtaining the goods by false pretenses, since the
goods were in law obtained when they were delivered to the carrier,
which was before the false pretenses were made.
The construction of the statute indicated has additional force from
the fact that the same section punishes the obtaining by false pretenses
of a signature to a written instrument, the false making whereof would
be punishable as forgery. Sec. 4423, R. S. This clearly covers some
" things in action and evidences of debt," and by necessary implica-
tion excludes others, as, for instance, a mere credit, as here.^,JWe,
must hold that the words "or other, property " do not include the
pere~5lTeatetng-of--boiifd'an3Todging under the circumslaiices" stated.
"T1Se"resur£ is' that the flrsFquestion propounded 'is"answere3^ in thle""
negative. This renders it unnecessary to answer the second question
By the Coukt. Ordered accordingly}
1 Ace. Reg. ?'. Gardner, 7 Cox C. C. 136. — Kn
SECT. III.] EEX V. GOODHALL. 757
SECTION IIL
The Pretence.
REX V. GOODHALL.
Crown Case Resekved. 1821.
[Reported Russell ^ Ryan, 461.]
The prisoner was tried before Mr. Baron Garrow, at the Stafford
summer Assizes, in the year 1821, on an indictment, charging that he,
being an ill-designing person, and a common cheat, and intending to
cheat and defraud one Thomas Perlis, of his goods, wares, and mer-
chandizes, on the 17th of August, 1821, at the parish of Wolverhamp-
ton ; unlawfully, knowingly, and designedly, did falsely pretend that
if he, the said Thomas Perks, would sell to him, the prisoner, the car-
cases of three sheep and two legs of veal, and send the same to him
at Blonwiok, he, the said prisoner, would pay for the same on delivery,
and send the money back by the servant of the said Thomas Perks ;
by which said false pretences, he, the said prisoner, did obtain from
the said Thomas Perks two hundred and twenty pounds weight of
mutton, value £4, and thirty pounds weight of veal, value 10s., his
property, with intent to cheat him of the same. Whereas, in truth
and in fact, the said prisoner did not, at the time of buying the said
carcases and legs of veal, intend to pay for the same on delivery.
And whereas, in truth and in fact, the said prisoner did not pay for
the same on delivery. And whereas, in truth and in fact, the said
prisoner did not send the money for the same back by the servant of
him the said Thomas Perks, against the form of the statute, &c.
It appeared in evidence, that the prosecutor, Thomas Perks, was a^
butcher at Wolverhampton; and that, on the 17th of August, 1821,
the prisoner came to his shop to purchase three sheep and two legs of
veal ; on being told by tlie prosecuto: that he jvould not trust him, he
promised the progfi^cutbr, if he would send the sheep and veal in good
time on the following morning, he -would If emit the money back by the
bearer. —
The meat was accordingly sent on the 18th of August, by the prose-
cutor, and delivered to the prisoner by the prosecutor's servant, who
asked him for the money ; and said, if he did not give it him, he must
take the meat back again. The prisoner replied, "Aye, sure!" and
wrote a note ; and told the prosecutor's servant to take it to his mas-
ter, and it would satisfy him. The note (of which the following is a
copy) was delivered to the prosecutor by his servant : — •
" Mr. Perks, Sir, I have a bill of Walsall bank, which is a very
good one, if you will send me the change, or I '11 see you on Wednesday
certain." " Your's, M. G."
758 KEX V. WAKELING. [CHAP. X.
The jury found the prisoner guilty ; and said they were of opinion,
that at the time the prisoner applied to Perks, he knew Perks would
not part with the meat without the money ; and that he promised to
send back the money to obtain the goods. The jury also found, that
at the time he applied for the meat, and promised to send back the
money, he did not intend to return the money ; but by that means to
obtain the meat, and cheat the prosecutor.
The learned judge respited the judgment, making an order that the
prisoner might be delivered, on finding bail, to appear at the then next
Assizes.
In Michaelmas term, 1821, the judges met and considered this case.
They held the conviction wrong ; being of opinion, that was not a pre-
tence within the meaning of the statute. It was merely a promise for
future conduct, and common prudence _and 1OTft1on''would have pre-
vented" "any injury arisiifg from the bi'each of it.^
REX V. "WAKELING.
CROvrsr Case Reserved. 1823.
[Repmied Russell Sf Ryan, 504.]
The prisoner was convicted before Mr. Justice Bayley, at the gaol
■ deliverj- for the county of Essex, in January, 1823, for obtaining a
pair of shoes from Thomas Poole, the overseer of the poor of the
marish of Great "Wheltham, from which parish the prisoner received
fcarochial relief, by falsely pretending thaj; he eould_not--go 4q work
'because he had no shoesTwhen he had really a sufficient pair of shoes.
Tt~appeared"ln"evi3ence that the prisoner and his family received
relief from the parish ; that Poole, the overseer, bid the prisoner go to
work to help to maintain his family ; that the prisoner said he could
not because he had no shoes ; that Poole, the overseer, thereupon
supplied him with a pair of the value of ten shillings, and that the
prisoner had, in fact, at the time, two pair of new shoes, which he had
previously received from the parish.
The learned judge doubted whether this was a case within the
statute, and thought it right to lay it before the judges for their con-
sideration.
In Hilary term, 1823, this case was considered by the judges, who
held that it was not within the act, and that the conviction was
wrongs; the statement made by_Jhi_^uison^r_being__rather- a~-i^lse
excuse fornot woi-kiiig than a false pretence to obtain goods.'' ^
^ Ace. Reg. y. Lee, 9 Cox C. C. 304;' State v. Colly, 39 La. Ann. 841 ; State v.
De Lay, 93 Mo. 98. See Beg. v. Jones, 6 Cox C. C. 467 ; State v. Sarony, 95 Ma
S49. — Ed.
■i Ace. Reg. u. Stone, 1 F. & F. 311. —Ed.
SECT. III.] KEGINA V. MILLS. 759
REX V. BARNARD.
Oxford Assizes. 1837.
[Reported 7 Carrington Sf Payne, 784.]
False pretences. The indictment charged that the prisoner falsely
pretended that he was an under-graduate of the University of Oxford,
and a commoner of Magdalen College, by means of which he obtained
a pair of boot-straps from John Samuel Vincent.
It appeared that Mr. Vincent was a boot-maker, carrying on business
in High Street, Oxford ; and that the prisoner came there, wearing a
commoner's cap and gown, and ordered boots, which were not supplied
him, and straps, which were sent to him. He stated he belonged to
Magdalen College.
It was proved by one of the butlers of Magdalen College that the
prisoner did not belong to that college, and that there are no common-
«rs at Magdalen College.
BoLLAND, B. (in summing up) . I^ nothing had passed in words, I
should have laid down that the fact of the^jmsoner's appearing in~ the
cap and gowrLvyfl,nk?-Iia.ve-hp.en pFPirna.nf-. evidence from which a jury
should Infer that he. pretended he was a member of the university, "and
if so, wouJSJiave. been a sufficient false pretence to satisfy the statute.
ItTSlearly is so by analogy to the cases in which offering in payment
the notes of a bank which has failed, knowing them to be so, has been
held to be a false pretence without any words being used.
Verdict, Guilty.^ ■
REGINA V. MILLS.
Ckovtn Case Reserved. 1857.
[Reported 7 Cox C. C. 263.]
At the General Quarter Sessions of the Peace holden for the county
of Cambridge, on the 9th January, 1857, William Mills was tried and
convicted upon the following indictment for obtaining money under
false pretences.
Tjigvjurors for our Lady the Queen upon their oath present, that
William Mills, on the 14th day of November, 1856, did falsely
pretend to one Samuel Free that the said William Mills had cut
1 Ace. Rex V. Douglass, 7 C. & P. 785 n. ; Eeg. v. Hnnter, 10 Cox C. C. 642 ; Reg.
V. Bull, 13 Cox C. C. 608; Reg. v. Sampson, 52 L. T. 772; Reg. v. Randell, 16 Cox
C. C. 335 .— Ed.
760 KEGINA V. MILLS. [CHAP. X.
sixty-three fans of chaff for him the said Samuel Free, by which said
false pretence the said AVilliam Mills then unlawfully did obtain
from the said Samuel Free certain money of him the said Samuel
Free, with intent to defraud. Whereas, in truth and in fact, the
said William Mills liad not cut sixty-three fans of chaff, as the-
said "William Mills did then so falsely pretend to the said Samuel
Free, but a much smaller quantity, to wit, forty-five fans of chaff.
And the said William Mills, at the time he so falsely pretended as
aforesaid, well knew the said pretence to be false, against the form of
the statute, &c. It appeared from the evidence that tlie prisoner was
employed to cut chaff for the prosecutor, and was to be paid twopence
per fan for as much as he cut. He made a demand for 10s. 6d., and
stated he liad cut sixty-three fans, but the prosecutor and another wit-
ness had seen the prisoner remove eighteen fans of cut chaff from an
adjoining chaff-house, and add them to the heap which he pretended
he had cut, thus making the sixty-three fans for which he charged.
Upon the representation that he had cut sixty-three fans of chaff, and
notwithstanding his knowledge of the prisoner having added the eigh-
teen fans, the prosecutor paid him the 10s. 6d., being 3s. more than
the prisoner was entitled to for the work actually performed. It was
objected on behalf of the prisoner, first, that this was simply an over-
charge, as in the case of R. v. Oates, 6 Cox Crim. Cas. 540 ; and sec-
ondly, that as the prosecutor at the time he parted with his money knew
the facts, the prisoner could not be said to have obtained the money
by the false pretence. Judgment was postponed, and the prisoner
was discharged upon recognizances to appear at the next Quarter
Sessions. The opinion of the Court of Criminal Appeal is requested
whether the prisoner was rightly convicted of misdemeanor under the
foregoing indictment.
No counsel was instructed for the prisoner.
Orridge, for the Crown. Although the prosecutor knew that the
representation was false, and permitted the prisoner to complete the
offence by receiving the money, that does not render the offence less
in him. In larceny the same doctrine is established, R. v. Eggington,
2 B. & P. 508. [CocKBUEN, C. J. There the prosecutor remains
passive. Willes, J. Invito domino is held to mean without leave.]
In R. V. Adey, 7 C. & P. 140, it was said to be no answer that the
prosecutor had laid a plan to entrap the prisoner into the commission
of the offence.
CocKBUEN, C. J. The question in these cases is, whether the false
representation is the immediate motive operating on the mind of the
prosecutor, and inducing him to part with his money. It cannot be
said that that was the case here, because he paid the money although
he knew the representation to be false. Unless the money be obtained
by the false pretence, it is an attempt only.
Coleridge, J. In R. v. Adey the prosecutor did part with his
money in consequence of the false pretence.
SECT. III.] REGINA V. BEYAN. 761
Bkamwell, B. I do not think he could recover back the money in
a civil action.
WiLLES, J. Because it was paid voluntarily with a knowledge of
all the circumstances. Conviction quashed.^
REGINA V. BEYAN,
Crown Case Reserved. 1857.
[Reported 7 Cox C. C. 312.]
The following case was reserved by the Recorder of London at the
Central Criminal Court : —
It was partly argued before five of the learned judges on a former
day, but on account of the importance of the question raised in this as
well as in Reg. v. Sherwood, 7 Cox C. C. 270, they were both ordered
to be reargued before all the judges.
CASE.
At the session of jail delivery holden for the jurisdiction of the
Central Criminal Court on the second day of February, 1857, John
Bryan was tried before me for obtaining money by false pretences.
There were several false pretences charged in the different counts of
the indictment, to which, as he was not found guilty of them by the
jury, it is not necessary to r6fer. But the following pretences were,
among others, charged : —
That certain spoons produced by the prisoner were of the best
quality ; that they were equal to Elkington's A (meaning spoons and
forks made by Messrs. Elkington, and stamped by them with the let-
ter A) ; that the foundation was of the best material ; and that they
had as much silver upon them as Elkington's A. The prosecutors
were pawnbrokers, and the false pretences were made use of by the
prisoner for the purpose of procuring advances of money on the spoons
in question, offered by the prisoner by way of pledge, and he thereby
obtained the moneys mentioned in the indictment by way of such ad-
vances. The goods were of inferior quality to that represented by the
prisoner, and the prosecutors said that had they known the real quality
they would not have advanced money upon the goods at any price.
They moreover admitted that it was the declaration of the prisoner as
to the quality. of the goods, and nothing else, which induced them to
make the said advances. The money advanced exceeded the value of
the spoons. The jury found the prisoner guilty of fraudulently repre-
senting that the goods had as much silver on them as Elkington's A,
and that the foundations were of the best material, knowing that to
1 Arc. Reg. W.Jones, 15 Cox C.C. 475. SeeReg.u. Hensler, 11 Cox C. C. 570. — Eq
762 EEGINA V. BKYAN. [OHAP. X.
be untrue, and that in consequence of that he obtained the moneys
mentioned in the indictment. The prisoner's counsel claimed to have
the verdict entered as a verdict of " not guilty," which was resisted
by the counsel for the prosecution, and entertaining doubts upon the
question, I directed a verdict of guilty to be entered, in order that
the judgment of the Court of Criminal Appeal might be taken in the
matter, and the foregoing is the case on which that judgment is
requested. Russell Gurnet.
-B. C. Robinson, for the prisoner, submitted that these were not false
pretences within the statute. That the rule to be deduced from all
the cases was this, that where the thing obtained was in specie that
which it was represented to be, the statute applied ; but where the
falsehood was merely as to the quality of the thing, where it became a
mere question of better or worse, such pretence was not indictable.
Here the goods were in specie what they were represented to be ; they
were plated goods, but they were inferior in quality to the representa-
tion. If it were otherwise, and that the puffing or vaunting an article
that was offered for sale was a criminal offence, every trader in the
commercial world would be committing a crime twenty times in the
course of each day. In R. v. Roebuck, 7 Cox Crim. Cas. 126, most
of the learned judges in delivering their judgment stated that but for
the case of R. v. Abbott, 1 Den. C. C. 173, they should have hesitated
in holding the conviction to be proper, but that they felt bound by
that authority. If then it could be shown that the present case, if
the conviction were to be sustained, would go further than those above
mentioned, the court would not confirm it. Every decision might be
reconciled with the principle contended for. In R. v. Roebuck, the
chain pawned for silver was not silver at all. So with regard to the
thimble in R. v. Ball, C. & M. 249. In R. v. Dundas, 6 Cox Crim. Cas.
380, the article sold was stated to be Everett's blacking ; it was bought
on the faith of its being so, and it turned out to be a spurious com-
pound. There it was not a mere representation of quality, but of a
specific thing known as Everett's blacking.
Lord Campbell. Was not R. v. Abbott decided on a pretence with
regard to the quality of a cheese ?
Robinson. No. If the representation alleged in the indictment
had been that the cheese was of the same quality as the taster, that
would have rendered the case analogous to this. But it was not so.
The representation there was that the taster formed part and parcel
of the cheese to be sold, and it was in truth of a totally different char-
acter, inserted into the bulk for the purposes of fraud. That was
a statement of a specific fact quite independent of the quality.
The cheese might have been of even better quality than the taster,
and yet the falsehood of the pretence would equally exist. If the
misrepresentation here had been that the spoons were of Elking-
+on'8 manufacture, and had formed part of Elkington's stock, then
SECT. III.] KEGINA V. BRYAN. 763
the case would be identical with E. v. Abbott ; but there is a wide
distinction between the statements that they are Elkington's and that
they are as good as Elldngton's.
Coleridge, J. If the seller is to be indictable for overpraising his
goods, then the buyer would be indictable also for unfairly depreciat-
ing them, and thus obtaining them below their value.
Lord Campbell. That would certainlj- seem to be so. Even the
act of depreciating would be indictable, because it would be an attempt
to obtain them by a false pretence as to their quality.
Robinson. In the administration of the criminal law, it is of the
highest importance to define as accurately as may be what crime is,
and not to leave too much to the interpretation of juries. Otherwise,
in such a case as this, every man who was dissatisfied with a bargain
he had made would have it in his power to indict a tradesman who
sold him goods, on the plea that every representation made in the
course of the bargain was not true to the letter. A cutler who war-
ranted a knife to be as good as Rodger's, a tailor who stated a coat
to be of the best Saxony wool, a brewer who represented his beer to
be treble X, would be constantly amenable to the criminal law, and a
jury would have to decide upon their fate. A line must be drawn
somewhere, and to hold that a pretence to be within the statute must
be with reference to some clear specific fact, the truth or falsehood of
"which may be demonstrably shown, the assertion and the fact being
each the contradictory of the other, is consistent both with conveni-
ence and authority, whilst it would be highly dangerous to hold that
statements which might be mere matters of opinion or speculation
were the subject-matters of a criminal charge.
Lord Campbell. You say it is lawful to lie in respect of quality.
Rohinson. However immoral, that it is not a crime. At the outset
it must be admitted that this was a wilful lie. The case states it, and
the jury have so found it. It must also be admitted that in conse-
quence of the lie the money was obtained. It is only on such admis-
sions that the point can ever arise. The question is, is such a lie as
this a false pretence within the statute ?
Lord Campbell. But it is part of the allegation that there is as
much silver in the spoons as in Elkington's A. Is not that the asser-
tion of a fact ?
Rohinson. It is no more in reality than a representation of the
quality. It is the amount of silver in these goods that gives them
their value, and saying of them that they have more or less silver is
equivalent to saying that they are of better or worse quality.
Pollock, C. B. Suppose a seller of cheese to state that it came
from a particular dairy in Cheshire, when in fact it came from
America.
Rohinson. That might probably be a false pretence, because the
buyer would not get the precise thing he bargained for. He might
764 EBGINA V. BRYAN. [CHAP. X.
want a Cheshire cheese and not an American one, quite irrespective of
the quality.
Bramwell, B. I see nothing in the statute that recognizes a dis-
tinction between species and quality.
Robinson. The statute must be taken in connection with the many
cases that have been decided upon it, and which have given it a par-
ticular interpretation.
Beamwell, B. If I buy a spurious autograph of the Duke of Wel-
lington, or a spurious picture attributed to Eaphael, I get a thing of
the same species as that bargained for.
Bobinsoii. If the autograph or the picture was represented to be
genuine when it was known to be spurious, that would probably be a
false pretence ; but if it was said that the writing or the painting was
in the duke's or the painter's best style, and it was known to be other-
wise, it would not be so. There are cases which tend to show that
the doctrine of caveat emptor might be applicable here, or that false
representations as to specific facts in the course of a bargain and sale
are not within the statute, but still much doubt has of late been thrown
upon them, and it is not thought necessary to relj' upon them here.
Francis (with him Metcalfe), for the prosecution. The false pre-
tences relied upon are as to the quantity of silver in the spoons being
equal to Elkington's A, and the foundations being of the best material.
These are facts easily ascertainable, and which, in truth, the jury
have expressed their judgment upon. They are not mere statements
that the spoons are as good or as valuable as Elkington's. It is some-
thing more than a mere representation with regard to quality ; for it
must be taken, after the finding of the jury, that the amount of silver
on Elkington's A spoons was a well known fixed quantity. In the
case of E. v. Sherwood, just decided, it was held that a misrepre-
sentation with regard to quantity was a good false pretence within the
statute, and there is here just as strong a representation as to quantity
as there was there. The spoons, no doubt, had a small quantity of
silver upon them, but it was so trifling that the money advanced ex-
ceeded their full value, and it is found that had the prosecutors known
the real value they would not have advanced any money upon them
whatever. But there is no case laying down the principle contended
for on the other side, that a misrepresentation with regard to quality
is not within the statute ; on the contrar}', in E. v. Kenrick, 5 Q. B.
49, one of the pretences was, that a horse was quiet to ride and drive,
which was false within the seller's knowledge, and the court sustained
the conviction. The words of the statute are clear and precise, that
goods obtained by any false pretence constitutes the crime ; and the
jury have here found everything that the act renders material. It was
probably intended to prevent precisely such frauds as these ; and the
argument that this is a mere vaunting or puffing off of goods that a
tradesman is anxious to sell is answered by this, that the jury have
SKCT. III.] EEGINA V. BRYAN. 765
found that the representations were made fraudulently and with intent
to cheat the prosecutor. Where there is such an intent, and it is acted
upon successfully, there can be no inconvenience in liolding it to be
punishable as a crime ; and a jury of tradesmen would not be likely to.
convict a man who had merely exaggerated the value of his property
for the purpose of getting a better price for it. That is often done
innocently, or at least without any fraudulent intent ; but here such
limits are far overstepped. R. r. Roebuck virtually decides this case,
for the pretences are substantially the same. It is true that there the
chain which was represented to be silver was not silver at all ; but
here the representation is equally false, for although the spoons were
coated with silver, it was in so small a quantity as to render them almost
valueless. So in R. v. Abbott, whatever might be the pretence alleged
in the indictment, in substance the fraud consisted in selling a very
inferior article for one of superior quality.
RoUnson, in reply. Whatever the representations may be, they
have reference to quality, and not to species ; and this, at all events,
distinguishes the case from R. v. Roebuck, and all the other cases that
have been decided upon this point. As to R. v. Kenrick the decision
did not turn upon the pretence mentioned, namely, that the horses
were quiet to ride and drive. There were other pretences in that case
that would be clearly within the rule that the pretences had been made
with respect to specific facts, and it was upon these that the court
acted. In R. v. Sherwood there was a pretence that there were eigh-
teen tons of coal to be delivered, when in truth there were only four-
teen. There was therefore an assertion that there were four tons of
coal in the wagon which did not exist at all. Here the number of
spoons delivered was correctly represented, but each individual spoon
was of an inferior description. In fact, the case states that it was the
declaration of the prisoner with regard to the quality of thie goods,
and nothing else, which induced the prosecutors to part with their
money.
On the conclusion of the argument, the learned judges retired to
consider the case, and on their return they delivered the following
judgments seriatim : —
Lord Campbell, C. J. I am of opinion that this conviction cannot
be supported, as it seems to me to proceed upon a mere representation,
during the bargaining for the purchase of a commodity, of the quality
of that commodity. In the last case which we disposed of (R. v. Sher-
wood), after the purchase had been completed there was a distinct
averment which was known to be false, respecting the quantity of the
goods delivered, and in respect of that misrepresentation a larger sum
of money was received than ought to have been received, the amount
of which could be easily calculated ; and therefore T thought, and I think
now, that that was clearly a case within the Act of Parliament. But
here, if you look at what is stated upon the face of the case, it resolves
766 EEGINA V. BKYAN. [CHAP. X.
itself into a mere misrepresentation of the quality of the article that was
sold, bearing in mind that the article was of the species that it was rep-
resented to be to the purchaser, namely, plated spoons, and that the
purchaser received them. Now, it seems to me, it never could have
been the intention of the legislature to make it an indictable offence
for the seller to exaggerate the quality of that which he was sellings
any more than it would be an indictable offence for the purchaser, dur-
ing the bargain, to depreciate the quality of the goods, and to say that
they were not equal to that which they really were. It seems to me
that this is an extension of the criminal law which is most alarming,
for not only would sellers be liable to be indicted for an extravagant
representation of the value of goods, but purchasers would be liable
to be indicted if they improperly depreciated the quality of the goods,
and induced the sellers by that depreciation to sell the goods at
an under price, and below the real value of the goods, which would
have been paid for them had it not been for that representation. Now,
as yet, I find no case in which it has been held that this misrepre-
sentation, at the time of sale, of the quality of the goods, has been
held to be an indictable offence. In Reg. v. Roebuck the article de-
livered was not of the species bargained for, for there it was for a
silver chain, and the chain that was sold was not of silver, but was of
some base metal, and was of no value. But here the spoons were
spoons of the species that was bargained for, although the quality was
inferior. It seems to me, therefore, that this is not a case within the
Act of Parliament, and that the conviction cannot be supported.^
Pollock, C. B. There may be considerable difficulty in laying down
an}- general rule which shall be applicable to each particular case, and
although I think that the statute was not meant to apply to the ordi-
nary commercial dealings between buyer and seller, yet I am not pre-
pared to lay down this doctrine in an abstract form, because I am.
clearly of opinion that there might be many cases of buying and sell-
ing to which the statute would apply. I think if a tradesman or a
merchant were to concoct an article of merchandize expressly for the
purpose of deceit, and were to sell it as and for something very differ-
ent even in quality from what it was, there I think the statute would
apply. So if a mart were opened, or a shop in a public street, with a
view of defrauding the public, and puffing off articles calculated to
catch the eye which really possessed no value, there I think the statute
would apply ; but I think it does not apply to the ordinary commercial
dealings between man and man, and certainly, as has been observed
by the Lord Chief Justice, if it applies to the seller, it equally applies
to the purchaser. It is not very likely that many cases of that sort
would arise. It would be very inconvenient to lay down a principle
that would prevent a man from endeavoring to get the article cheap
1 Concurring opinions of Cookburn, C. J., Coleridge, Cresswell, Esle, Cromp-
TON, and Crowdbr, JJ., Watson and Channell, B.B., are omitted.
SECT, in.] EEGINA V. BKYAN. T67
which he was bargaining for, and that if he was endeavoring to get it
under the value he might be indicted for so doing. And there is this t6
be observed, that if the successfully obtaining your object, either in get-
ting goods or money, is an indictable offence, any attempt or step towards
it is an indictable offence as a misdemeanor, because any attempt or
any progress made towards the completion of the offence would be the
subject of an indictment, and then it would follow from that, that a
man eould not go into a broker's shop and cheapen an article but he
would subject himself to an indictment for misdemeanor in endeavor-
ing to get the 'article under false pretences. For these reasons 1 think
it may be fairly laid down, that any exaggeration or depreciation in
the ordinary course of dealings between buyer and seller during the
progress of a bargain is not the subject of a criminal prosecution. I
think this case falls within that proposition, and therefore this con-
viction cannot be supported.
WiLLES, J.' I am of opinion at variance with those which have
been generally expressed, but such as my opinion is I am bound to
pronounce it, and I do so with the greater confidence, because it was
the settled opinion of the late Chief Justice Jervis, than whom no man
who ever lived was more competent to form a correct opinion upon
the subject. I think that the conviction was right and that it ought
to be affirmed. It appears to me, in looking through the cases, that a
great number of the observations that have been thrown out with regard
to the construction of the statute would not have been made if the words
of the statute had been more strictly looked at ; and that even some of
the judgments would not have been pronounced if those who pronounced
them had not permitted themselves to consider whether it would or
would not be convenient to trade to adopt one interpretation or an-
other. I think the words of the act should be implicitly followed, and
the legislature should be obeyed according to the terms in which it has
expressed its will in the 53d section of the 7 & 8 G. IV. c. 29. I am
looking to the words of that section, and I am unable to bring myself
to think that its framers were dealing with anything in the nature of
a distinction between the case of goods fraudulently obtained by con-
tract and goods so obtained without any contract. The section com-
mences with the recital, " That whereas a failure of justice frequently
arises from the subtle distinction between larceny and fraud ; " now
this recital ought not on a proper construction, and according to those
authorities by which we are bound, to have the effect of restraining
the operation of the enacting clause. The enacting part of the sec-
tion is, " if any person shall by any false pretence obtain from any
other person any chattel, money, or valuable security, with intent to
chaat or defraud any person of the same, every such offender shall be
guilty of a misdemeanor." And it appears to me that the only proper
1 Bramwell, B., also delivered an opinion supporting the conviction.
768 EEGINA V. BRYAN. [CHAP. X.
test to apply to any case is this, whether it was a false pretence by
which the property was obtained, and whether it was obtained with
the intention to cheat and defraud the person from whom it was ob-
tained. Now in this case it appears that there was a false pretence ;
there was a pretence that the goods had as much silver upon them as
Elkington's A ; there was also the pretence that the foundations were
of the best material. If I could bring myself to take the view which
my brother Erie has taken of the statement of the case, that these
were matters of opinion, and not matters of fact, which could be
ascertained by inspection or calculation, possibly I might arrive at
the same conclusion afc he has done ; but it appears to me on the
face of the case that Elkington's A must have been a fixed quan-
tity, and that the proper material, the best material for the foun-
dation of such plated articles, must have been a well known quality
In the trade, because it appears that the prisoner made a statement
with respect to the quantity of silver and the quality of the founda-
tion with the intent to defraud. It appears that the person who
made the advance was thereby defrauded, — thereby induced to make
the advance ; the jury have found that the statements were known by
the prisoner to be untrue, and that in consequence of these statements
he obtained the money mentioned in the indictment. It appears to me
that, for all practical purposes, that ought to be taken to be a sufficient
fact coming within the region of assertion and calculation, and not a
mere speculative opinion, and that it should be considered a false pre-
tence. If the misrepresentation was a simple commendation of the
goods ; if it was a mere puffing of the articles which were offered in
pledge ; if it was entirely a case of one person, dealing with another in
the way of business, who might expect to pay the price of the articles
which were offered for the purpose of pledge or sale, — I apprehend it
would have been easily disposed of by the jury who had to pass an
opinion upon the question, acting as persons of common sense and
knowledge of the world. It would be a question for them in such case
whether the matter was such ordinary puffing that a person ought not
to be taken in by it, or whether it was a misrepresentation of a specific
fact material to the contract, intended to defraad, and by which the
money in question was obtained. Well, then, there is the latter part
of the section, " with intent to cheat and defraud any person of the
same." It must be with the intention to cheat or defraud the person
of the same, and that intention here is found to have existed ; there-
■fore I am unable to bring my mind to feel any anxiety to protect
persons who make false pretences with intent to cheat and de-
fraud. The effect of establishing such a rule as is contended for
would, in my opinion, be rather to interfere with trade and to pre-
vent its being carried on in the way in which it ought to be carried
on. I am far from seeking to interfere with the rule as to simple
commendation or praise of the articles which are sold, on the one
SECT. III.] EEGINA V: GOSS. 769
hand, or to that which is called chaffering on the other ; those are
things persons may expect to meet with in the ordinary and usual
course of trade. But as to the fear of multiplying prosecutions, I am
afraid that we live in an age in which fraud is multiplied to a great
extent, and in the particular form which this case assumes. I agree
in what the late Chief Justice Jervis stated as most peculiarly applica-
ble, namely, that as to such a commerce as requires to be protected by
this statute being limited in the mode suggested, trade ought to be
made honest and conform to the law, and not the law bend for the pur-
pose of allowing fraudulent commerce to go on. I cannot help think-
ing therefore, upon the fair construction of the 53d section of the 7
& 8 G. IV. c. 29, the prisoner in this case having fraudulently repre-
sented that there was a greater amount of silver in the articles
pledged than there really was, and that there was a superior founda-
tion of metal (that being untrue to his knowledge), for the purpose
of defrauding the prosecutors of their money, which he accordingly
obtained, he was indictable, and that the conviction should be
affirmed.^
EEGINA V. GOSS ; REGINA v. RAGG.
Crown Cases Reserved. 1860.
[Reported 8 Cox C. C. 262.]
Regina v. Goss.
Case reserved for the opinion of this court by the Recorder of
Northampton.
The prisoner, Thomas Goss, was tried before me at the last Michael-
mas Sessions for the borough of Northampton, for obtaining money by
false pretences.^
It was proved at the trial that the prosecutor, Thomas Roddis, on
the 19th September last, was attending the cheese fair held within
the borough of Northampton, and that the prisoner was in the fair,
and sold to the prosecutor eight cheeses, weighing 1 cwt. 3 qrs. 1 lb.
for which the prosecutor paid the prisoner the sum of £3 19s. 6d.,
being at the rate of ^^d. per pound. On the prosecutor going into
the fair, the prisoner offered to sell him the eight cheeses, and bored
«ix of them with a cheese-scoop, and then produced and offered to
the prosecutor several pieces of cheese, which are called "tasters,"
successively at the end of the scoop for the prosecutor to taste, and
m order that he might taste them as being respectively samples and
1 Aec. Reg. v. Levine, 10 Cox C. C. 374. Contra, Reg. v. Ardley, 12 Cox C. C, 23
See Reg. v. Evans, 9 Cox 0. C. 238 ; Reg. v. Lawrence, 36 L. T. Rep. 404. — Ed.
^ The indictment is omitted.
770 EEGINA-W. GOSS. [CHAP. X.
portions of the six cheeses which the prisoner had bored ; and accord-
ingly the prosecutor did taste them, and then offered the prisoner A^d.
per pound for the eight cheeses, which the prisoner accepted.
The tasters, however, had not in fact been extracted from the
cheeses offered for sale, for after the prisoner had bored the cheeses,
and before he handed the tasters to the prosecutor, he took from his
coat pocket pieces of cheese of better qualitj- and description than
those taken from the cheeses which he had bored, and privily and
fraudulently put these pieces of cheese at and into the top of the
scoop for the prosecutor to taste, and the cheese which the prosecutor
did taste, was not any portion of the six cheeses which the prisoner
bored.
The prosecutor, at the time he bought the eight cheeses, believed
that he had been tasting a portion of those cheeses, and in that belief
bought them, and paid the prisoner the £3 19s. &d. for them, which he
would not have done unless he had believed that the tasters had been
extracted from the cheeses which he so bought. The cheeses were
delivered to the prosecutor, and he retained possession of' them up to
the trial.
The value of the eight cheeses would be about 3d. per lb.
The prisoner's counsel at the trial objected that there was no evi-
dence to support the indictment, or of an}"^ facts which would consti-
tute a false pretence within the statute.
I left the case to the jury, and the prisoner was convicted ; but
having some doubt as to whether the case of Reg. v. Abbott 2 Cox
Crim. Cas. 430, had not been shaken by subsequent decisions (see
Eeg. V. Bryan, 7 Cox Crim. Cas. 312), I reserved the case for the
opinion of the Court of Appeal. John H. Brewer.
No counsel was instructed to argue in behalf of the prosecution.
Merewether (for the prisoner). This case was reserved in conse-
quence of the remarks of some of the judges upon the case of Reg.
V. Abbott, 2 Cox Crim. Cas. 430, which was decided upon the author-
ity of Reg. V. Kenrick, 5 Q. B. 49. The facts in the present case
are precisely the same as in Reg. v. Abbott ; and unless that case can
be impeached, this conviction must, no doubt, be upheld. In Reg. v.
Roebuck, 7 Cox Crim. Cas. 126, Lord Campbei-l, C. J., said; "If
this were res Integra, I should not agree with Reg. v. Abbott, because
I think that there the intention of the prisoner was to obtain a better
bargain, and not animo furandi ; but that having been decided by
ten judges, I do not wish on the present appeal to disturb it." So in
Reg. V. Eagleton, 6 Cox Crim. Cas. 559, the authority of Reg. v.
Abbott and Reg. v. Kenrick was much disputed in the course of the
argument ; but the court said that it did not then become necessary
to consider those cases. In Reg. v. Bryan, 7 Cox Crim. Cas. 312,
the defendant, in order to obtain a loan on a quantity of plated spoons,
represented to a pawnbroker that thej' were of the best quality, and
SECT. III.] REGINA V. EAGG. 771
were equal to Elkington's A (meaning spoons and forks made by
Elkington, and stamped with tlie letter A) ; that the foundation was
of the best material, and that they had as much silver upon them as
Elkington's A. The jury found that these representations were wil-
fully false, and that by means of them the loan was obtained. Held
(Willes, J., and Bramwell, B., dissentientibus) , that the conviction
was wrong, and that the representation being a mere exaggeration or
puffing of the quality' of the goods in the course of a bargain, it was
not a false pretence within the statute. In Reg. v. Sherwood, 7 Cox
Crim. Cas. 270, the prisoner, after he had agreed with the prosecutor
to sell and deliver a load of coals at a certain price per cwt., falsely
and fraudulently pretended that the quantit}' which he had delivered
was 18 cwt , and that it bad been weighed at the collieiy, and the weight
put down by himself on a ticket which he produced, he knowing it to
be 14 cwt. only, and thereby obtained an additional sum of money ;
and this was held to amount to a false pretence within the statute.
In that case, a difficulty was felt by the court in drawing the line
between indictable and non-indictable false representations.
The CouKT said that they had no doubt about Reg. v. Abbott being
a decision that they would act upon, and sound in principle, but they
desired the case of Reg. v. Joseph Ragg (being on the same subject) ,
to be called on before giving judgment.
Regina y. Ragg. '
Case reserved for the opinion of this court by the Chairman of the
Leicestershire Quarter Sessions.
Joseph Ragg was tried before me at the General Quarter Sessions
of the peace for the county of Leicester, held on the 3d January, 1860,
for obtaining money under false pretences from Henry Harris.
The indictment stated the pretence to be, a false pretence as to the
character and weight of a quantity of coals, sold and delivered by the
prisoner to the prosecutor.
It appeared in evidence as follows : The prisoner was a coal
dealer. On the 28th November he called at the house of the prose-
cutor in Loughborough, with a load of coals in a cart, and inquired
if he (the prosecutor) wanted to buy a load of " Forest " coal. The
prosecutor replied that the coals did not look like Forest coal, be-
cause they looked so dull. The prisoner replied, " I assure you thej^
are Forest coal, and the reason of their looking so dull is because
they have been standing in the rain all night ; there is 15 cwt. of them
for I paid for 14 cwt. at the coal-pits, and they gave me 1 cwt. in.'
On this the prosecutor bought the coal, and paid 7s. 6f?. for the load
The prisoner unloaded the cart, and packed the coals in the prosecu
tor's coal-place. When thfe prosecutor saw the coals in the coal-place
they appeared to be much too small a quantity to weigh 15 cwt., and he
had them weighed, when it was found that they weighed 8 cwt. only.
772 REGINA V. EAGG. [CHAP. X.-
The prisoner had at this time received his monej- and gone away,
but the prosecutor went after him, challenging him with the fraud, and
askiug for redress. The prisoner, however, refused to make anj-, stat-
ing "that he did not make childish bargains, and that the prosecutor
could not do anything to him, because he had not sold the coal by
weight, but b3' the load."
The prosecutor stated that he had bought the coal on the representa-
tion of the prisoner that there were 15 cwt, and the size of the cart
and the appearance of the coal therein, warranted the belief that there
were 15 cwt. ; but it turned out that the coal was loaded in a particular
manner, technically known as " tunnelling ; " that is, the coal (which is
in large lumps) is so built up in the cart, that one lump rests on the
edges of that below it, and large spaces are left between the lumps of
coal, and thus there is an appearance of a greater quantitj' of coal than
there actually is.
From further evidence, it appeared that the coal was not Forest
coal at all, atid had not been bought at the pits, but was Rutland coal,
and bought that same morning at a wharf in the town of Loughborough ;
that the cart, when loaded at the wharf, had weighed 8 cwt. onlj-, and
although the prisoner stated that other coal had been added to it from
another cart-load purchased at the same time from the wharf, there was
no evidence of this produced at the trial.
It further appeared that on the same day,- and a very, short time
after the coal was sold to the prosecutor, the prisoner had offered the
same load to another person as containing 13 cwt., but on looking at
the cart it was evident that the coal was "tunnelled," and the pris-
oner was then and there challenged with the fact, and told that there
was not above 8 cwt. in the cart, or 10 cwt. at the most.
The prisoner was not defended by counsel, and the jury found him
guilty.
With respect to the false pretence as to the "character" of the
coal, it appeared to me, on inquiring of the witnesses, that there was
not much real difference in value between the Forest coal and the
Rutland coal, and that the preference of one over the other was
rather according to the idea of the customer, than the actual value
of the article ; and I should not have considered it a case of false
pretences under the statute had this been the only misrepresentation ;
but I considered that the evidence showed, not mereh- a false state-
ment as to the quantit}', but a pi'econceived intention to defraud, and
a mode of packing the coal, resorted to for the purpose of fraud, and
that therefore the jury properly found the prisoner guilty.
On referring, however, to the ease of Reg. v. Sherwood, I found that
some of the learned judges who gave judgment therein had apparently
drawn a distinction between the case of a false representation made
during the bargaining, and that made afteV the sale was completed ;
and in the present case, "as the false pretence was made in the course
of the progress of a sale," I did not feel justified in sentencing the
SECT. III.j EEGINA V. KAGG. 773
prisoner until the subject had come uiidci' the consideration of the
judges. T therefore postponed the sentence, and directed that the
prisoner might be liberated on bail to appear and receive sentence
at the next Easter Sessions.
Ht. J. HosKiNS, Deputy Chairman.
No connsel were instructed either for the prosecutor or prisoner.
Erle, C.J. We are all of opinion that the conviction in each case
was right. With reference to the case of Joseph Ragg, there was a
false representation that the quantity of coals in the cart was 15 cwt.,,
whereas only about 8 cwt. were delivered, and there was a pretence of
a' deliver}' of 7 cwt , no part of which had been delivered. And al-:'
though the falsehood was only as to part of the entire quantitj' to he
delivered, yet this falls within the class of cases of false representa-
tions as to the quantity of goods delivered, the principle of which is
a f^lse pretence of a matter of fact cognisable bj- the senses, which is
an indictable offence within the statute. With regard to the case of
Thomas Goss, there was also a false pretence of a matter of fact
within the cognisance of the senses ; for by a sample which he falsely
represented as a part of the ver}- cheese to be sold, but which was part
of a cheese altogether different both in substance and value, he procured
the purchaser to buj' the inferior cheese, and part with his monej-. That
was a false pretence as to the substance of the article for sale, whereby
the prisoner was enabled to pass off a counterfeit article as and for
the genuine substance. In Reg. v. Roebuck, 7 Cox Crim. Cas. 126,,
it was held that falselj' representing to a pawnbroker that a chain is
silver, the prisoner knowing it to be a base metal, is indictable. So
here the drawing from the prisoner's pocket, samples from another
cheese, and not the cheese intended for sale, which was a totally dif-
ferent substance, and falsely pretending to tl^e purchaser that those
samples were part of the substance which he was to buj-, that is
equally an indictable offence within the statute, and falls within the
class of cases to which belong Reg. v. Abbott, where the substance of
the purchase was a cheese of the identical character with the taster ;
and Reg. v. Dundas, 6 Cox Crim. Cas. 380, where the article sold
was falsely- pretended to be Everett's blacking, which was a known
article in the neighborhood, whereas in fact the article passed off was
a counterfeit. In the case of Reg. v. Bryan, the case of the plated
spoons represented as equal to Elkington's A, the judges who consti-
tuted the majority decided that case on the principle, that indefinite
praise on a matter of opinion, is not within the limit of indictable
offences. A great deal of dissaDisfaction has been expressed with that
decision, as if it must operate as an encouragement to falsehood and
fraud, and so lead to a great deal of mischief; but it should be recol-
lected what an extreme calamitj- it is to a respectable man, to have to
stand his trial al a criminal bar as a cheat, upon an indictment at the
instance of a dissatisfied purchaser. It is easy for an imaginative
774 KEGINA V. JTENNISON. [CHAP. X.
person to fall into an exaggeration of praise upon the sale of his
goods. And if such' statements are indictable, a person who wishes
to get out of a bad bargain made by his own negligence, might have
recourse to an indictment, on the trial of which the vendor's state-
ment on oath would be excluded, instead of being obliged to bring an
action, where each party would be heard on equal terms. It is of
great public importance to endeavor to draw the line distinctly between
false representations which are indictable, and those which are not.
In the present case there was a false representation that an article was
a genuine substance, and the passing off a counterfeit substance, and
that was an indictable offence. My brother Willes, J., in Reg. v.
Bryan, threw a great deal of light on the law as to false pretences,
and though he differed from the majority of the judges in the decision,
he did not differ from the principle of that decision, but only upon the
application of that principle to the case. The majority of the judges
thought the representation there to be a matter of opinion only ; my
brother Willes thought it a representation of a matter of fact, as if the
representation had been, there is as much silver in the spoons as in
Elkington's A, and in his judgment it was the false representation of
a definite fact. We are therefore of opinion that this conviction must
be affirmed.
WiGHTMAN, J. I am of the same opinion. I would merelj' add,
with reference to the cheese cases and Elkington's case, one observa-
tion. If the prisoner had said that the cheeses were equal to the
tasters produced, that would have fallen within the Elkington's case ;
but he said to the prosecutor, " These tasters are a part of the very
cheeses I propose to sell to j'ou ; " and therefore it was a misrepre-
sentation of a definite fact.
The rest of the court concurring.
Convictions affirmed.^
REGINA V. JENNISON.
Ckown Case Reserved. 1862.
[Reported 9 Qox C. C. 158.]
Case reserved for the opinion of this court by Cockburn, C. J.
John Jennison was indicted and tried before me at the last Assizes
for the county of Nottingham for obtaining £8 from one Ann Hayet
by false pretences.
The prisoner, who had a wife living, had represented himself to the
prosecutrix, who was a single woman in service, as an unmarried man,
1 AiT. Reg. V. Foster, 2 Q. B.D. 301. See State v. Stanley, 64 Me. 157 ; Jackson ».
People, 126 lU. 139. — Ed.
SECT. III.J EEGINA V. JENNISON. 775
and pretending that he was about to marry her, induced her to hand
over to him a sum of £8 out of her wages received on leaving her ser-
vice, representing that he would go to Liverpool, and with the money
furnish a house for them to live in, and that having done so he would
return and marry her. Having obtained the money the prisoner went
away and never returned.
The prosecutrix stated that she had been induced to part with her
money on the faith of the representation of the prisoner that he was a
single man, that he would furnish a house with the money, and would
then marry her.
There was no doubt that these representations were false, and that
morally the money had been obtained by false pretences. But it was
contended on the part of the prisoner that, as the prosecutrix had been
induced to part with the money by the joint operation of the three repre-
sentations made by the prisoner, that he was unmarried, that he would
f arnish a house with the money, and that he would then marry her,
and as only the first of these pretences had reference to a present ex-
isting fact, while the others related to things to be done in future, the
indictment could not be maintained.
I reserved the point, and the prisoner having been convicted, have
now to request the decision of the court upon the question.
A. E. COCKBURN.
No counsel appeared to argue on either side.
Erle, C. J. We are of opinion that the conviction in this case was
proper. The indictment was for obtaining £8 from Ann Hayes by
false pretences, and it was found by the jury that the woman parted
with the money on the false representation by the prisoner that he was
a single man, and the promise that he would lay out the money in fur-
nishing a house for them to live in, and that he would then marry her.
It is perfectly clear that obtaining money by a false promise is not the
subject of an indictment ; but here there was the false pretence that
the prisoner was an unmarried man, which was an essential fact in
this case, and without which pretence the prisoner never would have
obtained the money from the woman. Now, one false fact, by means
of which the money is obtained, sufHciently sustains the indictment,
although it may be united with false promises which would not of
themselves do so. The conviction therefore was right.
The other judges concurring.
Conviction affirmed^
1 Ace. Eex V. Young, Leach (4th ed.), 505, 3 T. E. 98; Com. v. Moore, 80 Ky. 542,
See Keg. u. Johnston, 2 Moo. C. C. 254. —Ed.
776 COMMONWEALTH V. DREW. [CHAP. X.
COMMONWEALTH v. DREW.
StrPKEME JUDICIAI, COUKT OF MASSACHUSETTS. 1837.
[Reported 19 Pickering, 179.]
The defendant was tried before Morton, .J., upon two indictments,
in each of which he was charged with having procured money from
tlie Hancock Bank in Boston by false pretences, and with intent to
defraud the bank, upon two several occasions.
The pretences alleged were : 1, that the defendant assumed the name
of Charles Adams ; 2, that he pretended that he wished to open an
honest and fair account with the Hancock Bank, and to deposit and
draw for money in the usual manner and ordinarj' course of business ;
and 3, that he pretended that two checks, described in the indictment,
were good, and that he had in deposit the amount for which thej* were
drawn.
It was proved, among other things, that the defendant began to
deposit money in the bank early in December, 1835, and that he con-
tinued to deposit and draw, at various times and in various sums, until
th6 27th of Januarj-, 1836, on which day, having only $10 deposited
to his credit, he drew a check for $100, which was paid at the bank.
On the 30th of January, 1836, a check for $350 was drawn by the
defendant and paid at the bank, he having made no deposit since the
pa3-ment of the check presented on the 27th of January.
The defendant deposited and drew his checks bj' the name of Charles
Adams, and there was another person named Chairles Adams who de-
posited at the bank at the same time ; but it was not contended on the
part of the Commonwealth, that the checks were paid because of the
assumption by the defendant of the name of Charles Adams, nor that
an}' mistake was made as to which person of that name drew the
check.
Samuel B. Dyer, a witness on the part of the Commonwealth, testi-
fied that he was the paying and receiving teller of the bank ; that the
defendant first did business at the bank on the 12th of December, 1835 ;
that he asked to have a large bill of the United States Bank exchanged
for small bills, which was done ; that before he left the bank he made a
deposit of a considerable sum, including the bills just before received
as above ; that being asked in what name he wished to deposit, he said,
in the name of Charles Adams ; that he saw the defendant several
times afterwards, when he presented his checks for payment; that the
defendant usually drew bis checks in the bank, at the desk kept for
that purpose, and presented them himself, and that this was usuallj-
done by him about 12 o'clock, the most busy time in the forenoon ; that
the witness had no recollection of the presentation or pa5'ment of either
of the two checks in question, which were overdrafts ; that he knew
SECT. III.] COMMONWEALTH V. DREW. 777
they were paid out of his di-awer and by his money, because he found
the cheeks in his drawer and missed sums of money corresponding with
the amount of the checks ; that he believed that the check of January
27th was not paid by himself, but by the bank messenger for him, who
took his place a few minutes at the counter, the messenger having told
him he had paid a check of Charles Adams ; that the witness paid
checks of the defendant unhesitating!}-, because he had deposited for
some time, and the witness presumed his checks to be good from the
general character of his account, and having seen him conversing with
the president of the bank, the witness presumed he was acquainted
with the president ; that if the witness paid either of the two checks in
question, without inquiring at the desk of the book-keeper or looking
at the balance-sheet to ascertain whether the defendant had monej- to
that amount deposited, it was upon these grounds that he so paid.
It was in evidence, that tlie book-keeper's desk was a few feet from
the teller's counter ; that when the teller doubted whether a check should
be paid, he inquired of the book-keeper, or looked at the balance-sheet
kept by the book-keeper, which was made up to the end of every day,
and lay upon the desk for the inspection of the teller or book-keeper at
all times.
It was testified by the teller, tfiat the overdraft of the 27th of Jan-
uary was not reported for some days after it happened ; and the
balance-sheet showed that it did not appear upon that book until the
1st of February.
In; order to show that the defendant overdrew with a fraudulent intent,
it was proved, amongst other things, that he overdrew, about the same
time, at the Bunker Hill Bank in Charlestown, and the Traders' Bank
in Boston.
The counsel for the defendant contended, that there was no evidence
of the procuring of money by any false pretence ; that the mere draw-
ing a check and presenting it at the counter of tlie bank to the teller
for payment, no words being spoken and no false appearance or token
presented or held out, although the drawer knew he had no funds
deposited there, was not a " false pretence " within the meaning of the
statute upon that subject; and that such presentation of a check, with
intent to defraud the bank, and receiving the mone}' upon the check,
did not constitute the crime of obtaining money by false pretences, as
defined by the statute ; that it was no more than an appeal to the books
of the bank, kept by the proper oflfieer, and an offer to receive what
should there be found due. But the judge overruled these objections,
and instructed the jury, that if they believed that the defendant became
a depositor at the bank under a pretence of doing business there in the
usual manner, but with the fraudulent design to obtain the money of,
and cheat the bank, and drew the checks and presented them at the
bank for payment, knowing that he had not funds deposited suffloient
to pay them, and that he did this intending to defraud the batik of the
Bums so overdrawn, although no words were spoken and no other token
778 COMMONWEALTH V. DREW. [CHAP. X.
exhibited, and if he actuall}' got tli« money, he was guiltj- of the crime
of obtaining mone}' by false pretences within the meaning of the statute.
And it was left to the jury to decide upon all the evidence, whether the
false pretences and the averments contained in the indictment were
proved to their satisfaction or not.
The jury found a verdict against the defendant upon both indict-
ments.
The defendant moved for a new trial, because of the ruling and in-
structions of the judge, and because the verdict as to the presentation
of the checks by the defendants was not supported b}^ the evidence.
H. H. Fuller supported the motion. As to the third false pretence,
he cited St. 1815, c. 136 ; 3 Chit. Crim. Law, 997 ; Allen's case, 3 City
Hall Recorder, 118; Stuyvesant's case, 4 City Hall Recorder, 156;
People V. Conger, 1 Wheeler's Crim. Cas. 448 ; People v. Dalton,
2 Wheeler's Crim. Cas. 178; Witchell's case, 2 East's P. C. 830; Story's
case, Russ. & Ryan, 81 ; Freeth's case, ib. 127.
Austin (Attorney-General), and Parker (District-Attorney), for the
Commonwealth, cited Roseoe on Crim. Ev. (2d ed.) 417 et seq. ;
Lockett's case, 1 Leach, 110 ; Commonwealth v. Wilgus, 4 Pick. 177 ;
2 East's P. C. 828 ; Young v. The King, 3 T. R. 102 ; Rex v. Jackson,
3 Campb. 370.
Morton, J., delivered the opinion of the court. These indictments
are founded upon St. 1815, c. 136. The first section provides, " that
all persons who knowingly and designedly, by false pretence or pre-
tences, shall obtain from any person or persons money, goods, wares,
merchandise or other things, with intent to cheat or defraud anj' person
or persons of the same, shall on conviction " be punished, &c., as
therein specified. This section, which is a copy of St. 30 Geo. II. c.
24, § 1, is revised and combined with some provisions in relation to
other similar offences, in the Revised Stat. c. 126, § 32.
To constitute the ofllence described in the statute and set forth in
these indictments, four things must concur and four distinct averments
must be proved.
1. There must be an intent to defraud ;
2. There must be an actual fraud committed ; ,
3. False pretences must be used for the purpose of perpetrating the
fraud ; and,
4. The fraud must be accomplished hs means of the false pretences
made use of for the purpose, viz., they must be the cause which induced
the owner to part with his property-.
It is very obvious that three of the four ingredients of the crime exist
in the present case. The fraudulent intent, the actual perpetration of
the fraud, and the fact that some of the pretences used were the means
by which it was accomplished, are established by the verdict of the
jury. And although the prisoner's counsel has objected to the sufficiency
of the evidence, yet we see no reason to question the correctness of their
decision. It only remains for us to inquire, whether the artifices and
SECT. III.] COMMONWEALTH V. DREW. 779
deceptions practised by the defendant, and by means of which he
obtained the money, are the false pretences contemplated by the
statute. •
The pretences described in the indictments and alleged and'shown to
be false, are,
1 . That the defendant assumed the name of Charles Adams ;
2. That he pretended that he wished to open an honest and fair ac-
count with the Hancock Bank, and to deposit and draw for money in
the usual manner and ordinary course of business ;
3. That he pretended that the checks were good, and that he had in
deposit the amount for which they were drawn.
The iirst is clearly a false pretence within the meaning of the statute ;
and had the money been obtained by means of the assumption of this
fictitious name, there could be no doubt of the legal guilt of the
defendant. The eminent lawyer who filled the office of mayor of New
York, when the adjudication referred to by the defendant's counsel was
made, says the false pretences must be the sole inducement which
caused the owner to part with his propertj'. People y. Conger, 1
Wheeler's Crim. Cas. 448 ; People v. Dalton, 2 ib. 161. This point is
doubtless stated too strongly ; and it would be more correct to say,
that the false pretences, either with or without the cooperation of other
causes, had a decisive influence upon the mind of the owner, so that
without their weight he vsfould not have parted with his property.
People V. Haj'nes, 11 Wendell, 557. But in this case the assumed
name, so far from being the sole or decisive inducement, is clearly
shown to have had no influence whatever. The bank officers did not
confound the defendant with Charles Adams, and it does not appear
that the defendant knew that there was any other person by that name.
He never claimed any credit on account of his name, and the coincidence
might have been accidental. At any rate, it had no influence upon the
credit of either, nor anj' effect upon their accounts or the payment of
their checks.
2. The opening and keeping an account with the. Hancock Bank
might have been, and doubtless was, a part of a cunning stratagem, by
which the defendant intended to practise a fraud upon that bank. But
the business was done and the account kept in the usual manner. The
defendant made his deposits and drew his checks like other customers
of the bank. He made no representation of the course he intended to
pursue, and gave no assurance of integrity and fair dealing; and vve
<;aa see nothing in the course of this business constituting it a false
pretence, which would not involve the account of any depositor who
might overdraw in the same category.
3. The pretence, if any such there were, that the cheek was good, or
that the defendant had funds in the bank for which he had a i'ight to draw,
was false. He had no such funds. Did the defendant make any such
pretence ? He made no statement or declaration to the officers of the
bank. He morcly drew and presented his checks, and the3' were paid
780 COMMONWEALTH V. DREW. [CHAP. X.
This was done in the usual manner. If, then, he made any pretence, it
must result from the acts themselves.
What is a false pj-etence, within the meaning of the statute ? It maj'
be defined to be a representation of some fact or circumstance, calcu-
lated to mislead, whidi is not true. To give it a crirninal character
there must be a scienter and a fraudulent intent. Although the lan-
guage of the statute is verj' broad, and in a loose and general sense
would extend to ever}' misrepresentation, however absurd or irrational,
or however easily detected, yet we think the true principles of con-
struction render some restriction indispensable to its proper application
to the principles of criminal law and to the advantageous execution of
the statute. We do not mean to sa}- that it is limited to cases against
which ordinary skill and diligence cannot guard, for one of its principal
objects is to protect the weak and credulous from the wiles and strata-
gems of the artful and cunning ; but there must be ' some limit, and it
'would seem to be unreasonable to extend it to those who, having the
means in their own hands, neglect to protect themselves. It maj^ be
difficult to draw a precise line of discrimination applicable to every
possible contingenc}-, and we think it safer to leave it to be fixed in
each case as it may occur. 2 East's P. C. 828 ; Young v. The King, 3
T. R. 98.
It is not the policj' of the law to punish criminally mere private
wrongs ; and the statute maj' not regard naked lies as false pretences.
It requires some artifice, some deceptive contrivance, which will be
likely to mislead a person or throw him off his guard. He ma}' be
weak and confiding, and his ver}' imbecility and credulitj' should receive
all practical protection. But it would be inexpedient and unwise to
regard everj' private fraud as a legal crime. It would be better for
society to leave them to civil remedies. Roscoe on Crim. Ev. (2d ed.)
419 ; Goodhall's case, Russ. & Ryan, 461.
The pretence must relate to past events. Any representation or
assurance in relation to a future transaction may be a promise or cove-
nant or warranty, but cannot amount to a statutory' false pretence.
They afford an opportunity for inquiring into their truth, and there is a
remedy for their breach, but it is not bj' a criminal prosecution. Stu3've-
sant's case, 4 Citj' Hall Recorder, 156 ; Roscoe on Crim. Ev. (2d ed.)
422 ; Rex v. Codrington, 1 Car. & Payne, 661. The only case, Young
V. The King, 3 T. R. 98, which has been supposed to conflict with this
doctrine, clearl}- supports it. The false pretence alleged was, that a
bet had been made upon a race which was to be run. The contingency
which was to decide the bet was future, but the making of the bet
was past. The representation which turned out to be false was, not
that a race would be run, but that a bet had been made. The false
pretence, therefore, in this case, related to an event already completed
and certain, and not to one whicii was thereafter to happen and conse-
quently uncertain ; and the decision was perfectly consistent with the
doctrine and law here laid down.
SECT. III.J COMMOiN WEALTH V. DREW. 781
A false pretence, being a misrepresentation, maj' be made in any of
the ways in whicli ideas maj- be communicated from one person to
another. It is true that the eminent jurist before referred to in the
cases cited held that it could be made only by verbal communications,
either written or oral. If this be correct, no act or gestures, however
significant and impressive, could come within the statute ; and mutes,
though capable of conveying their ideas and intentions in the most clear
and forcible manner, could hardly be brought within its prohibition.
Can it make any difference in law or conscience whether a false repre-
sentation be made by words or by the expressive motions of the dumb?
Each is a language. Words are but the signs of ideas, and if the
ideas are conveyed, the channel of communication, or the garb in
which the}- are clothed, is but of secondary' importance. And we feel
bound to dissent from this part of these decisions. In this we are
supported by the English cases. Rex v. Story, Buss. & Ryan, 81 ;
Rex V. Freeth, ib. 127.
The representation is inferred from the act, and the pretence may be
made bj' implication as well as by verbal declaration. In the case at
bar the defendant presented his own checks on a bank with which he
had an account. What did this imply? Not necessarily that he had
funds there. , Overdrafts are too frequent to be classed with false pre-
tences. A check, like an order on an individual, is a mere request to
paj' ; and the most that can be inferred from passing it is, that it will
be paid when presented, or in other words that the drawer has in the
hands of the drawee either funds or credit. If the drawer passes a
check to a third person, the language of the act is, that it is good and
will be dul}' honored ; and in such case, if he knew that he had
neither funds nor credit, it would probably be holden to be a false
pretence.
In the case of Stuyvesant, 4 City Hall Recorder, 156, it was decided
that the drawing and passing a check was not a false pretence. But in
Rex V. Jackson, 3 Campb. 370, it was ruled that the drawing and pass-
ing a check on a banker with whom the drawer had no account and
which he knew would not be paid, was a false pretence within the
statute. This doctrine appears to be approved by all the text writers,
and we are disposed to adopt it. Roscoe on Crim. Ev. (2d ed.) 419.
But to bring these cases within the statute, it must be shown that the
drawer and utterer knew that the check would not be paid, and in the
cases cited it appeared that he had no account with the banker. In
these respects the case at bar is ver}- distinguishable from the cases
cited. If the checks in question had been passed to a third person, it
could not be said that the defendant knew that they would not be paid.
On the contrary, he had an open account witli the bank, and although
he knew there was nothing due to him, yet he might suppose that they
would be paid ; and the fact that he presented them himself, shows
that he did not know that they would be refused.
The defendant presented the checks himself at the counter of the
782 COMMONWEALTH V. NOETON. [OHAP. X.
bank. They were mere requests to pay to him the amount named in
them, couched in the appropriate and only language known there, and
addressed to the person whose peculiar province and duty it was to
know whether the}' ought to be paid or not. He complied with the
requests, and charged the sums paid to the defendant, and thus created
a contract between the parties. Upon this contract the bank must relj'
for redress.
This case lacks the elements of the English decisions ; and we
think it would be an unwise and dangerous construction of the statute
to extend it to transactions like this. The case maj" come pretty near
the line which divides private frauds from indictable offences ; and at
first we were in doubt on which side it would fall. But, upon a careful
examination, we are well satisfied that it cannot properly be brought
within the statute. Verdict set aside and new trial granted.^
COMMONWEALTH v. NORTON.
ScPREME Judicial Court of Massachusetts. 1865.
[Reported 11 Allen, 266.]
Indictment for obtaining money under false pretences. The first
count charged that the defendant falsely pretended to Charles Connell
that a few days before he, the defendant, was in Connell's place of
business and had two drinks, and gave to Connell five dollars, from
which Connell was to take twenty cents, but that Connell did not re-
turn any change; and Connell, believing said- false representations,
and being deceived and induced thereby, paid to Norton four dollars
and eighty cents ; whereas in truth Norton had not given the five
dollars to Connell, and the various representations of Norton were all
false.
There were three other counts charging similar transactions with
other and different persons.
The defendant pleaded guilty to this indictment in the Superior Court,
and thereupon Lord, J., deeming the questions of law arising thereon,
as to whether the allegations of the indictment constituted an indictable
offence, so important and doubtful as to require the decision of this
court, reported the same, by the consent and desire of the defendant.
No counsel appeared for the defendant.
Beed, A. <?., for the Commonwealth, cited Commonwealth v. Drew,
19 Pick. 182; The Peoples. Johnson, 12 Johns. 293; Young v. The
King, 3 T. R. 102 ; Rex v. Wheatly, 2 Burr. 1128.
Dewey, J. It seems to us that the present case is one which the
1 See Rex i'. Parker, 7 C. & P. 825 ; People v. Wasservogle, 77 Cal. 173; Barton
K. People, 135 111. 405. Compare Com. u. Schwartz (Ky.) 18 S. W. 358. — Ed.
SECT. III.] COMMONWEALTH V. WHITCOMB. 783
court may properly consider as not embraced within the intention of
the framers of the statute punishing the obtaining of goods by wilfully
false pretences. The case as presented by the indictment is the nalced
case of a wilfully false affirmation, made to a party who had like
means of knowledge whether the affirmation was true or false as the
party who made it. The indictment alleges the false statements to
have been that the same person alleged to have been defrauded had
on a previous day named I'eceived of the defendant a certain bankbill
for the payment of certain " drinks" furnished to the defendant, and
had not given back any change. The case was one of a demand of
money as of right, growing out of what might have been an illegal sale
of liquors, and was yielded to by the seller, he being personally connected
with all the alleged facts, and voluntarily submitting to the demand
thus made upon him. It was said by this court in Commonwealth v.
Drew, 19 Pick. 184, that " although the language of the statute (St.
1815, c. 136) is very broad, and in a loose and general sense would
extend to every misrepresentation, however absurd or irrational or
however easily detected ; yet we think the true principles of construc-
tion render some restriction indispensable to its proper application.
... It may be difficult to draw a precise line of discrimination appli-
cable to every possible contingency, and we think it safer to leave it
to be fixed in each case as it may occur."
These remarks apply equally to Gen. Sts. c. 161, § 54, and in the
opinion of the court the facts alleged in this indictment do not present
a case which should be held to fall within the spirit and purpose of
the statute. We are aware that some of the English judges have given
a more extended construction of their statute in cases that have there
arisen. Judgment arrested^
COMMONWEALTH v. WHITCOMB.
SuPKEME Judicial Court of Massachusetts. 1871.
[Reported 107 Massachusetts, 486.]
Chapman, C. J. By the Gen. Stats, c. 161, § 54, whoever " design-
edly, by a false pretence or by a privy or false token, and with intent
to defraud, obtains from another person any property," &c., " shall be
punished," &c. The defendant falsely pretended to the Reverend Mr.
Peck, a Methodist clergyman, that he was himself a Methodist clergj'-
man, and pastor of a Methodist church in Waterville, Kansas, and that
on the preceding Lord's day he had preached in the church of the Rev-
erend Charles Fowler, of Chicago ; that he was poor, penniless, and
1 Contra Reg. v. WooUey, 1 Den. C. C. 559 ; Reg. o. Jessop, 7 Cox C. C. 399. See.
Reg. ». Conlson, I Den. C. C. 592. Compare Com. v. Lee, 149 Mass 181. — Ed.
784 COMMONWEALTH V. HAHKINS. [CHAP. X.
utterly destitute, and had that day been robbed of all his money ; and
he thereb}' obtained of Mr. Peck six dollai's as a charity.' He after-
wards admitted that these representations were false. His onlj' defence
is, that the statute does not include cases where the money is parted
with as a charitable donation.
But it is obvious that the case comes within the words of the statute.
It comes also within the reason of the statute. There is as much reason
for protecting persons who part with their money from motives of benev-
olence, as those who part with it from motives of self-interest. The
law favors charit}' as well as trade, and should protect the one as well
as the other from imposture bj' means of false pretences. Obtaining
money hy means of letters begging for charity on false pretences is held
to be within the English statute (7 & 8 Geo. IV. c. 29, § 53), which is
quite similar to ours. Regina v. Jones, 1 Denison, 551 ; Regina v.
Hensler, 11 Cox Crim. Cas. 570.
A contrar}- doctrine has been held in New York. People v. Clough,
17 Wend. 351. The court admitted that the crime was of a dark moral
grade, and was within the words of the statute of New York, which was
copied from the English statute of 30 Geo. II. c. 24. They adopted
that construction chiefl}' on the ground that the preamble to the statute
referred to trade and credit. But our statute, like the existing English
statute, refers to no such matter, and is not restricted b}- any preamble.
JExceptions overruled.
COMMONWEALTH v. HARKINS.
Sdpkeme Judicial Court of Massachusetts. 1886.
[Reported 128 Massachusetts, 79.]
Colt, J.' The defendant was indicted for obtaining money from the
city of Lynn by false pretences. He moved to quash the Indictment on
the ground that it did not set forth an offence known to the law.
It is alleged in substance that the defendaut falsely represented to
the city of Lynn, through its agent, the city solicitor, that a street
which the city was bound to repair had been suffered to be out of repair,
and that the defendant, while travelling thereon with due care, was in-
jured by the defect ; that the defendant at the same time exhibited an
injury to his foot and ankle, and represented that it was caused by the
alleged defect. It is further alleged that the city and its solicitor were
deceived by these representations, and, being induced thereby, agreed
to the entry of a judgment against the city in a suit then pending ia
favor of the defendant in this case ; and upon the entry thereof paid the
amount of the same to him. It is not alleged that the suit was tc
1 The opinions only are given ; they sufBciently state tlie case.
SECT. III.] COMMONWEALTH V. HAEKINS. 785
recover damages on account of the defendant's injury from the alleged
defect ; but we assume that this was so, for otherwise there could be no
possible connection, immediate or remote, between the pretences
charged and the payment of the money in satisfaction of the judgment
recovered.
In the opinion of a majority of the court, this indictment is defective.
The facts stated do not constitute the offence of obtaining money by
false pretences. The allegations are, that an agreement that judgment
should be rendered was obtained bj- the pretences used, and that the
money was paid by the city in satisfaction of that judgment. It is not
alleged that, after the judgment was rendered, any false pretences were
used to obtain the money due upon it ; and, even with proper allega-
tions to that effect, it has been held that no indictment lies against one
for obtaining by such means that which is justty due him. There is
no legal injury to the party who so pays what in law he is bound to
pay. Commonwealths. McDuffy, 126 Mass. 467; People v. Thomas,
3 Hill, 169 ; Rex u. Williams, 7 Car. & P. 354. A judgment rendered
bj' a court of competent jurisdiction is conclusive evidence between the
parties to it that the amount of it is justlj' due to the judgment credi-
tor. Until the judgment obtained by the defendant was reversed, the
city was legallj' bound to pay it, notwithstanding it may have then had
knowledge of the original fraud by which it was obtained ; and with or
without such knowledge it cannot be said that the money paid upon it
was in a legal sense obtained by false pretences, which were used only
to procure the consent of the city that the judgment should be rendered.
The indictment alleges the fact of a judgment in favor of the defend-
ant, which if not conclusive as between the parties to this criminal pros-
ecution, is at all events conclusive between the parties to the transac-
tion. To hold that the statute which punishes criminallj- the obtaining
of property by false pretences, extends to the case of a paj-ment made
by a judgment debtor in satisfaction of a judgment, when the evidence
onlj- shows that the false pi'etences were used to obtain a judgment, as
one step towards obtaining the money, would practicall}' make all civil
actions for the recovery of damages liable in such cases to revision in
the criminal courts, and subject the judgment creditor to prosecution
criminally for collecting a valid judgment, whether the same was paid
in money or satisfied by a levy on property.
SouLE, J. I am obliged to differ from the raajoritj- of the court, and
am authorized to state that the Chief Justice and Mr. Justice Ames
concur with me. As the case involves questions of importance in the
administration of public justice, it has seemed to us proper to state our
views of them. In doing this, it is necessary to discuss several points
which are raised by the exceptions, but are not treated of in the opinion
of the court, because they have become immaterial to the decision which
has been reached bj' the majority.
The indictment sets forth that the defendant, with intent to ciioat and
defraud, made certain false representations and pretences, as to matters
786 COMMONWEALTH V. HARKINS. [CHAP. X.
within his knowledge and relating to existing facts as well as to past
transactions, concerning which neither the citj* of Lynn nor its agent
had the means of knowing the truth, and that, bj' means of these repre-
sentations and pretences, the citj^, believing them to be true, was
induced to and did part with its money to the defendant. It further
sets forth that the defendant received the money by means of the false
pretences, and with intent to cheat and defraud the citj^ of Lynn, and
that the several representations and pretences were not true. It there-
fore charges an offence. Commonwealth v. Hooper, 104 Mass. 549 ;
Commonwealth v. Parmenter, 121 Mass. 354.
The additional allegations as to the consent to the entry of judgment
and the satisfaction of the judgment are merely a narration of the
methods by which the parties proceeded in paj'ing and receiving the
money, and are wholly unnecessary, but thej' do not charge another
offence, nor make the indictment bad for duplicity. The obtaining of
the money by false pretences is the gist of the offence, not the obtaining
of the judgment.
The fact that the judgment obtained bj' the defendant remains unre-
versed constitutes no objection to the indictment. It is true that, as a
matter of public policy, an unreversed judgment is conclusive between
the parties and their privies, in accordance with the maxim, Interest
reipublicee ut sit finis litium. And this principle goes so far that one
cannot sustain an action against another for obtaining a judgment against
him by means of conspiracy and fraud, if he had an opportunitj- to be
heard at the trial of the cause in which the judgment was obtained.
Castrique v. Behrens, 3 E. & E. 709 ; Huffer y. Allen, L. R. 2 Ex. 15.
But it is equally true that a judgment is conclusive onlj- between the
parties and their privies, and that strangers are not bound nor affected
bj- it. To the indictment the Commonwealth is a partj', but was a
stranger to the action between the city of Lynn and the defendant, in
which the judgment was recovered. That judgment is, therefore, no
evidence against the Commonwealth that the defendant was entitled to
recover anj'thing of the city. It has no bearing on the case at bar,
except as being a part of the machinery emploj'ed in obtaining the
money wrongfully. Its existence is no bar to prevent the Common-
wealth from showing, in its prosecution of crime, that it and the money
were obtained by false pretences. To hold otherwise would be to pro-
vide a shield for the criminal in his own crime. There is nothing- in
this view of the law, which conflicts with the decision in the recent case
of Commonwealth v. McDuffy, 126 Mass. 467. It was there held, that
one who obtains onlj' what is due him bj- false pretences commits no
punishable offence. It was not held that the Commonwealth was
estopped to prove the truth, by a judgment to which it was not a party.
The general doctrine, that only parties and privies are concluded by a
judgment, is too familiar to require the citation of authorities in its
support. An application of it peculiarly pertinent to the case at bar
was made in The Duchess of Kingston's case, 20 Howell's St. Tr. 355.
SECT. III. J' COMMONWEALTH V. HAKKINS. 787
The indictment is not defective on the ground of remoteness of the
false representations from the obtaining of the money. Ordinarily the
question of remoteness is one for the jury, and can be presented to
this court only on a report of the evidence after a refusal by the presid-
ing judge to rule that the evidence will not warrant a conviction. As
an objection to the indictment, it is in substance that the indictment
shows that the money was obtained on a valid judgment, and therefore
cannot be held to have been obtained by the false pretences. But this
point is not tenable. The test is the direct connection between the pre-
tence and the payment of the money. There was no purpose in either
party to the transaction that the matter should go to the extent of
entering up the judgment, and rest there ; the judgment was, in and of
itself, of.no importance. It was onlj' a means to an end, and it was
for the jury to say whether the false pretences were an inducement for
the payment.
In the case of Kegina v. Gardner, Dearsl}' & Bell, 40, and 7 Cox C.
C. 136, cited by the defendant, it was held that the false pretence was
exhausted by obtaining a contract for lodging, and did not extend to
the contract for board also, made after the defendant had been a lodger
with the prosecutor for more than a week. In Regina v. Bryan, 2 F.
& F. 567, board and lodging had been obtained b}' means of false pre-
tences, and, sometime after the contract therefor, the prisoner borrowed
sixpence of the person with whom he had made the contract and was
lodging, and it was held that the money was not obtained by the false
pretence.
But in Kegina v. Martin, L. R. 1 C. C. 66, it was held that the ques-
tion of remoteness was for the jury, and that a conviction was warranted
when the prisoner had ordered a van to be made, under the false pre-
tence that he acted for the Steam Laundry Company of Aston, which
he represented to be composed of leading men of Birmingham, and
before it was delivered to him countermanded the order, and afterward
agreed to receive it if certain alterations were made in it, which were
made, and it was subsequently delivered. In that case it is said that,
in order to justify a conviction, there must be a direct connection be-
tween the pretence and the delivery of the chattel, and that whether
there is such a connection or not is a question for the jury ; and, fur-
ther, that since the cases of Regina v. Abbott, 1 Denison, 273, and
Regina v. Burgon, Dearsly & Bell, 11, it is impossible to contend seri-
ously that the case is not within the statute, because the chattel is
obtained under a contract induced by the false pretence.
The false representations and pretences set forth in the indictment
are of such a character as to bring the transaction within the statute.
It is sometimes said that a naked lie is not within the statute ; and, as
applied to particular cases, this is true ; as when one falsely represents
to a saloon-keeper that, a few days before, he gave the keeper five
dollars out of which to take twenty cents in payment for drinks, and
788 COMMONWEALTH V. HAEKINS. [cHAP. X.
that the keeper did not return any change ; Commonwealth v. Norton,
11 Allen, 266 ; or where one draws his check on a bank in which he
has no money, and presents it at the bank for payment. Common-
wealth V. Drew, 19 Pick. 179. In those cases the lie is told to one who
has the sanje means with the liar of knowing what the fact is. In the
case last cited it was said that passing a check drawn on a banker with
whom the drawer has no account, and which he knew would not be
piiid, would be within the statute ; and the English decisions are so.
The diffex'ence between the two is merely that in one case the lie or false
pretence is made to one who is in a situation to know the facts, and in
the other to one who is not in such situation. The true rule seems to
be, that a case is within the statute if the alleged false pretence is an
intentionally false representation as to an existing Tact or past trans-
action, made to one who has not the means of knowing the truth in the
premises, for the purpose of inducing him thereby to part with his
propert}-.
This case comes up on exceptions to a refusal to quash the indictment,
and it is argued that there was no such relation of trust and confidence
between the defendant and the citj' of Lj-nn as would justifj' a belief in
the representations made, and lay a foundation for an indictment under
the statute. But, as has alreadj' been said, there are sufficient allega-
tions to constitute a good indictment, and the question whether they
were proved or not is one of evidence, and not of pleading. Moreover,
it is not true, as matter of law, that one who is negotiating a settlement
of an alleged claim for damages cannot bring himself within the statute
by making false representations and obtaining money thereb}'. In
Regina v. Copeland, Car. & M. 516, the prisoner, a married man, who
had obtained a promise of marriage from a single woman which she
refused to fulfil, threatened her with an action at law for breach of
her promise, and added that he could thereby take half her fortune
from her, and she, believing the statement and threat, paid him one
hundred pounds sterling. The prisoner was convicted, and the convic-
tion was sustained by Lord Denman and Mr. Justice Maule.
The question whether the false pretences were believed and induced
the payment is for the jurj'. To quash the indictment on the ground
that the circumstances of the transaction would not justify a conviction,
would be to quash it for matters dehors the record.
That the wrong is a private one is no objection to the prosecution,
although it has been said in many cases that the statute is not intended
for the punishment of every private wrong. In all the cases above
cited in which a conviction was sustained the wrong was a private one,
in the same sense as in the case at bar ; it is a public wrong in this, as
in those cases, in that it is within the statute which provides for pun-
ishment of the wrongdoer. The purpose of the statute was to extend
the punishment to cases which were not reached by the common law,
and its language is broad and comprehensive. Its operation ought not
SECT. III.] ' EKGINA V. LARNEE. 789,
to be limited by phrases of indefinite meaning which fail to state any
principle of construction.
Miceptiona sustained.
. REGINA V. LAENER.
Central Criminal Court. 18S0.
[Reported 14 Cox. C. C. 497.]
William Larner was charged under an indictment containing
counts for false pretences, forgery, and uttering. The first count set
forth the false pretences as follows: "That the said William Larner
was member of a certain club called and known as the Myddleton
Swimming and Athletic Club, and that a certain letter which he, the
said William Larner, had caused to be received by one Alfred Ernest
Endin, had then been written and sent by one Henry Green, the secre-
tary of the said club, and that he, the said William Larner, as member
and competitor in certain club swimming races and matches bj- mem-
bers of the said club, had been allowed to start from the starting point
twenty-five seconds before certain other competitors."
Pur cell for the prosecution.
Keith Frith and Hundle Levey for defendant.
On the 23rd day of August a swimming handicap took place at the
Surrey County Baths. Entries were to be made previously to Alfred
Endin, Esq., and competitors to be handicapped by qualified persons.
A competitor's ticket was issued by Mr. Endin to each accepted entry.
The length of the course was 100 yards, and there being a good many
entries, the race was swum in heats.
A programme was printed and circulated, containing, amongst other
matters, the names of the competitors and the arrangement of the
various heats, and on that programme appeared the name of W. Larner,
to whom a start of twenty seconds had been assigned.
Some days before the issuing of the programme, Mr. Endin received
the following letter :
Nelson Club, 90, Dean-street, Oxford-street.
August 19, 1880.
Sir, — I inclose entrance fee for another entry for your 100 yards
handicap. W. Larner (Middleton Swimming and Athletic Club) in
Club races recefives twenty-five seconds from scratch. — I remain, sir<
Yours respectfully,
H. Green, Hon. Sec.
790 EEGINA V. LAENEE. [CHAP. X.
Another letter of the same kind had been received by Mr. Endin,
entering one Binns for the same race. The letters were received in the
usual course through the Post Office. The two entries of Larner and
Binns were accepted, and the entrance fee of 2s. 6d. each paid. Mr.
Endin stated that he knew nothing about Larner or his accomplish-
ments as a swimmer ; that he received his entry in consequence of the
representations contained in the letter, and that the start of twenty
seconds was apportioned to him for the like reason. He further stated
that he handed Larner a competitor's ticket ; that Larner swam in
the competition, and. after being second in his own heat, won the final
easily. It was believed that Larner could have won the race from
scratch.
For the prisoner it was objected that the false pretences were too
remote, that if he obtained anything thereby, it was the competitor's
ticket, and not the cup ; that the cup was obtained by his own bodily
activity; and that the case fell within Reg. v. Gardner (1 Dears. & B.
C. C. p. 40 ; 7 Cox C. C. 136), in which case the prisoner had at first ob-
tained lodgings only by a false representation, and after he had occu-
pied the lodgings for a week he obtained board ; and it was held that
the false pretences were exhausted by the contract for lodging, the ob-
taining board not having apparently been in contemplation when the
false pretence was made.
For the prosecution it was urged that the false pretence was a con-
tinuing one, that the winning of the cup was clearly in the contempla-
tion of the prisoner when he entered for the race, and that the judgment
of WiLLES, J., in Reg. v. Gardner, citing Reg. v. Abbott and Reg.
V. Burgess, was an authoritj' the other way. They also cited Reg. v.
Martin (L. Rep. 1 Cr. Cas. Res. 66 ; 10 Cox C. C. 383).
Held, by the Common Serjeant, after conferring with Stephen, J.,
in the Old Court, that the objection must prevail as the false pretences
were too remote.
The prisoner was afterwards tried for uttering the letter, knowing it
to be forged, and convicted.
SECT. III.] EEGINA V. BUTTON. 791
REGINA V. BUTTON.
Court tor Crown Cases Reserved. 1900.
[Reported 1900, 2 Q. B. 597.]
Case stated by the recorder of Lincoln.
The prisoner was charged with attempting to obtain goods by false
pretences.
On August 26, 1899, there were athletic sports at Lincoln, for which
prizes were given. Among the contests were a 120 yards race and a
440 yards race, in respect of each of which a prize was given of the
value of ten guineas.
Among the names sent in for these two contests was the name of
" Sims, C, Thames Ironworks A. C," and two written forms of entry
were sent in to the secretary of the sports, containing (as appeared to
be usual) a statement as to the last four races in which Sims had run.
together with a statement that he had never won a race. These forms
were not sent by Sims, nor were they in his handwriting, and he knew
nothing of them. They were however signed in his proper name, and
with his true address, and contained a correct account of his last four
performances. The forms were proved to be not written bj' the
prisoner.
The performances of Sims were very moderate, and, as a fact, he
was only a moderate runner, and as a result the supposed Sims was
given by the handicapper of the sports a start of 11 yards in the 120
yards race and a start of 33 yards in the 440 j'ards race.
Sims was ill at Erifch when the races were run, and was not at Lin-
coln at all, and he was personated by the prisoner, who was a fine
performer and won both contests very easily.
The suspicion of the handicapper being aroused, he asked the
prisoner, after the 120 yards race, whether he was really Sims, whether
the performance given in the entry form was really his, and whether he
had never won a race. To these questions the prisoner answered that
he was Sims, that the performances were his own, and that he had
never won a race. All these statements were untrue, and in particular
he had won a race at Erith in his own name. The handicapper was
called as a witness, and swore that he would not have given the prisoner
such favorable starts if he had known his true name and performances.
These facts were all admitted, and no evidence was called to contra-
dict them. It was, however, suggested for the defence that the prisoner
might have done it for " a lark," or might have possibly done it in
order to keep himself in good training. In summing up the case to
the jur3% the recorder told them that if the prisoner did it for " a lark,"
without any criminal intent, and without intending to get the prizes,
they ought to find him not guilty ; but that if he made the false repre-
sentations wilfully, intentionally, and fraudulently, with intent to
792 eegina v. button. [chat. x.
obtain the prizes, they ought to find him guilty of attempting to obtain
them by false pretences.
The jury found a verdict of guilty.
It was contended for the prisoner that, on the authority of Reg. v.
Larner, 14 Cox C. C. 497, the obtaining the prizes was too remote from
the false representation and that he ought to be acquitted. The
recorder overruled the objection, but agreed to state this case. A case
decided by Lord Lindley at Nottingham Assizes, Reg. v. Dickenson.
(1879) Roscoe's Criminal Evidence, 432, 433, 12th ed. ; 2 Russell on
Crimes, Book III., cap. xxsii., s. ii., p. 511, 6th ed. ; Times of July
26, 1879, appeared to be contrary to Reg. v. Larner, supra.
The questions of law for the opinion of the Court were : —
(1.) Whether the recorder had summed up the case correctly tp the
jury-
(2.) Whether the attempt to obtain the prizes was too remote from
the pretence.
J. Percival Hughes, for the defendant. The conviction is bad.
There was no completed criminal offence, .for, assuming that the de-
fendant did make the representations alleged for the purpose of obtain-
ing a longer start in the handicaps than he would have got if he had
entered in his own name and disclosed his previous performances
truthfully, still there is nothing to shew that he ma}- not have done
what he did for amusement, or to keep himself in training, for it is not
shewn that he ever applied for the prizes, and even if in the first
instance he intended to get the prizes, ^hich is not clearlj- shewn, still
until he applied for them there was a locus pcenitentiae, and he might
never have taken the prizes at all.
[Mathew, J. Those are questions of fact, and the verdict of the
jury negatives the suggestions on behalf of the defendant.]
The intention to obtain the prizes is too remote from the representa-
tions. What he really obtained was more favourable terms in handi-
caps. He came in first owing to his good running. Reg. v. Larner,
supra, is a strong authority against the conviction. [He also referred
to Reg. V. Eagleton, (1865) 6 Cox C. C. 659 ; 24 L. J. (M.C.) 158 ;
Reg. V. Gardner, (1866) 7 Cox C. C. 136 ; Dears. & B. C. C. 40.]
Montague Shearman ( T. Hollis Walker with him), for the prosecu-
tion, was not called on.
Mathev?, J. The conviction. in this case must be upheld. The case
of Reg. V. Larner, supra, is relied upon as an authority for the defend-
ant. In that case question was one of fact, and the Common Serjeant
directed the jury according to his impression of the view of the law
taken by Stephen J. , whom it appears from the report he had consulted ;
but that case is contrary to the ruling of Lord Lindlej' in a case tried
before him at the Nottingham Assizes, supra, and I am clearh- of
opinion that Lord Lindley was right. The questions to be decided in
the present case were pure questions of fact, namely, whether the
intention of the defendant, wlien he entered for the races, was to obtain
SECT. III.J REGINA V. BUTl'ON. 793
the prizes, and whether he made the representations with that intention.
It appears from the case that he pretended to be a man who had never
won a foot-race, and he was handicapped on the faith of that state-
ment, as is shewn by the evidence given by the handicapper ; but it
also appears from the case that his statement was false, for he had won
races. Then it was suggested that he competed in the name of Sims,
as it is put in the case, " for a lark " ; but that question was for the
jury, and they have negatived the suggestion. It was also contended
that his coming in first in the races' was owing to his own good run-
ning ; but it was also owing, in part at least, to the false pretences, for
by means of the false pretences he obtained a longer start than he
would have had .if his true name and performances had been known.
It is also said that some other act had to be done in order to make the
offence complete, and that he could not rightly be convicted because it
was not shewn that he had applied for the prizes, and that the criminal
intention was exhausted. The argument is exceedingly subtle, but
unsound. In fact, he was found out before he had the opportunity of
applying for the prizes, as no doubt he otherwise would have done.
The pretences which the prisoner made were not too remote, and the
conviction was good.
Lavtrancb, J., concurred.
Wright, J. I am of the same opinion. If nothing more had been
shewn than that the defendant had entered for the races in a false
name, the case would have been different. If he did not run or claim
the prize, it would be difficult to say that there was an actual attempt to
obtain it. But here in effect he did claim the prize.
EJENNEDT and Darling, JJ., concurred
Conviction affirmed.
Note on Intent to Defkaud. — As to the requisite intent to defraud see Rex v.
Wakeling, Russ. & Ry. 504, supra; Rex v. Naylor, L. R. 1 C. C. R. 4, 10 Cox C. C.
149 ; Com. v. Schwartz (Ky.),. 18 S. W. 358. See also Penny u. Hanson, 16 Cox C. C.
173. This was a prosecution under 5 Geo. IV. ch. 83, s. 4, for "pretending or pro-
fessing to tell fortunes or using any subtle craft to deceive and impose on " the prose-
cutor. The defence was that no evidence had been presented of an intent to deceive.
The evidence showed that defendant offered to tell the prosecutor's fortune by means
of astrology. Denman, J., said : " This is an instance to which the doctrine res ipsa
loquitur applies. It is nonsense to suppose that in these days of advanced knowledge
the appellant really did believe he had the power to predict a man's future by know-
ing at what liour he was born, and the position of the stars at the particular moment
of his birth. No person who was not a lunatic could believe he possessed such power.
There was therefore no need on the part of the prosecution to negative his belief in
such power or capacity. The magistrate rightly drew an inference that the appellant
had an intent to deceive and impose on the prosecutor." — Ed.
794 EEGINA V. WADE. [CHAF. XI.
CHAPTER XI.
RECEIVING STOLEN PROPERTY.
SECTION I.
The Receiving.
EEX V. RICHARDSON.
Old Bailet. 1834.
[Reported 6 Carrington ^ Payne, 335.]
Four of the prisoners were indicted for sacrilegiously breaking and
entering a chapel, called St. Philip's Chapel, in the parish of Clerken-
well, and stealing therein certain things. The other prisoner was
charged as receiver.^
Taunton, J. (in summing up with respect to the receiver) , said :
1 Whether he made any bargain or not is a matter of no consequence.
\If he receig.ed the property for the mere purpose of concealment with-
cj^^eriving any profit at all he is just as much a receiver as if he had
purctiased it it is a receiving within the meaning of the statute.
Verdict, three of the prisoners guilty and two of them not guilty.^
REGINA V. WADE.
Liverpool Assizes. 1844.
[Reported 1 Carrinqton & Kirwan, 739.]
The prisoners Wade and Kenyon were indicted for having broken
and entered the house of Thomas Worsley at Warrington, and having
stolen therefrom one watch, two handkerchiefs, and other articles his
property, the prisoner Leigh heinpf indictod for-jaceivhig the watch and
the handkerchTefs, "knowing fhpm tn have he^n stnlpn
The prisoners Wade and Kenyon pleaded guilty. The prisoner Leigh
pleaded not guilty and was tried.
1 Part of the case not involving any question of receiving is omitted.
2 Ace. Com. u. Bean, 117 Mass. 141. — Eb.
SECT. I.] KEGIKA V. MILLER. 795
It was proved by the servant of a pawnbroker that the wife of the
prisoner Leigh had pledged the stolen watch on a day subsequent to
the robbery, and James Jones, a constable of Warrington, also proved
that he had seen all the three prisoners together, they being in custody
together at Manchester, when Leigh said that he had left Kenyon's house
with Kenyon before the robbery, that he had afterwards gone to Dun-
ham (about eight miles from Manchester) and returned. Leigh was
then discharged. But the witness subsequently went to Manchester
again, and caused him to be again apprehended ; and Leigh's wife then,
in the presence of Leigh, told this witness that she had taken the watch
and pawned it for 10s. She added that Leigh had also told her to take
two handkerchiefs, and that, as she was about to go with them, a police^
man came, and she left them in a cellar next door to her husband's
house. Upon that information, the witness went to the cellar and
found the handkerchiefs. Afterwards, when Leigh was in custody in
the lockups with Wade, Leigh told the same witness that while he
(Leigh) was before with Wade in the same place, Wp.rlp haA tn]c\ him
^T^CTh) ti^gt. hp hnti it p]pntgi-i " fjip Ty.ttph a.r\ci handkerchiefs under a
flagjn_t,he sont-nellar in his (Leigh's) house ; and that when he (Leigh)""
was discharged, as before mentioned, he had gone and taken the things,
-and had desired his wife to pledge the watch for as much as she could
get upon it.
The watch and handkerchiefs were identified as the property of the
prosecutor.
Pollock, C. B. I doubt whether, when the possession has been
transferred by an act of larceny, the possession can be considered to
remain in the owner. Were it so, then every receiver of stolen goods,
knowing them to be stolen, would be a thief ; and so on, in series from
one to another, all would be thieves. If this was an act done by the
prisoner (Leigh) in opposition to Wade, or against his will, then it
might be a question whether it were a receiving. But if Leigh took the
articles in consequence of information given by Wade, Wage telling
TgT^lj in nr^"" *^"* ^''" *"**' ""*J ' I1|1iL|/ >!•..■ xlTTTn y.j tQlrino- mo
goods, then it is a receiving^ /erdici, guiUy.
REGINA V. MILLER,
Crowk Case Reserved, Ireland. 1854.
[Reported 6 Cox C. C. 353.]
Lefrot, C. J.,* now delivered the judgment of the court. In this
case two questions have been reserved for our consideration. First,
whether there was sufficient evidence that Mary Miller had received
1 The opinion only is given ; it sufficiently states the case.
796 BEGIN A V. SMITH. [CHAP. XT.
the stolen property ; and, secondly, whether certain evidence regard-
ing the former dealings between the two prisoners, to the admissi-
bility of which no objection had been originally offered, had been
left to the jury with the proper view. The evidence in support of
the charge of receiving was this : the servant-maid of Mary Miller
was produced as a witness, and stated that her mistress kept a public-
house in the town of Fermoy. That Ellen Connors, the other prisoner,
entered the shop, and went behind the counter where she was ; that
her mistress called her into the shop ; that Connors had then the pieces
of cotton in her hand, which Miller desired witness to take to the
pawn office and pawn, and that she did so accordingly ; that she
brought back the money which she then received, and gave it, in the
presence of her mistress, to Connors, who was then in the shop, but
that her mistress had never, with her own hand, received any part of
the money from her. The question was, whether this was a receiving
of stole" if '70(1° 1'v '1 iiTTrocg ? It appears to us that it was virtually
a receiving by Mary Miller, inasmuch as her servant, hy her order and
direction, received the p-nndT frnni llii lliiifj IiiipIi hhrm tn i]irj2.Tn'n
office, and brought back the money to the thi^. This, in our opinion,
was virtually as much a receiving of stolen goods as if her own hand,
and not that of her servant, had received them. No question can be
raised in this case involving the necessity of those subtle distinctions
taken on former occasions, with respect to the continuance of the
possession of the goods in the thief, for the goods here were clearly
transferred to hands which were virtually those of Mary Miller her-
self. No question has been reserved relative to the sufficiency of the
evidence of guilty knowledge. We are of opinion that the evidence
was left to the jury by the assistant barrister in the way in which it
ought to have been,, and therefore that his decision on both points
ought to be affirmed.^
REGINA y. SMITH.
Crown Case Reserved. 1855.
[Reported Dearsly C. C- 494.J
The following case was reserved for the opinion of the Court of
Criminal Appeal by Mr. Edwin James, Q. C, Recorder of Brighton.
At the Quarter Sessions of the Peace for the borough of Brighton,
holden at -the Town Hall in the said, borough, before the Recorder of
the borough, on the 8tfi day of May, 1855, the prisoner, Thomas
Smith, was indicted for feloniously receiving a stolen watch, the prop-
erty of John Nelson, knowing the same* to have been stoKen. It was
2 Acn. Keg. V. Rogers, 37 L. J. M. C. 83. — Ed.
SECT, I.] KEGINA V. SMITH. 797
proved that John Nelson, the prosecutor, between eleven and twelve
o'clock on the night of the 1 2th of April in this year, was in a public-
house called the " Globe " in Edward Street in the said borough ; he was
in cornpany with a prostitute named Charlotte Duncan, who lodged in
a room of a house No. 17 Thomas Street, Brighton, which belonged
to the prisoner,' of whom she rented the room.
The prisoner and five or six other persons were present in the apart-
ment in the Globe Inn when the prosecutor and Charlotte Duncan
entered ; while the prosecutor was drinking in the " Globe," his watch,
being the watch named in the indictment, was taken from his person
by some one who forced open the ring which secured the watch to a
guard. The prosecutor heard the click of the ring and immediately
missed his watch, and taxed the prisoner as the thief. A policeman
was sent for and a partial search made, but the watch was not found.
The prisoner was present all that time, aud also a man named Hollands
was present all the time. Soon after the loss of the watch the prose-
cutor and the girl Charlotte Duncan went together to Charlotte DuYi-
can's room in Thomas Street. After they had been there together little
more than an hour the prisoner came into the room where they were,
and said to the prosecutor, " Was not you in the ' Globe,' and did not
you lose your watch?" The prosecutor said, "Yes." The prisoner
then said, "What would you give to have your watch back again ? "
Prosecutor said, " I'd give a sovereign." Prisoner then said, " Well,
then, let the young woman come along with me, and I will get you
the watch back again." Charlotte Duncan and the prisoner then went
together to a house close by, in which the prisoner himself lived.
They went together into a room in which Hollands was. This was
nearly one o'clock. There was a table in the room ; on first going in
Charlotte Duncan saw there was no watch on the table, but a few
minutes afterwards she saw the watch there. The prisoner was close
to the table. She did not see it placed there, but she stated it must
have been placed there by Hojiands. as, if the prisoneFlo whOlH Slie
W3H talkmg tiad placed it there, she must have observed it. The
prisoner told Charlotte Duncan to take the watch and go and get the
sovereign. She took it to the room in 17 Thomas Street, to the prose-
cutor, and in a few minutes the prisoner and Hollands came to that
room. Hollands asked for the reward. The prosecutor gave Hollands
half-a-crown, and said he believed the watch was stolen, and told him
to be off. Hollands and the prisoner, then left. The prisoner did not
then say anything, nor did the witnesses see him receive any money.
Hollands absconded before the trial. The recorder told the jury that,
if they believed that when the prisoner went into the room 17 Thomas
Street and spoke to the prosecutor about the return of the watch, and
took the girl Duncan with him to the house where the watch was given
up, the prisoner knew that the watch was stolen ; and if the jury
believed that the watch was then in the custody of a person with the
cognizance of the prisoner, that person being one over whom the pris'
798 REGINA V. SMITH. [CHAP. X:.
oner Itpjji.'hanTntiP nnntrnl, fiff t.haihtlip watch would be forthcomiog if
the prisoner ordered it, there was3jBplf tyiilMiicc to jiigtify^them ia
'eonrictingTBe prisoner for feloniously receiving the watch. The jury
found the prisoner guilty, and, in answer to a question from the
recorder, stated that they believed that, though the watch was in
Hollands' hands or pocket, it was in the prisoner's absolute control.
Sentence was passed on the prisoner, but was respited until the
opinion of the court could be taken.
The question for the opinion of the court is, if the conviction of the
prisoner is proper.
This case was argued on the 2d day of June, 1855, before Lord
Campbell, C. J., Alderson, B., Erie, J., Piatt, B., and Crowder, J.
No counsel appeared for the Crown.
Creasy, for the prisoner. ^
LoKD Campbell, C. J. I think that the conviction was right. Ia
the first place the direction of the learned recorder was unexception-
able. According to the decided cases as well as to the dicta of learned
judges, manual possession is unnecessary. If we were to hold a con-
trary doctrine, many receivers must' escape with impunity. Then it
has been held in decided cases, including Regina v. "Wiley, 4 Cox C. C.
412, that there may be a joint possession in the receiver and the thief ;
that is the ratio decidendi on which the judgment in that case pro-
ceeds. Then, was not there ample evidence to justify the jury ia
coming to the conclusion at which they arrived? I think there was.
They might, it is true, have drawn a different conclusion, and have
found that Smith was the thief ; and if they had drawn that conclu-
sion, he would have been entitled to an acquittal. Another inference
which they might have drawn, and which would also have resulted ia
a verdict of not guilty, was, that Hollands being the thief, the watch
remained in his exclusive possession, and that the prisoner acted as
his agent in restoring the watch to the prosecutor ; but the jury have
come to a different conclusion, and I think they were justified in so-
doing. We have instances in real life, and we find it represented ia
novels and dramas drawn from real life, that persons are employed ta
commit larcenies and so deal with the stolen goods that they may be
under the control of the employer. In this case Hollands may have
been so employed by the prisoner, and the watch may have been under
the prisoner's control, and if so, there was evidence of a possession
both by Hollands and the prisoner.
Alderson, B. There was abundant evidence from which the jury
might come to the conclusion at which they arrived, although there was
evidence the other way.
Erle, J. The doubt in these cases has arisen as to the meaning of
the word " receive," which has been supposed to mean manual posses-
sion by the receiver. In Regina v. Wiley, Patteson, J., says, that a
^ The argument is omitted.
SECT. I.J EEGINA V. WOODWARD. 799
manual possession, or even a touch, is not essential to a receiving^
but that there must be a control over the goods bythe/eceiver. Here
tHe question of control was lufL Lu Qxy JU17, ana tney expressly found
that though the watch was in Hollands' hand or pocket, it was in the
prisoner's absolute control.
Platt, B. There was some evidence that the prisoner might have
been tlie thief, and the prosecutor charged him with being the thief ;
but a search was made and the watch was not found, and it was proved
that Hollands absconded before the trial ; from that and the other facts
of the case, the jury might well find that Hollands was the thief and
the prisoner the receiver.
Crowder, J. I also think that both the direction and the convic-
tion were right. There was sufficient evidence that Hollands was the
thief. The question is then put to the jury, "Was the watch under the]
control of the prisoner ? And they say it was. That finding is suffi-/
cient to support their verdict, and the conviction was right. I
Conviction affirmed.
REGINA V. WOODWAED.
Crown Case Reserved. 1862.
[Reported 9 Cox C. C. 95.]
Case reserved for the opinion of the Court of Criminal Appeal. At
the Quarter Sessions of the peace for the county of Wilts, held at Marl-
borough, on the 16th day of October, 1861, before me. Sir John Wither
Awdry, Bart., and others my fellows, Benjamin Woodward, of Trow-
bridge, in the county of Wilts, dealer, was found guilt3' of receiving
stolen goods, knowing them to have been stolen, and was thereupon
sentenced to nine calendar months' imprisonment with hard labor, and
the prisoner now is undergoing his sentence.
The actual deliverj- of the stolen property was made by the principal
felon to the prisoner's wife, in the absence of the prisoner, and she
then paid 6d. on account, but the amount to be paid was not then fixed.
Afterwards the prisoner and the principal met and agreed on the price,
and the prisoner paid the balance.
Guilty knowledge was inferred from the general circumstances of the
case.
It was objected that the guilty knowledge must exist at the time of
receiving, and that when the wife received the goods the guilty knowl-
edge could not have come to the prisoner.
The court overruled this objection, and directed the jury that until
the subsequent meeting, when the act of the wife was adopted by the
prisoner and the price agreed upon, the receipt was not so complete as
to exclude the effect of the guilty knowledge.
800 EBGINA. V. WOODWARD. [CHAP. XI.
If the court shall be of opinion that the circumstances before set forth
are sufficient to support a conviction against the prisoner for the felo-
nious receipt, the conviction is to stand confirmed ; but if the court
shall be of a contrarj- opinion, then the conviction is to be quashed.
J. W. AWDRY.
G. Sroderick^ for the prisoner. This conviction, it is contended,
cannot be sustained. At the trial it was not said on the part of the
prosecution that the wife of the prisoner was her husband's agent in
receiving the property, but that he subsequently adopted her act of re-
ceiving by paying the balance of the price agreed upon. But there was
no evidence of anj* guilty receipt by the wife, or of any subsequent act
of receiving by the prisoner. The guilty knowledge and act of receiv-
ing must be simultaneous. In Reg. v. Dring and Wife, 1 Dears. &
Bell, 329 ; 7 Cox Crim. Cas. 382, where a husband and wife were jointly
' indicted for receiving stolen goods, and the jury found both guiltj-, stat-
ing that the wife received them without the control or knowledge of and
apart from her husband, and that he afterwards adopted her receipt, it
was held that the conviction could not be sustained as against the hus-
band ; and in his judgment, Cockburn, C. J., observed that, " If we
are to take it that the jury meant to say, ' We find the prisoner guilt}'
if the court should be of opinion that upon the facts we are right,' then
we ought to be able to see that the prisoner took some active part in the
matter, that the wife first received the goods and then the husband from
her, both with a guilty knowledge." [Blackburn, J. The verdict in
this case is, that he did receive them : there is no question raised as to
whether the verdict was justified. Erle, C. J. Receiving is a verj'
complex term. There is the case where two persons stole fowls, and
took them for sale in a sack to another person, who knew them to have
been stolen. The sack was put in a stable and the door shut, while the
three stood aside haggling about what was to be paid for them. There
the judges differed as to whether there was a receiving b}- the thu-d per-
son in whose stable the sack was put.] That was the case of Reg. v.
Wiley, 4 Cox Crim. Cas. 412. The actual receipt of the goods was by
the wife, and it is consistent with the evidence that the goods may
never have come into the prisoner's possession at all. (The case of
Reg. V. Button, 11 Q. B., 3 Cox Crim. Cas. 229, were also cited.)
Erle, 'C. J. The argument of the learned counsel for the prisoner
has failed to convince me that the conviction was wrong. It appears
that the thief brought to the premises of the prisoner the stolen goods
and left them, and that sixpence was paid on account of them by
the prisoner's wife, but there was nothing in the nature of a com-
plete receipt of the goods until the thief found the husband and agreed
with him as to the amount, and was paid the balance. The receipt was
complete from the time when the thief and the husband aoreed ; till
then the thief could have got the goods back again on pa\rapnt of
tlic sixpence. I am of opinion, therefore, that the conviction "hould
be affirmed.
SECT. II. j EEGINA V. DOLA.N. 801
Blackburn, J. The principal felon left the stolen property with the
wife as the husband's servant, but the court below, as I understand the
case, doubted whether the husband could be found guilty of feloniously
receiving, as he was absent at the time when the goods were delivered
to the wife, and could not then know that they were stolen. It is found
' that, as soon as the husband heard of it, he adopted and ratified what
had been done, and that as soon as he adopted it he had a guilty
knowledge ; he therefore at that time received the goods knowing them
to have been stolen.
Keating, J. I am of the same opinion. The case finds that the
agreement as to the price was -not complete till the thief and the hus-
band agreed. I think therefore that the receipt was not complete till
then, and that the conviction was right. If we were to hold that the
conviction was not rights the consequences would be very serious.
Wilde, B. I read the case as showing that the wife received the
goods on the part of the prisoner her husband, and that act of her was
capable of being ratified on the part of the prisoner. If so, that makes
the first act of receiving by the wife his act. In the case of Reg. v.
Bring and Wife, the only statement was " that the husband adopted
his wife's receipt,'' and the court thought the word " adopted" capable
of meaning that the husband passively consented to what his wife had
done, and on that ground quashed the conviction. But here the prisoner
adopted his wife's receipt by settling and paying the amount agreed on
for the stolen goods.
MelloBj'J., concurred. Conviction affirmed.
SECTION II.
Stolen Property.
EEGINA V. DOLAN.
Crown Case Resekved. 1855.
[Beported 6 Cox C. C. 449 ; Dearsly C. C. 436.]
The following case was stated by M. D. Hill, Esq., Q. C, Recorder
of Birmingham : —
At the Sessions held in Birmingham, on the 5th day of January,
1855, William Rogers was indicted for stealing, and Thomas Dolan
for receiving, certain brass castings, the goods of John Turner,
Rogers pleaded guilty, and Dolan was found guilty.
It was proved that the goods were found in the pockets of the pris-
oner Rogers by Turner, who then sent for a policeman, who took the
goods and wrapped them in a handkerchief, Turner, the prisoner
802 EEGINA V. DOLAN. [CHAP. XI.
Rogers, and the policeman going towards Dolan's shop. When they
came near it the policeman gave the prisoner Eogers the goods, and
the latter was then sent by Turner to sell fhem where he had sold
others ; and Eogers then went into Dolan's shop and sold them and
gave the money to John Turner as the proceeds of the sale. Upon
these facts it was contended on the part of Dolan that Turner had
resumed the possession of the goods, and that Eogers sold them to
Dolan as the agent of Turner, and that consequently at the time they
were received by Dolan, they were not stolen goods within the mean-
ing of the statute.
1 told the jury, upon the authority of the case of Regina v. Lyons
and another, C. & M. 217, cited by the counsel for the prosecution,
that the prisoner was liable to be convicted of receiving, and the jury
found him guilty.
Upon this finding I request the opinion of the Court of Appeal in
Criminal Cases on the validity of Dolan's conviction.
Dolan has been sent back to prison, and I respited judgment on the
conviction against him until the judgment of the court above shall have
been given.
O'Brien, for the prisoner. This conviction cannot be sustained.
The objection is, that when the goods reached the hands of Dolan
they were not stolen goods. They had been restored to the posses-
sion of the owner, and the sale to the prisoner was with the owner's
authority.
LoKD Campbell, C. J. There seems to be great weight in that
objection but for the authority of the case cited. It can hardly be
supposed that if goods were stolen seven years ago, and had been in
the possession of the owner again for a considerable period, there could
be a felonious receipt of them without a fresh stealing.
O'Brien. That was the view taken by the learned recorder ; and
E. V. Lyons, C. & M. 217, which was cited for the prosecution, does
not appear to have been a case much considered. Coleridge, J., in
that case, said, that for the purposes of the day, he should consider
the evidence as sufficient in point of law to sustain the indictment, but
would take a note of the objection.
CoLEKiDGE, J. I certainly do not think so to-day.
O'Brien. There is also a slight circumstance of distinction between
that case and the present. It does not appear in that case that the
stolen property was ever actually restored to the hands of the owner,
nor that he expressly directed the thief to take it to the prisoner.
(He was stopped.)
Beasley, for the prosecution. E. v. Lyons is expressly in point, and
the learned judge who decided it does appear to have had his attention
recalled to the point after the conviction, and still, upon deliberation,
to have thought there was nothing in the objection. The facts are thus
stated in the marginal note: "A lad stole a brass weight from his
master, and after it had been taken from him in his master's presence
SECT. II.] EEGINA V. DOLAN. 803
it was restored to him again with his master's consent in order that he
might sell it to a man to whom he had been in the habit of selling sim-
ilar articles which he had stolen before. The lad did sell it to the
man ; and the man being indicted for receiving it of an evil-disposed
person, well knowing it to have been stolen, was convicted and sen-
tenced to be transported seven years." The report adds that after
the sentence, " the matter was subsequently called to his Lordship's
attention by the prisoner's counsel, yet no alteration was made in the
judgment of the court ; from which it is to be inferred that, upon con-
sideration, his Lordship did not think that in point of law the objection
ought to prevail." The present is, however, a stronger case than
that ; because here in truth the master did not recover possession of
the stolen goods. They were in the hands of the police ; and what
the master did must be considered as done under the authority of the
police.
LoKD Campbell, C. J. No ; the policeman was the master's agent.
Platt, B. And the sale was by direction of the master.
Beasley. The statute does not require that the receipt should be
directly from the thief. It only requires that the prisoner should
receive stolen goods, knowing them to have been stolen ; and that is
proved in this case. In many cases it has been held that where the
owner of property has become acquainted with a plan for robbing him,
his consent to the plan being carried out does not furnish a defence to
the robbers. R. v. Eggington, 2 B. & P. 508.
Lord Campbell, C. J. But to constitute a felonious receiving, the
receiver must know that at that time the property bore the character
of stolen property. Can it be said that, at any distance of time, goods
which had once been stolen would continue to be stolen goods for the
purpose of an indictment for receiving, although in the mean time
they may have been in the owner's possession for years?
Cresswell, J. The answer to that in this case seems to be that
the policeman neither restored the property nor the possession to the
master ; that the goods were in the custody of the law ; and that the
master's presence made no difference in that respect.
Beasley. That is the argument for the prosecution ; and it is man-
ifest that if the policeman had dissented from the plan of sending
Rogers to Dolan's shop, the master could not have insisted upon the
policeman giving up the property to him.
Lord Campbell, C. J. I feel strongly that this conviction is wrong.
I do not see how it can be supported, unless it could be laid down
that, if at any period' in the history of a chattel once stolen, though
afterwards restored to the possession of the owner, it should be re-
ceived by any one with a knowledge that it had been stolen, an oflfenco
would be committed within the statute. I think that that would not
be an offence within the statute any more than it would make the
receiver an accessory to the felony at common law. If the article is
restored to the owner of it, and he, having it in his possession, after-
804 EEGINA V. DOLAN. [CHAP. XI.
wards bails it to another for a particular purpose of delivering it to a
third person, and that third person receives it from that bailee, I do
not see how it can, under these circumstances, be feloniously received
from that bailee. Then what are the facts here? [His Lordship
stated the facts as above.] Turner, the owner, therefore had, I think,
as much possession of the goods as if he had taken them into his own
hands, and with his own hands delivered them to another person for
a particular purpose, which was performed. He was, subsequent to
the theft, the bailor and the other person was the bailee of the goods.
Then they were carried to the prisoner by the authority of the owner ;
and I cannot think that under those circumstances there was a receiv-
ing within the statute. As to the case cited, I cannot help thinking
that the facts cannot be quite accurately stated, and that there was
something more in that case than appears in the report ; but if not, I
am bound to say that I do not agree in that decision.
Coleridge, J. I have no recollection of the case cited, and I have
no right, therefore, to say that it is not accurately reported ; but,
assuming it to be so, I am bound to say that I think I made a great
mistake there. What is the case? If for a moment the interference
of the policeman is put out of the question, the facts are, that the
goods which had been stolen were restored to the possession of the
real owner and were under his control, and having been so restored,
they were put again into the possession of Rogers for a specific pur-
pose, which he fulfilled. It seems then to me that when, the second
time, they reached the hands of Rogers, they had no longer the char-
acter of stolen goods. Then, if that would be the case, supposing the
policeman to be out of the question, does the interference of the police-
man according to the facts here stated make any difference ? I think
not. It is the master who finds the goods and sends for a policeman ;
and it is by the authority of the master that the policeman takes and
keeps the goods, and afterwards hands them back to Rogers. Indeed,
it seems to me that all that was done was done by Turner's authority ;
and that it must be considered that the property was under the control
of the real owner when he sent Rogers with them to the prisoner. In
this state of facts, the interference of the policeman seems to me of
no importance.
Cresswell, J. I do not dissent from the decision that this con-
viction is wrong ; but as we are called upon in this court to give the
reasons of our judgment, I must say that I cannot concur in all the
reasons which I have heard given in this case. If it had been neces-
sary to hold that a policeman, by taking the stolen goods from the
pocket of the thief, restores the possession to the owner, I should dis-
sent. I think that we cannot [mt out of question the interference of
the policeman ; and that whilst the goods were in his hands they were
in the custody of the law ; and that the owner could not have de-
manded them from the policeman or maintained trover for them. But
as the case finds that the policeman gave them back to Rogers, and
SECT. II.J EEGINA V. SCHMpT. 805
then the owner desired him to go. and sell them to Dolan, I think that
Rogers was employed as an agent of the owner in selling them, and
that consequently Dolan did not feloniously receive stolen goods.
Platt, B. I am of the same opinion. The case is, that the stolen
goods were found by the owner in the pocket of the thief. They were
restored to his possession, and it does not appear to me very material
whether that was done by his own hands or by the instrumentality of
the policeman. Things being in that state, it seems to have come
into their heads that they might catch the receiver ; and it was sup-
posed that by putting the stolen property back into the custody of
Rogers, they could place all parties statu quo they were when the
property was found in the pocket of Rogers ; but I agree with the rest
of the court that the Act of Parliament does not apply to a case of this
kind ; for if it did, I see no reason why it should not equally apply to
restored goods stolen ten years ago.
Williams, J. The reason why I think the conviction wrong is, that
the receipt, to come within the statute, must be a receipt without the
authority of the owner. Looking at the mere words of the indictment,
every averment is proved by this evidence ; but then the question is,
whether such a receipt was proved as is within the statute, namely, a
receipt without the owner's authority ; and here Rogers was employed
by the owner to sell to Dolan. Conviction quashed.^
REGINA V. SCHMIDT.
Crown Case Reserved. I860.
[Reported 10 Cox C. C. 172; Law Reports, 1 Croam Cases Reserved, 15.]
Case reserved for the opinion of this court by the deputy-chair-
man of the Quarter Sessions for the western division of the County of
Sussex.
John Daniels, John Scott, John Townsend, and Henry White were
indicted for having stolen a carpet-bag and divers other articles, the
property of the London, Brighton, and South Coast Railway Com-
pany ; and the prisoner, Fanny Schmidt, for having feloniously re-
ceived a portion of the~same articldg~well kTinwing |]^p. g-irnn to htiin^
be^fljBt^n.
The evidence adduced before me as deputy-chairman of the Court
of Quarter Sessions at Chichester, for the western division of the
County of Sussex, on the 20th October, 1865, so far as relates to the
question I have to submit to the Court of Criminal Appeal, was as
follows : —
' Ace. Reg. V. Hancock, U Cox C. C. 119; U. S. v. De Bare, 6 Bias. 358. —Ed.
806 EEGINA V. SCHMIDT. [CHAP. XI.
On the 29th July, 1865, two passengers by the prosecutors' line of
railway left a quantity of luggage at the Arundel station, which luggage
was shortly afterwards stolen therefrom.
On the 30th July a bundle containing a portion of the stolen prop-
erty was taken to the Angmering station, on the same line of railway,
by the prisoner Townsend, and forwarded by him to the female pris-
oner, addressed " Mr. F. Schmidt, Waterloo Street, Hove, Brighton."
The bundle was transmitted to Brighton, in the usual course, on Sun-
day morning, the 30th.
Meanwhile the theft had been discovered, and shortly after the
bundle had reached the Brighton station, a policeman (Carpenter)
attached to the railway company, opened it, and having satisfied him-
self that it contained a portion of the property stolen from the Arundel
station, tied it up again, and directed a porter (Dunstall) in whose
charge it was, not to part with it without further orders.
About 8 p. M. of the same day (Sunday, 30th), the prisoner John
Scott went to' the station at Brighton and asked the porter (Dunstall)
if he had got a parcel from the Angmering station in the name of
Schmidt, Waterloo Street. Dunstall replied " No." Scott then said,
" It is wrapped up in a silk handkerchief, and is directed wrong ; it
ought to have been directed to 22 Cross Street, Waterloo Street."
Dunstall, in his evidence, added, " I knew the parcel was at the
station, but I did not say so because I had received particular orders
about it."
The four male prisoners were appi'ehended the same evening in
Brighton on the charge, for which they were tried before me and
convicted.
On Monday morning, the 31st July, the porter (Dunstall), by the
direction of the policeman (Carpenter) took the bundle to the house
No. 22 Cross Street, Waterloo Street, occupied as a lodging-house and
beer-house by the female prisoner and her husband (who was not at
home or did not appear), and asked if hoi'-^rarrnr-^wu^.s Schmidt^ on
ascertaining which hojoft the biHfflV--mttr1v? nn"fT>FPnt fifrny ^i''
ppnf.ri- nnd-mTT^ffi^jnlTceTtian then wont tn tTin linnrn, f/^nf^^ fh" bundle
unopened, and took the prisoner to the town hall.
All the prisoners were found guilty, and I sentenced each of them to
six months' imprisonment with hard labor. They are now inPetworth
jail in pursuance of that sentence.
At the request of the counsel for the female prisoner I consented to
reserve for the opinion of this court the question, —
Whether the goods alleged to have been received by her had not,
under the circumstances stated, lost their character of stolen property,
so that she ought not to have been convicted of receiving them with
a guUty knowledge within the statute. Hasler Hollist.
Pearce ( Willoughby with him), for the prisoner. The conviction is
wrong. To support a conviction for receiving stolenffnods, it must
SECT. II.] • EEGINA V. SCHMIDT. 807
ap^TPnr tt^at th^ rsceint was without thp nwnfir's a,nthnrit,v. In this
case, in consequence of the conduct of the railway company, the
property had lost its character of stolen property at the time it was
delivered at the receiver's house by the railway porter. The property
is laid in the indictment as the property of the railway company, and
Carpenter was not an ordinary policeman, but, as the case states, a
policeman attached to the railway company. He opens the bundle,
and finding therein some of the stolen property, he gives it to Dun-
stall, and orders it to be detained until further orders, and in the
meantime the thieves were arrested ; Carpenter then directs Dunstall
to take the bundle to the receiver's house, so that the receiver got the
stolen property from the railway company, who alone on this indict-
ment are to be regarded as the owners of the property. The railway
company, the owners, having got their property back, make wnat must
be consiaered a voluntary deliveify ot it to t.he j-Pf^p^vpr The case is
similar to Regina v. JJolan, <o Cox 0. 'C. 449; 1 Dears. C. C. 436,
where, stolen goods being found in the pockets of the thief by the
owner, who sent for a policeman, and then, to trap the receiver, the
goods were given to the thief to take them to the receiver's, which he
did, and the receiver was afterwards arrested, it was held that the
receiver was not guilty of feloniously receiving stolen goods, inasmuch
as they were delivered to him under the authority of the owner. In
that case Eegina v. Lyons, C. & M. 217, was expressly overruled.
Lord Campbell, C. J., said, in Regina v. Dolan, " If an article once
stolen has been restored to the owner, and he having had it fully in his
possession, bails it for any particular purpose, how can any person
who receives the article from the bailee be said to be guilty of receiv-
ing stolen goods within the meaning of the Act of Parliament?"
Hurst, for the prosecution. Unless this case is distinguishable from
Eegina v. Dolan, the conviction, it must be conceded, is wrong. But
the facts of this case are more like the view taken by Cresswell, J., in
Regina v. Dolan, " That while the goods were in the hands of the
policeman, they were in the custody of the law ; and the owner could
not have demanded them from the policeman, or maintained trover
for them." In that case the real owner intervened, and had manual
possession of the stolen goods ; here he does not. The goods be-
longed to the railway passenger, and the company are only bailees.
[Melloe, J. The policeman merely opened the bundle in the course
of its transit to see what was in it, and then sent it according to its
direction. It was in the hands of the policeman, not of the company.
Eble, C. J. Suppose a laborer steals wheat, and he sends it by a boy
to his accomplice, and the policeman stops the boy, ascertains what he
has got, then tells him to go on, and follows and apprehends the ac-
complice, is not the accomplice guilty of feloniously receiving ? Mel-
LOR, J. Here the policeman does nothing to alter the destination of
the bundle. The element of the real owner dealing with the stolen
property is wanting in this case. Keating. J. Scott directs the ad-
808 EEGINA V. SCHMIDT. [CHAP. XI.
dress to be changed.] The bundle was sent by the thieves through the
railway company to the receivers ; the real owner had nothing to do
with this part of the transaction. [Lush, J. If the true owner had
sued the company for the property, the company could not have jus-
tified detaining or converting it.] If a policeman knows of stolen
goods being in the hands of an innocent agent, and does not take
possession for the owner, and the innocent agent, bj- the policeman's
directions, delivers them to a receiver, that does not prevent the
receiver being guiltj' of feloniously receiving.
Pearce, in reply. Before the bundle was sent out for deliverj' the
thieves were in custody, and having secured them, Carpenter then
gives orders for the bundle to be delivered to the receiver. Carpenter
was the servant of the railway companj-, who are the owners for the
purpose of this indictment, and the deliver}' therefore was by the
owners.
[Ehle, C. J., and Mellok, J., were of opinion that the conviction
was right, but Martin, B., Keating, and Lush, JJ., held the convic-
tion wrong. In consequence of the prisoner having suffered half the
term of imprisonment from inabilit}' to get bail and the further
unavoidable delay, the case was not sent to be argued before all the
Judges.]
Martin, B. I think that this conviction was wrong on two grounds,
the one substantial, the other formal. I think that Mr. Pearce's argu-
ment, founded on the indictment,, that the property is there laid to be
propertj' of the railway company, is weU founded ; and it seems to me
that Dolan's case applies to this.
Erle, C. J. I am of opinion that the conviction was right. The
question is whether, at the time this stolen property was received by
the prisoner, it was the property of the London and Brighton Railway
Company ; and if so whether, when the policeman Carpenter caused
the deliver}' to be stopped for the purpose of detecting the parties
implicated, it thereby lost the character of stolen property. If it had
lost the character of stolen property at the time it was received by the
prisoner, the receiving by her will not amount to felony. But in this
case I think that the railway company, when they took this bundle into
their possession, werejtft.ing gsjiailges of tbfe-thicf. and yere innocent
agents injoigaidlng it to the receiver, and that the things did not lose
their character of stolen property by what was done by the policeman.
Keating, J. I agree with my brother Martin that the conviction
was wrong. It seems conceded, on the authorit}- of Dolan's case, that if
the property had got back again for anj- time into the hands of the true
owner, the conviction would be wrong. It is said that, in this case,
the owners mentioned in the indictment, the railway companj-, were
not the real owners, whereas in Dolan's case the real owner intervened.
But I think there is no distinction in principle between this case and
that. The railwaj' -eompninv arp_iilleged in the indictment to be the
owners of the property,^ and we sitting here can'~r5U0gl]l!iti im other
SECT. II.] IIEGINA V. SCHMIDT. 809
persons than them ; thej' are the owners from whom the property was
"Sloieui and it got back to their possession before it was received by the
prisoner. I can see no real distinction between this case and Dolan's.
All the reasons given for the judgment in that case apply equally to
tlie case of the ownership in this case. The principle I take to be,
that when once the party having the right of control of the propertj-
that is stolen gets that control, the transaction is at an end, and there
can be no felonious receipt afterwards. I think the test put b}- ray
brother Lush in the course of the argument, as to the real owner suing
the railway company for the property after they had got the control of
it, is decisive of the matter.
Mellor, J. I agree entirelj' with my brother Erie, C. J., and think
the conviction was right. The indictment rightly alleges the property
to have been in the railwaj"^ company at the time it was stolen ; they
had the bailment of it from the true owner. Then it is stolen while in
their custody, and the next step is, the thieves afterwards send a por-
tion of it by the same railway companj' to be forwarded to the receiver
at Brighton ; so that the railway com pan)' get possession of this part
from the thieves under a new bailment. Then the policeman examines
the property and directs it not to be forwarded until further orders ;
but this was not done with the view of taking possession of it or alter-
ing its transit, but merely to see whether it was the stolen property.
I agree with Dolan's case, but in the present case I think the stolen
property had not got back to the true owner.
Lush, J. I agree with my brothers Martin, B., and Keating, J.,
and think that the conviction was wrong. I think that the goods had
got back to the owner from whom they had been stolen. Had the rail-
way company innocently carried the goods to their destination and
delivered them to the prisoner, the felonious receipt would have been
complete ; but while the goods are in their possession, having been
previously stolen from them, the goods are inspected, and as soon as it
was discovered that they were the goods that had been stolen, the
railway company did not intend to carrj- them on as the agents of the
bailor ; the forwarding them was a mere pretence for the purpose of
finding out who the receiver was. It was not competent to the railway
companj' to say, as between them and the original bailor, that thej' had
not got back the goods. They were bound to hold them for him. In
afterwards forwarding the goods to the prisoner, the company was
using the transit merely as the means of detecting the receiver.
Martin, B. I only wish to add that I meant to say that I think
the conviction wrong in substance in consequence of the interference of
the policeman with the propert)-, and this independently of the form
of indictment. Conviction quashed.^
» Ace. Keg. V. ViUensky, [1892] 2 Q. B. 697. — Ep.
810 EEGINA V. CAKE. [CHAP. XI.
REGINA V. CARR.
Centkal Criminal Court. 1877.
[Reported 15 Cox C. C. 131 n.]
John Carr was indicted for stealing 168 bonds of the Peruvian
Government, the property of Lionel Cohen and others ; second count
for feloniously receiving the same.
There were other counts charging him as an accessary before and
after the fact.
The Solicitor General and Poland were counsel for the prosecution,
and Besley and Grain for the defence.
The bonds in question, on the 2d June, 1877, were transmitted by
the prosecutors to a customer in Paris. They were traced safely as
far as Calais and were stolen from the train after leaving that
place.
On the 4th of September the prisoner was found dealing with them
in London, and the question arose as to tlie_jurisdiction of this court
to tgy the case^.he rnhbery having br'^n ""inmit'l""! in ^Frnnfp
The iSolicitoj- General submitted that the prosecutors never having
parted with their property in the bonds, they were still under the pro-
tection of the law, and that the subsequent possession of the bonds
in this country was sufficiently recent to enable the jury to find a
verdict of larceny against a person who was dishonestly dealing with
them here. The decision in Rex v. Prowes, 1 Moody C. C. 349, was
certainly opposed to this view ; but no reasons were given for that
judgment, and a doubt as to the soundness of the decision was ex-
pressed by Parke, B., in Regina v. Madge, 9 C. & P. 29. The case of
Regina v. Debrueill, 11 Cox C. C. 207, was referred to. As to the
counts charging the prisoner with receiving, and also as an accessary,
the 24 & 25 Vict. c. 94 contemplated a case of this kind, where the
original offence was committed abroad.
Besley relied on the decision in Rex v. Prowes, uhisup., and Regina
V. Hogetoran, Cent. Crim. Court Sess. Paper, vol. 79, 268, and Regina
V. Nadal, 84 Cent. Crim. Court Sess. Paper, 295.
Denman, J. There can be no doubt that this was a larceny fully
completed in France. I do not at all say that it might not be a very
reasonable thing that any one afterwards dealing here with property
so stolen might make cogent evidence of having received them know-
ing them to have been stolen, just as much as if they had been stolen
in England ; but it appears to me that the point has been too solemnly
decided for me to give the go-by to those decisions. It has been
solemnly decided and acted upon so often that there is nr. jnr;s;r|;f.tir.n
in EnglandtotrY a case where the stp"^'"5 ha§_been committed abroad,
either against the principal or the accessory, that I have notETn'g to do
but to act upon those decisions and to au-ect an acquittal in tliis case.
SECT. II.] STATE V. IVES. 811
I entertain no doubt that the case of Rex v. Prowes, uM sup., is
directly in point, and Regina v. Mad^e, ubi sup., fortifies it to the
extent of recognizing and acting upon it. Debrueill's ease also
decides that a conviction of receiving under similiar circumstances
could not be sustained. The prisoner must therefore be acquitted.
STATE V. IVES.
Supreme Cotjet of North Carolina. 1852.
[Reported 13 Iredell, 338.]
Appeal from the Superior Court of La-w; of Currituck County, at the
fall term, 1851, his honor Judge Settle presiding.
The defendant was indicted for receiving stolen goods, and was con-
victed upon the following counts in the bill of indictment : —
5th count. And the jurors, etc., do further present, that the said
Josiah Ives, afterwards, to wit, on the 1st day of February, a. d.
1851, in the county aforesaid, with force and arms, one bale of cotton,
of the value of ten shillings, and one barrel of tar, of the value of six
shillings, of the goods and chattels of said Caleb T. Sawyer, before
then feloniously stolen, taken, and carried away, feloniously did re-
ceive and hire, he, the said Josiah Ives, then and there well knowing
the said goods and chattels to have been feloniously stolen, taken, and
carried away, contrary to the form of the statute in such cases made
and provided, and against the peace and dignity of the State.
6th count. And the jurors, etc., do further present, that, at and in
the county aforesaid, on the 1st day of March, 1851, certain goods and
chattels, to wit, one bale of cotton, of the value of ten shillings, and
one barrel of tar, of the value of six shillings, of the goods and chattels
of Caleb T. Sawyer, feloniously were stolen, taken, and carried away,
by some person to the jurors unknown ; and that the said Josiah Ives,
afterwards, to wit, on the 2d day of March, 1851, in the county afore-
said, the said bale of cotton and the said barrel of tar feloniously did
have and receive, he, the said Josiah Ives, on the day and year last
aforesaid, in the county aforesaid, well knowing the said bale of
cotton and the said barrel of tar to have been theretofore feloniously
stolen, taken, and carried away, contrary to the form of the statute in
such case, made and provided, and against tho peace and dignity of
the State.
There was a motion in arrest of judgment, which was overruled.
Judgment against the defendant, from which he appealed to the
Supreme Court.
Pearson, J. The defendant was convicted upon the fifth and sixth
counts in the bill of indictment ; and the case is here upon a motion in
812 STATE V. IVES. [chap. XI.
arrest of judgment. The fifth count was abandoned by the Attorney
General, and the question is upon the sixth count.
A receiver of stolen goods is made an accessary by the statute of
Anne ; and it is provided, by another section of that statute, that, if
the principal felon escapes and is not amenable to the process of the
law, then such accessory may be indicted, as for a misdemeanor. This
statute was so construed as to require, in the indictment for a misde-
meanor, an averment that the priucipal felon was not amenable to the
process of the law. Foster, 373. Our statute, Eev. Stat. c. 34, §§ 53
and 54, is taken from the statute of Anne, and has received a similar
construction. Groff's case, 1 Mur. 270, and see the remarks of Hen-
derson, judge, in Good's case, 1 Hawks, 463.
Theobjection taken to the indictment, is the absence of an averment,
that the principal felon is not amenable to the process of the law ; and
it is insisted that, as the principal felon is alleged to be some person
to the jurors unknown, it could not be averred that he had " escaped
and eluded the process of the law," in the words used by our statute,
and it was urged that the statute did not apply to a case of the kind.
The Attorney General in reply took the position, that the averment
that the principal felon was some person to the jurors unknown, neces-
sarily included and amounted to an averment, that he had escaped and
eluded the process of the law, so as not to be amenable to justice.
This would seem to be so ; but we give no definite opinion, because
there is another defect in the count, which is clearly fatal.
After averring that the cotton and tar had been stolen by some per-
son to the jurors unknown, the indictment proceeds: "Afterwards,,
etc., the said Josiah Ives, the said bale of cotton and the said barrel
of tar feloniously did have and receive, well knowing the said bale of
cotton and barrel of tar to have been theretofore feloniously stolen,"
etc. There is no averment from whom the defendant received the cot-
ton and tar. We cannot imply that he received them from the person
who stole them. It may be that he received them from some third
person ; and this question is presented : A. steals an article, B.
receives it, and C. receives it from B. Does the case fall within the
statute? We think not. The statute obviously contemplates a case
where goods are received from the -person who stole them; he is
termed the principal felon. In the case put above, A. is the principal
felon, B. is his accessory, but C. is a receiver from a receiver, — an
accessory of an accessory. In fact, it cannot be said whether A. or B.
is the principal felon in regard to him.
The statute does not provide for such a case. It makes the receiver
an accessory ; and in case the principal is not amenable to the process
of law, such accessory may be prosecuted as for a misdemeanor.
Consequently it is necessary to point out, the principal, and the matter
is involved in the doctrine of " principal and accessory." This and
many other omissions are, .in England, remedied by the statutes, W.
III. and G. II., by which " the act of receiving" is made a substantive
SECT. III. J REGINA V. ADAMS. 813
felony, without reference to the person who stole or the person from
whom the goods are received. Under those statutes, the fifth count,
which the Attorney General has properly abandoned, would be good ;
for the offence is to " receive and have " stolen goods. We have not
adopted those statutes. Of course the decisions and forms in the mod-
ern English books cannot aid us. Duncan's case, 6 Ired. 98, presents
another instance, to provide for which we have no statute.
Per Curiam. Judgment below reversed, and judgment arrested.*
SECTION III.
Guilty Knowledge.
REGINA V. ADAMS.
Bristol Assizes. 1858.
[Reported 1 Foster ^ Finlason, 86.]
Larceny and Receiving. The woman was charged with having
stolen, and the man (her husband) with having received, eleven mining
tools. The evidence was that the woman had picked them up from a
rubbish-heap, where they had been placed (not as rubbish), on the
premises of the prosecutor, and delivered them to the man, telling him
how she had obtained them, and that he had sold them as old iron.
Crowdek, J. {to the jury), after stating to them the law as to the
■duty of a finder of property, as applicable to the charge against the
woman, and leaving the case as against her with them : Before you
<3an convict the man youjima£.besatisfied that he knew that the goods
hid hrrn ntioKn It may be that he~clld not know (upon the law aS I
have laid it down, as to the duty of the finder of property to take
proper means to find the owners) that this was a theft. ^ If so, he
■cannot be guilty of receiving with a guilty knowledge of the goods
Jbeing stolen.
JBoth guilty ; recommended to mercy ; fourteen days' imprisonment.
' See Rex v. Messingham, 1 Moo. C. C. 257 ; Reg. v. Reardon, L. R. I C. C. R. 31.
— Ed.
^ That is, it is apprehended that the other prisoner had not taken proper means
to find the owner. — Rep.
814 COMMONWEALTH V. LEONARD. [CHAP. XI.
REGINA V. WHITE.
Winchester Assizes. 1859.
[Reported 1 Foster Sj- Finlason, 665.]
Receiving. The prisoner was charged with receiving lead, the
property of the Queen, he well knowing it to have been stolen.
Bbamwell, B. (to the jury). The knowledge charged in this indict-
ment need not be such knowledge_aaJSE<iuld_be_^£auired_ifJhe prisoner
had actually seen the lead stolen ; it is sufficient if you think the cir-
cumstances were such, accomp"anying the transaction, as to make the
prisoner believe that it had been stolm^ Quilty.
COMMONWEALTH v. LEONARD.
Supreme Judicial Court or Massachusetts. 1886.
[Reported 140 Mnssachusetts, 473.]
Indictment in three counts. The first count alleged that on July 1,
1883, certain articles, the goods, chattels, and property of the Boston
and Lowell Railroad Corporation, were feloniously stolen, and that
the defendant afterward, on the same day, " the goods, chattels, and
property aforesaid, so as aforesaid feloniously stolen, taken, and
carried away, feloniously did receive and have, and did then and there
a,id injthe concealment of the-sam^" he"" well knowing the said goods,
chattels, and property to have been feloniously stolen, taken, and
carried away."
The second and third counts were similar in form, but the property
was in each differently described and at a different date, namely, on
August 1, 1883, and September 1, 1883, respectively.^
The defendant asked the judge to instruct the jury as follows :
L"l. Tf -the jury H.r«>rjn>t satisfied beyond a reasonable doubt that the
accused knew that the gcjods^wete-atolen he_is-eBtitled to an acquittal.
. 2T^o justify a conviction it is not sufl5cient to show that the accused
had a general knowledge of the circumstances under which the goods
I were stolen, unless the jury are also satisfied that he knew that the
circumstances were such as constituted larceny."
The judge refused to give these instructions, and upon the matters
embraced therein instructed the jury as follows : —
" He must know that the goods were stolen, but he does not need to
know the hour nor day they were stolen ; he must undoubtedly, have
notice which would put him on his guard as knowledge that the goods
1 Part of the case, not inyolving a question of guilty knowledge, is omitted.
SECT. III.J COMMONWEALTH V. LEONARD. 815
were acquired and turned over to him by a person not taking them by
mistalie, nofby right, but taking them as thieves take them, that is,
for the purpose of defrauding the railroad and cheating them out of
their property."
The defendant's counsel here suggested "by larceny," and the
judge gave this further instruction : —
" By the taking and carrying away of property it is the fraudulent
taking away of the property of another for the purpose of converting
it to the taker's use to deprive the owner of it. These goods must
have been taken that way and were stolen goods ; they must have
been taken by McCarthy as thieves take them, not by mistake or
accident, or by taking from those who had no right to give, but taking
when he knew that he had no right to take them."
The jury returned a verdict of guilty on the third count, and of not
guilty on the other counts, and the defendant alleged exceptions.
Field, J. The offence of receiving stolen property, knowing it
to have been stolen, must be considered as distinct from the offence of
receiving embezzled property knowing it to have been embezzled. Pub.
Sts. c. 203, §§ 48, 51, although embezzlement under our statutes has
been held to be a species of larceny. Commonwealth v. Pratt, 132
Mass. 246. The punishments of the two offences may be different, as
the offence of receiving embezzled goods may be punished by a fine
without imprisonment. If the property had actually been stolen, a be-
lief on the part of the defendant that it had been stolen is tantamount
to knowledge. If the defendant, knew all the facts anj. the facts con-
Stituted larceny as distinjTiiishpd frnnfi ^^ynbpzzlpmqnt, it wo^d >"^ no
defence that the defendant thought that the facts constit"tpf1 ^mViPT:-
zlement. it the detendamrHTd not know the facts, but believed from
the circumstances that the property had been either embezzled or
stolen, and it had been actually stolen, it was competent for the jury to
find the defendant guilty of the offence charged. The second request
for instructions was therefore rightly refused.
The first request for instructions states the law with substantial cor-
rectness. It is contended that the instructions given on this point,
rightly construed, are the same in effect. We find it unnecessary to
decide whether the case called for a more careful definition of larceny
as distinguished from embezzlement or from wilful trespass.
Exceptions sustained.'
> See Eeg. v. Rymes, 3 C. & K. 326. —Ed.
816 BURGLARY. [CHAP. XII.
CHAPTER XII.
CRIMES AGAINST THE DWELLING-HOUSE.
SECTION I.
Burglary.
Staunford, Pleas of the Crown ,30 a. Burglars are those who feloni-
ously in time of peace break houses, churches, walls, towers, or gates,
for which burglary they shall be hanged, though they took nothing away.
Utpatet tit. Coron. in Fitz. p. 264, p. 185, & p. 178. But yet they ought
to have felonious intent to rob or kill or do other felony. For if a man
be indicted quod domum I. S. felonice fregit ad ipsuni verberandum,
tliat is only trespass, for by this his intent in the breaking is made
known. It is otherwise if it be domum fregit ad ipsum interjictendum.
&c. But if a man be indicted qicod clatisum I. S. felonice fregit ad
ipsum interfciendum, that is not burglar}-, per Hankford & Hill, M.
13 H. 4, f 7. The same is law if he break the house and do not enter
into it. JEt nota that for anj'thing contained in those books, burglary
may be done as well by day as by night, &c. But the law is not so
taken, for all the indictments for burglary are quod noctanter fregit,
&e. Vide Britton for burglars, fo. 17 ; for I do not remember that \
have read anything of it in Bracton, save that he speaks in one place
in this way. scil. " Si quis homsohen, quae dicitvr invasio domus contra
pacem, in domo sua defenderit & invasor occisus fuerit impersequutus.
& inultus remanebit, dum, tamen ille qui invasus est., aliter se defendere
non potuit. Quia dicitur non est digitus pace qui non vult servare
earn" &c.
. 1 Hawk. P. C. ch. 17, Sects. 1, 2, 3, 11, 18, SI. Burglary is "a
I felony at the Common Law. in breakigo; and ente^inp^ the mansion-
Jihouse of another, or (as some say) the walls or gates of a walled town
Ijin the_jiigljt, to the intent_to_jaMaBa4t snmp felony within the same
; whether the felonious intent be executed or not.
There are some opinions, that burglary may be committed at anv
time after sun-set and before siin-vising ; but it seems the much better
SECT. T.] AKONYMOTJS. 817
opinion that the word noctanter, which is precisely necessarj- In every
indictment for this offence, cannot be satisfied in a legal sense, if it
appear upon the evidence, that there was so much daylight at the time
that a man's countenance might be discerned therebj.^
Notwithstanding some loose opinions to the contrarj-, there seems to
be no good cause to doubt but that both [an actual entrj' and breaking]
are required to complete this offence ; for the words /re^zJ and intravit
being both of them precisely necessary in the indictment, both must be
satisfied. And a fortiori therefore there can be no burglarj"^ where
there is neither of them ; as if on a bare assault upon a house, the
owner fling out his mone}'.
Any the least entry either with the whole, or but with part of the
body, or with any instrument, or weapon, will satisfj' the word intravit
in an indictment of burglar)' ; as if one do but put his foot over a
threshold, or his hand or a hook or pistol within a window, or turn the
key of a door which is locked on the inside, or discharge a loaded gun
into a house, &c.
A house wherein a man dwells but for part of the year .... may be
called his dwellingrhouse ; and will sufficiently satisf)- the words domus
mansionalis in the indictment, whether an)' person were actually
therein or not, at the time of the offence.
All out-buildings, as barns, stables, dairy-houses, &e., adjoining to
a house, are looked upon as part thereof, and consequently burglary
may be committed iu them.
ANONYMOUS.
Lent Assizes. 1554.
[Reported Dyer, 99a, pi. 58.]
One was indicted for that he burglariously broke open a church in
che night in order to destroy and steal the goods of the parishioners
therein being, but took nothing away. And Bromeley, J., held clearly
that this is burglary ; but he said that it ought to be broke and entered.
" In Com. 0. Chevalier, 7 Dane Abr. 134 (1794) the jury found that a brea'kiTjg
was not in the night which took place at eighteen minutes after two o'clock on the
morning of June 27tK.
Mass. Pub. Stats, eh. 214, sect. 15. When an offence is alleged to have been com-
mitted in the night-time, the time called night-time shall be deemed to be the time
between one hour after the sun-setting on one day and one hour before sun-rising on
the next day.
818
ANONYMOUS.
[chap. XII.
EESOLUTION.
All the Judges op England. 1584.
[Reported Anderson, 114.]
All the justices assembled at Serjeants' Inn agreed that if one break
■the glass in a window in the dwelling-house of any one, and there with
pocks draw carpets out, and feloniously steal them, it is burglary if it
pe done at night, though the man who does it do not enter or break the
mouse otherwise ; and this case was put for a purpose, in order that the
/justices of Assize in the county of Warwick might know the law before
the Assizes, where this case was to come in question for an offence com-
mitted at Erdeburgh in said countj'. At this time the following case
was also put by the said justices, that thieyesin the night-eome to a
rlwplliiior^apfl gnmg one within comes amLopens~tEe]goor, anci when, it is
OpenTone of the thipypsjrit.pnrling toJall_theman shoots^, him with a
gtmptEenbuTlet from which missesj.hp m^n nnd brp'riks t,hp_wa1) on t,h(>
other side of the house. And it waa-agwmd T^^' all that, fhis j^ nn yxiim.
laTfT^and this also was in order to know the law in this case, which
happened in the count}^ of Derby where they were also justices. And
as bearing upon these cases an actual case was put, which was this,
scil. : In the night one who intended to kill another in a house broke a
hole in the wall of the dwelling, and perceiving where the person was,
shot at him through the hole with a gun and missed the person, which
was adjudged as burglary : so where one broke a hole in the wall and
seeing a man witii a purse of money hanging from his girdle coming bj-
the hole, snatched at the purse and took it, this too was agreed to be
burglary ; which happened in Essex. And then it was remembered
that one went to the window of Mr.. Cave's study in the county of
Leicester, and perceiving a casket with money in it, drew it to the
window and took money out of it, and for this he was hanged in
the county of Leicester. For in all these cases of burglarj' there is a
breaking of the house to commit felony in the night ; which makes the
offence burglary. But in the prexeding casaaif sbooti""; yitih thr gnn
into tiiPjjnni- a,nrl hrpalfing thp wall with tht. V^nllot- U jq^r^^., break-
in^fTTF"thpJiniipf! with intent to ftommit felony j whnrjjorr it is not
ANONYMOUS.
Ckown Case Eeserved. 1594.
[Reported Moore, 660, pi 903.]
It was resolved by all the justices at Serjeants' Inn, that the
aifiUT. i.j Lit, MOXT'S CASK 819
burglary, though no one be in the house. And if one has two dwelling-
houses where ne lives in turn, if a thief break at night the house from
which he is absent it is burglary, and all the old precedents of indict-
ments for biuglary are noctanter etfelonice, without allegation of any
person put in fear of death. And the reason of the old precedents
varying from those of modern times by mentioning that one was in fear
of death is because the Statute 23 H. 8 takes away clergy from a
burglar where any one is put in fear of death, but not otherwise.
REX V. FIDLING.
King's Bench. 1607.
[Manuscript^l
One Fidling was indicted for burglary ; and the indictment was that
he the mansion house of A/elonie f regit, and him and all his family
put in terror of their lives, with intention the said A de bonis et pecu-
niis spoUandis. Exception was taken to this indictment, because it
said onlvfiie^^it and not intravit, according to the opinion of Bromeley
in 1 Mary', Dy. fo."S9, pi. 58. But per Curiam; The indictment is
good enough ; for if he breaks the house feloniously with intent ut
supra^is burglaryTalthough he does not enter. '
It was also objected that intenttone ad spoliandum shall be taken
onl^' as a trespass ; but per Curiam, felony ad spoliandum shall be
taken to be a felony.
LE MOTT'S CASE.
About 1650.
. [Reported Kelyng, 42.]
At the Sessions I inquired of Le Mott's Case, which was adjudged
in the time of the late troubles, and my Brother Wj-ld told me that the
case was this : That thieves came with intent to rob him, and finding
the door locked up, pretended they came_to_sneak ^jt.h him, and^ there-
upon a maid-servant opened the door, and they came in and robbed
him, and thisl5eing in the nighUime, this was adjudged burglary and
the persons hanged ; for their intention being to rob, and getting the
door open by a false pretence, this was in fraudem legis, and so they
were guilty of burglary though they did not actually break the house,
for thisjtKas-iiLlaw an actual breakirigj_being obtained^by fraud to have
1 This case, though never before printed, is cited in Vaillant's Dyer, 99 note. — Eix.
820 EEX v. LYONS. [CHAP. XII.
the door opened ; as if- men pretend a warrant to a constable, and
bring liim along with them, and under that pretence rob the house, if it
be in the night this is burglary.^
EEX V. GEAY.
Old Bailey. 1722.
[Reported 1 Stranc/e, 481.]
One of the servants in the house opened his lady's chamber door
(wliich was fastened with a brass bolt) with design to commit a rape ;
and King, C. J., ruled it to be burglar^-, and the defendant was con-
victed and transported.
EEX V. LYONS.
Crown Case Reserved. 1778.
[Reported Leach (ith ed.), 185.]
At the Old Bailey in January Session, 1778, Lyon Lj^ons and
Thomas Miller were tried before Mr. Serjeant Glynn, Recorder, for
burglariously breaking and entering the dwelling-house of Edward
Smith, with intention to commit a felonj'.
The jury found a general verdict guilty, subject to the opinion of tlie
judges upon the following case: —
Mr. Smith had some time before purchased this house with an inten-
tion to reside in it, and had moved some of his effects to the value of
about ten pounds, into the house ; but at the time the offence was sup-
posed to have been committed, it was under the care of a carpenter,
for the purpose of being repaired ; and Mr. ^mith, had not himself
entered into posaessioiLjaf any pai:t_i3£Ji._iK)X dld-aav Dart of his
familyrbf any person whatever sleep therein. ^ The prisoners broke and
entere'dTMs-iiOTiseTn the night-time, with an intention to steal; but
whether it cajiJrLCQBstruction of lajw_be_tiQnaidercd the rl\yf^lling-]^nnat.
of Edward Smith they subniitted,_&ai
• T4iis'0Rbu"7vas made"1ipon the objection of Mr. HowaHh, the pris-
oner's Counsel ; and a copy of it was delivered to each of the judges
named in the margin.^
^ Ace. Parr's Case, Kel. 43 ; Com. v. Lowrey, 158 Mass. 18, 32 N. E. 940: Johnston
V. Com., 85 Pa. 54. — Ed.
'■* Lord Mansfield, De Gkey, C. J., Skinnek. C. B., Blackstone, Ashhukst,
Nakes, Gould, Wu.f.es, .T.L, Perrtn, Hotiiam. Eyre BB
SECT. I.] KEX V. DAVIES. 821
The Judges in Easter Term, 1778, were of opinion, That a house so
situated could not be considered as a dwelling-bouse, jtbeing com-
plotely lu^iivlia.h^f.pd ; and therefore there could be no burglary.
The judgment against the prisoners was accordingly arrested.
JOHNSON'S CASE.
Crown Case Reserved. 1786.
[Reported 2 East P. C. 488.]
Though if a thief enter a dwelling-house in the night-time through
tbe outer door being left open, or by an open window ; yet if when
, within the house he turn the Ijey of or unlatch a chamber-door witli
intent to commit felony this isjimalary : ana soit was adiudged on a
special verdict at Newgate, 1672. The same was lately ruled in
Johnson's Case bj' all the judges ; where the prisoner entered at a
back door of the house of William Hughes at Newington in Surrey,
which had been left open by the family ; and afterwards broke open an
inner door, and stole goods out of the room ; and then unbolted the
street door on the inside and went out.
REX V. DAVIES.
Crown Case Reserved. 1800.
[Reported Leach {ith ed.), 876.]
At the Old Bailey in June Session, 1800, John Davies was indicted
before Mr. Baron Chambre, present Mr. Justice Grose and the
Recorder, for stealing a quantity of pans, kettles, candlesticks,
&c., above the value of 40s., the property of Thomas Pearce in his
dwelling-house.
The larceny was clearly proved, but it appeared that Mr. Pearce was
a brewer in considerable business living in Milbank Street, and owner
of the " Star and Garter" public-house in Palace-yard, in which house
the larceny was committed. The house was at this time shut up, and
m the daj'-time totally uninhabited ; but Mr.^^Pearce's man was put to
sleep in it at night for the protect^^n "*' n^e^ooas that were in the
house, until some other publicaiTshoiikHnkp pnssefision of it. It had
lemained in this state about six weeks previous to the robbery, during
which time it had been let to a publican who had not taken possession
of it. There were at this time in the house sixteen or seventeen beds,
and a variety of chairs, tables, and other articles of furniture, which
822 COMMONWEALTH V. STEWARD. [CHAP. XII,
Mr. Pearee had purchased of the former tenant, with a view to accom-
modate the person to whom he might let it, but with no intention of
residing iq the house himself, either personally or by means of any of
his servants.
The counsel for the prisoner submitted to the court that this house
could not be considered as the dwelling-house of Pearee, and that
therefore the prisoner ought to be acquitted of the capital part of the
offence, and cited the cases stated in the margin. ' The case, however,
was left with the jury, and they found the prisoner guilty of the whole
charge, but the point was saved for the consideration of the judges.
The Judges, in Trinity- Term, 1800, were of opinion that as it
clearly appeared by the evidence that Mr^Pearce had no intention
whateverto reside in this house either by himsel£_pr bis servants, it
pnii7rt^rj^rTri^pr.ntorriplati^p Af inw be consTHeridas his dwelling-^use,
and that not beingsucha dwelling-house wherein burglary might be
committed, the capital' part of the charge under 12 Ann. c. 7, was
done away.
The prisoner accordingly received his Majesty's pardon on condition
of transportation.
COMMONWEALTH v. STEWARD.
SuPBEME Judicial Couet of Massachusetts. 1789
[Reported 7 Dane's Abr. 136.]
Steward was indicted for burglary in the house of John Fisk. The
court held that it is a burglarious breaking to open a door when latched
fl.ndshnt^_j>r_ to push npILa^winclow when „ahiLt. down, though not
fastened ; these being in their shut position. Rut, if a. ^ymdnw bp, a
little pushed up, or^doorj^ttle opened, <fec.,-fir> that, one passing by
may see the owner has not properlj' shut his houseTllsjfcfifiLa-hiirglari-
ous breaking to enter, thnnoti^ a. furthpr piishing up of the winHn^nr
-©penhTg^oTthe door be necessarj' forj^hejjsrson to cntyr ; but that it is
not-eastomary^r men, nor necessary always, to have all the glass of
their windows whole, or the joints of their doors, windows, &c., exact.^
Attorney- General, for the State.
Bradbury, for the defendant.
Harris's Case, Leach, 701 ; Thompson's Case, Leach, 771 ; Fuller's Case, Leacli,
186 n.
3 Ace. Eex V. March, I Moo. C. C. 178. See Eex v. Lewis, 2 0. & P. 628. Kd.
SECT. I.j COMMONWEALTH V. STEPHENSON. 823
COMMONWEALTH v. STEPHENSON.
Supreme Judiciai, Court of Massachusetts. 1829.
[Reported 8 Pickering, 354.]
Indictment for burglary. The evidence as to breaking was, that in
the evening of May 22 the witness fastened the outer door of the dwell-
iug-house by turning a button down upon the latch, and that about day-
break in the morning he found the door open, and also that the network
of the buttery wmdowJiad been cjrt avva3:_aHd-terg> down! Ttre netting
was made of double twine, and wlsTastened by nailing it on each side,
and at the top and bottom of the window, for the purpose of letting in
the air and keeping out cats and other small animals. Wittointhe net-
work^therewas a glass window, whiclihadjiat-bee«-alyit. PutnamTJ.,
instructeg~ttlB-Juiy that if the aefenclantsbroke, cut, or tore away the]
net so fastened, it was in law a breaking of the dwelling-house. Thel
•defendants, being found guilty, moved for a new trial because the fore- ^
going instruction was wrong.
Bates and G. Miss, Junior, for the defendants. Entering by an
open window will not sustain an indictment for burglarv : 2 Russ. 901 ;
1 Hawk. P. C. c. 38, §§ 4, 5 ; 4 Bl. Com. 226; Gallon's Case, cited in
2 Russ. 903 ; and the circumstance that a netting was stretched across
the window in the present case is immaterial, as this netting was put
up only as a. security against the entrj' of small animals. The window
was the natural protection against an entry bj' man. To constitute a
breaking, the thing broken must be a part of the house. 1 Hawk. P. C.
e. 38, §§ 4, 5 ; Foster, 108 ; 1 Hale, 552 ; 2 Stark. Ev. 320. This net-
ting was not even a fixture. Beck v. Rebow, 1 P. Wms. 94 ; Gale v.
Ward, 14 Mass. 356; Whiting v. Brastow, 4 Pick. 310; Com. v.
Trimmer, 1 Mass. 476.*
Davis (Solicitor-General) cited 3 Chit. Crim. Law, 1093 ; 1 Hale,
552 ; East P. C. 487; 4 Bl. Com. 22.6.
Parker, C. J., delivered the opinion of the court. The question in
this case is, whether there was a breaking or not. The lifting a latch
and opening the door, though not bolted or locked ; the shoving up a
window, though not fastened ; the getting down a chimney, and vari-
ous other acts done to effect an entry, are held to be a breaking. The
offence consists in violating the common security of a dwelling-house
in the night-time, for the purpose of committing a felony-. It makes no
difference whether the door is barred and bolted, or the window secured,
or not ; it is enough that the house is secured )^n ^^f r,rri\nary way ; an
that by the fgrplpggnpgg of thp owner in Ina.ving thp. do"i- Or window
open, the party accused of burglary De not tempted to enter. Shutting
the window blinds and leaving the windows open for "air is a common
' Fait of the argument is omitted.
824 MASON V. PEOPLE. fCHAP. XII.
mode of closing a house in the warm season ; if the blinds are forced,
it is a brealiing.
The objection is, that the lattice-work of the dairy window was of
twine only. Suppose it were of wire or thin slats of wood, would there
be any difference ? This network was nailed down on all sides ; it was
torn away by the defendants, and they^mitered the breacE7~Tfais is
quite ^nfficient to constitute a burglarious breaking and entry.
Motion for a new trial overruled.
MASON V. PEOPLE.
Court op Appeals of New Yoek. 1863.
[Reported 26 New York. 200.]
Error to the Supreme Court. The plaintiff in error was indicted in
the New York General Sessions. The first count charged him with
feloniously and burglariouslj' breaking and entering, in the daytime,
the dwelling-house of Christopher Thomas, " with intent to commit
some crime therein," but not specifying what crime. The second count
charged a larceny, in the dwelling-house before-mentioned, of a gold
ring, the property of Minna Thomas. The evidence was that Thomas
and his wife Minna occupied three rooms in what is known as a tene-
ment house, for which they paid rent monthlj-. Three other families
occupied different apartments of the same house, one of these families
haying rooms on the same floor with Thomas. There was one common
door of entrance into the house, which opened from the street into the
first floor or storj-, through which all the tenants passed to their respec-
tive apartments. When the offence was committed the front door was
open, the prisoner breaking only the door of Mrs. Thomas' room,
which she had left locked. The prisoner's counsel asked the court
to charge that breaking an inner door in the d?Ytii"T^^t.h ^nfont. tn
steaj-TS"liot a burglary. He maintained that the outer door of the
House was the outer dobr of every tenant living within ; that the crim-
inal breaking of that door would have been a burglary of the dwelling-
house of the tenant whose property the ofl'ender intended to steal ; and
that, as a consequence, the breaking of the inner door was not, because
a double burglarj- could not be committed bj- breaking first the street
door and then the inner. The court refused to charge as requested,
and the prisoner took an exception. He was convicted of burglary in
the third degree, and the judgment having been afHrmed by the Supreme
Court in the first district, he appealed to this court.
S. H. Stewart, for the plaintiff in error.
A. Oakey Hall, for the People.
SECT. 1.] QUINN V. PEOPLE. 825
Emott, J.* As to the objection taken at the trial that burglaiy could
not be committed b^- breaking and entering apartments in what is
known in cities as a tenement house, a building occupied separately by
several families, each having distinct apartments opening into a com-
mon hall, and thus communicating with the street, it has, in my judg-
ment, no foundation. Any and every settled habitation of a man and his
family is his house or his mansion, in respect to its burglarious entry.
It was so held before Lord Hale's time as to chambers in colleges and
inns of court, and even as to a chamber hired bj' A. in the house of B.,
for lodging for a specified time. Hale PI. Cor., I., p. 556. Serjeant
Hawkins (Cr. Law, vol. i. p. 163) gives the same rule as to tenement
or lodging houses, except that he seems to suppose that a difference
might arise when the owner of the house himself lived in it. But such
an exception would only lie where the other inmates were lodgers with
the owner, and not proprietors of distinct tenements separately hired
and occupied for a longer or shorter time, with access either separately
or jointly to the street. 'V^ererer a building is severed by lease into
distinct habitations, each becomes the mansion oy dweTlTng-hftiise of
the lessee thereof, and is entitled to all the privileges of an individual
dw^tngj__jUje case of the People v. Biish, 3 Park. Cr. R. 556, was
preciselj' like the one at bar, and it was there held hy three judges of
the Supreme Court, of whom the one pronouncing the opinion was a
learned and experienced criminal lawyer, that a room or rooms in a
tonomoT^^; |i<->ngo, r-oinf.o/\ jQ Separate families with a door and entry com-
mon to all, constituted each the dweHmg-house of the particular occu-
pant in the senseof thejitw. Such we understand to be the well-settled
filler '
The judgment of the Supreme Court affirming that of the Court of
Sessions was right, and mast be affirmed in this court.
Jvdgment affirmed-
QUINN V. PEOPLE.
CouET OF Appeals of New York. ' 1878.
[Reported 71 New York, 561.]
FoLGEE, J.* The plaintiff in error was indicted of the crime of burg-
lary in the first degree, under the section of the Revised Statutes
defining that crime. 2 R. S. p. 668, § 10, subd. 1. The crime, as
there defined, consists in breaking into, and entering in the night-time,
in the manner there specified, the dwelling-house of another, in which
there is at the time some human being, with the intent to commit some
crime therein. The evidence given upon the trial showed clearly enough
^ Part of the opinion is omitted.
826 QUINN V. PEOPLE. ' '"CIIAP. XII.
the breaking and entering, and the criminal intent. The questions
mooted in this court are, whether it is legall3- proper, in an indictment
for burglary of a dwelliug-house, to aver the ownership of the building
in a partnership, and whether the proof showed that the room entered
was a dwelling-house within the intent of the statute. As to the first
question : The indictipent averred the breaking and entering into the
dwelling-house of Frederick Kohnsen and John F. Lubkin, being co-
partners in business under the firm-name and style of Kohnsen &
Lubkin. The authorities are numerous enough and clear, that the
ownership of the dwelling-house may be laid in the indictment to be in
the members of a copartnership, when the facts of the case warrant it.
In Rex V. Athea, E. & M. C. C. E. 329, the indictment averred the
stealing in the dwelling-house of Hailing and others. It appeared that
Hailing, Pierce & Stone carried on business on the premises in which
the offence was committed. Pierce lived in tbe house, which was tlie
joint property of the firm. The other partners resided elsewhere. It
was held, upon a case reserved, that the dwelling-house was properly
laid as that of all the partners. See, also, Rex v. Stockton &
Edwards, 2 Taunt. 339 ; 2 Leach, 1015 ; s. c. sub noin. Rex v. Stock
et al., Russ. & R}*'., 185 ; Rex v. Hawkins, Foster's Cr. Law, 38 ; Rex
V. Jenkins, Russ. & Ry. 244 ; Saxton's Case, 2 Harr. 533.
The facts of the case in hand are meagrely presented upon the error-
book, but we gather from it, and from the concessions made upon the
points and on the oral argument, that Kohnsen and Lubkin, the per-
sons named in the indictment, were copartners in trade ; and, as such,
held and occupied the buildings, into one room of which the burglarious
entry was made ; that the lower or first stories of the buildings were
used for the purposes of their business, and opened into each other ;
that in the upper rooms one only of the partners and some other per-
sons lived, and were present on the night of the burglarj'. This state
of facts is in accord with those presented in the cases above cited. We
are of opinion that the first question presented must be resolved against
the plaintiff in error. The ownership of the buildings was properly laid
by the indictment in Kohnsen & Lubkin. The ownership remained with
them ; the actual possession of the portions of the buildings used for
business was in thetn, and the possession of part of the portion of the
buildings used to live in was in them, by the actual possession and
occupation of that part by Kohnsen. They had not given such an
interest to other persons in the whole or in parts of the buildings as to
constitute an ownership in such other persons. 2 East, P. C. C. 15,
§ 18, p. 502. The cases are somewhat in conflict upon this point, it
is true, and are not' easily reconciled or distinguished ; see Rex v.
Margetts, et al,, 2 Leach, 930 ; but it is plain that here the partners, as
such, had the ultimate control and right of possession of the whole
buildings, and the actual possession of the shop entered, and of the
sleeping-room above it, thus bringing the case within several decisions.
As to the second question : In addition to the facts already stated,
SECT. I.J QUINN V. PEOPLE. 827
it is needed onh- to note that there was an internal communication
between the two stores, in the lower stories of the buildings, but none
between them and the upper rooms, in which one of the partners
and other persons lived. The room into which the plaintiff in error
broke was used for business purposes onl}-, but it was within the same
four outer walls, aijd under the same roof as the other rooms of the
buildings. To pass from the rooms used for business purposes to the
rooms used for living in, it was neeessarj- to go out of doors into a
yard fenced in, and from thence up stairs. The unlawful entering of
the plaintiff in error was into one of the lower rooms used for trade,
and into that onl}-. The point made is, that as there was no internal
communication from that room to the rooms used for dwellings, and as
that room was not necessarj- for the dwelling-rooms, there was not a
breaking into a dwelling-house, and hence the act was not burglary in
the first degree as defined bj- the Revised Statutes as cited above. In
considering this point, I will first say that the definition of the crime of
burglary in the first degree, given bj- the Revised Statutes, does not,
so far as this question is concerned, materially differ from the defini-
tion of the crime of burglary as given at common law, to wit, " a
breaking and entering the mansion-house of another in the night, with
intent to commit some felony within the same." ... 2 Russ. on Cr.
p. 1, § * 785. It will, therefore, throw light upon this question to
ascertain what buildings or rooms were, at common law, held to be
dwelling-houses or a part thereof, so as to be the subject of burglary.
For, so far as the Revised Statutes as already cited are concerned,
what was a dwelling-house or a part thereof at common law, must also
be one under those statutes. Now, at common law, before the adop-
tion of the Revised Statutes, it had been held that it was not needful
that there should be an internal communication between the room or
building in which the owner dwelt, if the two rooms or buildings were
in the same inclosure, and were built close to and adjoining each
other. Case of Gibson, Mutton & Wiggs, Leach's Cr. Cases, 320 (case
165), recognized in The People v. Parker, 4 Johns. 423. In the case
from Leach, there was a shop built close to a dwelling-house in which
the prosecutor resided. There was no internal communication between
them. No person slept in the shop. The only door to it was in the
court-yard before the house and shop, which yard was inclosed by a
brick wall, including them within it, with a gate in the wall serving
for ingress to them. The breaking and entering was into the shop.
Objection was taken that it could not be considered the dwelling-house
of the prosecutor, and the case was reserved for the consideration of
the twelve judges. They were all of the opinion that the shop was to
be considered a part of the dwelling-house, being within the same
building and the same roof, though there was only one door to the
shop, that from the outside, and that the prisoners had been duly con-
victed of burglary in a dwelling-house The case in Johnson's Reports,
mpra, is also significant, from the facts relied upon there to distia-
828 QUINN V. PEOPLE. [CHAP. XII.
gnish it from the case in Leach, supra. Those facts were that the shop
entered, in which no one slept, though on the same lot with the dwell-
ing-house, was twenty feet from it, not inclosed bj' the same fence, nor
connected by a fence, and bolhopen to a street. The court said that
they were not within the same curtilage, as there was no fence or yard
inclosing both so as to bring them within one inclosure, therefore, the
case was within that of The King v. Garland, 1 Leach Gr. Gas. 130
(or 171), case 77. It has been urged, in the consideration of the case
in hand, that though the common law did go farther than the cases
above cited, and did deem all out-houses, when they were within the
same inclosure as the dwelling-house, a part of it, yet that thej' must,
to be so held, be buildings or rooms the use of which subserved a
domestic purpose, and were thus essential or convenient for the enjoy-
ment of the dwelhng-house as such. Gibson's case, supra, would
alone dispose of that. The building there entered was not only of
itself a shop for trade, but it was ni the use and occupation of a per-
son other than the owner of the dwelling-house. The books have many
eases to the same end. Rex v. Gibbons & Kew Russ. & R\-. 442,
the case of a shop. Robertson's case, 4 Gitj- Hall Rec. 63, also a
shop with no internal communication with the dwelling-house. Rex v.
Stock et al.., Russ. & Ry. 185, a counting-room of bankers. Ex parte
Vincent, 26 Ala. 145, one room in a house used as a wareroom for
goods. Rex V. Witt, Ry. & M. 248, an office for business, below
lodging rooms. Indeed, the essence of the crime of burglar^' a.t com-
mon law is the midnight terror excited, and the liability created hy it
of danger to human life, growing out of the attempt to defend property
from depredation. It is plain that both of these ma}' arise, when the
place entered is in close contiguity with the place of the owner's repose,
though the former has no relation to the latter by reason of domestic
use or adaptation. Besides, the cases have disregarded the fact of
domestic use, necessity, or convenifacce, and have found the criterion in
the physical or legal severance of the two departments or buildings.
Rex V. Jenkins, Russ. & Ry. 244 ; Rex v. Westwood, id. 495 ; where
the separation of the buildings was by a narrow way, both of them
being used for the same family domestic purposes. It is not to be
denied that there are some cases which do put just the difference
above noted, as now urged for the plaintiff in error. State v. Lang
ford, 1 Dev. 253; State v. Jenkins, 5 Jones, 430; State v. Bryaiit
Ginns, 1 Nott & McGord, 583. Though, in the case last cited, it is
conceded that if a store is entered, which is a part of a dwelling-house,
by being under the same roof, the crime is committed ; and it must be
so, if it is the circumstance of midnight terror in breaking open a
dwelling-house, which is a chief ingredient of the crime of burglary;
and it is for that reason that barns and other out-houses, if in proxim-
ity to the mansion-house, are deemed quasi dwelling-houses, and enti-
tled to the same protection. State v. Brooks, 4 Conn. 446-449. Goke
{^3 Inst. 64) is cited to show that only those buildings or places, which
SECT. I.] QUINN V. PEOPLE. 829
in their nature and recognized use are intended for the domestic com-
fort and convenience of the owner, may be the subject of burglarj- at
common law ; but in the same book and at the same page the author
also saj's : " But a shop wherein an_y person doth cotiveise " — that is,
be employed or engaged with ; Richardson's Die, in voce — "being a
parcell of a mansion- house, or not parcell, is taken for a mansion-
house." So Hale is cited (vol. 1, P. C. 558) ; and it is there said that,
" to this day it is holden no burglary- to break open such a shop." But
what does he mean by that phrase ? That appears from the autboritj'
which he cites (Button's Reps. 33) ; where it was held no burglarj' to
break and enter a shop, held by one as a tenant in the house of
another, in which the tenant worked b3' daj-, but neither he nor the
owner slept by night. And the reason given is the one above noticed
and often recognized by the cases, that by the leasing there was a
severance in law of the shop from the dwelling-house. But Hale also
(vol. 1, P. C, p. 557) cites as law the passage from The Institutes
above quoted. Other citations from text-books are made by the plain-
tiff in error ; they will be found to the same effect, and subject to the
same distinction as those from Coke and Hale. And see Rex v. Gib-
bons et al., supra ; Rex v. Richard Carroll, 1 Leach Cr. Cas. 272, case
115. That there must be a dwelling-house, to which the shop, room,
or other place entered belongs as a part, admits of no doubt. To this
effect, and no more, are the cases cited by the plaintiff in error, of
Rex V. Harris, 2 Leach, 701 ; Rex v. Davies, alias Silk, id. 876, and
the like. There were cases which went further than anything I have
asserted. They did not exact that the building entered should be close
to or adjoining the dwelling-house, but held the crime committed, if
the building entered was within the same fence or inclosure as the build-
ing slept in. And the dwelling-house in which burglary might be com-
mitted v?as held formerly to include out-houses, — such as warehouses,
barns, stables, cow-houses, dairj'-houses, — though not under the same
roof or joining contiguous to the house, provided they were parcel
thereof. 1 Russ. on Cr. *799, and authorities cited. Any out-house
within the curtilage, or same common fence with the dwelling-house
itself, was considered to be parcel of it, on the ground that the capital
house protected and privileged all its branches and appurtenants, if
within the curtilage or home-stall. State v. Twitty, 1 Hayw. (N. C.)
102 ; State v. Wilson, id. 242 ; see also State v. Ginns, 1 Nott &
McCord, 583, supra, where this is conceded to be the common law.
See note a to Garland's case, supra.
It seems clear, that at common law the shop which the plaintiff in
error broke into would have been held a part of a dwelling-house.
The judgment brought up for review should be afHrmed.
It maj'' ward off misapprehension if it is said, that if different stores
in a large building, some parts of which are used for sleeping apart-
ments, are rented to different persons for purposes of trade or com-
merce, or mechanical pursuit, or manufacturing, another rule comes id
830 WALKEE V. STATE. [CHAP. XII.
J'or illustration, let there be mentioned the Astor House in New York
city. The rule is, that a part of a dwelling-house may be so severed
from the rest of it, b}' being let to a tenant, as to be no longer a place
in which burglary in the first degree can be committed ; if there be no
internal communication, and the tenant does not sleep in it. Then it
is not parcel of the dwelling-house of the owner, for he has no occupa-
tion or possession of it ; nor is it a dwelling-house of the tenant, for he
does not lodge there. 1 Hale P. C, 557, 558 ; Kel. 83, 84 ; 4 Black.
Com. 225, 226 ; East P. C. c. 15, § 20, p. 507.
Allen, Miller, and Earl, JJ., concur ; Rapallo and Andrews, J J.,
dissent ; Church, C. J., not voting. Judgment affirmed.
WALKER V. STATE.
Supreme Court of Alabama. 1879.
[Reported 63 Ala. 49.]
Brickell, C. J. The statute (Code of 1876, § 4343) provides, that
" any person who, either in the night or day time, with intent to steal,
or to commit a felony, breaks into and enters a dwelling-house, or any
building, structure, or inclosure within the curtilage of a dwelling-
house, though not forming a part thereof, or into any shop, store,
warehouse or other building, structure, or inclosure in which any goods,
merchandise or other valuable thing is kept for use, sale, or deposit,
provided such structure, other than a shop, store, warehouse, or build-
ing, is specially constructed or made to keep such goods, merchandise,
or other valuable thing, is guilt3' of burglary," etc.
The defendant was indicted for breaking into and entering " a^Qcru-
cpte-of^oadiah Woodruff and Robert R. Peeples, a building in which
corn, a thing of value, was at the time kept for use, sale, or deposit,
with intent to steal,'' etc. He was convicted ; and the case is now
presented on exceptions taken to instructions given, and the refusal of
instructions requested, as to what facts will constitute a breaking into
and entry, material constituents of the offence charged in the indict-
ment. The facts on which the instructions were founded are : that in
the crib was a quantity of shelled corn , piled on the floor ; in April or
May, 1878, the crib had been broken into, and corn taken therefrom,
without the consent of the owners, who had the crib watched ; and
thereafter the defendant was caught under it, and on coming out, vol-
untarily confessed that about three weeks before he had taken a large
auger, and going under the cHb.Jiai]_hnred^g_jTn]p thrnngh thg floor,
from which the corn, being shelled, ran into a sack he held under it ;
that he then got about three pecks of corn, and with a cob closed the
hole. On these facts the City Court was of opinion, and so Instructed
SECT. L] WALKEK V. bTATE. 831
the jury, that there was such a breaking and entry of the crib, as would
constitute tlie offence, and refused instructions requested asserting the
converse of the proposition.
The material changes the statute has wrought as to the offence of
burglary, as known and defined at common law, are as to the time and
place of its commission. An intent to steal or to commit a felony are
the words of the statute, while an intent to commit a felony were the
words of the common law. Under our statutes, a felony is defined as
a public offence, punished by death, or by imprisonment in the peniten-
tiary ; while public offences otherwise punishable are misdemeanors.
The larceny of other than personal property particularly enumerated,
and under special circumstances, the property not exceeding the value
of 125, is petit larceny, and a mere misdemeanor. The intent to steal,
as an element of burglary, is therefore made the equivalent of an
intent to commit a felony, though the value of the thing intended to be
stolen may be less than $25, and its larcen}' a misdemeanor.
The statute employs the words, "breaks into and enters;" and
these are borrowed from the common-law definition of burglary. They
must be received with the signification, and understood in the sense
given them at common law. "There must, in general," says Black-
stone, "be an actual breaking, jDot a mere legal clausum fregit by
leaping over invisible ideal boundaries, which may constitute a civil
trespass, but a substantial and forcible irruption." The degree of
force or violence which may be used is not of importance, — it ma}'
be very slight. The lifting the latch of a door ; the picking of a lock,
or opening with a key ; the remcn'al of a pane of glass, and indeed, the
displacement or unloosing of anj' fastening, which the owner has pro-
vided as a security to the house, is a breaking — an actual breaking —
within the meaning of the term as employed in the definition of burg-
lary at common law, and as it is employed in the statute. In Hughes'
case, 1 Leach, C. C, case 178, the prisoner had bored a hole with a
centre-bit through the panel of the house door, near to one of the bolts
by which it was fastened, and some pieces of the broken panel were
found withinside the threshold of the door, but it did not appear that
any instrument except the point of the .centre-bit, or that any part of
the prisoner's body had been withinside tlie house, or that the aperture
made was large enough to admit a man's hand. The court were of
opinion that there was a suflficient breaking, but not such an entry as
would constitute the offence.
The boring the hole through the floor of the crib was a sufficient i
breaking, but with it there must have been an entry. Proof of a break-
ing, though it may be with an intent to steal or the intent to commit a
felony, is proof of one only of the facts making up the offence, and is as
insuflScient as proof of an entry through an open door without break-
ing. If the hand or any part of the body is intruded within the house
the entry is complete. The entry may also be completed by the intru-
sion of a tool or instrument within the house, though no part of the
832 I WALKEK V. STATE. [CHAP. XII.
bodj' be introduced. Thus, " if A. breaks the house of B. in the night-
time, with intent to steal goods, and breaks the window and puts in his
liand, or puts in a hoolt or other engine to reach out goods, or puts a
pistol in at the window, with an intent to kill, though his hand be not
within the window, this is burglary." 1 Hale, 555. When no part of
the body is introduced, — when the only entry is of a tool or instrument
introduced by the force and agency of the party accused, the inquiry is
1 whether the tool or instrument was employed solely for the purpose of
breaking, and thereby effecting an entry, or whether it was employed
not only to break and enter, but also to aid in the consummation of the
criminal intent and its capacity to aid in such consummation. Until
there is a breaking and entry the ofifence is not consummated. The
offence rests largely in intention, and though there maj' be sufficient
evidence of an attempt to commit it, which of itself is a crime, the
attempt may be abandoned, — of it there may be repentance before the
consummation of the offence intended. The breaking may be at one
time and the entry at another. The breaking may be complete, and
yet an entry never effected. From whatever cause an entry is not
effected, burglary has not been committed. When one instrument is
employed to break, and is without capacity to aid otherwise than by
opening a way of entry, and anothev instrument must be used, or the
instrument used in the breaking must be used in some other way or
manner to consummate the criminal intent, the intrusion of the instru-
ment is not of itself an entrj'. But when, as in this case, the in
strument is employed not only to break, but to effect_the-Ottl^-entry
contemplated and necessary to the consummation'STthe criminal intent ,
' v^Sfm-4^r-TB~1nTriT?TRd wit.hin the hoijsp., breaking jt,, pffpfiting an entry,
en^EiigThe^erson introducing it to consummate his intent, the offence
jsjaompiete. The instrument was emplo3'ed not only lor the purpose
Of breaking the house, but to effect the larceny intended. When it was
intruded into the crib the burglar acquired dominion over the corn
intended to be stolen. Such dominion did not require any other act
on his part. When the auger was withdrawn from the aperture made
with it the corn ran into the sack he used in its asportation. There
was a breaking and entry, enabling him to effect his criminal intent
without the use of any other means, and this satisfies the requirements
of the law.
Let the judgment be affirmed.
Judgment affirmed.
SECT. II.] HOLMES'S CASE. 833
SECTION IL
Arson.
1 Hawk. P. C. ch. 18, sects. 1, 2. Arson is a felony at coraraon
law, in maliciously and voluntarily burning the house of another by
liight or \)y day.
Not onl^' a mansion-house, and the principal parts thei'enf, but also
any other house, and the outbuilijings. as barns and stables, adjoining
thereto, and also barns full f^f pxyrn. whether they be adjoining to any
house or not, are so far secured by law, that the malicious burning
of them is arson, and it is said, that in an indictment they are well
expressed by the word do7nus, without adding munsionalis.
But it seems that at this day the burning of the frame of a house/
nrjrt ^ ntanlr nf rnrn; iVnn ir nnt jiccounted arson, because it cannot
coine under the word domus, which seems at present to be thought
necessary in every indictment of arson, yet it is said that anciently the
burning a stack of corn was accounted arson.
ANONYMOUS.
Assizes. 1495.
[Reported Year Book, 11 H. VII. \.]
A MAN was indicted because he had feloniously at night burned a
Tiarn, and bet:au««4t^dioined the house, it was held felony at common
law, and the party was hanged.
HOLMES'S CASE.,
King's Bench. 1634.
[Reported Croke Car. 376.]
William Holmes was indicted in London, For that he, in April, 7
Car. I,, being possessed of an house in London, in Throgmorton street,
in such a ward, for six years, remainder to John S. for three years, the
reversion to the corporation of Haberdashers, in fee : he vi et armis,
3 April, 7 Car. L, the said house " felonice, voluntarie, et malitiose,
igne combussit, ea intentione, ad eandem domura mansionalem, nee non
1 See Mulligan u. State, 25 Tex, App. 199. — En-
834 HOLMES'S CASE. [CHAP. XII.
diversas alias domos mansionales di\'ersoriiin ligeorum, domim regis ,
adtunc et idem situat. et existent, ad dictum domum mansionalem dicti
Willielmi Holmes contigue adjacent, adtunc et ibidem felonice, volunta-
rie, et malitiose totaliter comburendo et igne consumendo contra pacem."
Upon his being arraigned at Newgate, he was found guilty ; but
before judgment this indictment was removed by certiorari into'this
court. It was argued at the bar by Grimstoti, that it was not felony ;
and now this Term at the bench.
And, by Richardson, Chief Justice, Jones, and Berkley, [JJ.J, it was
lield, thatJt_was_notJelony toburu a house_whera.nf be jsjnj^nsseafiion
bj- virtue of a lease for years ; for the^' said, that burning of houses
IS not felony, unless that they are oeaes alienee : and therefore iintton,
-pr-l-^TTSracton, p. 146, and The Book Assize, 27, Assize, pi. 44, men-
tion, that it is felony to burn the house of another; and 10 Edw. 4,
pi. 14; 3 Hen. 7, pi. 10; 10 Hen. 7, pi. 1, and Poulter's Case, 11
Co. 29, which say, that burning of houses generally is felony, are to
be intended de wdibus alienis, et non propriis : and although the
indictment be " ea intentione ad comburendum felonice, voluntarie, et
malitiose," the houses of divers others " contigue adjacentes," j-et
intent only without fact is not felony. Also Bekkxey and Jones, Jus-
tices, held, that it cannot be said to be vi et armis when it is in his
own possession.
Jones, Justice, also said, that he could not be well indicted of felony-,
because none of their names are mentioned who were the owners of
the houses adjoining. But to that objection Berkley and Richardson,
[JJ.], agreed not.
But I argued, that the burning in the indictment mentioned is felony,
because it is capitals crimen, felleo animo perpetratum, which is the
definition of felony in Co. Lit. 391, a. Also by the rule in Bracton,
146. "quod incendium nequiter, et ob inimicitias, factum capitali
pcenS, puniatur ; si verb sit incendium fortuit6 vel per negligentiam,
et non mala conscientia, non sic punietur ; sed versus eum criminaliter
agatur." And it cannot be said to be by negligence in another's house ;
wtierefore it is to be intended in his own house. Also this burning is
found to be malitiose ; so it is mala conscientia et nequiter Jactum,.
Also this burning of his house in a street of the city adjoining to the
houses of others, is to the endangering of the city, and therefore ought
to be construed to be felony ; but so peradventure is not the burning
of his house in the fields. And whereas it was said, that the inten-
tion cannot make a felony, it was answered, that the intention here is
coupled with an act of burning, and with the intendment of an act
which is felony; as 5 Hen. 7, pi. 18; 7 Hen. 7, pi. 42; 13 Edw. 4,
pi. 9 ; where a man delivers goods to one, and afterwards he that
delivered them privately steals them, to the intent to charge him, it is
felony. And whereas it was objected, that being his own possession,
it cannot be said ri et armis ; I answered, that vi et armis is well
enough, where there is a malfeasance, as it is in an action upon the
SECT. II.J ISAAC'S CASE. 835
case, 9 Co. 50, b. Also every indictment is vi et armis et contra
pacem, where an act is done against the commonwealth : so it is
where a servant runs awa^- with goods committed to his trust above
forty shillings, although properly it cannot be said to be vi et armis,
because they were in his custody. And in this case the ill consequence
which might have fallen out by this act makes the offence the greater ;
and The Year Books in 10 Edw. 4, pi. 14; 3 Hen. 7, pi. 10; 11 Hen.
7, pi. 1 ; and Stanford, 36 ; 11 Co. 29 ; 4 Co 20, a, put the case of
burning of houses generall}', and not of the burning of other men's
houses : and it is an equal mischief in a commonwealth to burn his
own in a city or vill as to burn the houses of others, for the danger
which may ensue.
But THE OTHER THREE JosTiCEs resolved ut supra, ..jhat it was not
fplnnv ; -nrhprpfirirp he was discharged thereof.
But because itwas an exorbitant~t>ffej*ce, and found, they ordered,
that he should be fined £500 to the king, and imprisoned during the
king's pleasure, and should stand upon the pillorj', with a paper upon
his head signifying the offence, at Westminster and at Cheapside,
upon the market-day, and in the place where he committed the offence,
and should be bound with good sureties to his good behavior during
life.'
ISAAC'S CASE.
Spring Assizes. 1799,
{Reported 2 East P. C. 1031.]
John Isaac was indicted for a misdemeanor in having unlawfully,
wilfully, and maliciously set on fire and burnt a certain house of
Thomas Isaac, being in the occupation of the said John Isaac : which
house the indictment alleged was contiguous and adjoining to certain
dwelling-houses of divers liege subjects, &c. ; by means whereof the
same were in great danger of being set on fire and burnt. There was
a second count which differed only in charging that the house set on
fire was the prisoner's own house.
The counsel for the prosecution opened that the charge to be proved
against the defendant, though laid as a misdemeanor, was, that he wil-
fully set on fire his own house in order to defraud the Pboenix_fire-
insurance -offiee.: and that in fact' his own and several other person's
houses adjoining were burnt down. Upon which Buller, J., said, that ii
other persons' houses were in fact burnt, although the defendant might
only have set fire to tiis own, yet lihder tnese circumstances the prisoner
was guilty, if at all, of felon;;; the misdemeanor being merged , and he
could not be convicted on tuis indictment; and therefore directed an
acquittal.^
1 See,s. c. reported W. Jones, 351.— Ed.
2 See Probert's Case, 2 East P. C. 1030. — Ed.
836 COMMONWEALTH V. TUCKER. [CHAP. XII.
COMMONWEALTH v. TUCKER.
Supreme Judicial Court op Massachusetts. 1872.
[Reported HO Mass., 403.]
Indictment alleging that the defendant set fire to the barn of Wil-
liam H. Codding, and by the kindling of said fire and the burning of
said barn, the dwelling-house of Codding was "burned and consumed."
At the trial in the Superior Court, before Brighara, C. J., the evidence
tended to show that the barn was burned entirely ; that the shingles on
the roof of the dwelling-house tooli fire and were burned in two places ;
luid that persons were on the roof Ifeeping it wet with water; but as to
how much the shingles were burned there was a conflict of testimony.
The defendant asked the judge to instruct the jurj' "that the}' must
be satisfied that some portion of the dwelling-house had been actually
on file by reason of the burning of the barn, and had Jippii biirrt^d ind
Iconsunjfidjjiereby ; and that the substance and fibre of the wood of
snc^i poi'tinn P" "" fi''P:!^^,„i3if;ti'iril'y Hpsttrojiati " But the judge refused
so to instruct the jur}', and instructed them " that they must be satis-
fied that some portion of the dwelling-house had been actually on fire
by reason of the burning of the barn, and had been burned thereb}-, so
that the substance of the wood of such portion so on fire was actuall}'
burned." The jury returned a verdict of guilty, and the defendant
alleged exceptions.
»S'. It. Townsend, for the defendant, cited Commonwealth v. Betton,
5 Gush. 427; Commonwealth c. Van Schaack, 16 Mass. 105.
C. R. Train., Attorney General, for the Commonwealth. The indict-
ment is upon the Gen. Sts. c. 161, § 1, which provide that " whoever
wilfuUj' and maliciously burns the dwelling-house of another,'' or "wil-
fully and maliciously sets fire tci nny hniiriing^ hj— Mto i^m-ninfr whereof
such dwelling-hnnse is biirnt,." ggkll be punished. Ttre— rn^Tuctions
were correct. Commonwealth v. Van Schaack, 16 Mass. 105 ; Com-
monwealth M. Betton, 5 Gush. 427; Regina v. Parker, 9 C. & P. 45 ;
Regina v. Russell, C. & Marsh. 541 ; 2 East P. C. 1020; 1 Hale P.
C. 568_; Roscoe Crim. Ev. (8th ed.) 281.
Wells. J. The instructions given to the jury were correct, and in
accordance with the authorities ; as well those cited for the defendant
as those for the Commonwealth. They required the jury to find that
some portion of the dwelling-house had been actually on fire and burned.
To have required them to find something more, by use of the terms
'■ consumed" and " destroyed," as prayed for, would have been to go
be}'ond the provisions of the statutes, and to leave the jury with no
precise definition of that which was necessary to constitute the offence.
Exceptions overruled.
CHAP. XIII.] EEGINA V. CLOSS. 837
CHAPTER XIII.
FORGERY.
REGINA V. CLOSS.
Court for Crown Cases Reserved. 1857.
[Reported Dears. ^ B. C. C. 460.]
The following case was reserved and stated at the Central Criminal
Court.
The prisoner was tried for the forgery of a copy of a painting, on
which he painted the signature " John Linnell." ^
It was objected by the prisoner's counsel, in arrest of judgment,
that these counts disclosed no indictable offence, and the judgment was
respited until the next sessions, that the opinion of this Court might
be taken whether or not the second and third counts, or either of them,
sufficiently showed an offence indictable at common law. The prisoner
remains in custody.
This case was argued, on the 21st November, 1857, before Cookbdkn,
C. J., Erle, J. , Williams, J. , Crompton, J. and Channell, B.
Metcalfe appeared for the Crown, and Mclntyre for the prisoner.
Molntyre, for the prisoner.
The second and third counts are bad in arrest of judgment. The
second count charges in substance a cheat at common law, and that
cheat is not properly laid. An indictment for a cheat at common law
should so set out the facts as to make it appear on the record that the
cheat charged would affect, not a private individual, but the public
generally (2 Russ. on Crimes, 280). The obtaining money by means
of a mere assertion, or by the use of a false private token, is not an
indictable offence at common law (2 East P. C. 820). In this count
the allegation is that a false token of a private character was used.
The third count is for forger}- of the name of John Linnell on a
picture. Fnrcrpry is rjpfinprl in hp t.lie fi-.-indijlenf: making or alterationl
of a writing, tn t.hp prpjnrlinB_of anothgr'" •''S'^ (y '^'""" "" '^''I'n'Rgi^
318). In the case of a written instrument, the forgery of the signature
is really the forgery of the whole instrument, and is alwaj's so laid in
the indictment. Unless, therefore, an indictment would lie for the
forgery of a picture, this count cannot be supported. The averments
in this count amount to no more than this, iu substance, — that the
prisoner' falsely pretended that the picture was Linnell's. To falsely
pretend that a gun was made by Manton would be no oflfence at com-
1 This short statement is substituted for the copy of the indictment. —Ed.
838 EEGINA V. CLOSS. [CHAP. XIII.
mon law ; and no case has gone the length of holding that to stamp
the name of Manton on a gun would be forgery.
Ckompton, J. — That would be forgery of a trade mark, and not of
a name.
CocKBURN, C. J. — Stamping a name on a gun would not be a writ-
ing ; it would be the imitation of a mark, not of a signature.
Molntyre. The name put by a painter in the corner of a picture
is not his signature. It is only a mark to show that the picture was
painted by him. Any arbitrary sign or figure might be used for the
same purpose instead of the name ; it is a part of the painting, and
every faithful copy would contain it. The averments mean that the
whole picture was made to represent the whole of the original ; and the
averment of the imitation of the signature is no more than an aver-
ment of the imitation of a tree or a house in the original. There is no
allegation that the picture was passed off as the original, or the signa-
ture as the genuine signature ; neither is there any averment that the
name was painted for the purpose of inducing the belief that the picture
was the original.
Metcalfe, for the Crown. It is not necessary to show that the cheat
alleged in a count for cheating at common law is one which affects the
public generally. If to a bare lie you add a false token, it is indictable,
and it is a mistake to suppose that the public must be affected.
Eble, J. — The prisoner did not get the money for the name but for
the picture.
Metcalfe. He obtained it by the whole transaction. In Worrel's
case, Trem. P. C. 106, deceitfully counterfeiting a general seal or mark
of the trade on cloth of a certain description and quality, was held to
be an indictable cheat. This case and Farmer's case, Trem. P. C. 109.
show that the fraud need not be of a strictly public nature, and that
anj"^ device calculated to defraud an ordinarily cautious person is indict-
able. In this case the picture was in fact a device calculated to deceive
the public.
The third count for forgery is good. In Regina v. Sharman, Dears.
C. C. 285, it was decided that it is an offence at common law to utter
a forged instrument, the forgery of which is an offence at common law,
and that the effecting the fraud is immaterial. This decision over-
rulecFthe decision in Regina v. Boult, 2 Car. & Kir. 604.
, A false certificate in writing is the subject of an indictment at com-
mon law ; Regina v. Toshack, 1 Den. C. C. 492.
I therefore contend that where, as here, the name of the artist is
painted on the picture, it is in the nature of a certificate, and the fact
that the signature is on canvas, instead of being on a separate piece
of paper, does not render the offence less indictable.
Williams, J. — But it is consistent with all the allegations that the
prisoner may have sold the picture without calling attention to the
signature.
Metcalfe. The forging the name on a picture is in fact a forgery of
tLie picture.
CHAP. XIII.] EEGINAU CLOSS. 839
CocKBURN, C. J. — If you go beyond writing, where are you to stop?
Can sculpture be the subject of forgery?
Mclntyre replied.
Cur. adv. vult.
The judgment of the Court was delivered, on 30th November, 1857,
by
CoCKBURN, C. J. — ^The defendant was indicted on a charge, set out
in three counts of the indictment, that he had sold to one Fitzpatrick
a picture as and for an original picture painted bj' Mr. Linnell, when
in point of fact it was only a copy of a picture which Mr. Linnell had
painted; and that he passed it off by means of having the name " J.
Linnell " painted in the corner of the picture, in imitation of the origi-
nal one, on which the name was painted by the painter. Upon the
first count, for obtaining money b}' false pretences, the defendant was
acquitted ; the second was for a cheat at. common law ; and the third
was for a cheat at common law by means of a forgery. As_to_th£_third
count we are all oftheopinion that there was no forgery. -A forgt^ry
must beof some document or writing ; and this was merely in the
"nature of a mark put up6n the painting with a view of identifying it,
and was no more than if the painter put any other arbitrary mark as a
recognition of the picture being his. As to the second count, we have
carefully examined the authorities, and the result is that we think if a
person, in the course of his trade openly and publicly carried on, were
to put a false mark or token upon an article, so as to pass it off as a
genuine one, when in fact it was only a spurious one, and the article
was sold and money obtained by means of that false mark or token,
that would be a cheat at^common law. As, for instan"ee, in tlie^ase
put by way of example during the argument, if a man sold a gun with
the mark of a particular manufacturer upon it, so as to make it appear
like the genuine production of the manufacturer, that would be a false
mark or token, and the partj' would be guilty of a cheat, and therefore
liable to punishment if the Indictment were fairly framed so as to
meet the case ; and therefore, upon the second count of this indictment,
the prisoner would have been liable to have been convicted if that
count had been properly framed ; but we think that count is fault}' in
this respect, that, although it sets out the false token, it does not suffi-
ciently show that it was by means of such false token the defendant
was enabled to pass off the picture and obtain the money. The convic-
tion, therefore, cannot be sustained.
Crompton, J. — The modern authorities have somewhat qualified the
older ones, but I do not wish to pledge myself to the view taken as to
the nature of the false token, which would amount to a cheat at com-
mon law. I would be inclined to adopt the view taken by the rest of
the Court, but do not pledge myself to it. I concur in the judgment
that this conviction cannot be sustained upon the grounds stated by
the Chief Justice.
Conviction quashed'
840 EEGINA V. RITSON. [CHAP. XIII.
REGINA V. RITSON.
CouKT FOR Ckown Casks Keseeved. 1869.
[Reported L. R. 1 C. C. 200.]
Case stated by Hates, J. : —
The prisoners were indicted at the last Manchester assizes under
24 & 25 Vict. c. 98, § 20, for forgj^»-a.^dee4 with intent to defraud
J. Gardner.
"W. Ritson was the father of S. Ritson. He had been entitled to
certain laud which had been conveyed to him in fee, and he had bor-
rowed of the prosecutor, J. Gardner, on the securitj' of this land, more
than 730Z., for which he had given on the 10th of Januarj', 1868, an
equitable mortgage by written agreement and deposit of title deeds.
On the 5th of May, 1868, W. Ritson executed a deed of assignment
under the Bankruptcy Act, 1861, conveying all his real and personal
estate to a trustee for the benefit of creditors ; and on the 7th of May,
1868, by deed between the trustee and W. Ritson and the prosecutor,
reciting, amongst other things, the deed of assignment and the mort-
gage, and that the money due on the mortgage was in excess of the
value of the land, the trustee and W. Ritson conveyed the land and
all the estate, claim, etc., of the trustees and W. Ritson therein, to the
prosecutor, his heirs and assigns, for ever. After the execution of this
conveyance the prosecutor entered into possession of the land. Subse-
quently S. Ritson claimed title to the land, and commenced an action
of trespass against the prosecutor. The prosecutor thrn ^aw thr fittnr
ney forS^JRitson, whn^^grgdnced the deed chargyr^ ah a ff>rp;(^(i deed,
and tGeprosecutor commenced this pf^eeution against W. and S.
Ritson.
This deed was dated the 12th of March, 1868, the date being before
W. Ritson's' deed of assignment and the conveyance to the prosecutor,
and purported to be made between W. Ritson of the one part and S.
Ritson of the other part. It recited the original conveyance in fee to
W. Ritson, and that W. Ritson had agreed with S. Ritson for a lease
to him of part of the land at a 3'early rent, and then professed to demise
to S. Ritson a large part of the frontage and most valuable part of the
land conveyed to the prosecutor, as mentioned above, for the term of
999 3ears from the 25th of March then instant. The deed contained
no notice of any title, legal or equitable, of the prosecutor, and con-
tained the usual covenants between a lessor and lessee. It was exe-
cuted by both W. and S. Ritson.
The case then stated evidence which shewed that the deed had in
fact been executed after the assignment to W. Ritson's creditors and
after the conveyance to the prosecutor, and that the deed had been
fraudulently antedated by W. and S. Ritson for the purpose of over-
reaching the conveyance to the prosecutor.
CHAP. XIII.] REGINA V. KITSON. 841
The counsel for the prisoners contended that the deed could not be a
forgery, as it was reall3- executed b}- the parties between whom it pur-
ported to be mnde, The learned judge told the jury that if the alleged
lease was executed after the conveyance tqL_th6-i»i=Qsecutor. and ante-
dated with the purpoaE-Of defrauding hImTTt would be a forgery. The
jury found both the prisoners guilt}-. *
The question was whether the prisoners were properly convicted of
forgery under the circunastances.
The case was argued before Kellt, C. B., Martin, B., Blackburn,
LtisH, and Brett, JJ.
TbjT, for the prisoners. The deed in this case was not forged, be-
cause it was really made between and executed by W. and S. Eitson,
the persons by whom it purported to be executed, and between whom
it purported to have been made. The date of the deed was false, but
a false statement in a deed will not render the deed a forgery. If this
deed were held to be a forgery, then any instrument containing a false
statement made fraudulently would be forged.
[Blackburn, J. This is not merelj- a deed containing a-false'KatH^-
ment, but it is a false deed.]
There is no modern case to shew that a deed like this is a forgerj-.
To constitute a forgerj-, there must be either, first, a false name, or,
secondly, an alteration of another's deed, or, thirdly, an alteration of
one's own deed. There is no modern authorit}' to include &ny other
kind of forgery. Salway v. Wale, Moore, 655, appears an authority
against the prisoners, but that was a decision upon 5 Eliz. c. 14, which
is not worded in the same waj' as 24 & 25 Vict. c. 98, § 20. The defi-
nitions of the text-writers, which maj' seem to include a case like the
present, are not In themselves authorities. The decisions on which the
definitions purport to be based, and not the definitions themselves, are
the authorities which must be looked at.
Addison, for the prosecution. The deed in this case is a forgery,
because it is a false deed fraudulently made. Although there is no
recent case where similar facts have been held to constitute a forgery,
yet such a state of facts comes within the definitions of forgerj- given
by the text-books. Russell, vol. ii, p. 709, 4th ed. ; Hawkins, P. C.
bk. i, cap. 20, p. 263, 8th ed. ; 3 Inst. 169 ; Bacon's Abr., tit. Forgery,
A. ; Comyn's Dig., tit. Forgery, A. I. Salway v. Wale, Moore, 655,
is also an authority for the conviction. The essence of forgery is the
false making of an instrument. Rex ??. Parkes, 2 Leach, at p. 785.
Kellt, C. B. During the argument I certainly entertained doubts
on this question, because most, or indeed all, the authorities cited are
comparatively ancient. They are all before the statute (24 & 25 Vict.
c. 98, § 20), on which this indictment is framed, and before 11 Geo.
4 & 1 Wra. 4, c. 66, the statute which was in force when most of the
modern text-books on criminal law were written. When, however, we
look to all these authorities, and to the text-writers of the highest rep-
842 REGINA V. EITSON. [CHAP. XIII.
utation, such as Comyns (Dig., tit. Forgery, A. I.), Bacon (Abr., tit.
Forgery, A.), and Coke (3 Inst. 169), we find there is no conflict of
authority. Sir M. Foster (Foster's Crown Cases, 116), Russell on
Crimes (vol. ii, p. 709, 4th ed.), and otlier writers, also all agree. The
definition of forgery is not, as has beeu suggested in argument, that
every instrument containing false statements fraudulentlj' made is a
forgery ; but, adopting the correction of my Brother Blackburn, that
everysaBstrtrment-SthJcb-JraudJileatlyTpurportsJ^ that whidi it iti not
isja foigery, whetlier the. falsene.ss of the instrument consists in the
"fa(iT"that it "is made in a false name, or that the pretended date, when
that is a material portion of the deed, is not the date at which the deed
was in fact executed. I adopt this definition. It is impossible to dis-
tinguish this case in principle from those in which deeds made in a false
name are held to be forgeries.
There is no definition of forgery in 24 & 25 "Vict. c. &8, but the
offence has been defined by very learned authors, and we think this
case falls within their definitions. Under these circumstances the con-
viction must be aflSrmed.
Martin, B. I am of the same opinion. Mr. Torr was, no doubt,
right in saying that this is not a familiar case. That, however, need
not affect the principle to be applied in deciding it. All the authorities
are to the same effect. What is laid down on the subject by Comyns
(Dig., tit. Forgery, A. I.), Russell on Crimes (vol. ii, p. 709, 4th ed.),
Sir M. Foster (Foster's Crown Cases, 116), and in Tomlin's Law Dic-
tionary (Forgery), is good sense. All the authorities, both the ancient
and modern, agree. There is no reason why the principle of these
authorities should not apply to the present case, except that the facts
here are somewhat unusual.
Blackburn, J. I am of the same opinion. By 24 & 25 Vict. c. 98,
§ 20, it is a felony to " forge" any deed with intent to defraud. The
material word in this section is "forge." There is no definition of
"forge" in the statute, and we must therefore inquire what is the
meaning of the word. The definition in Comyns (Dig., tit. Forgerj',
t I.) is " forgery is where a man fraudulently writes or publishes a
/false deed or writing to the prejudice of the right of another," — not
[making an instrument containing tbat-whicb is false, which, I agree
vith Mr. Torr, would not be forgery, but makinp an inst.i-nmont whinh
puroom toJjeJhat^'hicE'it is notT Bacoii's Abr., (tit. Forgery, A.),
"" ■ "tTTslveirknown, was compiled from the MS. of Chief Baron
Gilbert, explains forgery thus : " The notion of forgery doth not so
much consist in the counterfeiting of a man's hand and seal, . . . but
in the endeavoring to give an appearance of truth to a mere deceit and
falsity, and either to impose that upon the world as the solemn act of
another which he is in no way privy to, or at least to make a man's own
CHAP. XIII.] REGINA V. KITSON. 843
act appear to have been done at a time when it was not done, and by
force of such a falsity to give it an operation which in truth and justice
it ought not to have." The material words, as applicable to the facts
of the present case, are, "to make a man's own act appear to have
been done at a time when it was not done." When an instrument pro-
fesses to be executed at a date different from that at wMch-it-reaUy
was "executed, and <UiB-false--daie::ig-TTrotgv^^]nrn thp nppr^itinn nf tho
deed, if the false date Ts~ingBrted~'kno^ingly and with a fraudulent
intent, it is a forgery at commonTaw: ~~ ' ""
"Ordinarily the date of a deed is not nraterial, but it is here shown by
extrinsic evidence that the date of the deed was material. Unless the
deed had been executed before the 5th of Maj', it could not have con-
veyed any estate in the land in question. The date was of the essence
of the deed, and as a false date was inserted with a fraudulent intent,
the deed was a false deed, within the definition in Bacon's Abridgment.
This is a sufficient authority.
If, however, there were no authority, I think that the principle I have
mentioned is right and expedient. Besides this, however, Coke (3 Inst.
169), speaking of forgery before the statute of Elizabeth (5 Eliz. c. 14),
states that the principle of forgery does apply to a case like this, and
that to make a deed purporting to bear a false date may be a forgery.
To the same effect is Sir M. Foster in Lewis's Case, Foster's Crown
Cases, 116, where all the judges in consultation assumed that ante-
dating a deed might be forgery.
All the text-books agree, and there is no single authority against the
definition I have stated. Mr. Torr, however, says that the definition
is old. I think that this gives it all the greater weight.
Lush, J. I also think that the conviction should be affirmed. If
the parties to this deed had inserted the true date in the first instance
and had subsequently altered it, there is no question that it would have
been a forgery. The offence would then have fallen within the letter of
24 & 25 Vict. c. 98, § 20, which says, " Whoever with intent to defraud
shall forge or alter . . . any deed," etc., shall be guilty of felony. It
would be absurd to hold that an alteration might constitute a forgery,
but that an original false making would not. We could not yield to
such -a distinction unless we were obliged. I am satisfied that "forge"
in § 20 of 24 & 26 Vict. c. 98, should be understood in the sense in
which that word is used in the authorities, new and old, on the subject.
To make a deed appear to be that which it is not, if done with a fraud- |
ulent intent to deceive, is a forgery, whether the falsehood consist in »
the name or in any other matter.
Bkett, J., concurred. Conviction affirmed.
844 COMMONWEALTH V. KAY. [CHAP. XIII.
i
COMMONWEALTH v. RAY.
Supreme Judicial Court op Massachusetts. 1855.
[Reported 3 Grat/, 441.]
Forgery. The indictment alleged that the defendant, on the 13th-
of July, 1854, at Boston, " did falsely make, forge, and counterfeit a
certain writing in the form and similitude of a railroad ticket or pass^
i of the tenor following ;
New York Central Railroad.
Albany to Buffalo.
Good this day only, unless indorsed by the conductor.
D. L. Fremyre.
Said counterfeit writing purporting to be a ticket or pass issued by the-
New York Central Railroad Companj-, whereby said corporation prom-
ise and assure to the owner and holder thereof a passage in their cars
over their railroad, extending from Albany to Buffalo in the State of
New York ; said ticket being signed bj' D. L. Fremyre, on their behalf,
he being their ticket clerk, or ticket agent ; ^ . . . and that the said
Miner L. Ray did then and there falsely make, forge, and counterfeit
one of said tickets, with intent to defraud, against the peace of th&
Commonwealth.''
At the trial in the Municipal Court the jury returned a verdict of
guilty, and the defendant alleged exceptions.
Dewet, J. The instrument here set forth as the subject of the alleged
forgery is not one included in the enumeration in the Rev. Sts. c. 127,
§ 1. It i3_jiQt,_ therefore, a statute offence. But many writings, not
enumerated in the statutes, al'b yyfthe subjects of forgerj' at common
law. The definition of forgery at common law is quite sufficient ta
embrace the present case. Take that in 4 Bl. Com. 247, "the fraud-
ulent making or alteration of a writing to the prejudice of another man'a
rigiit," or that of 2 East P. C. 861 (which is supported by Bac. Ab.
Forgery, B, and followed in 2 Russell on Crimes, 358), that " the
counterfeiting of any writing, with a fraudulent intent, whereby another
may be prejudiced, is forgery at common law ; " or that of Mr. Justice
BuUer, " the making a false instrument with intent to deceive." Rex
V. Coogan, 2 East P. C. 949. In 3 Greenl. Ev. § 103, it is said that
, forgery "may be rnrnrriittrrl nf any Tfriting- whioh, if {rrnninriij -trnnlrl
|| operateas-Uiefoundation of apnthnr rgjin's liability^" See also Regina
It is said that this instrument does not import a contract or promise-
of any kind. We think otherwise, and that, although it is wanting in
details of language fully stating the nature and extent of such contract,
it has writtsiLlgnguage_aiiffiet«irily iwdiottlivt! uf tTpromiao on obligatioi>
1 Part of the statement of facts, the arguments, and part of the opinion »m
omitted. — Ed.
CHAP. XIII.] COMMONWEALTH V. EAY. 845
to render it an instrument of value, by the false and fraudulent making
of which the rights of others would be prejudiced. This false instru-
ment would, if genuine, have created a liability on the part of the New
York Central Railroad Company to carry the holder thereof from Albany
to Buffalo, and would, therefore, have been a contract of value in the
hands of a third person.
It is then objected that the crime of forgery cannot be committed by
counterfeiting an instrument wholly printed or engraved, and on which
there is no written signatui-e personally made by those to be bound.
The question is whether the_jmtingjthecoualerfelting of_^hich is
forgery, may not be wholly made bj- means of printingorengrgjdflg^r
must be writtetrijyThe pen by tEe party "wno executesthe contract, i
In the opinion of the court, such an instrument may be the subject of i
forgery when the entire contract, including the signature of the party,
has been printed or engraved. The Uasby 61 forgery, gen'erallJ'T' are
<!ases of forged handwriting. The course of business, and the neces-
sities of greater facilities for despatch, have introduced to some extent
the practice of having contracts and other instruments wholly printed
■or engraved, even including the name of the party to be bound.
The effect to be given to the words " writing " and " written " was
much considered by this court in the case of Henshaw v. Foster, 9 Pick.
512. It arose in another form, and was not a question of forgery.
But in the learned opinion of the late Chief Justice Parker, this ques-
tion, as to what was embraced in these terms, seems to be fully settled,
and it was there held that the words "writing" or "written " included
the case of instruments printed or engraved, as well as those traced by
the pen.
It has never been considered any objection to contracts required by
the statute of frauds to be in writing that they were printed. It is
true that in those cases, usually, the signature at the bottom is in man-
uscript, and the printed articles of contract leave the name to be thus
filled up. In such cases, the signature by the pen is necessary to the
■execution of the contract. And this is the more expedient mode, as it
furnishes the greater facility for ascertaining its genuineness. But if
an individual or a corporation do in fact elect to put into circulation
■contracts or bonds in which the names of the contracting parties are j
printed or lithographed as a substitute for being written with the pen, J
and so intended, the signatures are to all intents and purposes the/
same as if written. It may be more difficult to establish the fact or
their signature ; but if shown, the effect is the same. Such being the
■effect of such form of executing like contracts, it would seem to follow
that any counterfeit of it, in the similitude of it, would be making a
false writing, purporting to be that of another, with the intent tc
defraud.* . . .
1 The learned judge held that the indictment was defective. — Ed.
846 COMMONWEALTH V. BALDWIN. [CHAP. XIII.
COMMONWEALTH v. BALDWIN.
SupRKMB Judicial Court of Massachusetts. 1858.
[Reported 11 Gray, 197.1
Thomas, J. This is an indictment for the forgery of a promissory
note. The indictment alleges that the defendant at Worcester in this
county " feloniously did falsely make, forge, and counterfeit a certain
false, forged, and counterfeit promissory note, which false, forged, and
counterfeit promissory note is of the following tenor, that is to sa}' :
* $457.88. Worcester, Aug. 21, 1856. Four months after date we
promise to pay to the order of Russell Phelps four hundred jSfty seven
dollars t^, payable at Exchange Bank, Boston, value received.
Schouler, Baldwin & Co.'
with intent thereby then and there to injure and defraud said Russell
Phelps."
The circumstances under which the note was given are thus stated
in the bill of exceptions : Russell Phelps testified that the note was
executed and delivered by the defendant to him at the Bay State
House in Worcester, on the 21st of August, 1856, for a note of equal
amount, which he held, signed by the defendant in his individual
name, and which was overdue ; and that in reply to the inquirj' who
were the members of the firm of Schouler, Baldwin & Co., the defend-
ant said, " Henry W. Baldwin, and William Schouler of Columbus."
He further said that no person was represented by the words " & Co."
It appeared in evidence that the note signed Schouler, Baldwin & Co.
was never negotiated by Russell Phelps. The government offered
evidence which tended to prove either that there never had been an}*
partnership between Schouler and Baldwin, the defendant ; or, if there
ever had been a partnership, that it was dissolved in the month of
July, 1856.
The question raised at the trial and discussed here is whether the
execution and delivery of the note, under the facts stated, and with
intent to defraud, was a forgery.
It would be difficult perhaps by a single definition of the crime
of forgery to include all possible cases. Forgery, speaking in general
terms, is the false making or material alteration of or addition to a
written instrument for the purpose of deceit and fraud. It may be the
making of a false writing purporting to be that of another. It may be
the alteration in some material particular of a genuine instrument by
a change of its words or figures. It may be the addition of some
material provision to an instrument otherwise genuine. It may be the
appending of a genuine signature of another to an instrument for
which it was not intended. The false writing, alleged to have been
made, may purport to be the instrument of a person or firm existing,
or of a fictitious person or firm. It may be even in the name of the
CHAP. XIII.] COMMONWEALTH V. BALDWIN. 847
prisoner, if it purports to be, and is desired to be received as the
instrument of a third person having the same name.
As a general rule, however, to constitute forgery, the writing falsely
made must purport to be the writing of another partj' than the person
making it. The mere false statement or implication of a fact, not hav-
ing reference to the person by whom the instrument is executed, will
not constitute the crime.
An exception is stated to this last rule by Coke, in the Third Insti-
tute, 169, where A. made a feoffment to B. of certain land, and after-
wards made a feoffment to C. of the same land with an antedate
before the feoffment to B. This was certainly making a false instru-
ment in one's own name ; making one's own act to appear to have
been done at a time when it was not in fact done. We fail to under-
stand on what principle this case can rest. If the instrument had been
executed in the presence of the feoffee and antedated in his presence,
it clearly could not have been deemed forgery. Beyond this, as the
feoffment took effect, not by the charter of feoffment, but by the
livery of seisin — the entry of the feoffor upon the land with the charter
and the delivery of the twig or clod in the name of the seisin of all the
land contained in the deed — it is not easy to see how the date could
be material.
The case of Mead v. Young, 4 T. R. 28, is cited as another excep-
tion, to the rule. A bill of exchange payable to A. came into the
hands of a person not the payee but having the same name with A.
This person indorsed it. In an action by the indorsee against the
acceptor, the question arose whether it was competent for the defend-
ant to show that the person indorsing the same was not the real payee.
It was held competent, on the ground that the indorsement was a
forgery, and that no title to the note could be derived through a
forgery. In this case of Mead v. ^oung, the party assumed to use the
name and power of the payee. The indorsement purported to be used
was intended to be taken as that of another person, the real payee.
The writing alleged to be forged in the case at bar was the hand-
writing of the defendant, known to be such and intended to be received
as such. It binds the defendant. Its falsity consists in the implica-
tion that he was a partner of Schouler and authorized to bind him by
his act. This, though a fraud, is not, we think, a forgerj'.
Suppose the defendant had said in terms, '' I have authority to sign
Schouler's name," and then had signed it in the presence of the
promisee. He would have obtained the discharge of the former note
by a false pretence, a pretence that he had authority to bind Schouler.
"It is not ," says Sergeant Hawkins, "the bare writing of an instru-
ment in another's name without his privity, but the giving it a false
appearance of having been executed by him, which makes a man
guilty of forgery." 1 Hawk. c. 70, § 5.
If the defonriant hnd wiiften upon the note, "William Schouler by
bis nweiit Henry W. l^aldwiii." tlic ai't plainly wouM not have been
848 COLVIN V. STATE. [CHA.P. XIII.
rorgerj'. The party takiug the note knows it is not the personal act
of Schouler. He does not rely upon his signature. He is not deceived
by the semblance of his signature. He relies solely upon the averred
agency and authority of the defendant to bind Schouler. So, in the
case before us, the note was executed in the presence of the promisee.
He knew it was not Schouler's signature. He relied upon the defend-
ant's statement of his authoritj' to bind him as partner in the firm of
Schouler, Baldwin & Co. Or if the partnership had in fact before
existed but was then dissolved, the effect of the defendant's act was
a false representation of its continued existence.
In the case of Regina v. White, 1 Denison, 208, the prisoner in-
dorsed a bill of exchange, "per procuration, Thomas Tomlinson,
Emanuel White." He had no authority to make the indorsement,
but the twelve judges held unanimously that the act was no forgery.
The nisi prius case of Regina v. Rogers, 8 Car. & P. 629, has some
resemblance to the case before us. The indictment was for uttering
a forged acceptance of a bill of exchange. It was sold and delivered
by the defendant as the acceptance of Nicholson & Co. Some evidence
was offered that it was accepted b^' one T. Nicholson in the name of
a fictitious firm. The instructions to the jury were perhaps broad
enough to include the case at bar, but the jury having found that
the acceptance was not written by T. Nicholson, the case went no
fu'-ther. The instructions at nisi prius have no force as precedent, and
in principle are plainly beyond the line of the settled cases.
The result is that the exceptions must be sustained and a new trial
ordered in the common pleas. It will be observed however that the
grounds on which the exceptions are sustained seem necessarily to dis- ■
pose of the cause. Mcceptions sustained.
COLVIN V. STATE.
Supreme Court of Indiana. 1858.
{Reported 11 /nd. 361.]
Perkins, J. Indictment for forgery. The offence charged consisted
in the uttering, as true, a false and forged deed to a piece of land.
The facts may be shortly stated. John Randolph Brewster and
Archibald R. Colvin were boarding, with their wives, at the house of
Jacob Lesman, Fort Wayne, Indiana. They were destitute of money
to pay their board, and their credit was about expiring. For the pur-
pose of " making a raise," says the witness, they agreed to execute
deeds for an exchange of land. They obtained a map, selected certaiti
sections of land in Iowa and Texas, and agreed that Colvin should
make a deed to Brewster for those in Texas, and Brewster to Colvin
for those in Iowa. They accordingly went before a public oflflcer, and
CHAP. XIII.] OOLVIN V. STATE. 849
got him to draw up and take acknowledgment of the deeds, talking at
the time of the execution about the amount to be paid in cash by one to
the other as the difference in the value of the lands, etc. Brewster '
executed his deed to Colvin in the name of James Brewster, a name he
had assumed, for a short time, at Fort Wayne ; but Colvin knew that
his true name was John Eandolph Brewster.
This deed, so executed to him bj- Brewster, Colvin took to Lesman,
uttered it as a genuine deed, and placed it with him on deposit as an
equitable mortgage of the land, in security for his board-bill.
The question is whether the act constituted the crime of forgery,
under the following statute :
" Every person who shall falsely make, or assist to make, deface,
destroj-, alter, forge, or counterfeit," etc., " any record, deed, will,
codicil, bond," etc.; "or anj' person who shall utter, or publish as
true, anj' such instrument, knowing the same," etc., "with intent
to defraud," etc., "shall be deemed guilty of forgery." 2 R. S.
p. 412, § 30.
The deed was deposited for boarding already had, not to secure the
pricS'ot' future boaramg ; Tiw did the depositor board, or, at the time
of the deposit, intend to board longer with Lesman, as the latter well
knew.
The indictment contains but a single count, charges the uttering of
the deed to Lesman, and specially avers the intent, in so doing, to have
been to defraud him.
We think the case is not' made out. No fraud appears to have been
perpetrated upon Lesman! 'rhe debt already existing wa§_pot cancelled,
but remained_due, and the right to enforce payment of it left unim-
paired. No new credit from EesmarTwas obtained upon the deed. He
was in no worse situation after taking the deed than before.
Had Colvin been indicted for the forgery, with intent generally to
defraud, such an indictment might, probably, have been sustained
against him. See Wilkinson v. The State, 10 Ind. E. 372.
850 LASCELLES V. STATE. [CHAP. XIII.
COMMONWEALTH v. HENRY.
Supreme Judicial Court of Massachusetts. 1875.
[Beported 118 Mass. 460.]
Devens, J.^ The last sentence of the instruction given by the judge,
in response to the request of the defendant, "that if the defendant
signed the name of J. C. Hill to said note without the authority of said
Hill, and passed it as the note of J. C. Hill, expecting to be able to
meet it when due, it would be a forgery," would undoubtedlj-, if it
stood alone, be a defective statement of the law. But it is not to be
separated from the sentence which precedes it, which distinctly states
that there must be an intent to defraud, and, as thus connected, the
obvious meaning of the instruction, and so it must have been under-
stood by the jury, was that if the defendant signed the note under the
circumstances supposed, intending thereby to defraud, this would be a
forgery, even if he expected to be able to meet the note when due.
The subject to which the request of the defendant was apparently in-
tended to call the attention of the presiding judge, was the effect of his
possession of the means and of his intention to take up the note when
due, and in relation to this the statement of the law was correct. The
intention of one who utters a forged note to take it up at maturity, and
the possession of means which will enable him to do so, do not rebut
the inference of intent to defraud, which is necessarily drawn from
knowingly uttering it for value to one who believes it to be genuine,
nor deprive the transaction of its criminal character. Commonwealth
V. Tenney, 97 Mass. 50.
Exceptions overruled.
LASCELLES v. STATE.
Supreme Court of Georgia. 1892.
[Reported 90 Ga. 347.]
The indictment charged that Sidney Lascelles did falsely and fraud-
ulently draw, make and forge a certain bill of exchange (setting it out)
in the fictitious name of Walter S. Beresford, when his real and true
name was Sidney Lascelles, with intent then and there to defraud
Hamilton & Company, a mercantile house, etc. The bill of exchange
purported to be a check for two hundred pounds on a London bank in
favor of Hamilton & Co., signed "Walter S. Beresford." ^
1 Only so much of the opinion as discusses the intent to defraud is given. Ed
^ Only so much of the case as discusses the question of the signing by defendant ol
a name previously assumed by him is given. — Ed.
CHAP. XIII.J LASCELLES V. STATE. 851
Lumpkin, J. . . . Several grounds of the motion for a new trial are
based upon the failure and refusal of the court to charge, in effect, that
if the name signed by the accused, although nothis own, was one which
he had been accustomed to employ and under which he had done busi-
ness, the jury could not convict him. It was insisted that, in order to
constitute forgery, the name must have been assumed for the sole
purpose of defrauding the persons alleged to have been defrauded.
We think it immaterial for what purpose the name was originally
assumed and used, if it is shown that in the instance in question it was
used to defraud. It was a fictitious name, within the meaning of the
statute (Code, § 4453), if the accused gave it a fictitious character
which was calculated and intended to deceive by imparting an apparent
value to the writing which might not otherwise attach to it in the minds
of the persons with whom the accused was dealing. Where one has
been accustomed to use a certain assumed name, it is not to be implied
merely' from his signing such name to a bill of exchange or other writ-
ing that the purpose is to defraud ; it is not forgery unless there is
something else besides the mere signing to show that the fictitious
character of the name is in that instance an instrument of fraud. In
the case of Dunn, 1 Leach C. C. 57, and Reg. v. Martin, 49 L. R.,
C. C, 244, cited for the plaintiff in error, there was no such showing
made. In the present ease, however, the accused, at the time of sign-
ing the writing, gave a fictitious character to the name, upon the faith
of which he induced the parties with whom he was dealing to give
value for the writing. According to his representations to them, it
was the name of the son of Lord Beresford, an English nobleman of
great wealth, who was about to deposit in bank $25,000 in the name of
this son. When Mr. Hamilton hesitated about paying the mone3', the
accused said: "Our name can command anj' amount of money in
England." He not onlj' used an assumed name, but, in connection
with the signing of the writing in question, gave a fictitious character
to the name, and impersonated that character in order to obtain money
upon the writing, which he might not have gotten if he had simply rep-
resented himself to be Walter S. Beresford, or had stopped with the
representations he had made as to liis own wealth, without making
these additional representations as to his relationship and standing.
The parties with whom he was dealing paid over their money to the
supposed son of Lord Beresford, upon the faith of a writing executed
by the accused in that character, when, as it afterwards turned out, the
name used was not his own name, and Lord Beresford had no son of
the name used. There being no such son, it was not a case of person-
ating another, as contemplated by section 4596 of the code. It was
the personating of a fictitious person, and this is of the essence of the
offence described in the section upon which the first count of this
indictment was based. Code, § 4453.
852 THE POULTEEEE'S case. [CHAP. XTV.
CHAPTER XIV.
CRIMINAL CONSFIHACY.
SECTION I.
Under Ancient Statutes.
33 Edw. I. Stat. 2 ; [Ordinance of Conspirators.] Conspirators be
they that do confeder or bind tliemselves bj' oath, covenant, or other
alliance, that every of. them shall aid and bear the other false!}' and
maliciously to indict, or cause to indict, or falsel}' to move or maintain
pleas ; and also such as cause children within age to appeal men of
felony, . whereby thej' are imprisoned and sore grieved ; and such as
retain men in the country with liveries or fees for to maintain their
malicious enterprises and to drown the truth ; and this extendeth as
well to the takers, as to the givers. And stewards and bailiffs of great
lords, which by their seigniory, office, or power, undertake to bear or
maintain quarrels, pleas, or debates that concern other parties than
such as touch the estate of their lords or themselves. This ordinance
and final definition of conspirators was made and accorded by the King
and his Council in his Parliament the thirty-third year of his reign.
THE POULTERER'S CASE.
Stak Chamber. Ifill.
[Reported 9 Coke h^ h ]
Mich. 8 Jac. Regis, the case between Stone, plaintiff, and Ralph
Waters, Henry Bate, J. Woodbridge, and many other poulterers of
London, defendants, for a combination, confederacy, and agreement
betwixt them falsly and maliciously to charge the plaintifif (who had
married the widow of a poulterer in Gracechurch Street) with the
robbery of the said Ralph Waters, supposed to be committed in the
county of Essex, and to procure him to bo indicted, arraigned,
adjudged, and hanged, and in execution of this false ccnspiracy, they
procured divers warrants of justices of peace, by force whereof Stone
SECT. I.J THE poulterer's CASE, 853
was apprehended, examined, and bound to appear at the assizes in
Essex ; at which assizes the defendants did appear and preferred a
bill of indictment of robber}- against the said plaintiff; and the justices
of assize hearing the evidence to the grand jurj- openly in court, they
perceived great malice in the defendants in the prosecution of the
cause ; and upon the whole matter it appeared, that the plaintiff the'
whole day that Waters was robbed, was in London, so that it was-
impossible that he committed the robbery, and thereupon the grand
inquest found ignoramus. And it was moved and strongly urged by
the defendants' counsel, that admitting this combination, confederacy,
and agreement between them to indict the plaintiff to be false, and
malicious, that jet no action lies for it in this court or elsewhere, for
divers reasons. 1. Because no writ of conspiracy for the party grieved,
or indictment or other suit for the King lies, but where the party
grieved is indicted, and legitimo modo acquietatus, as the books are'
F. N. B. 114 b ; 6 E. 3, 41 a ; 24 E. 3, 34 b ; 43 E. 3, Conspiracy 11;
27 Ass. p. 59 ; 19 H. 6, 28 ; 21 H. 6, 26 ; 9 E. 4, 12, &c. 2. Everyone
who knows himself guilty raaj-, to cover their offences, and to terrify
or discourage those who would prosecute the cause against them, sur-
mise a confederacy, combination, or agreement betwixt them, and b}-
such means notorious offenders will escape unpunished, or at the least,
justice will be in danger of being perverted, and great offences smoth-
ered, and therefore, they said, that there was no precedent or warrant'
in law to maintain such a bill as this is. But upon good consideration,
it was resolved that the bill was maintainable ; and in this case divers'
points were resolved.^
3. It is to be observed that there was means by the common law'
before indictment to protect the innocent against false accusations, and'
to deliver him out of prison. . . . And it is true that a writ of con-'
spiracj' lies not, unless the party is indicted, and legitimo modo acquie-
tatus, for so are the words of the writ ; but that a false conspirac}' '
betwixt divers persons shall be punished, although nothing be put in
execution, is full and manifest in our books ; and therefore in 27 Ass.
p. 44, in the articles of the charge of inquiry by the inquest- in the
King's Bench, there is a nota, that two were, indicted of confederacy,
each of them to maintain the other, whether their matter be truej or
false, and notwithstanding that nothing was supposed to be put in exe-
cution, the parties were forced to answer to it, because the thing is
forbidden b}- the la,w, which are the very words of the book ; which
proves that such false confederacy is forbidden by the law, although it
was not put in use or executed. So there in the next article" in the
same book, inquirj' shall be of conspirators and confederates, who
agree amongst themselves, &c. falsly to indict, or acquit, &c. the man-
ner of agreement betwixt whom, which proves also, that confederacy
to indict or acquit, although nothing is executed, is punishable by law :
and there is another article concerning conspiracy betwixt merchants,
' The first two points, not relating to tlie Law of Conspiracy, are omitted.
854 THE poulterer's CASE. [OHAP. XIV.
and in these cases the conspiracy or confederacy is punishable,
although the conspiracy or confederacy be not executed ; and it is held
.in 19 R. 2, Brief 926, a man shall have a writ of conspiracy, although
the3- do nothing but conspire together, and he shall recover damages,
and they may be also indicted thereof. Also the usual commission of
oyer and terminer gives power to the commissioners to inquire, &c. de
omnibus caadunationibics, confixderationibus, etfalsis alligantiis ; and
coadunatio is a uniting of themselves together, confoederatio is a com-
bination amongst them, and /aZsa alligantia is a false binding each to
the other, by bond or promise, to execute some unlawful act : in these
cases before the unlawful act executed the law punishes the coaduna-.
tion, confederacy, or false alliance, to the end to prevent the unlawful
act, quia quando aliquid proliibeiur , prohibetur et id per quod perven-
itur ad illud : et affectus punitur licet non seqtiatur effectus ; and in
these cases the common law is a law of mercj% for it prevents the
malignant from doing mischief, and the innocent from suffering it.
Hi!. 37 H. 8, in the Star Chamber a priest was stigmatized with F. and
A. in his forehead, and set upon the pillory in Cheapside, with a
written paper, ybr/aZse accusation. M. 3 & 4 Ph. & Ma., one also for
the like cause yMt7 stigmaticus with F. & A. in the cheek, with such
superscription as is aforesaid. " Vide ProverV 1. Si te lactaverint
peccatores et dixeririt, veni nobisciim ut insidiemur sanguini, abscon-
damus tendiculas contra insonteni frustra, &c. omnem preiiosam sub-
stantiam reperiemus et implebimus domus nostras spoliis, &c. Fill
m.i, ne ambules cum eis, &c. pedes enim eorum ad m,aluni currunt, et
festinant ut effundant sanguinem." And afterward upon the hearing of
the case, and upon pregnant proofs, the defendants were sentenced
for the said false confederacy bj' fine and imprisonment. Nota, reader,
these confederacies, punishable by law, before they are executed, ought
to have four incidents : 1. It ought to be declared by some manner of
prosecution, as in this case it was, either bj' making of bonds, or
promises one to the other ; 2. It ought to be malicious, as for unjust
revenge, &c. 3. It ought to be false against an innocent : 4. It ought
to be out of court voluntarily.
SECT. II.] EEX V. EDWAEDS. 855
SECTION II.
Conspiracy in Creneral.
REX V. EDWARDS.
King's Bench. 1724.
[Reported 8 Modern, 320.]
The defendants were indicted, for that the^', per conspirationem
inter eos habitam, gave the husb,aftd-^|noney tcL-maa-y a poor Ji&lpless
woman, who was an tntiaTiitant in the parish of B. and incapable of
marriage, on purpose tnjr^ny\ a .sptt.lprapnt, for hpr '" t^'°^£flnsh_ of A.
where the man was settled.
It was moved to quash this indictment, because it is no crime to
marr^' a woman and give her a portion ; and the justices are not proper
judges what woman is capable of a husband, neither have the}' any
jurisdiction in conspiracies.
It was insisted on the other side, that there is a crime set forth in
this indictment, which is a conspiracy to charge a parish, &c. and a
conspiracy to do a lawful act, if it be for a bad <ihd, is a "good founda-
tion for an indictment. An indictment for a conspirac}' to charge a
man to be the father of a bastard-child, was held good, Temberley v.
Child, 1. Sid. 68. s. c. 1 Lev. 62 ; Rex v. Armstrong, 1 Vent. 304,
though fornication is a spiritual offence ; because the Court of King's
Bench has cognizance of ever}' unlawful act by which damages may
ensue. So an information for a conspiracy to impoverish the farmers
of the excise, was held good.
To which it was answered, that those were conspiracies to do unlaw-
ful acts ; but it was a good act to provide a husband for this woman.
The Coukt. The quashing indictments is a discretionary power of
the court, but in this case the defendant has not showed anything to
induce the court to quash the indictment ; and if the matter be doubt-
ful, the defendant must plead or demur ; _bijJt^ndictments_fo£. conspira-
cies are never quashed.— A bare conspirac}' to"Tftr"a lawful act to an !
uTlfeWtul ena, is a crime, though no act be done in consequence
thereof, Reg. v. Best, 2 Ld. Ray. 1167; s. c. 6 Mod. 185; but if the
fault in the indictment be plain and apparent, it is quashed for that
reason, and the party shall not be put to the trouble to plead or demur.
Suppose there is a conspiracy to let lands of ten pounds a j-ear value
to a poor man, in order to get him a settlement, or to make a certificate
man a parish-officer, or a conspiracy to send a woman big of a bastard-
child into another parish to be delivered there, and so to charge that
parish with the child ; certainly these are crimes indictable. But in
this indictment it is not set forth, that the woman was likely to be
856 EBX V. TURNER. [CHAP. XIV.
chargeable to the parish. As to the objection, that the sessions have
no jurisdiction in conspiracy, the contrary is true ; they have no juris-
diction in perjurj' at common law, but by the statute they have ; and
they have no jurisdiction to indict for forgerj-, but certainly they have
jurisdiction de conspirationibus, Rex v. Rispal, 3 Burr. 1320 ; and such a
person as this defendant is was punished by indictment at common law.'
But in the Trinity Term following judgment was given for the
defendant, because it was not averred in the indictment, that the
woman was last legally settled in the parish of B., but only that she
was an inhabitant there.
REX V. TURNER.
King's Bench. 1811.
[Reported 13 East, 228.]
This was an indictment for a conspiracy, which stated that the
defendants unlawfully and wickedly devising and intending to injure,
oppress, and aggrieve T. Goodlake, of Letcombe Regis in the county
of Berks, Esquire, on the 24th of November, 50th Geo. 3, with force
and arms, at East Challow in the county aforesaid, unlawfuUj- and
wickedly did conspire, combine, confederate, and agree together, and
with divers other persons unknown, to ^o into_a_iJfirtain preserve for
hares at Letcombe Regis aforesaid, in the countj- aforesaid, belonging
to the said T. G., without the leave and against the will and consent
of the said T. G., to snare, take, kill, destro}', and carry awa}- the
hares in the said preserve then being, and to procure divers bludgeons
and other offensive weapons, and to go to the said preserve armed
therewith for the purpose of opposing any persons who should
endeavor to apprehend or obstruct or prevent them in and from carry-
ing into execution their unlawful and wicked purposes aforesaid ; aud
that the said defendants, in pursuance of and according to the conspir-
acy, combination, confederacj-, and agreement aforesaid, so as afore-
said before had, afterwards, to wit, on the said day, &c., about the
hour of 12 in the night of the same da}-, with force and arms, at East
Challow aforesaid, in the county aforesaid, unlawfully and wickedly
did procure divers large bludgeons, and other offensive weapons, and
did go to the said preserve of the said T. G. armed therewith, for the
purpose of opposing any persons who should endeavor to apprehend,
obstruct, or prevent them ' in and from carrying into execution theiy
unlawful and wicked purposes aforesaid. And the said defendants,
' It is said, s. o. 1 Sess. Cases, 336, that the court left the defendants to demur or
plead to it, as they should think fit; and s. o. I Stra. 707, that on a demurrer to this
indictment, jndgment was given for the defendant, because it is not an offence
indictable <
SECT. II.] REX V. TURNEK. 857
being so armed as aforesaid, in further execution of their unlawful and
wicked purposes aforesaid, then and there did set divers, to wit, 100
snares, for the purpose and witli the intent to take, kill, destroy, and
carry away the hares in the said preserve then being ; in contempt of
the king and his laws, to the evil example of others, to the great
damage of the said T. G., and against the peace, etc.
After a verdict of guilt}-, it was moved in the last term, by Jeruis, tqjP
arrest the judgment for the insufficiency of the charge, whioh was a^yj
that of an agreement to commit a mere trespass upon property, and tol
set snares for hares, and was not an indictable offence, but at mosA
only an injury- of a private nature, prohibited sub modo, under a penJl
alty. And 2 Hawk. P. C. c. 25, s. 4, was referred to. Another
objection was taken, that the place where the offence was committ^
was not alleged with sufficient certainty and precision.
Gleed now opposed the rule, and endeavored to sustain the indict-
ment upon the authorit}- of 2 Hawk. P. C. c. 72, s. 2,' where it is saidi
that all confederacies whatsoever wrongfully to prejudice a third per-j
son are highly criminal at common law; as where several confederate '
to maintain one another in any matter whether it be true or false. The
cases also show that it is equally an offence to combine to do a lawful
act by unlawful means, or to an unlawful end, as to do an act in itself
unlawful ; as in the instance of workmen conspiring together to raise
their wages, The King v. The Journeymen Tailors of Cambridge, 8
Mod. 11, or parish officers conspiring to marry a helpless pauper into
another parish, to settle her there and rid themselves of her mainte-
nance, The King v. Edwards and Others, 8 Mod. 320. And in allf
cases of unlawful conspiracj% the mere unlawful agreement to do the 1
act, though it be not afterwards executed, constitutes the offence ; '
according to Rex v. Armstrong and Others, 1 Ventr. 304, and Eex v.
Eispal, 3 Burr. 1320, and 1 "W. Black. 368. In this latter case the
indictment for conspiring to charge a man with a false fact, and
exacting money from him under pretence of stifling the charge, was
sustained ; though the fact imputed, which was merely that of taking
hair out of a bag belonging to the defendant Rispal, did not import in
itself to, be any oflence. [Lord Ellenborough, C. J. All the cases in
conspiraej' proceed upon the ground tliat the object of the combination
is to be effected b}- some falsity ; insomuch that in Tailor and Tow-
lin's case in Godb. 444, it was held necessary in conspiracy to allege
the matter to he false et malitiose. Bj' the old law indeed the offence
was considered to consist in imposing b}- combination a false crime
upon a person. But are jou prepared to show that two unqualified
persons going out together by agreement to sport is a public offence?]
Modern cases have carried the offence further than some of the old
authorities, such as The King v. Eccles and Others, where the defend-
ants were convicted upon a charge of conspiring together by indirect
means (not stating what those means were) to prevent a person from
carrying on his trade. And in The King u. Spragge and Others, 2
858 REX V. PTWELL. [CHAP. XI 7.
Buir. 993, which charged the defendants with a conspiracv to indict
and prosecute W. G. for a crime liable by law to be capitally pun-
ished, and that in pursuance of such conspiracj- they did afterwards
indict him ; one of the objections was, that the charge was onlj- of a
conspiracj' to indict, not of a conspiracy to indict falsely ;' but it was
overruled.
LoKD Ellenborough, C. J. That was a conspiracj- to indict another
of a capital crime ; which no doubt is an offence. And the case of
The King )'. Eccles and Others was considered as a conspiracy' in
restraint of trade, and so far a conspiracy to do an unlawful act affect-
ing the public. But I should be sorr3- that the_£ascs-4n conspiracj'
against individuals, which hp^p gone fa r ^nough^^jhouldJieLpusEedstill
lartheF: I should be sorr}' to have it doubted whetiier persons agree-
ing to go and sport upon another's ground, in other words, to commit
a civil trespass, should be therebv in peril of an indictment for an
offence which would subject them to infamous punishment.
Per Curiam. Bule absolute.'
EEX V. PYWELL.
Westminster Sittings. 1816.
[Reported 1 Starkie, 402.]
This was an indictment against the defendants for a conspirac}' to
J cheat and defraud General Maclean, bj- selling him an unsound horse.
It appeared that the defendant Pywell had advertised the sale of
horses, undertaking to warrant their soundness. Upon an application
by General Maclean at Pywell's stables, Budgery, another of the de-
fondants, stated to him that he had lived with the owner of a horse
which was shown to him, and tliat he knew the horse to be perfectly
sound, and as the agent ^ of Pywell. he dsi^rranted him to be sound.
General Maclean purchased the horse, and toolTttre'tollowing receipT:
' ' Received of Maclean, Esq., the sum of fifty guineas, for a geld-
ing warranted sound, to be returned if not approved of within a week."
1 " After the most careful and elaborate consideration of the cases, I am satisfied
that Rex v. Turner is not law." liORD Campbell, C. J., in Reg. v. Rowlands, 5 Cox
436, 490. "The King v. Turner, 13 East, 231, to say the least of it, is an odd case.
Confederates armed with clubs to beat down opposition, entered a man's preserve in
the night to take and carry away his hares ; and Lord Ellenborough called this ' an
aijreement to go and sport on another's ground,' in other words, ' to commit a civil
trespass ' ! It would be a curious thing to know what he would have called an agree-
ment to steal a man's pigs or to rob his henroost. In its mildest aspect, the entry into
the preserve with bludgeons was a riot, which, it appears by a note in the second vol-
ume of Mr. Chitty's Criminal Law, page 506, may be a subject of conspiracy."
CiiusoN, C. J., in Mifflin r. Com.. 5 W. & S. 461. 463. — En.
SECT. II.] BEGINA V. WAllbUliTON. 859
It was discovered, very soon after the sale, that the animal was
nearly worthless. The prosecutors were proceeding to give evidence
of the steps taken to return the gelding, when —
Lord Ellknborough intimated that the case did not assume the
shape of a conspiracy ; the evidencejyould not warrant any proceeding
beyond that ofjiu_jigtiQn-aii_the_Hairranty, for the breach of a civil con-
tract. ^If this(he said) were to be considered to US anTndictaI)tn
"TTfTence, then instead uf all the actions which had been brought on war-
ranties, the defendants ought to have been indicted as cheats. And
that ho indictment in a case like this could be maintained, without
evidence of CQncert_betwe5jrilie pai'tTCs to eflTeeteate'arTraud. ~
""^TtieTJefendants were accordingly acquittecT
The Attorney- General a.nd Andrews for tlie prosecution.
Nolan and Spankie for the defendants.
EEGINA V. WAEBURTON.
Crown Case Reserved. 1870.
[Eeported L. R. 1 C. C. R. 274.]
Case stated by Brett, J. : —
Indictment, amongst other counts, that the prisoner had unlawfull}'
conspired with one Joseph Warburton and one W. H. Pepys, by divers
subtle means and devices, to (jheat and defraud the prosecutor, S. C.
Lister. ~~
At the trial at the summer assizes, in 1870, for the West Hiding of
Yorkshire, at Leeds, it was found that the prisoner and Lister were
in 1864 in partnership, and carried on a part of the partnership busi-
ness at Urbigau, in Saxony, by there selling patent machines ; that the
prisoner had given notice according to the terms of the partnership
agreement for a dissolution of the partnership between himself and Lis-
ter ; and that upon such dissolution an account was to be taken accord-
ing to the partnership agreement of the partnership property, and that
according to it such property would be divided on such dissolution in,
certain proportions between the prisoner and Lister after payment of
partnership liabilities ; and that the prisoner, in order to cheat Lister,
had agreed with his brother, Josgpfi Warhiirton, who managed the
partnership business at Urbigatrfand with Pepys, who resided at Co-
logne, t"jnff1vp iti apppsr 1;vy rlr.r.nmprit.g, purporting to have passed
between Pepys and Joseph Warburton, and by entries in the partner-
shij) books or accounts, raacb under the superintendence of Joseph
Warburton, that Pepys was a ci-editorof the firmjhuiionej's advanced ;
and that, by reason ofsuch documents anrt entries, certain partnership
property was to be withdrawn and to be handed to Pepys or otherwise
860 EEGINA V. WARBUKTON. [CHAP. XIV.
abstracted or kept back so as to be divided between the prisoner and
Joseph Warburton and Pepys, to the exohision of Lister from anj- inter-
est or advantage in or from or in respect of it.
The jiirj', upon this evidence, found the prisoner guilty of the con-
spiracy cliarged, and rightly so found if in point of law such an agree-
ment made b^' a partner with such an intent to defraud bis partner of
partnership property- and to exclude him entirely from anj' interest in
or advantage from it on such an occasion, that is to saj-, on the taking
of an account for the purpose of dividing the partnership property' on a
dissolution of the partnership, bj:_moanij of falsf^ entries in the partner-
ship_^0ol*6> and false documents purporting to have passed with a sup-
posed creditor of the lirm, is a conspiracy for which a prisoner can be
criminall}- convicted.
The offence, if it were one, was fully completed befoi-e the passing
of 31 & 32 Vict. c. 116, by which a partner can be criminall}- convicted
for feloniousl}- stealing partnership propert}-.
The question for the opinion of the court was whether the verdict
could be sustained so as to support a conviction for conspiracj' in point
of law.
Waddy ( Whitaker with him) for the prisoner. To constitute a con-
spiracy there must be an agreement to do an illegal act or to do a legal
act b}' illegal means. See Russell on Crimes, 4th ed. vol. iii. p. 116.
Here the acts agreed upon, although doubtless immoral, are not illegal.
If the agreement had been carried out, the prisoner could not have
been sued at law bj' Lister, nor could he have been indicted for doing
the agreed acts. Lindle}- on Partnership, 2d ed. vol. ii. p. 856. It is
2t_anindiiitaWe offence for one partner to obtain some of the partn6r^~
ship niojifry-ft'Oiii Uie (Mi^s^urttners b}' nreans oraTfija^Ktnlenl ifftssLace-
n>entof existing factsT" Keg.'1?>-Evans, Leigh— &-Gava, 29S>; .32 L. J.
(Mj-C.) 38. TFe acts contemplated b^- tlie agreement were, therefore,
neither actionable nor criminal.
[CocKBURN, C J. Even assuming that no action or indictment would
lie for such acts, the acts are wrongful nevertheless, aiid there is a
remedy, viz., b}' proceedings in equitj-.]
An act which merelj- gives a right to proceed in eqnit}' is not an
illegal act within the meaning of the definitions of conspiracy.
Maule, Q. C. (Nathan with him), for the prosecution was not called
upon.
CocKBURN, C. J. It has been doubted sometimes whether the law of
England does not go too far in treating as conspiracies agreements to
do acts which, if, done, would not be criminal offences. This ques-
tion does not, however, arise here, as no one would wish to restrict the
law so that it should not include a case like the present. It_is_sufli«*+)*,
to constitute a conspiracy if two ql more persons combine by fraud and
laigc^ pretences to injure anothei-. See Russell on Crimes, 4th ed.
vol. iii. p. 116. Iljs nOL ngP55sary in order to constitute a conspiracy
that the acts jijttppH rn^np^ rinnp ahviiTifl \\o nftsjgjiiph~TT flonc_Biout3~15r~
SECT. 11.] COMMONWEALTH V. PEIUS. 861
oriminaii, I^. is enough if the ac^ agreed to be done, although not
criminal, arc wrongful, i. e., amounfr'feQ.^ civil wrong. Here there was
undoubtedly an agreement with reference to the division of the partner-
ship property or of the partnership profits. It is equally clear tliat the
agreement was to coiimiit a civil wrong, because the agreement was to
deprive the prisoner's partner by fraud and false pretences of his just
share of the property or profits of the partnership. A civil wrong was
therefore intended to Lister. The facts of this case thus fall within
the rule that when two fraudulently combine, the agreement may be
criminal3_although if the^aaPe&mewt-werg'carried out no^cttltnrwoTrld be
committed, but a civil wrong only would be inflicted on a third party.
*'Iii this case tlieobject of the agreement was, perhaps, not criminal.
It is not necessary to decide whether or not it was criminal ; it was,
however, a conspirac}', as the object was to commit a civil wrong by
fraud and false pretences, and I think that the conviction should be
affirmed.
Channell and Cleasby, BB., Keating and Brett, JJ., concurred.
Conviction affirmed.
COMMONWEALTH v. PRIUS.
Supreme Judicial Court of Massachusetts. 1857.
[Reported 9 Gray, 127.]
The second count of this indictment alleged that the defendants, on
the 1st of March, 1856, owning a stock of goods in Lowell as partners,
and having insurance thereon against fire' by certain insurance com-
panies named in the indictment, amounting in all to the sum of $10,000,
"did then and there corruptly, wickedly, and unlawfully confederate,
agree, combine, and conspire together, to insure and cause to be in-
sured on said stock" certain otlier sums, amounting to $10,000 more,
in other companies named, " b}' then and there falsely pretending that
said stock so b}- said firm kept and used in their said business was then
and there of a much greater value than twenty thousand dollars ; and
as a part of said unlawful agreement'' the defendants " did then and
there corruptlj', wickedly, and unlawfully confederate, agree, combine,
and conspire together to obtain from all said insurance companies as
and for a loss to a large amount, to wit, twentv thousand dollars, by
means of false pretences of a loss thereafterward to happen, with de-
sign, under pretence of a loss, to cheat and defraud all said insurance
companies and each one of them of their moneys by means of said
false pretences ; against the peace of said Commonwealth, and contrary
to the form of the statute in such case made and provided."
The defendants, being convicted in the Court of Common Pleas on
this count, moved in arrest of judgment, that no oflfence was alleged
862 SMITH V. PEOPLE. [CHAP. XIV.
therein. Sanger, J., overruled the motion, and the defendants alleged
exceptions.
T. Wentworth & P. Saggerty, for the defendants.
/. H. Clifford (Attorney-General), for the Commonwealth.
BiGELOw, J. The second count in the indictment, on which alone
the defendants were found guilty, is fatally defective. It was not a
crime in the defendants to procure an over-insurance on their stock in
trade. It was at most only a civil wrong. The charge of a conspiracy
to do so does not therefore amount to a criminal offence. It was not a
combination to effect an unlawful purpose, and no unlawful means by
which the purpose was to be effected are set out in the indictment.
The residue of the count is too uncertain and indefinite to support a
conviction. It amounts to nothing more than an allegation of a con-
spiracj' to cheat and defraud the insurance companies, which is clearly
insufficient. Commonwealth v. Shedd, 7 Gush. 514. The means by
which this purpose was to be effected are not stated with such precisiovi
and certainty as to show that they were unlawful. The false pretences
by which money was to be obtained from the insurance companies are
not set out; and the charge of a conspiracy "to obtain money by
means of false pretences of a loss thereafterward to happen,'' is alto-
gether too general and vague a statement to come within the rules of
criminal pleading.' Judgment arrested.
SMITH V. PEOPLE.
Supreme Court op Illinois. 1860.
[Reported 25 Illinois^ 17.]
This indictment, filed at the April Term, a. d. 1860, of the Re-
corder's Court, of the city of Chicago, contains two counts for
conspiracy.
The first count charges, that Charles H. Schwab, John B. Smith, and
Mary C. Allen, on the first day of March, a. d. 1860, at Chicago, did.
between themselves, unlawfully conspire, combine, confederate, and
agree together, wickedl3', knowingly, and designedly, to procure, by false
pretences, false representations, and other fraudulent means, one Lizzie
M. Engles to have illicit carnal connection with a man, to wit, with
the said Charles H. Schwab, one of the defendants aforesaid.
The second count charges, that the defendants did, then and there,
(on the same day) unlawfully between themselves, combine, confederate,
and agree together wickedly, knowingly, and designedly, to cause and
procure, by false pretences, false representations, and other fraudulent
means, one Lizzie M. Engles, then and there a minor female child, of
1 But see Com. o. Fuller, 1.32 Mass. 563. — Ed.
SECT. II.] SMITH V. PEOPLE. 863
the age of sixteen, to have illicit carnal connection with a man, to wit,
with the aforesaid Charles H. Schwab.
To this indictment the plaintiffs in error pleaded not guilty, in proper
person.^
The jury returned with a verdict of guilty as to all of the defendants.
And the defendants Smith and Schwab moved in arrest of judgment,
which motion was overruled. The Recorder then proceeded to sentence
defendants Smith and Schwab each to the City Bridewell, for the term
of six months, or to pay a fine of ^100, and one-third costs of prosecu-
tion, and the defendant Allen to be imprisoned in the City Bridewell
three months.
The errors assigned were that : There is no indictable offence set
forth in the indictment. The coiu't erred in refusing to arrest the
judgment.'''
Caton, C. J. To attempt to define the limit or extent of the law of
conspiracy, as deducible from the English decisions, would be a difficult
if not an impracticable taslc, and we shall not attempt it at the present
time. We may safely assume that it is indictable to conspire to do an
unlawful act by any means, and also that it is indictable to conspire to
do any act b}' unlawful means. In the former case it is not necessary
to set out the means used, while in the latter it is, as they must be
shown to be unlawful. But the great uncertainty, if we may be allowed
Ihe expression, is as to what constitutes an unlawful end, to conspire
to accomplish which is indictable without regard to the means to be
used in its accomplishment. And again, wliat means are unlawful to
accomplish a pm-pose not in itself unlawful. As this indictment falls
under the first class, we shall confine ourselves to that. If the tcim
unlaw'ful means criminal, or an offence against the criminal law, and as
such punishable, then the objection talien to this indictment is good,
for seduction by our law is not indictable and punishable as a crime.
But by the common law governing conspiracies the term is not so
limited, and numerous eases are to be found where convictions have
iieen sustained for conspiracy to do unlawful acts, although those acts
are not punisliable as crimes. Nor yet would it be quite safe to say
that the term unlawful as here used includes every act which violates
ihe legal rights of another, giving that other a right of action for a civil
retnedv. And we are not now pre|)ared to say where the line can be
safely drawn. It is sufficient for tiie present case, to say that conspiia-
cies to accomplish purposes which are not by law punishable as crimes,
but which are unlawful as violative of the rights of individuals, and for
which the civil law will afford a remedy to the injured party, and will
at the same time and by the same process punish the offender for the
wrong and outrage done to society, by giving exemplary damages,
beyond the damages actually proved, have in numerous instances been
sustained as common law offences. The law does not punish criminally
1 The evidence and requests to charge are omitted.
■'■ The other assignments of error are omitted.
864 SMITH V. PEOPLE. [CHAP. XIT.
every unlawful act, although it may be a grievous offence to society.
And in determining what sort of conspiracies ma}' or may not be
entered into without committing an offence punishable by the common
law, regard must be had to the influence which the act, if done, would
actually have upon society, without confining the inquiry to the question
whether the act might itself subject the offender to criminal punishment.
And most prominent among the acts branded as unlawful, although not
punishable as crimes, is the ver}- act, to accomplish which this con-
spirac}' is charged to have been entered into. It is more destructive
of the happiness of individuals and of the well-being of societ}-, than
ver}- many others which are punishable as crimes, and the law has ever
favored its punishment b}* exemplar^' damages to the parent, guardian
or master of the victim of seduction, although he is often regarded as
the injured party by the merest technicality. To saj' that it is innocent,
or not a crime, for parties to band and conspire together to accomplish
the destruction, by seduction, of anj- young girl in the community, un-
less it can be shown that the means to be used are unlawful, and then
hold that such unlawful means must of themselves be criminal and pun-
ishable as such, would be giving a legal sanction and encouragement to
such conspiracies. Under such decisions the courts, instead of being
the guardians of the peace and happiness and well-being of society,
would lend their sanction to its worst enemies. If there be anj- act
which should be regarded as unlawful in the sense of the law of con-
spiracy, but which is not punishable as a crime, it is this very act, anil
so it has been and ever should be regarded b}- the courts. We do not
hesitate to hold that a conspirac}' to accomplish such an object as this,
whether the means to be used be unlawful or criminal or not, is a crime
at the common law, and that it is the dutj' of the courts to protect
societj' against such conspiracies by their punishment. If the laws of
the lanci will not afford such protection, then individuals will protect
themselves by violence, for it is not in human nature to let such
offences go unpunished in some waj-. Counsel saj-, in argument, that
if we sustain this conviction no man in communitj- can repose in secu-
ritj'. We answer, no man who will enter into a conspirac}' to accom-
plish so nefarious a purpose as this, should be allowed to repose in
securit}' ; and if parties who thus offend are allowed to do so, then
innocent and useful members of societ}- cannot. We hold that it was
not necessary to show th.nt the means to be used bj' the conspirators
were unlawful or criminal.
The objection that this being bnt a common law offence, is not pun-
ishable in this State, where we have a criminal code defining most
criminal offences and prescribing their punishment, is answered bv the
case of Johnson v. The People, 22 111. 314. It is there shown, that
our criminal code prescribes punishment for offences not enumerated,
which can mean nothing brt common law offences, showing eonclusivelv
that it was not the intention of the legislature to repeal that portion of
the common law by implication.
8EOT. III.] CONSPIEACY AND OTHER OFFENCES AGAINST TRADE. 865
"We do not deem it neeessarj- to review the instructions in dftaf.
■ We have examined them and the questions made upon them, and find
no error committed bj- the court in the instructions ; nor do we think
that the verdict was unsustained by the proof. The judgment is
affirmed. Judgment affirmed.
SECTION III.
Conspiracy and other Offences against Trade.
Ordinance for baiters, &c., c. 10.' Be it commanded on the behalf of
our Lord the King, that no forestaller be suffered to dwell in anj- town,
which is an open oppressor of poor people, and of all the commonalty,
and an enemy of the whole shire and country, which for greediness of
his private gain doth prevent others in buying grain, fish, herring or
any other thing to he sold coming by land or water, oppressing the
poor and deceiving the rich, which carrieth away such things, intend-
ing to sell them more dear ; the which come to merchants stranger that
bring merchandise offering them to bu}', and informing them that their
. goods might be dearer sold than they intended to sell, and an whole
townor a country is deceived by such craft and subtlety. He that is
convict thereof the first time shall be amerced, and shall lose the thing
so bought, and that'according to the custom and ordinance of the town ,
he that is convict the second time shall have judgment of the pillory ;
at the third time he shall be imprisoned and make fine ; the fourth time
he shall abjure the town. And this judgment shnll bp givfn upon all
manner of forestallers. and likewise upon them that have giveiLthem
counsel^ help, or favor.
1 Fablished during the thirteenth century ; the exact date is uncertain. — Ed.
866 ARTICLES OF INQUEST. [CHAP. XIY.
ARTICLES OF INQUEST.
All the Justices. 1352.
[Reported Lilr. Assis. 138, pi. 44.]
These are the articles which are to be inquired of by the Inquest of
OfBce in the King's Bench, summoned to inquire of homicides, thieves,
burners of houses, ravishers of women, and of all manner of felons and
of felonies, and their receivers, procurers, and maintainers, as well in
the time of the King's father, as in the time of the King who now is, of
escapes of thieves, &c. .
Likewise of those who bind others b}- their robes or fees to conceal
the truth, and to maintain their evil emprises, &c. And note, that
two were indicted for confederacy, eack-gf them to maintain the other,
whether their cause were true or false ; and notwithstanding nothing
was alleged to be put in motion, the parties were held to answer,
because this thing is forbidden bj' the law, &c.
Likewise of conspirators, and j!oiifede¥fttes, who bind themselves
together b}' oath, covenant, or some other alliance, that each of thenn
will aid and sustain the other's emprise, be it false or true ; and who
falsely have persons indicted or acquitted, '"or falsely bring or maintain
pleas, by means of alliance, &c. . . .
Likewise of forestallers of victual, and of purveyors of victual with-
out being duly appraised by the vill, or those who take them without
making a bargain with the persons from whom thej- take them, accord-
ing to the statute in such case provided. . . . Likewise of merchants
who by covin and_alliance among tbemgelves from "year to yparput. ;v_
"Srtmnjrjrp on wnnl whK'h is for sale in the country, so that none of
toemwill buj- or overbid another in buying wool beyond the certain price
which they themselves have ordained : to the great impoverishment of
the people, &c. . . .
Likewise of all manner of oppressions and grievances done to the
people of our Lord the King.
SECT, m.] THE LOMBAED'S CASE. 867
THE LOMBARD'S CASE.
London Assizes. 1368.
[Reported Lib. Assis. 276, pi. 38.1
A Lombard was indicted in London for concealing the customs of
our Lord the King, and for divers other things ; and presentment was
also made against him, that he hadjrocured and promoted jitti£,enlianc-
inffof the price of merchandize. And judgment for him was prayed
bemfleT&is was Tiot forestalling, nor could it sound in forestalling ;
and since it did not appear from the presentment that any wrong was
actuallj' done, he should not be held to answer. And non allocatur j
for Knivet said, that certain persons (whom he named) came into the
neighborhood of Coteswold, and in deceit of the people said that no j
wool could cross the sea in the next year, there were so many wars in I
those parts ; by which thej- depressed the price of wool. And they j
were brought before the King's Council, and could not deny it ; where-*
fore they were put to fine and ransom before the King.
And so in this case. Wherefore he pleaded not guilty, &e.
Coke, 3rd Institute, 196. It was upon conference and mature delibera-
tion resolved by all the justices, that any merchant, subject or stranger,
bringing victuals or merchandize into this realme, may sell them in
grosse ; bixLlhat vendee_cannot sell them againe^in grnsgey-fhr thgn^he-
is^an ing£Qseer:gceofd4gg-tQ_the qattire of ^fehe, word, for that he buy
ingrosse and sell ingrosse, and may be indicted thereof at the common
law, as for an offence that is malum in se. 2. That no merchant or
other ma}' buy within the realme any victuall or other merchandize in
grosse, and sell the same in grosse againe, for then he is an ingrosser.
and punishable ut supra ; for by this means the prices of victuals and
other merchandize shall be inhaunced, to the grievance of the subject ;
for the more hands they passe througii, the dearer they grow, for every
one thirsteth after gaine, vitiosum sitiunt lucrum.. And if these thingSi/
were lawful!, a riche man might ingrosse into his hands all a eommodit3'f
and sell the same at what price he will. And evexj practice or device I
by act, conspiracy, words or newes, to inhaunce the price of victuals oi
other merchandize, was punishable by law ; and they relied much upon
the statute aforesaid, nullus forstallarius, &c., which see before in
this chapter : and that the name of an ingrosser in the reigne of
H. 3 and E. 1 was not known, but comprehended within this word
[forstallarius'] lucrum, sitiens vitiosum ; and ingrossing is a branch of
forestall! ng. And for that forstallarius was pauperurrfdepres^, et
totius comrnunitatis et patriae publicus inimicus, he was punishable
by the common law.
7 & 8 Vict. c. 24, sects. 1, 4. Be it enacted, &c. . . . that after the
passing of this Act the several offences of badgering, engrossing, forA..
68 THE LOMBARD'S CASE. [CHAP. XIT.
stalling, and regrating be utterly taken away and abolished, and that
no information, indictment, suit, or prosecution shall lie either at com-
mon law or by virtue of any statute, or be commenced or prosecuted
against any person for or by reason of any of the said offences or
supposed offences.^
Provided always, and be it enacted, that nothing in this Act con-
tained shall be construed to apply to the offence of knowinglj'' and
frauduIetftlT'spreadiDg— or^ conspiring to spread any false rumor, with
intent to enhance or decry the price of any_gooda_Qr_rnerchandize, or to
the offence of preventing or endeavoring to preveriLJbj^-fe¥C%or^threats
anj' goods, jvares, or merchandize being brought to any fair o^market.
but that every sucirsfCtince ina\ 'be'inquired of, tried, and punished 'as
if this Act had not been made.
23 Ed. 3, c. 1, 2. [Statute of Laborers.] Every man and woman
of our realm of England, of what condition he be, free or bond, able in
bod}', and within the age of threescore years, not living in merchandize,
' nor exercising any craft, nor having of his own whereof he may live,
nor proper land, about whose tillage he may himself occupy, and not
serving any other, if he in convenient service (his estate considered) be
required to serve, he shall be bounden to serve him which so shall him
require. And t.akp. only t.lie w^cres. livery, meed, or salary, which were
accustomed— to be given in thtrplatigs where he oweth to serve, tne xx
year of our reigne of England, or five or six other common years next
before. . . .
Item, if anj' reaper, mower, or other workman or servant, of what
estate or condition that he be, retained in any man's service, do depart
from the said service without reasonable cause or licence, before the
Aerm agreed, he shall have pain of imprisonment. And that none under
Jthe same pain presume to receive or retain any such in his service.^
5 Eliz. c. 4, sects. 5, 6. And be it further enacted, that no persoii
which shall retain any servant shajj_put_asay.-his_or_lier said servant.
and that no person retained according to this statute shall depart from
his master, mistress or dame, before the end of his or her term, upon
the pain hereafter mentioned, unless_jL be for snma-_reasonable and
sufficient cause or matter to be allowed before two justices of peace, or
one at the least, within the said count}'.
^ And that no such master, mistress or dame shall put away any such
servant at the end of his term, or that any such servant shall depart
from his said master, mistress or dame at the end of his term, without
f)ne quarter's warning given before the end of his said term, either by
tlie said master, mistress or dame, or servant, the one to the other,
upon the pain hereafter ensuing.'
' See Sect. 2 of this Act for a li.st of the statutes dealing with tliese subjects Ed
^ This statute and later statutes to the same effect were modified by 5 Eliz
c. 4. — Ed.
" Kepealed 38 & 39 Vict. c. 86, sect 17. —Ed.
SECT. III.] EEX V. JOUR^MCYMAN-TAILORS OF CAMBRIDGE. 869
REX V. JOURNEYMAN-TAILORS OF CAMBRIDGE.
Kikg's Bench. 1721.
[Reported 8 Modern. 10.]
One Wise, and several other joiirnej-maii-tailors, of or in the town of
Cambridge, were indicted for a eonsm£ac^^_amongst_themselves-to raise
their wageSp and were found guiltj'.
TTwas moved in arrest of judgment upon several errors in the record.
Thirdly.^ No crime appears upon tlie face of this indictment, for it
only charges them with a conspiracy and refusal to work at so much
f)er diem, whereas the)- are not obliged to work at all by the day but by
the year, by 5 Eliz. c. 4.
It was answered, that the refusal to work was not the crime, but the
i'onspiracy to raise the wages.
The Court. The indictment, it is true, sets forth that the defend-
ants refused to work under the wages which they demanded ; but al-
though these might be more than is directed by the statute, yet it_isjQalL-
fcuL-LbiLrefusing to work but for conspiring that they are indicted, and
a conspiracy of any kind is illegal although the matter about which
they conspired might have been lawful for them, or any of them, to do,
if they had not conspired to do it, as appears in the case of The Tub-
women V. The Brewers of London.
Fifthly. This indictment ought to conclude contra formam statuti y
for by the late statute 7 Geo. I. c. 13, journeymen-tailors are prohib-
\ ited to enter into any contract or agreement for advancing their wages,
&c. And the statute of 2 & 3 Edw. VI. c. 15, makes such persons
criminal.
It was answered that the omission in not concluding this indictment
contra formam statuti is not material, because it is for a conspiracj",
which is an offence at common law. It is true, the indictment sets
forth that the defendants refused to work under such rates, which were
more than enjoined bj' the statute, for that is only two shillings a
day ; but yet these words will not bring the offence, for which the
defendants are indicted, to be within that statute, because it is not the
denial to work except for more wages than is allowed b}' the statute,
but it is for a conspiracy to raise their wages, for which these defend-
ants are indicted. It is true it does not appear by the record that the
wages demanded were excessive, but that is not material, because it
may be given in evidence.
The Court. This indictment need not conclude contra formam
statuti, because it is for a conspiracy, which is an offence at common
Ja
So the judgment was confirmed by the whole court quod capiantur,
1 The first, second, and fourth obiections are omitted.
870 COMMONWEALTH V. HUNT. [CHAP. XIV.
COMMONWEALTH v. HUNT.
SuPEEMK Judicial. Court of Massachusetts. 1842.
[Reported i Metcalf, HI. J
Shaw, C. J. The counsel for the defendants contended, and re-
quested the court to instruct the jury, that the indictment did not set
forth any agreement to do a criminal act, or to do any lawful act hv
any specified oriminal means, and that the agreements therein set forth
did not constitute a conspiracy indictable by any law of this Common-
wealth. But the judge refused so to do, and instructed the jnr}', that
the indictment did, in his opinion, describe a confederacy among the
defendants to do an unlawful act, and to effect the same by unlawful
means ; that the society, organized and associated for the purposes
described in the indictment, was an unlawful conspiracy, against tlie
laws of this Commonwealth ; and that if the jury believed, from the
evidence in the case, that the defendants, or any of thera, had engaged
in such a confederacy, they were bound to find such of them guilty.
We are here carefully to distinguish between the confederacy set
forth in the indictment, and the confederacy or association contained in
the constitution of the Boston Journeymen Bootmakers' Societ}-, as
stated in the little printed book, which was admitted as evidence on the
trial. Because, though it was thus admitted as evidence, it would not
warrant a conviction for anything not stated in the indictment. It
was proof, as far as it went, to support the averments in the indictment.
Tf it contained any criminal matter not set forth in the indictment, it is
of no nvail. The question then presents itself in the same form as on
a motion in arrest of judgment.
The first count set forth, that the defendants, with divers others
unknown, on the day and at the place named, being workmen and jour-
neymen, in the art and occupation of bootmakers, unlawfully, perni-
ciously and deceitfully designing and intending to continue, keep up,
form, and unite themselves, into an unlawful club, society, and combina-
tion, and make unlawful by-laws, rules, and orders, among themselves,
and thereby govern themselves and other workmen, in the said art, and
unlawfully and unjustly to extort great sums of money by means
thereof, did unlawfully assemble and meet togetlier, and being so
assembled, did unjustlj- and corruptly conspire, combine, confederate,
and agree together, that none of them should thereafter, and that none
of them would, work for any master or person whatsoever, in the said
art, mj'stery, and occupation, who should employ any workman or jour-
neyman, or other person, in the said art, who was not a member of
said club, society, or combination, after notice given him to discharge
such workmen, from the employ of such master ; to the great damage
and oppression, etc.
1 Part ouly of the opinion is given.
SECT. III.] COMMONWEALTH V. HUNT. 871
Now it is to be considered, that tlie preamble and introductory mat-
ter in the indictment — such as unlawfully and deceitfully designing and
intending unjustly to extort great sums, etc. — is mere recital, and not
traversable, and therefore cannot aid an imperfect averment of the
facts constituting the description of the offence. The same may be
said of the concluding matter, which follows the averment, as to the
great damage and oppression not only of their said masters, employing
them in said art and occupation, but also of divers other workmen in
the same art, mystery, and occupation, to the evil example, &c. If the
facts averred constitute the crime, these are properlj' stated as the legal
mferences to be drawn from them. If they do not constitute the charge
of such an offence, they cannot be aided by these alleged consequences.
Stripped then of these introductory recitals and alleged injurious
consequences, and of the qualifying epithets attached to the facts, the
averment is this ; that the defendants and others formed themselves
into a society, and agreed not to work for any person, who should
employ an3- journej-man or other person, not a member of such society,
after notice given him to discharge such workman.
The manifest intent of the association is, to induce all those engaged
in the same occupation to become members of it. Such a purpose is
not unlawful. It would give them a power which might be exerted for
useful and honorable purposes, or for dangerous and pernicious ones.
If the latter were the real and actual object, and susceptible of proof,
it should have been specially charged. Such an association might be
used to afford each other assistance in times of povertj-, sickness, and
distress ; or to raise their intellectual, moral, and social condition ; or to
make improvement in their art ; or for other proper purposes. Or the
association might be designed for purposes of oppression and injustice.
But in order to charge all those, wlio become members of an association,
with the guilt of a criminal conspiracy, it must be averred and proved
that the actual, if not the avowed object of the association, was crim-
inal. An association may be formed, the declared objects of which are
innocent and laudable, and yet they may have secret articles, or an
agreement communicated only to the members, by which they are
banded together for purposes injurious to the peace of society or the
rights of its members. Such would undoubtedly be a criminal conspir-
acy, on proof of the fact, however meritorious and praiseworthj' the
declared objects might be. The law is not to be hoodwinked by color-
able pretences. It looks at truth and reality, through whatever disguise
it may assume. But to make such an association, ostensibly innocent,
the subject of prosecution as a criminal conspiracy, the secret agree-
ment which makes it so is to be averred and proved as the gist of the
offence. But when an association is formed for purposes actually inno-
cent, and afterwards its powers are abused, by those who have the con-
trol and management of it, to purposes of oppression and injustice, it
will be criminal in those who thus misuse it, or give consent thereto,
but not in the other members of the association. In this case, no such
872 COMMONWEALTH V. HUNT. [CHAP. XIV.
secret agreement, varj'ing the objects of the association from those
avowed, is set forth in this count of the indictment.
Nor can we perceive that tlie objects of this association, whatever
thej' may have been, were to be attained by criminal means. The
means which they proposed to emplo}', as averred in this count, and
which, as we are now to presume, were established by the proof, were,
that they would not work for a person, who, after due notice, should
employ' a journei'man not a member of their societj'. Supposing the
object of the association to be laudable and lawful, or at least not
unlawful, are these means criminal? The case supposes that these
persons are not bound bj' contract, but free to work for whom thej- _
please, or not to work, if tliej- so prefer. In this state of things, we
cannot perceive, that it is criminal for men to agree together to exer-
cise their own acknowledged rights, in such a manner as best to sub-
serve their own interests. One wa\' to test this is, to consider the
effect of such an agreement, where the object of the association is
acknowledged oh all hands to be a laudable one. Suppose a class of
workmen, impressed with the manifold evils of intemperance, should
agree with each other not to work in a sliop in which ardent spirit was
furnished, or not towork in a shop with any one who used it, or not to
work for an emplojer, who should, after notice, employ a journeyman
who habituallj' used it. The consequences might be the same. A
workman, who should still persist in the use of ardent spirit, would find
it more difficult to get employment ; a master employing, such an one
might, at times, experience inconvenience in his work, in losing the
services of a skilful but intemperate workman. Still, it seems to us,
that as the object would be lawful, and the means not unlawful, such
an agreement could not be pronounced a criminal conspiracy.
From this count in the indictment, we do not understand that the
agreement was, that the defendants would refuse to work for an em-
ployer, to whom thej- were bound bj- contract for a certain time, in
violation of that contract ; nor that thej' would insist that an employer
should discharge a workman engaged by contract for a certain time, in
violation of such contract. It is perfectly- consistent with everything
stated in this count, that the effect of the agreement was, that when
the3' were free to act, they would not engage with an employer or con-
tinue in his employment, if such employer when free to act should
engage with a workman, or continue a workman in his employment not
a member of the association. If a large number of men engaged for a
certain time should combine together to violate their contract and quit
their employment together it would present a verj' different question.
Suppose a farmer employing a large number of men, engaged for the
year at fa'r monthly wages, and suppose that just at the moment that his
crops were ready to harvest, they should all combine to quit his service
nnless he would advance their wages at a time when other laborers
could not be obtained. It would surely be a conspiracy to do an
unlawful act, though of such a character that if done by an individual
SECT. III.] COMMONWEALTH V. HUNT. 873
it would lay the foundation of a civil action only and not of a criminal
prosecution. It would be a case very different from that stated in thia
count.
The second count, omitting the recital of unlawful intent and evil
disposition, and omitting the direct averment of an unlawful club or
society, alleges that the defendants with others unknown did assemble,
conspire, confederate, and agree together, not to work for any master
or person who should employ any workman not being a member of a
certain club, society, or combination, called the Boston Journeymen
Bootmakers' Societj-, or who should break any of their bj-laws, unless
, such workmen should pay to said club, such sum as should be agreed
upon as a penalty for the breach of such unlawful rules, etc. ; and that
by means of said conspiracj' tliej- did compel one Isaac B. Wait, a mas-
ter cordwainer, to turn out of his employ one Jeremiah Home, a jour-
neyman boot-maker, etc. in evil example, &c. So far as the averment
of a conspiracy is concerned all the remarks made in reference to the
first count are equally applicable to this. It is simply an averment
of an agreement amongst themselves not to work for a person who
should empliiy any person not a member of a certain association. It
sets forth no illegal or criminal purpose to be accomplished, nor anj-
illegal or criminal means to be adopted for the accomplishment of anj'
purpose. It was an agreement as to the manner in which they would
exercise an acknowledged right to contract with others for their labor.
It does not aver a conspiracy or even an intention to raise their wages ;
and it appears by the bill of exceptions that the case was not put upon
the footing of a conspiracy to raise their wages. Such an agreement
as set forth in this count would be perfectly justifiable under the recent
English statute by which this subject is regulated. St. 6 Geo. IV.
c. 129. See Roscoe Crim. Ev. (2d Amer. ed.) 368, 369.
As to the latter part of this .count which avers that by means of said
conspirac}- the defendants did compel one "Wait to turn out of his
employ one Jeremiah Home, we remark, in the first place, that as the
acts done in pursuance of a conspirac)-, as we have before seen, are
stated l)y way of aggravation, and not as a substantive chaige ; if no
criminal or unlawful conspiracy is stated, it cannot be aided and rnade
good by mere matter of aggravation. If the principal charge fails the
aggravation falls with it. State v. Rickey, 4 Halst. 293.
But further, if this is to be considered as a substantive charge it
would depend altogether upon tlie force of the word " compel," which
may be used in the sense of coercion, or duress, by force or fraud. It .
would therefore depend upon tlie context and the connection with other
words, to determine the sense in which it was used in the indictment.
If, for instance, the indictment had averred a conspiracy bj- the defend-
ants to compel Wait to turn Home out of his employment, and to
accomplish that object b}- the use of force or fraud, it would have been
a very different ease ; especially if it might be fairly construed, as per-
haps in that case it might have been, that Wait was under obligation
874 COMMONWEALTH V. HUNT. [CHAP. XIV.
b}' contract for an unexpired term of time to emploj' and pay Ilonic.
As before remarked, it would have been a conspirac}' to do an unlaw-
ful, though not a criminal act, to induce Wait to violate his engage-
ment to the actual injur}- of Home. To mark the difference between
the ease of a journeyman or a servant and master mutually bound bj-
contract, and the same parties when free to engage anew, I should have
before cited the case of the Boston Glass Co. v. Binnej-, 4 Pick. 425.
In that case it was held actionable to entice another person's hired ser-
vant to quit his employ ment during the time for which he was engaged ;
but not actionable to treat with such hired servant, whilst actually hired
and employed by another, to leave his service and engage in the employ- .
ment of the person making the proposal, when the term for which he is
engaged shall expire. It acknowledges the established principle that
every free man, whether skilled laborer, mechanic, farmer, or domestic
servant, maj"^ work or not work, or work or refuse to work with any
company or individual, at his own option, except so far as be is bound
bj' contract. But whatever might be the force of the word "compel,"
unexplained bj' its connection, it is disarmed and rendered harmless bv
the precise statement of the means bj^ which such compulsion was to
be effected. It was the agreement not to work for him bj- which they
compelled Wait to decline employing Home longer. On both of these
grounds we are of opinion that the statement made in this second count
that the unlawful agreement was carried into execution makes no
essential difference between this and the first connt.
The third count, reciting a wicked and unlawful intent to impoverish
one Jeremiah Home and hinder him from following his trade as a boot-
maker, charges the defendants, with others unknown, with an unlawful
conspiracy, by wrongful and indirect means, to impoverish said Home,
and to deprive and hinder him from his said art and trade and getting
his support thereby, and that in pursuance of said unlawful combina-
tion, thej- did unlawfully and indirectl}' hinder and prevent, &c. and
greatly- impoverish him.
If the fact of depriving Jeremiah Home of the profits of his business
by whatever means it might he done would be unlawful and criminal, a
com.bination to compass that object would be an unlawful conspiracj',
and it would be unnecessary to state the means. Such seems to have
been the view of the court in Tlie King v. Eccles, 3 Doug. 337, though
the case is so brieflj' reported lliatthe reasons on which it rests are not
very obvious. The case seems to have gone on the ground that the
means were matter of evidence and not of averment, and that after
verdict it was to be presumed that the means contemplated and used
were such as to render the combination unlawful and constitute a
conspiracy.
Suppose a baker in a small village had the exclusive custom of his
neighborhood, and was making large profits by the sale of his bread.
Supposing a number of those neighbors, believing the price of his bread
too high, should propose to him to reduce his prices, or if lie did not
SECT. III.] COMMONWEALTH V. HUNT. ^75
that they would introduce another baker, and on his refusal such other
baker should under their encouragement set up a rival establishment,
and sell his bread at lower prices, the effect would be to diminish the
profit of the former baker and to the same extent to impoverish liim.
And it might be said and proved that the purpose of the associates was
to diminish liis profits and thus impoverish him, though the ultimate
and laudable object of the combination was to reduce the cost of bread
to themselves :ind their neighbors. The same , thing ma}- be said of all
competition in ever}- branch of trade and industr}-, and j-etit is through
that competition that the best interests of trade and industr}' are pro-
moted. It is scarcel}' necessarj- to allude to the familiar instances of
opposition lines of conveyance, rival hotels, and the thousand other
instances where each strives to gain custom to himself by ingenious
improvements, by increased industrj-, and hy all the means hy which
he may lessen the price of commodities, and thereby diminish the
profits of others.
We think, therefore, that associations may be entered into, the
object of which is to adopt measures that may have a tendency to
impoverish another, that is, to diminish his gains and profits, and j'et
so far from being criminal or unlawful, the object may be highly meri-
torious and public spirited. The legalit}' of such an association will
therefore depend upon the means to be used for its accomplishment.
If it is to be carried into effect by fair or honorable and lawful means,
it is, to say the least, innocent; if by falsehood or force, it may be
stamped with the character of conspirac}-. It follows as a necessary
consequence that if criminal and indictable it is so bj- reason of the
criminal means intended to be employed for its accomplishment ; and
as a further legal consequence, that as the criminalitj' will depend on
the means those means must be stated in the indictment. If the same
rule were to prevail in criminal which holds in civil proceedings, that
a case defectively stated may be aided by a verdict, then a court might
presume after verdict that the indictment was supported by proof of
criminal or unlawful means to effect the object. But it is an estab-
lished rule in criminal cases that the indictment must state a complete
indictable offence, and cannot be aided by the proof offered at the trial.
The fourth count avers a conspiracy to impoverish Jeremiah Home
without stating an}- means ; .nnd the fifth alleges a conspiracy to impov-
erish employers b}' preventing and liindering them from employing
persons not members of the Bootmakers' Society, and tiiese require no
remarks which have not been alread}' made in reference to the other
counts.
One case was cited which was supposed to be much in point, and
which is certainly deserving of great respect. The People v. Fisher,
14 Wend. 1. But it is obvious that this decision was founded on the
construction of the revised statutes of New York b}- which this matter
of conspiracy is now regulated. It was a conspirac}- by journeymen to
raise their wages, and it was decided to be a violation of the statutes
876 COMMONWEALTH V. HUNT. [CHAP. XIV.
making it criininal to commit anj- act injurious to trade or commerce,
It has, therefore, an indirect application only to the present case.
A caution on this subject suggested by the commissioners for revis-
ing the statutfes of New York is entitled to great consideration. They
are alluding to the question whether the law of conspiracy' should be
so extended as to embrace every case where two or more unite in some
fraudulent measure to injure an individual bj- means not in themselves
criminal. "The great difficulty," say they, "in enlarging the defini-
tion of this offence consists in the inevitable result of depriving the
courts of equit}- of the most effectual means of detecting fraud b3' com-
pelling a discovery on oath. It is a sound principle of our institutions
that no man shall be compelled to accuse himself of an}' crime, which
ought not to be violated in an}' case. Yet such must be the result or
the ordinarj' jurisdiction of courts of equity must be destro3ed by
declaring an}' private fraud when committed bj' two, or any concert to
commit it criminal." 9 Cow. 625. In New Jersey in a case which was
much considered, it was held that an indictment will not lie for a con-
spiracy to commit a civil injur}' .' State v. Rickej', 4 Halst. 293. And
such seemed to be the opinion of Lord EUenborough in The King v.
Turner, 13 East, 231, in which he considered that the case of The
King V. Eccles, 3 Doug. 337, though in form an indictment for a conspii'-
ac}' to prevent an individual from carrying on his trade, 3'et in sub-
stance was an indictment for a conspirac}' in restraint of trade affecting
the public.
It appears by the bill of exceptions that it was contended on the part
of the defendants that this indictmsnt did not set forth anj' agreement
to do a criminal act, or to do any lawful act by criminal means, and that
the agreement therein set forth did not constitute a conspiracj' indict-
able by the law of this state, and that the court was requested so to
instruct the jury. This the court declined doing, but instructed the
jury that the indictment did describe a eonfederac}' among the defend-
ants to do an unlawful act, and to effect the same by unlawful means ;
that the society, organized and associated for the purposes described
in the indictment, was an unlawful conspiracj' against the laws of this
state, and that if the jury believed from the evidence that the defend-
ants or any of thera had engaged in such confederacy they were bound
to find such of them guiltv.
In this opinion of the learned judge this court for the reasons stated
cannot concur. Whatever illegal purpose can be found in the constitu-
tion of the Bootmakers' Society, it not being clearlj' set forth in the
indictment, cannot be relied upon to support this conviction. So if any
facts were disclosed at the trial, which if properlj^ averred would liave
given a different character to the indictment, they do not appear in the
bill of exceptions, nor could they after verdict aid the indictment. But
looking solely at the indictmen*^, disregarding the qualifj'ing epithets,
recitals, and immaterial allegations, and confining ourselves to facts so
averred as to be capable of being traversed and put in issue, we cannot
SECT. III.] STATE V. DONALDSON. 877
perceive that it charges a criminal conspiracy punishable by law. The
exceptions must, therefore, be sustained, and the judgment arrested.
Several other exceptions were talcen and have been argued ; but this
decision on the main question hasx rendered it unnecessary to consider
them.
STATE V. DONALDSON.
Supreme Court op New Jersey. 1867.
[Reported 32 N. J. Law, 151.]
This was a motion to quash an indictment charging a conspiracy,
which had been brought into this court hy certiorari.
The substantial facts constituting the alleged crime were these, viz.,
that the defendants, and divers other evil disposed persons, etc., being
journeymen workmen employed by Richmond Ward, John C. Little,
and others, who then and there were engaged together in the manu-
facture of patent leather, and as curriers, maliciously, to control, in-
jiu'e, terrifj', and impoverish their said employers, and force and compel
them to dismiss from their said emploj'ment certain persons, to wit,
Charles Beggan and William Pendergrast, then and there retained by
their said employers as journeymen and workmen for them, and to
injure said Charles and William, and without having an}' lawful cause
of objection to said Charles and William, unlawfully did conspire, com-
bine, confederate, and agree together to quit, leave, and turn out from
their said employment, until and unless the said last-mentioned jour-
neymen and workmen should be dismissed b}- their said employers.
The indictment then further charged, that in pursuance of such con-
spiracy, they gave notice of their agreement to their said employers,
,'uid required them to discharge the said Charles and William, which
being refused, thej' quitted their said employment, and remained awa}'
until their demand was complied with.
The motion was argued before the Chief Justice, and Justices
Bedle and Dalkimple.
For the motion ; T. JV. Mc Carter.
For the state, C. Parker.
The opinion of the court was delivered by
Beasley, C. J. There is, perhaps, no crime, an exact definition of
which it is more difficult to give than the offence of conspiracy. That
a combination of persons to effect an end, itself of an indictable nature,
will constitute this crime, is clear ; nor is there any more doubt that,
though the purpose the confederacy is designed to accomplish be not
criminal, yet if the means adopted be of an indictable character, this
offence is likewise committed. Thus far the limits are clearly defined,
and embrace, without exception, all cases which fall within them. But
878 STATE V. DONALDSON. [CHAP. XIV.
when we proceed one step beyond the lines thus marked out, the cases
which have been adjudged to be conspiracies appear to stand apart bv
themselves, and are devoid of that analogj' to each other which would
render them susceptible of classification. It is certain, however, that
there are a number of cases, in which neither the purpose intended to
be accomplished nor the means designed to be used were criminal,
which have been regarded to be indictable conspiracies. And yet it is
obvious that, in the nature of things, it cannot be every collusion
between two or more persons to do an unlawful act, or an indifferent,
act by unlawful means, which will constitute an offence of a public
nature ; for if this were so, a large portion of the transactions which,
in the ordinary course of litigation between party and party, conies
before the courts, would assume a criminal aspect, in which the state
would have an interest. Indeed, I think it zn&y be said that there are,
comparativelj', but few cases of combinations in which indictability
does not attach, either to the end in view, or to the instrumentalities
devised, which are punishable by a public prosecution. It is true, that
running to an extreme, in the case of The State v. Rickey, 4 Halst.
293, Mr. Justice Ford insisted that, up to his day, there was but a
single case extant — that of Rex v. Cope et al., 1 Strange, 144, which
held that an indictment for a conspiracj' would lie for a combination of
two or more to commit a private injury which was not a public wrong ;
and he further insisted that the case referred to was erroneously
decided : but Mr. Justice Ryerson did not, as is evident from the
grounds upon which he rests his judgment, concur in that view ; and
the course of reasoning adopted by Mr. Justice Ford is now verj' gene-
rally admitted to be fallacious. In the ease of The State v. Norton,
3 Zab. 44, the view of the law expressed by Mr. Justice Ford is disap-
proved of, and Chief Justice Green, in stating his conclusion, afier an
examination of the subject, remarks, "The great weight of authority,
the adjudged cases, no less than the most approved elementary writers,
sustain the position, that a conspiracy to defraud individuals or a cor-
poration of their property, maj-, in itself, constitute aw indictable
offence, though the act done, or proposed to be done in pursuance of
the conspiracy, be not, in itself, indictable."
The rule of law thus enunciated appears to me to be the correct one.
There are a number of cases which cannot be sustained upon any other
doctrine. To this class belongs the decision that it was a conspiracj'
to induce a young female, by false i-epresentations, to leave the protec-
tion of the house of her parent, in order to facilitate her prostitution.
Rex V. Lord Grey, 3 Hargrave's State Trials, 519 ; Rex v. Sir
Francis Deleval and others, 3 Burr. 1434. So a conspiracy to im-
poverish a tailor, and prevent him, b}' indirect means, from carrj-ing on
his trade. The King v. Eccles, 3 Dougl. 337. So a conspiracy to
marry paupers, with a view to charge one parish and exonerate another,
Rex V. Tarrent, 4 Burr. 2106 ; or to charge a man with being the
father of a bastard. Rex v. Armstrong, 1 Vent. 304 ; Rex v. Kimberty,
SECT. III.] STATE V. DONALDSON. 879
1 Lev. 62 ; Rex v. Timberly, Sid. 68 ; or a combination to impoverish
a class of persons, Rex. v. Sterling, 1 Lev. 125 ; s. c. Sid. 174.
These are all cases, it will be noticed, in which the act which formed
the foundation of the indictment would not, in law, have constituted a
crime, if such act had been done by an individual, the combination
being alone the quality of the transactions which made them respec-
tively indictable.
I conclude, then, that there is no uncertainty in this legal topic to
this extent, in addition to the principles before adverted to, that cases
may occur in which the purpose designed to be accomplished becomes
punitive, as a public offence, solely from the fact of the existence of a
confederacjf to effect such purpose. It is certainlj' not to be denied,
however, that great practical difficulty is experienced whenever an3'
attempt is made to lay down any general rules by which to discriminate
that class of combinations which becomes thus punishable, from those
which are to be regarded in their results as mere civil injuries, remedi-
. able by private suit. It may be safelj' said, nevertheless, that a com-
bination will be an indictable conspiracy', whenever the end proposed,
or the means to be employed are of an highly criminal character ; or
where they are such as indicate great malice in the confederates ; or
where deceit is to be used, the object in view being unlawful ; or where
the confederacy, having no lawful aim, tends simply to the oppression
of individuals. A careful analysis of the cases which have been hereto-
fore adjudged, will reveal the presence of one or more of the qualities
here enumerated ; to this extent, therefore, they may be relied on as
safe criteria whereby- to test new emergencies as they may be presented
for adjudication.
In view, then, of these general deductions, and guided by the deci-
sions above cited, let us turn our attention to the particular Indictment
now before us.
The substantial offence charged is, that the defendants combined to
compel their employer to discharge certain of their fellow-workmen, the
means adopted to enforce this concession being an announced determi-
nation to quit their employment in a bod}' and b}' a simultaneous act.
On the argument before this court, counsel in behalf of the state
endeavored to sustain the indictability of this charge, on the plea that
the thing thus agreed to be done was an injury to trade, and conse-
quentlj' came within the express language of the statute on the subject
of conspiracy. Nix. Dig. 187, § 61. But I cannot concur in this
view. An act, to fall within this provision, must be one which, with
directness, inflicts an injury on trade, as, for example, a combination
to depress any branch of trade by false rumors. But, in the case
before us, the act charged, if it could be said to injure trade at all, did
so not proximately, but remotely. It is true that, at a far remove, an
injuiy to an individual manufacturer may affect trade injuriously ; but,
ill the same sense, so it is true, will an injurj- inflicted on a consumer
<il manufactured articles. But it is not this undesigned and incidental
880 STATE V. DONALDSON. [CHAP. XIV.
damage which is embraced within the statutory denunciation. On this
account, I think the indictment does not present an affair which can be
comprehended hy the clause of the act which, in this respect, was relied
on. But as it has idready been decided by this court that the statute
in question has not superseded the common law, with regard to the
crime of conspiracy, The State v. Norton, 3 Zab. 40, the question still
remains to be resolved, whether the facts charged on this record do not
constitute such crime upon general principles.
It appears to me that it is not to be denied, that the alleged aim of
this combination was unlawful ; the effort was to dictate to this em-
plo^er whom he should discharge from his employ. This was an
unwarrantable interference with the conduct of iiis business, and it
seems impossible that such acts should not be, in their usual effects,
highly injurious. How far is this mode of dictation to be held lawful?
If the manufacturer can be compelled in this way to discharge two or
more hands, he can, by similar means, be coerced to retain such work-
men as the conspirators may choose to designate. So his customers
maj' be proscribed, and his business in other respects controlled. I
cannot regard sucli a course of conduct as lawful. It is no answer to
the above considerations to say, that the employer is not compelled to
submit to the demand of his emploj-ees ; that the penalty of refusal is
siraplj- that they will leave his service. There is this coercion : the
men agree to leave simultaneously, in large numbers and bj' precon-
certed action. We cannot close our eyes to the fact, that the threat of
workmen to quit the manufacturer, under these circumstances, is equi-
valent to a threat, tliat unless he jield to their unjustifiable demand,
tho3' will derange his business, and thus cast a heavy loss upon him.
The workmen who make this threat understand it in this sense, and so
does their emplo3er. In such a condition of affairs, it is idle to suggest
that the manufacturer is free to reject the terms which the confederates
offer. In the natural position of things, each man acting as an indi-
vidual, there would he no coercion : if a single employee should demand
the discharge of a co-employee, the employer would retain his freedom,
for he could entertain or repel the requisition without embarrassment
to his concerns ; but in the presence of a coalition of his employees, it
would be but a waste of time to pause to prove that, in most cases, he
must submit, under pain of often the most ruinous losses, to the condi-
tions imposed on his necessities. It is difficult to believe that a right
exists in law, which we can scarce!}" conceive can produce, in SMy pos-
ture of affairs, other than injurious results. It is simply the right of
workmen, by concert of action, and b}- taking advantage of their posi-
tion, to control the business of another. I am unwilling to hold that a
right which cannot in any event be advantageous to the employee, and
which must be always hurtful to the employer, exists in ,law. In my
opinion, this indictment sufficiently shows that the force of the con-
federates was brought to bear upon their employer for the purpose of
oppression and mischief, and that this amounts to a conspiracy.
SECT. III.] STATE V. DONALDSON. 881
I also think this result is sustained bj- all the judicial opinion which
has heretofore been expressed on this point. In substance, the indict-
ment in this case is similar to that in Eex v. Ferguson and Edge, 2
Stark. 489. Nor were the circumstances unlike ; for in the reported
case, the defendants were charged at common law with combining to
quit and turn out from their employment, in order to prevent their
employer from taking apprentices ; and although the case, after trial
alid conviction, was mooted in the King's Bench on points of evidence,
110 doubt was suggested as to the indictable nature of the offence, and
tlie defendants were accordingly fined and imprisoned. So in Rex v.
Rickui'd^ke, 1 M. & Rob. 179, the same doctrine was mahitained. The
indictment charged, that the defendant, with others, conspired to pre-
vent certain hands from working in the colliery ; and the evidence
showed that the body of the men met and agreed upon a letter addressed
to their employer, to the effect that all the workmen would strike in
fourteen days unless the obnoxious men were discharged from the col-
hery ; and Patterson, Justice, hold that these workmen had no right to
me^t and combine for the purpose of dictating to the master whom be
should employ, and that this compulsion was clearl}- illegal. These two
cases, it will be observed, sustain with entire aptness the opinion above
expressed, and I have not found any of an opposite tendency. As to
the case of The Commonwealth v. Hunt, 4 Met. Ill, it is dearly dis-
tinguishable, and I concur entirel}', as well with the principles embodied
in the opinion which was read in the case, as in the result which was
attained. The foundation of the indictment in that case was the forma-
tion of a club bj- journej'men boot-makers, one of the regulations of
which was, that, no person belonging to it should work for anj- master
workmen who should employ an}' journeyman or other workman who
should not be a member of such club. Such a combination does not
appear to possess any feature of illegality, for the law will not intend,
without proof, that it was formed for the accomplishment of an}- illegal
oiiil. " Such an association," says Chief Justice Shaw, in his opinion,
" might be used to afford each other assistance in times of povertv,
sickness, and distress ; or to raise their intellectual, moral, or social
condition ; or to make improverapnts in their art ; or for other pur-
poses." The force of this association was not concentrated with a view
to be exerted to oppress any individual, ;ind it was consequently
entirely unlike the case of men who take advantage of their position,
to use the power, bj' a concert of action, which such position gives
them, to compel their employer to a certain line of conduct. The
object of the club was to establish a general rule for the regulation of
its members ; but the object of tlio combination, in the case now before
this court, was to occasion a particular result which was mischievous,
and by means which were oppressive. The two cases are not parallel,
and must be governed b}- entirely different considerations.
The motion to quash should not prevaU.^
1 See State v. Gliilrlen, 55 Conn. 46. -Ed.
882 CEUMP V. COMMONWEALTH. [ UHAP. XIV.
CRUMP V. COMMONWEALTH.
Supreme Court of Appeals op Virginia. 1888.
[Reported 84 Va. 927.]
Fauntleroy, J.' The nest error assigned is the action of the court
in giving the instruction asked for by the Commonwealth, as follows :
" If the jury believe, from the evidence, that the defendant Crump
entered into an agreement with one or more of the defendants, whereby
they undertook to c3erce the firm of Baughman Brothers to discharge
from their employment, against the will of the said firm, certain per-
sons then in their employment, and to take into their employment cer-
tain other persons that the said Baughman Brothers did not wish to
take into their employment, then they are instructed that said agree-
ment was unlawful ; and if they believe further, from the evidence,
that in pursuance and to carry out said agreement, he, the defendant,
threatened any of the customers of the said Baughman Brothers, they
(the said persons making said agreement) would injure the business of
such customers, by intimidating their customers and making them afraid
to continue their patronage of the customers of the said Baughman
Bi'others, then they must find the defendant guilty." The instruction
plainly and correctly expounds the law against unlawful combination
and guilty conspiracy to interfere with, molest, break up, and ruin the
legitimate, licensed business of peaceable, useful, industrious, and
honest citizens, and to accomplish this end by the threat and intimida-
tion of doing " all in the power" of the conspirators to " break up
and destroy the business" of all the existing or future customers of
Baughman Brothers, who should thereafter buy '• anything from the
said firm of Baughman Brothers, or employ them, the said Baughman
Brothers, in their said business as printers." And the instruction, so
far from being a mere declaration of abstract law, is a direct and
proper application of the law to the case put in the indictment and
made by the evidence. It is next to impracticable to extend this opinion
by reciting the evidence in detail, further than we shall do wHen we
conic to consider the error assigned upon the admissibility and suffi-
ciency of the evidence in the record to justify- the verdict.
The instructions which were asked for l)y the defendant and refused
by the court were properly refused, as they did not correcth- expound
t!ie law, and were unwarranted by the evidence. And, more than the
defect of having no predication in the evidence, they utterly and adroltlv
ignore the facts proved of the evil intent of the defendant and his con-
federates to do a wanton, causeless injury and ruin, to compel and
coerce Baughman Brothers to give up the control and conduct of theii
1 Part only of the opiuion is given.
SECT. III.] CEUMP V. COMMONWEALTH. 88:5
own long-established, useful, and independent business to the absolute
dictation and control of a combination of the defendant and otlieis
styling themselves " Richmond T3-pogitiphical Union, No. 90;" and to
do tliis by the obtrusion, terrorism, excommunication, and obloquy of
the " boycott" against Baughman Brothers and ail their customers in
Richmond, Lynchburg, and throughout Virginia and North Carolina,
ad infinitum, till they force the conquest and submission of all resist-
ance to their demands and self-constituted management, — a reign of
terror, whicii, if not checlied and punished in the beginning by the law,
■will speedily and inevitably run into violence, anarch}', and mob tjranny.
We come now to the main question involved in tiiis appeal, whether
the evidence set forth in this record presents a conspiracj' at common
law. Tine determination of this question is, indeed, the object souglit,
as we not onl}' infer from the paltry fine of five dollars imposed b}-
the verdict, but bj- the intimation iu argument by the able and accom-
plished counsel for the defendant.
Is " boycotting," as reported to and practised b}- the conspirators in
this case, allowable under the laws of Virginia?
For a legal definition or explanation of the meaning and practical
effect of tbe cabalistic word, as well as for a pertinent exposition of
the law applicable to the facts of this case, we refer to the admirable
opinion of Judge Wellford of the Circuit Court of the city of Rich-
mond, in the case of Baughman Brothers v. Askew, Va. L. J., April,
No. 196, and also to the decision of the Supreme Court of Connecticut
in the case of State v. Glidden, 55 Conn. 76. In that case the court
says : " We may gather some idea of its [boycotting] real mean-
ing, however, by a reference to the circumstances in which the
word originated. Those circumstances are thus narrated by Mr.
Justin McCartli}-, an Irish gentleman of learning and abilit}', who
will be recognized as good authority : ' Captain Boycott was an English-
,man, an agent of Lord Erne, and a farmer of Lough Mask, in the
wild and beautiful district of Connemara. In his capacity as agent he
had served notice upon Lord Erne's tenants, and the tenantrj" sud-
denly retaliated, etc. His life appeared to, be in danger; he had to
claim police protection. . . . To prevent civil war, the authorities had
to send a force of soldiers and police to Lough Mask, and Captain
Boycott's harvest was brought in and his potatoes dug by the armed
Ulster laborers, guarded always by the little army.' " The court pro-
ceeded to saj' : " If this is a correct picture, the thing we call a boycott
originally signified violence, if not murder. . . . But even here, if it
means, as some high in the confidence of the trades union assert, abso-
lute ruin to the business of the person boycotted, unless he j-ields,
then it is criminal." The essential idea of boycotting, whether in Ire-
land or the United States, is a confederation, generally secret, of many
persons wliose intent is to injure another bj- preventing any and all per-
sons from doing l)usiness with him, through fear of incurring the dis
pleasure, persecution, arid vengeance of the conspirators.
884 CEUMP V. COMMONWEALTH. [CHAP. XIV.
In the ease of State v. Donaldson, 32 N. J. L. 151, Chief Justice
Beasley, in delivering the opinion of the court, said: "It appears
to me that it is not to be denied that the alleged aim of this com-
bination was unlawful ; the effort was to dictate to this emploj'er
whom he should discharge from his emploj-. This was an unwar-
lantable interference with the conduct of his business, etc. If the
manufacturer can be compelled in this way to discharge two or more
hands, he can, b^' similar means, be coerced to retain such workmen as
the conspirators may choose to designate. So his customers maj- be
proscribed, and his business, in other respects, controlled. I cannot
regard such a course of conduct as lawful."
Chief Justice Shaw, in the case of Commonwealth v. Hunt, 4 Met.
ill, said: "The law is not to be hoodwinked by colorable pre-
tences ; it looks at truth and reality through whatever disguises it
may assume. Ii. is said that neither threats nor intimidations were
used ; but no man can fail to see that there maj- be threats, and there
may be intimidations, and there ma^' be rpolesting, and there may
be obstructing (which the jur^' are quite satisfied have taken place,
f'-om all the evidence in the case), without there being any express
words used by which a man should show any violent threats towards
another, or any express intimidation. . . . An intention to create alarm
in the mind of a manufacturer, and so to force his assent to an altera-
tion in the mode of earr3'ing on his business, is a violation of law : "
Regina v. Rowlands; 5 Cox, C. C. 436, 462, 463 ; Doolittle v. Schan-
bacher, 20 Cent. L. J. 229.
Upon the trial of boj'cotters in New York, Judge Barrett said :
" The men who walk up and down in front of a man's shop maj- be
guilty of intimidation, though they never raise a finger or utter a word.
Their attitude ma}-, nevertheless, be that of menace. They may intim-
idate by their numbers, their pleadings, their methods, their circulars,
and their devices."
It matters little what are the means adopted by combinations formed
to intimidate employers, or to coerce other journe3'men, if the design
or the effect of them is to interfere with the rights or to control the
free action of others. No one has a right to be hedged in and pro-
tected from competition in business ; but he has a right to be free from
wanton, malicious, and insolent interference, disturbance, or annoy-
ance. Every man has the right to work for whom he pleases, and for
any price he can obtain ; and he has the right to deal with and asso-
ciate with whom he chooses ; or to let severely alone, arbitrarily and
contemptuouslj% if he will, anybody and everybodj- upon earth. But
this freedom of uncontrolled and unchallenged self-will does not give
or imply a right, either by himself or in combination with others, to
disturb, injure, or obstruct another, either direct!}- or indirectly, in his
lawful business or occupation, or in his peace and securit\- of life.
Every attempt by force, threat, or intimidation to deter or control an
employer in the determination of whom he will employ, or what wages
SECT. III.] CEUMP V. COMMONWEALTH. 885
hie will pay, is an act of wrong and oppression ; and any and every
combination for such a purpose is an unlawful conspiracy. The law
will protect the victim, and punish the movers of an\' such combina-
tion. In law, the offence is the combination for the purpose, and no
overt act is necessarj' to constitute it : State v. Wilson, 30 Conn. 507 ;
State V. Donaldson, supra ; Walker v. Cronin, 107 Mass. 664 ; Carew
•y. Rutherford, 106 Mass. 10, 15; Master Stevedores' ' Association v.
Walsh, 2 Daly, 12; Walsby v. Auley, 3 L. T., n. s.,666 ; Eegina v.
Duffleld, 5 Cox, C. C. 432 ; Parker v. Griswold, 17 Conn. 302; Spring-
head Spinning Co. v. Riley, L. R. 6 Eq. 661 , Gilbert v. Mickle, 4
Sand. Ch. 357.
A wanton, unprovoked interference by a combination of many with
the business of another, for the purpose of constraining that other to
discharge faithful and long-tried servants, or to employ whom he does
not wish or will to employ (an interference intended to produce, and
likely to produce, annoyance and loss to that business) will be restrained
and punished by the criminal law as oppressive to the individual, inju-
rious to the prosperity of the community, and subversive of the peace
and good order of society.
The recent case of State v. Glidden, already referred to, decided by
the Supreme Court of Connecticut, is both in principle and features
identical with the case under review. The Carrington Publishing Com-
pany had in their emplo}' a number of printers known as " non-union
men," or "rats." The Typographical Union, the Knights of Labor,
the Trades' Council, the Cigar-makers' Union, and other aflBliatSd secret
organizations, waited upon the company and demanded that their oflSce
be made a " union office" within twentj'-four hours. Upon the refusal
of the companj' to make their office a "union office," a boycott was
instituted against them, which, though not openly published as m this
case, was fully proved. The court in its opinion said : " If the defend-
ants have the right which they claim, then all business enterprises are
ahke subject to their dictation. No one is safe in engaging in busi-
ness, for no one knows whether his business affairs are to be directed
by intelligence or ignorance, — whether law and justice will protect the
business, or brute force, regardless of law, will control it ; for it must
be remembered that the exercise of the power, if conceded, will by no
means be confined to the matter of employing help. Upon the same
principle, and for the same reasons, the right to determine what busi-
ness others shall engage in, when and where it shall be carried on, etc.,
will be demanded, and must be conceded. The principle, if it once
obtains a foothold, is aggressive, and is not easily checked. It thrives
on what it feeds on, and is insatiate in its demands. More requires
more. If a large body of irresponsible men demand and receive power
outside of law, over and above law, it is not to be expected that they
will be satisfied with a moderate and reasonable use of it. All history
proves that abuses and excesses are inevitable. The exercise of irre-
sponsible power by men, like the taste of human blood by tigers, creates
886 CRUMP V. COMMONWEALTH. [CHAP. XIV.
an unappeasable appetite for more. . . . Confidence is the corner-stone
of all business, — confidence that the government, through its courts,
will be able to protect their rights ; but if their rights [of business
men] are such only as a secret, irresponsible organization is willing to
give, where is that confidence which is essential to the prosperitj' of the
country? . . . The end would be anarchy, pure and simple, and the
subversion, not only of all business, but also of law and the govern-
ment itself. Thej' [defendants] had a right to request the Carrington
Publishing Company to discharge its workmen and employ themselves,
and to use all proper argument in support of their request, but tbev
had no right to say, ' You shall do this, or we will ruin j-our business.'
Much less had they a right to ruin its business. The fact that it is
designed as a means to an end, and that end in itself considered is a
lawful one, does not divest the transaction of its criminality.''
The defendant lays great stress upon the case of Commonwealth
V. Hunt, 4 Met. Ill, as authoritj' to sustain the legality of boycot-
ting ; but there is an obvious distinction between that case and that
of this defendant. That was a club or combination of journejmen
boot-makers simply to better their own condition, and it had no aim
or means of aggression upon the business or rights of others ; tliey
simply- liad regulations for themselves, and did not combine or operate
for a result mischievous, meddlesome, and oppressive towards others.
But, even in that case, the court, after supposing the case of a com-
bination for the ultimate and laudable object of reducing, b^- mere
competition, the price of bread to themselves and their neighbors, said :
"The legalit3- of such an association will, therefore, depend upon the
means to be used for its accomplishment. If it is to be carried into
effect by fair and honorable means, it is, to say the least, innocent ; if
by falsehood or force, it may be stamped with the character of con-
spiracj." Force may be operated either physically or mechanically ; or
it may be coercion by fear, threat, or intimation of loss, injury, obloquj',
or suffering.
The evidence in this case shows that while Baughman Brothers were
engaged in their lawful business as stationers and printers, the plaintiff
in error and the other members of the Richmond Typographical Union,
No. 90, conspired to compel Baughman Brothers to make their office a
" union office," and to compel them not to employ any printer who did
not belong to the said union ; that upon the refusal of Baughman
Brothers to make their office (or business) a " union office," the plain-
tiff in error and others composing the said Richmond Typographical
Union, No. 90, conspired and determined to boycott the said firm of
Baughman Brothers, as they had threatened to do, and sent circulars to a
great piany of the customers of the said firm informing them that they
had, '• with the aid of the Knights of Labor and all the trades organiza-
tions in this city [Richmond], boycotted the establishment of Messrs.
Baughman Brothers," and formally notif^ying the said customers fliat the
names of all persons who should persist in trading, patronizing, or dealing
SECT. ni.J CEUMP V OOiMMONWEALTH. 887
with Baughman BiyUiers, after being notified of the boj'cott, would be
published weekly in the Labor Herald as a " black-list," who, in
their turn, would be boycotted until they agreed to withdraw their
patronage from Baughman Brothers ; and, accordingly, the employees
of Baughman Brothers were mercilessly hounded by publication
after publication, for months, in tlie Labor Herald (which was the
boasted engine of the boycottipg conspirators), wherebj' it was at-
tempted to excite public feeling against them, and prevent them from
obtaining even board and shelter ; and the names of the customers and
patrons of the said firm were published in the said sheet under the stand-
ing head of •' black-list."
The length of this opinion will preclude the mention of even a tithe
•of these incendiary publications week after week for months ; but not
only Baughman Brothers, and their employees and their customers, but
the hotels, boanling-houses, public schools, railroads, and steamboats
-conducting the business travel and ti'ansportatiou of the city were listed
and published under the obloquy and denunciation of the " black-list."
One or two specimens will suffice : " Boycott Baughman Brothers and
all who patronize them." " Watch out for Baughman Brothers' ' rats,'
and find out where they board. It is dangerous for honest men to
board in the same house with these creatures. They are so mean that
the air becomes contaminated in which Ihej' breathe." '-Boycott
Baughman Brothers every day in the week." "Boycott Baughman
Brothers, because they are enemies of honest labor." ^ Boycott
Baughman Brothers' customers wherever you find them." " The Lynch-
Tjurg boys will begin to play their hand on Messrs. Baughman 's
bo3COtted goods in a short time. The battle will not be fought in
Eichmond onlj-, but in all Virginia and North Carolina will be raised
the cry, ' Away with the goods of this tyrannical firm.' " " Let our
friends remember it is the patronage of the Chesapeake and Ohio,
Richmond, Fredericksburg, and Potomac, Richmond and Danville, and
Richmond and Alleghany railroads that is keeping Baughman Brothers
up." " We are Sony to see the Exchange Hotel on the black-list.
There will be two thousand strangers in this cit}' in October, none of
whom will patronize a hotel or boarding-house whose name appears on
that list." "The boj-cott on Baughman Brothers is working so good
that a man cannot bu}' a single bristol-board from the ' rat' firm with-
out having his name put upon the black-list." " The old ' rat' e.=tab-
lishraent is about to cave in. Let it fall with a crash that will be a
warning to all enemies of labor in the future."
It was proved that the conspirators declared their set purpose and
persistent effort to "crush" Baughman Brothers; that the minions of
the boycott committee dogged the firm in all their transactions, fol-
lowed their delivery wagon, secured the names of their patrons, and
used every means short of actual phj'sical force to compel them to
cease dealing with Baughman Brothers, thereby causing them to lose
from one hundred and fifty to two hundred customers, and ten thousand
MORRIS RUN COAL CO. V. BARCLAY COAL CO. [CHAP. XIV.
dollars of net profit. The acts alleged and proved in tliis case are
unlawful, and incompatible with the prosperitj', peace, and civilization
of the country ; and if they can be perpetrated with impunity by com-
binations of irresponsible cabals or cliques, there will be the end of
government, and of societj' itself. Freedom, individual and associated,
is the boon and the boasted polic}' and peculium of our country ; but it
is libert}' regulated by law ; and the motto of the law is Sic utere tuo
ut alienum non Icedas.
The plaintiff in error was properlj- convicted ; and the judgment of
the hustings court complained of is affirmed.
MORRIS RUN COAL COMPANY v. BARCLAY COAL
COMPANY.
Supreme Court of Pennsylvania. 1871.
{Reported 68 Pa. 173.]
Agnew, J.^ The effects produced on the public interests lead to the
consideration of another feature of great weight in determining the
illegality of the contract, to wit : the combination resorted to by these
five companies. Singly each might have suspended deliveries and sales
of coal to suit its own interests, and might have raised the price, even
though this might have been detrimental to the public interest. There
is a certain freedom which must be allowed to every one in the manage-
ment of his own affairs. When competition is left free, individual
error or follj' will generall}' find a correction in the conduct of others.
But here is a combination of all the companies operating in the Bloss-
burg and Barclaj' mining regions, and controlhng their entire produc-
tions. They have combined together to govern the supplj- and the
price of coal in all the markets from the Hudson to the Mississippi
rivers, and from Pennsylvania to the lakes. This combination has a
power in its confederated form which no individual action can confer.
The public interest must succumb to it, for it has left no competition
free to correct its baleful influence. When the suppl3- of coal is sus-
pended, the demand for it becomes importunate, and prices must rise.
Or if the suppl}' goes forwards the price fixed b3- the confederates must
accompany it. The domestic hearth, the furnaces of the iron-master,
and the fires of the manufacturer, all feel the restraint, while many de-
pendent hands are paralyzed, and hungry mouths are stinted. The
influence of a lack of supplj' or a rise in the price of an article of such
prime necessity, cannot be measured. It permeates tlie entire mass of
community, and leaves few of its members untouched by its withering
' Only an extract from the opinion is given.
SECT. III.] MORRIS RUN COAL CO. V. B.iRCLAY COAL CO. 889
blight. Such a combination is more than a contract, it is an offence.
"I take it," said Gibson, J., "a combination is criminal whenever the
act to be done has a uecessar}- tendency to prejudice the public or to
oppress individuals, hj unjustly subjecting them to the power of the
confederates, and giving effect to the purpose of .the latter, whether of
extortion or of mischief." Commonwealth v. Carlisle, Brightly's Rep.
40. In all such combinations where the purpose is injurious or unlaw-
ful, the gist of the offence is the conspiracj'. Men can often do by the
combination of manj', what severally no one could accomplish, and
even what when done by one would be innocent. It was held, in The
Commonwealth v. Eberle, 3 S. & R. 9, that it was an indictable con-
spiracy for a portion of a German liUtheran congregation to combine
and agree together to prevent another portion of the congregation, by
force of arms, from using the English language in the worship of God
among the congregation. So a confederacy to assist a female infant to
escape from her father's control with a view to marr}' her against his will,
is indictable as a conspiracy at common law, while it would have been no
criminal offence if one alone had induced her to elope with and marry
him. Mifflin v. Commonwealth, 5 W. & S. 461. One man or many may
hiss an actor ; but if they conspire to do it they may be punished.
Per Gibson, C. J., Hood v. Palm^ 8 Barr, 238 ; 2 Russel on Crimes, 556.
And an action for a conspirac}- to defame will be supported though the
words be not actionable, if spoken by one. Hood v. Palm, supra.
"Defamation by the outcry of numbers," says Gibson, C. J., "is as
resistless as defamation by the written act of an individual." And
says Coulter, J., " The concentrated energy of several combined wills,
operating simultaneously and hy concert upon one individual, is dan-
gerous even to the cautious and circumspect, but when brought to bear
upon the unwary and unsuspecting, it is fatal." Twitchell v. Common-
wealth, 9 Barr, 211. There is a potency in numbers when combined,
which the law cannot overlook, where injury is the consequence. If
the conspiracy be to commit a crime or an unlawful act, it is eas}- to
determine its indictable character. It is more difficult when the act to
be done or purpose to be accomplished is innocent in itself. Then the
offence takes its hue from the motives, the means, or the consequences.
If the motives of the confederates be to oppress, the means they use
unlawful, or the consequences to others injurious, their confederation
will become a conspirac}'. Instances are given in The Commonwealth
V. Carlisle, Bright. R. 40. Among those mentioned as criminal is a
combination of employers to depress the wages of journeymen below
wliat they would be, if there were no resort to artificial means ; and a
combination of the bakers of a town to hold up the article of bread, and
by means of the scarcity thus produced to extort an exorbitant price
for it. The latter instance is precisely parallel with the present case.
It is the effect of the act upon the public which gives that case and this
its evil aspect as the result of confederation ; for any baker might
choose to hold up his own bread, or coal operator his coal, rather than
890 MORKIS EUN COAL CO. V. BARCLAY COAL CO. [CHAP. XIV.
to sell at ruling prices ; but when he destroys competition by a combi-
nation with others, the public can buy of no one.
In Rex V. De Berenger, 3 M. & S. 67, it was held to be a con
spirac3' to combine to raise the public funds on a particular daj' by false
rumors. The purpose itself, said Lord Ellenborough, is mischievous
— it strikes at the price of a valuable commodity in the market, and
if it gives it a fictitious price by means of false rumors, it is a fraud
levelled against the public, for it is against all such as ma}' possibly
have anything to do with the funds on that particular day. Every
" corner," in the language of the day, whether it be to affect the
price of articles of commerce, such as breadstuffs, or the price of vend-
ible stocks, when accomplished by confederation to raise or depress
the price and operate on the markets, is a conspiracy. The ruin often
spread abroad by these heartless conspiracies is indescribable, fre-
quently filling the land with starvation, poverty, and woe. Every
association is criminal whose object is to raise or, depress the price
of labor bej-ond what it would being if it were left without aitifi-
cial aid or stimulus. Rex v. Byerdike, 1 M. & S. 179. In the case of
such associations the illegalitj- consists most frequentl}' in the means
employed to carr^' out the object. To fix a standard of prices among
men in the same employment, as a fee bill, is not in itself criminal, but
maj- become so when the parties resort to coercion, restraint, or penal-
ties upon the emplo3"ed or emplojers, or what is worse to force of
arms. If the means be unlawful the combination is indictable. Com-
monwealth V. Hunt, 4 Met. 111. A conspiracj' of journeymen of anj'
trade or handicraft to raise the wages by entering into combination to
coerce journej-men and master-workmen emplo^-ed in the same branch
of industry to conform to rules adopted by such combination for the
purpose of regulating the price of labor, and carrying such rules into
effect by overt acts, is indictable as a misdemeanor. 3 Whart. C. L.,
citing The People v. Fisher, 14 Wend. 9. Without multiplying ex-
amples, these are suflficient to illustrate the true aspect of the case
before us, and to show that a combination such as these companies
entered into to control the suppl}- and price of the Blossburg and Bar-
clay regions is illegal, and the contract therefore void.'
' " Owners of goods have a right to expect at an auction that there will be au open
competition from the public ; and if a knot of men go to an auction upon an agree-
ment among themselves of the kind that has been described, they are guilty of an
indictable offence, and may be tried for a conspiracy." Gurney, B., in Levi v. Levi,
9C. & P. 239. —Ed.
SECT. I.J THE INDICTMENT. 891
CHAPTER XV.
THE INDICTMENT.
SECTION I.
General Requisites of an Indictment.
2 Hawkins, Pleas of the Crown, ch. 25, Sect. 55. No periphrasis
or circumlocution whatsoever will supply those words of art which the
law hath appropriated for the description of the offence, as murdravit,
in an indictment of murder ; cepit, in an indictment of larceny ; Tnay-
hemiavit, in an indictment of maim ; felonice, in an indictment of any
felony whatever; burglariter, or burgulariter, or else burgalariter, in
an indictment of burglary ; proditorie, in an indictment of treason ;
contra ligeantiae suae debitum, in an indictment of treason against the
king's person.
2 Hawkins, Pleas of the Crown, ch. 25, Sect. 62. Where one mate-
rial part of an indictment is repugnant to another the whole is void ;
for the law will not admit of such nonsense and absurdities in legal
proceedings, which if suffered, would soon introduce barbarism and
confusion. Also it takes off much from the credit of an indictment
that those by whom it is found have contradicted themselves. And
upon this ground ... it hath been adjudged that an indictment for
selling iron with false weights and measures is void, not only because
it is absurd to suppose that iron could be sold by measure, but also be-
cause it is repugnant and inconsistent that it should be so sold at the
same time when it was sold by weight.^
1 Every indictment or information ought to contain a complete description of
such facts and circumstances as constitute the crime, without inconsistency or repug-
nancy ; and, except in particular cases, where the precise technical expressions are
required to be used, there is no rnle that other words shall be employed than such as
are in ordinary use ; or that in indictments or other pleadings a different sense is to be
put upon them than what they bear in ordinary acceptation. And if, where the sense
may be ambiguous, it is sufficiently marked by the context, or other means, in what
sense they are intended to be used, no objection can be made on the ground of repug-
nancy, which only exists where a sense is annexed to words which is either absolutely
inconsistent therewith, or being apparently so, is not accompanied by anything to ex-
plain or define them. If the sense be clear, nice exceptions ought not to be regarded ;
in respect of which Lord Hale (2 Hale's P. C 193) says that " more offenders escape
iy the over-^asy ear given to exceptions in indictments than by their own innocence,
and many heinous and crying offences escape by these unseemly niceties, to the re-
proach of the law, to the shame of the government, and to the encouragement of vil-
lany and the dishonor of God." — Lord EUenborough, C. J., in Bex v. Stevens, 5 East,
244, 259.
892 STATE V. BROWN. [CHAP. XV.
2 Hawkins, Pleas of the Crown, 8th ed., ch. 25, Sects. 118, 119, 126,
127, 128. As to the ninth general point of this chapter, viz. : What
ought to be the form of the caption of an indictment. I shall take it
for granted that every such caption is erroneous, which doth not set
forth with proper certainty botii the court in which, and the jurors by
whom, and also the time and place at which, the indictment was found.
As to the first of these particulars, viz. : What certainty is necessary
in the caption of an indictment in respect to the court before which it
was found. It is certain that every such caption must shew that the
indictment was taken before such a court as had jurisdiction over the
offence indicted.
As to the second particular, viz. : What certainty is necessary in the
caption of an indictment in respect of the jurors by whom it was found.
It seems, agreed that no caption of an indictment, whether found at a
court-leet, or other inferior court, can be good without expressly shew-
ing that the jurors who found it were of the county, city, or burgh, or
other precinct for which the court was holden, and that they were at
least twelve in number, and also that they found the indictment upon
their oaths.
As to the third particular, viz. : What certainty is necessary in the
caption of an indictment in respect of the time when it was found. It
seems agreed that such caption must set forth a certain day and year
when the court was holden before which the indictment was found.
As to the fourth particular, viz. : What certainty is necessary in the
caption of an indictment in respect of the place where it was found. It
seems agreed that if such caption either set forth no place at all where
the indictment was found, or do not shew with sufficient certainty that
the place set forth is within the jurisdiction of the court before which it
was taken, [it] is insufficient.
STATE V. BROWN.
Supreme Court op North Cakolina. 1819.
[Reported 3 Murphy, 224.]
The indictment against the defendant was in the following words,
to wit:
"The Jurors for the State, upon their oaths, present that John
Brown, late of the County of Camden, shop-keeper, on the first day of
February, 1817, and continually thereafter up to the time of taking
this inquisition at Camden aforesaid, was, and yet is, a common
Sabbath-bi'eaker and prophaner of the Lord's day, commonly called
Sunday ; and that the said John Brown, on the day aforesaid, being
Lord's day, and on divers other days and times, as well before as since,
being Lord's day, did then and there keep and maintain a certain open
shop, and on the days and times aforesaid, there sold and exposed to
SECT. I.] DAMON'S CASE. 893
sale divers goods, wares, and spirituous liquors, to negroes and others,
to the great damage of the good citizens of this State, and against the
peace and dignity of the State."
The defendant submitted ; but the court entertaining a doubt whether
the facts set, forth in the indictment constituted an indictable offence as
therein set forth, sent the case to this court ; and
Hendeeson, J., delivered the opinion of the court: —
The indictment charges that the defendant is a common Sabbath-
breater and prophaner of the Lord's day. If it had stopped here, it
would certainly have been insuflScient, as it would not show how, or in
what manner, he was a common Sabbath-breaker and prophaner of the
Lord's day. The court, upon an inspection of the record, must be
able to perceive the alleged criminal act : for an indictment, as was
once well observed from this bench by Judge Lowrie, is a compound of
law and fact. The latter part of the indictment charges that the de-
fendant kept an open shop and sold divers goods, wares, and spirituous
liquors to negroes and others on the Sabbath. This offence, as charged,
is not punishable by indictment ; for if the act can be intended to be
lawful, it shall be so presumed, unless it be charged to be done under
circumstances which render it criminal, and be so found by a jury. For
aught that appears to the contrary, this sale might have been to the
lame or weary traveller, or to others to whom it was a merit to sell, in-
stead of a crime ; and nothing shall be intended against a defendant.
And if this were the Sabbath-breaking spoken of in the foregoing part
of the indictment, taking the whole together, the defendant well might
have done all charged against him, and yet have committed no crime ;
and as this may have been the case, we are bound to presume it ; at
least, not to presume to the contrary.
The judgment must be arrested.
DAMON'S CASE.
Supreme Judicial Court or Maine. 1829.
[Reported 6 Maine, 148.]
In this case the defendant was indicted for that he, having been law-
fully married at Reading in Massachusetts, in 1805, was unlawfully
again married to another woman, at Farmington in this county, in 1812,
the former wife being still alive ; " against the peace of said State,
and against the form of the statute in such case made and provided."
The defendant moved for a new trial, because, 4th, the indictment
was defective.^
Pareis, J. The only remaining question presented in this case is
as to the sufficiency of the indictment. The case finds that the second
marriage of the defendant was in this county, in 1812. Supposing it
to have been proved or admitted at the trial, that at the time of the
' Part of the case not relating to question of pleading is omitted.
894 - DAMON'S CASE. [CIIAP. XV.
second marriage the first wife was alive (and this fact must necessarily
have been established to the satisfaction of the jury), the offence set
forth in the indictment was committed at that time, and consequently
against the peace of the then existing government and the laws thereof.
It could not have been an offence against the peace of the State of
Maine, or in violation of its laws, for at that time Maine had not been
invested with the sovereign power of a State. The territory was a
portion of Massachusetts, and the inhabitants were amenable to the
laws of that sovereignty.
Whoever commits an offence indictable either by statute or at com-
mon law is guilty of a breach of the peace of that government which
exercises jurisdiction, for the time being, over the place where such
offence is committed ; and in setting forth the offence an omission to
charge it as having been done against the peace of that government is
fatal. The Queen v. Lane, 3 Salk. 199; 2 Ld. Raj'mond, 1034. It
is even insufficient, if charged as against the peace generally, without
naming the particular sovereignty, whose peace is alleged to have been
violated. 2 Hale's P. C. 188. So, also, if it be an offence created by
statute, as in this case, the indictment must allege it to have been com-
mitted against the form of the statute, or it will be fatal. 2 Mass,
Rep. 116.
Now it would be preposterous to allege the offence to have been com-
mitted against a statute of the State of Maine ; for at that time Maine
had no statutes, and the statute touching this subject which has since
been enacted by our legislature is materially different, especially in the
penal part, from the statute of Massachusetts.
As the indictment, in this case, sets forth a statute offence committed
in the year 1812, by a person subject to the laws of Massachusetts, iu
a place then under the jurisdiction of that government, it consequently
must have been against the peace of that sovereignty and that only;
and not being so alleged, the prosecution cannot be sustained. The
authorities by which our opinion on this point is supported are :
2 Hale's P. C. 188 ; 2 Hawk. ch. 25, sect. 95; Yelv. 66 ; -4 Com. Dig.
Indictment, G. 6, and Eex v. Lookup, 3 Burr. 1903. In the latter
case, Lookup was indicted for perjury. The fact was charged to have
been committed in the time of the late king, whereas the indictment
concluded against the peace of the present king. After trial, convic-
tion and sentence, Lookup brought a writ of error returnable in Parlia-
ment, when the following question was put by the lords to the judges :
" whether the perjury being alleged in the indictment to have been com-
mitted in the time of the late king, and charged to be against the peace
of the now king is fatal, and renders the indictment insufficient." The
Lord Baron delivered the unanimous opinion of the judges in the affirma-
tive; and upon this point the judgment of the King's Bench was re-
versed and the defendant discharged.
Conformably to the report of the judge who tried the cause, the ver-
dict must be set aside and a new trial granted.
SECT. I.J COMMONWEALTH V. PRAY. 895
COMMONWEALTH v. PRAY.
Supreme Judicial Court of Massachusetts. 1832.
{Reported 13 Pich. 359.]
The defendant was indicted as follows, on the statute of 1786, c. 68,
§]•
"The jurors, &c., present that Edward Pray of Braintree, in the
County of Norfolk, trader, on the thirtieth day of September, in the
year of our Lord one thousand eight hundred and thirty, and on divers
other days between that day and the twentieth day of December next
following, at Braintree aforesaid, did presume to be and was a common
seller of wine, beer, ale, cider, brandy, rum, and other strong liquors
by retail, in less quantities than twenty-eight gallons, and that delivered
and carried away all at one time, and did at said Weymouth, during
all the time between the days aforesaid, commonly and habitually sell
to divers persons to the jurors unknown, wine, beer, ale, cider, brandy,
rum, and other strong liquors by retail, in less quantities than tiuenty-
eight gallons, and that delivered and carried aivay all at one time,
he, the said Edward Pray, not being first duly licensed therefor accord-
ing to law," &c.
The defendant demurred generally to the indictment.
Kingsbury, in support of the demurrer, objected to the indictment on
the grounds of uncertainty and repugnancy. The allegations that the
offence was committed at Braintree and at ' ' said "Weymouth," are re-
pugnant, and the place of the offence is rendered uncertain. 2 Hale's
P. C. 180; Bac. Abr. Indictment, G 4; Hawk. bk. 2, c. 25, § 83;
Cholmley's case, Cro. Car. 465 ; Wingfleld's case, Cro. Eliz. 739. The
general rule is that an indictment should set forth the particular facts
constituting the offence charged. There are some exceptions, as in the
cases of a common barrator and a common scold, but they do not em-
brace the offence for which this defendant is indicted. 2 Hale's P. C.
182; Hawk, bk, 2, c. 25, § 59. The second allegation- in the indict-
ment is descriptive of the offence, and is repugnant to the first allega-
tion, and for both of these reasons it cannot be rejected as surplusage.
Rex V. Holt, 2 Leach, 676 ; s. c. 5 T. R. 446 ; 3 Stark. Ev. 1529 ; Com.
Dig. Pleader, E 12; Co. Lit. 303 b; Gould's PI. 155, c. 3, § 172.
Austin, Attorney-General, for the Commonwealth, said that the clause
in the indictment printed in Italics might be rejected as surplusage ;
1 Chit. Grim. Law, 238 ; Commonwealth v. Hunt, 4 Pick. 252 ; and that
it has been the invariable practice, ever since this statute was passed,
to set forth the offence in this general form, and that the ease came
within the reasons of the exceptions in regard to common barrators and
common scolds.
Morton, J., delivered the opinion of the court. This case comes
before us on general demurrer ; and the only subject for our considera-
896 COMMONWEALTH V. PRAY. [CHAP. XV.
tion is the suffinieney of the indictment. It is framed upon the first sec-
tion of St. 1786, e. 68. That section contains two distinct prohibitions,
enforced by different penalties. The first clause provides that no person
may, without being dulj' licensed, " presume to be a common victualler,
innholder, taverner, or seller of wine, beer, ale, cider, brandy, rum, or
any strong liquors, by retail," under a penalty of twenty pounds. The
second clause provides that if any person shall, without license, " sell any
spirituous liquors, or any mixed liquors, part of which is spirituous,"
he shall incur a penalty of not less than forty shillings, nor more than
six pounds. The first offence consists in presuming to be a common
victualler, or common seller, &c. ; the second, in actually selling. Al-
though the first offence may not be completed without committing the
second, yet the second may be, without committing the first.
The indictment contains two distinct charges. The one, in general
terms, that the defendant did presume to be and was a common seller,
&c., — in the words of the statute. The other, that the defendant did
commonly and habitually sell to divers persons to the jurors unknown,
wine, &c. The first is laid with a proper venue, viz., "at Braintree
aforesaid," Braintree having just before been described as in the County
of Norfolk. In the second, the offence is alleged to have been com-
mitted " at said Weymouth ; " whereas Weymouth had not before been
named. This unquestionably is a mere clerical error. But it is incon-
sistent with the former venue, and clearly insuflBcient. Haw'k, bk. 2,
c. 25, § 83 ; 2 Hale's P. C. 180.
The next inquiry is whether this defective averment may not be re-
jected as surplusage. It does not contradict any other averment in. the
indictment ; it is not descriptive of the identity of the charge, or of
anything essential to it, nor does it in any degree tend to show that no
offence was committed. 3 Stark. Ev. 1529 ; 1 Chit. Crim. Law, 238 ;
Gould's PI. 154, 155, and authorities there cited ; Commonwealth v.
Hunt, 4 Pick. 252.
The second allegation, embracing all between the words " all at one
time," where they first occur, and the words " he the said Edward," may
properly be rejected as surplusage. Indeed it must be excluded, for it
contains no legal averment ; and the indictment must be treated as if
originally drawn without it. But as it cannot aid the indictment, so it
will not injure it. Utile per inutile non vitiatur.
The indictment describes the offence in the very words of the statute.
This usually is not sufiicient. The established rules of pleading require
the essential facts and circumstances to be particularly, unambiguously,
and certainly stated, that the court may know whether they amount to
a violation of the law, and what punishment, if any, they require. A
general charge, as that a man is a common thief, common forestaller
or common champertor, &c., is clearly insufficient. Hawk. bk. 2, c 25
§ 29.
But this general rule, useful and important as it may be, is not with-
out its exceptions ; for there are classes of cases to which it does not
SECT. I.] COMMONWEALTH V. PEAY. 897
apply. Wherever the crime consists of a series of acts, they need not
be specially described, for it is not each or all the acts of themselves,
but the practice or habit which produces the principal evil and consti-
tutes the crime.
Thus, it is suflScient to charge a person with being a common bar-
rator, or a common scold. Hawk. bk. 2, c. 25, § 69. And it is not
necessary to set forth any particular acts of barratry or of scolding ;
for it is the general practice, and not the particular acts which consti-
tute the offence. They go to make up the evidence of the crime, but
are not the crime itself. And it is never necessary in pleadings, civil
or criminal, to set forth the evidence.
There is another class of cases, which, though not very similar to the
above, seem to come within the same exception. It is sufficient to
charge a person generally with keeping a house of ill-fame, a disorderly
house, or a common gaming house. Hawk. bk. 2, c. 25, § 57; Davis's
Prec. of. Indictments, 140, 198 ; Rex v. Higginson, 2 Burr. 1233. Now
although all the acts which make up these general offences are in them-
selves unlawful, it is not necessary to set them forth. The several acts
may be indicted and punished separately, but the keeping the house is
a distinct offence, and as such liable to punishment.
This indictment comes within these principles. Although to make
out the statute offence it may be necessary to prove particular acts,
such as entertaining company or selling spirits, yet these acts are only
evidence of the general charge, and may be proved, but need not be
alleged.
There is also one other class of cases, well settled, as we think, which
are, in principle, similar to the case under consideration. It is made
the duty of towns to keep in repair all highways within their limits ;
and for a neglect of this duty they are liable, not only to indictrnent,
but, if any individual injury occurs by reason of it, to a civil action.
St. 1786, c. 81. In indictments and declarations on this statute, which
are of almost daily occurrence, the practice never has been to set forth
minutely the defects in the highway. But a general allegation, that a
certain highway is out of repair, ruinous, and unsafe, has always been
deemed sufficient. Hawk. bk. 2, c. 25, § 68 ; Davis's Prec. of Indict-
ments, 195 ; Rider v. Smith, 3 T. R. 766.
■The object of the rule requiring the charge to be particularly, cer-
tainly, and technically set forth, is threefold. First, to apprise the
defendant of the precise nature of the charge made against him. Sec-
ondly, to enable the court to determine whether the facts constitute an
offence and to render the proper judgment thereon. And thirdly, that
the judgment may be a bar to any future prosecution for the same
offence. 3 Stark. Ev. 1527.
The allegations remaining in this indictment entirely satisfy all these
objects. They fully apprise the defendant of the nature of the charge
preferred against him. When it is alleged that at a certain time he
did presume to be and was a common innholder and common seller of
COMMONWEALTH V. HERSEY. [CHAP. XV.
spirits, &c., he cannot be ignorant of the offence which is imputed to
him. Besides, the court, according to the modern practice, in all cases
of general allegations, take care that the defendant shall not be sur-
prised, but that he shall seasonably be furnished with such specifica-
tions and particular statements as may be necessary to enable him to
prepare for his trial, and to meet all the proof which may be brought
against him. It is admitted that if the second allegation were suffi-
cient, the whole indictment would be good. Now it is apparent that
this second clause gives no information as to the nature of the offence,
or of the particular facts to be proved, not contained in the first.
That the indictment is sufficient to enable the court to render the
proper judgment, and that it will be a bar to all future prosecutions
for the same offence, we cannot doubt. In this case the time enters
into the essence of the offence, and with entire certainty fixes the iden-
tity. The defendant can never again be punished for being a common
seller, &c., within the time described in the indictment. But even if
the identity were not proved by the record, it might, as in many other
cases, be established by proof aliunde.
Upon the whole, the court are of opinion, that the second clause in
the indictment may properly be rejected as surplusage ; that the indict-
ment, without it, contains all the allegations necessary to its support;
and therefore that the demurrer must be overruled.
COMMONWEALTH v. HEESEY.
SuPEEME Judicial Court of Massachusetts. 1861.
[Reported 2 Allen, 173.]
BiGELOW, C. J. The motion in arrest of judgment in the present
case is founded on the omission ^to aver that the defendant, in admin-
istering poison to the deceased, did it with an intent to kill and mur-
der. No direct authority or adjudication has been cited by the counsel
for the prisoner in support of the position that such an averment is
necessary or essential to the validity of the indictment. They do, how-
ever, rely on forms or precedents, which are found in text books of ap-
proved authority and in reported cases, in which the allegation that
the poison was administered with intent to kill is distinctly set forth.
Wharton's Precedents, (2d ed.) 123-138; Archb. Crim. PI. (5th Amer.
ed.) 432; 2 Cox, C. C. Appendix, III; Davis's Precedents, 182-186.
But, on the other hand, it is certainly true that there are precedents
entitled to equal respect with those cited by the prisoner's counsel, in
which no such averment is made, as a separate and substantive allega-
tion essential to the description of the crime, and distinct from the
general prefatory clause, in which a general intent to kill is stated
without any averment of time and place. 2 Stark. Crim. PI. 12, 15,
18; 1 East P. C. c. 5, § 116; 3 Chit. Crim. Law, 773, 779; The
SECT. I.] COMMONWEALTH V. HEESEY. 899
King V. Clark, 1 Brod. & Bing. 473 ; Eegina v. Alison, 8 C. & P.
418. So f"''' therefore as the question now raised depends on author-
ity, it may fairly be said to be an open one. It would be giving too
much force to mere precedents of forms, which often contain unneces-
sary and superfluous averments, to hold that a particular allegation is
essential to the validity of an indictment, because it has sometimes, or
even generally, been adopted by text writers or by cautious pleaders.
We are then to determine the question as one depending on the gen-
eral rules of criminal pleading applicable to the description of similar
offences. There can be no doubt that, in every case, to render a party
responsible for a felony, a vicious wiU or wicked intent must concur
with a wrongful act. But it does not follow that, because a man can-
not commit a felony unless he has an evil or malicious mind or will, it
is necessary to aver the guilty intent as a substantive part of the crime
in giving a technical description of it in the indictment. On the con-
trary, as the law presumes that every man intends the natural and neces-
sary consequences of his acts, it is suflScient to aver in apt and technical
words that a defendant committed a criminal act, without alleging the
specific intent with which it was done. In such case, the act neces-
sarily includes the intent. Thus, in charging the crime of burglary, it
is not necessary to aver that the breaking and entering a house was
done with an intent to steal. It is sufficient to charge the breaking
and entering and an actual theft by the defendant. The reason is,
that the fact of stealing is the strongest possible evidence of the in-
tent, and the allegation of the theft is equivalent to an averment of
that intent. Commonwealth v. Hope, 22 Pick. 1, 5; 2 East P. C. c. 15,
§ 24. So in an indictment for murder by blows or stabs with a deadly
weapon, it is never necessary to allege that they were inflicted with an
intent to kill or murder. The law infers the intent from proof that the
acts were committed, and that death ensued. The averment, therefore ,-
of the criminal act comprehends the evil or wicked intention with which
it was committed. The true distinction seems to be this : when by the
common law or by the provision of a statute a particular intention is es-
sential to an offence, or a criminal act is attempted but not accomplished,
and the evil intent only can be punished, it is necessary to allege the
intent with distinctness and precision, and to support the allegation by
proof. On the other hand, if the offence does not rest merely in ten-
dency, or in an attempt to do a certain act with a wicked purpose, but
consists in doing an unlawful' or criminal act, the evil intention will be
presumed and need not be alleged, or, if alleged, it is a mere formal
averment, which need not be proved. In such case^ the intent is nothing
more than the result which the law draws from the act, and requires no
proof beyond that which the act itself supplies. 1 Stark. Crim. PI. 165.
1 Chit. Crim. Law, 233 ; The Kingw. Philipps, 6 East, 474; 1 Hale P. C.
455 ; Commonwealths. Merrill, 14 Gray, 415 ; To illustrate the applica-
tion of the rule, take the case of an indictment for an assault with an at-
tempt to commit a rape. The act not being consumifaated, the gist of
900 COMMONWEALTH V. HEESBY. [CHAP. XV.
the offence consists in the intent with which the assault was committed.
It must therefore be distinctly alleged and proved. But in an indictment
for the crime of rape, no such averment is necessary. It is sufficient
to allege the assault, and that the defendant had carnal knowledge of
a woman by force and against her will. The averment of the act in-
cludes the intent, and proof of the commission of the offence draws with
it the necessary inference of the criminal intent. The same is true of
indictments for assault with intent to kUl, and murder. In the former,
the intent must be alleged and proved. In the latter, it is only neces-
sary to allege and prove the act. The application of this principle to
the case at bar is decisive of the question raised by the present motion.
There is nothing in the nature of the crime of murder by poison to
distinguish it from homicide by other unlawful means or instruments so
as to render it necessary that it should be set out with fuller averments
concerning the intention with which the criminal act was committed.
If a person administers to another that which he knows to be a deadly
poison, and death ensues therefrom, the averment of these facts in
technical form necessarily involves and includes the intent to take life.
It is the natural and necessary consequence of the act done, from
which the law infers that the party knew and contemplated the result
which followed, and that it was committed with the guilty intention to
take life.
It was urged by the counsel for the prisoner, as an argument in sup-
port of the insufficiency of the indictment, that every fact stated in the
indictment might have been done by the defendant, and yet he might
have committed no offence ; that is, that a person might administer to
another that which he knew to be a deadly poison, from which death en-
sued, innocently and without any intent to do bodily harm. In a certain
sense this is true. A physician, for example, might in the exercise of
due care and skill give to his patient a medicine of a poisonous nature,
in the honest belief that it would cure or mitigate disease, but which
from unforeseen and unexpected causes actually causes death. And
the same is true of many other cases of homicide produced by other
means than poison. Take the case of a murder alleged to have been
committed by stabs or cuts with a knife. Such wounds may be in-
flicted innocently and for a lawful purpose. A surgeon in performing
a delicate and difficult operation, by a slight deflection of the knife
which the most cautious skill could not prevent, might inflict a wound
which destroys life. But it has never been deemed necessary, because
certain acts which cause death may be done without any wicked or
criminal intent, to aver in indictments for homicide, that the person
charged acted with an intent to take life. The corrupt and wicked pur-
pose with which a homicidal act is done is sufficiently expressed by the
averment that it was committed wilfully and with malice aforethouo-ht •
and this allegation may be always disproved by showing that the act
happened per infortunium, or was otherwise excusable or justifiable.
Motion in arrest of judgment overruled.
SECT. I.] HIEN V. STATE. 901
HIEN V. STATE.
Supreme Court of Ohio. 1852.
[Reported 1 Ohio St. 15.]
Bartlbt, J.'^ It may be important to notice the question of the suf-
ficiency of the indictment, for the purpose of settling a rule of pleading
in regard to which the authorities are not clear and somewhat conflict-
ing. This question is now relied on by the plaintiff in error, although
iiot raised in the Common Pleas.
It is claimed that the indictment is defective on the ground that it
does not contain a negative averment, that the sale of spirituous liquor
charged was not for medicinal or pharmaceutical purposes. The penal
offence is described or defined in the first section of the act of 1851, and
at the close of the section is a proviso in these words': "Provided, that
nothing contained in this section shall be so construed as to make it
unlawful to sell any spirituous liquors for medicinal and pharmaceu-
tical purposes."
The rule laid down by the authorities on this subject is generally
defined in this manner : that when a criminal or penal statute contains
an exception in the enacting clause, that exception must be negatived
in the indictment ; but where the statute contains provisps and excep-
tions in distinct clauses, it is not necessary to allege that the defen-
dant does not come with the exceptions, nor to negative the provisos.
1 Chitty's Crim. Law, 284. In some of the authorities the negative
allegation is made to depend upon the place in the statute where it
occurs, 1 Term E. 141; in others upon the question whether the ex-
ception or proviso qualifies the description of the offence. In some,
the rule is made to depend upon whether the exception be a matter of
description in the negative, the aflflrmative of which would be a good
excuse for the defendant, 2 Hawk. 255, 112; while in others, it is
made to depend upon the distinction between a proviso in the descrip-
tion of the offence, and a subsequent exemption from the penalty under
certain circumstances. This is Lord Mansfield's rule in Spiers v.
Parker, 1 Term E. 86, 87.
The confusion which seems to exist in regard to this rule has arisen
from the various modes adopted and the indefinite language used in
defining it, and the multiplicity of forms in which exceptions, qualifica-
tions, and exemptions are introduced into statutes. What constitutes
the enacting clause, in the meaning of some of the authorities, is not
clear. A clause is a distinct member or subdivision of a sentence, in
which the words are inseparably connected with each other in sense,
and cannot, with propriety, be separated by a point ; yet very fre-
quently the language creating and describing the oflience and fixing the
penalty, includes several distinct clauses and sometimes a whole section.
^ Fart of the case not relating to the question of pleading is omitted.
902 COMMONWEALTH V. PEKEIGO. [CHAP. XT.
It is requisite that every indictment should contain a substantial
description of all the circumstances descriptive of the offence as defined
in the statute, so as to bring the defendant precisely within it. And
the only substantial reason for requiring this negative averment at all
is that without it the description of the offence would not be complete.
When, therefore, the matter of the provisb or exception in the statute,
whether it be embraced within what has been termed the enacting clause
or not, enters into and becomes a part of the description of the oflfeuce,
or a material qualification of the language which defines or creates the
offence, the negative allegation in the indictment is requisite. But
where it is a subsequent exemption, or occurs in a separate and distinct
clause or part of the statute, disconnected with the statutory descrip-
tion of the offence, the negative averment is unnecessary.
In the case before the court, the matter of the proviso in the first
section of the act of 1851, points directly to the character of the offence,
is in the same sentence with it, and made a material qualification in the
statutory description of it.
It is the opinion of the majority of the court that the indictment
should have contained the negative averment, that the sale of the liquor
was not for medicinal or pharmaceutical purposes, and is, therefore,
defective.
The judgment of the court of Common Pleas is reversed.
Thueman, J., having been of counsel for the plaintiff in error, did
not sit in this case.
CoEwiN, J., dissented from the opinion of the court as to the suffi-
ciency of the indictment, but concurred in the decision on the other
points.
COMMONWEALTH v. PERRIGO.
CouET OF Appeals of KENTncKT. 1860.
[Reported 3 Metcalfe, 5.]
Judge Duval delivered the opinion of the court : —
The indictment charges that the defendant suffered certain named
persons " to play in a house, or on premises in the county aforesaid,
then in the occupation and under the control of the said Perrigo, a
game of cards, at which game of cards, played as aforesaid, money or
property was won and lost."
This indictment was held insufficient upon demurrer.
The rule is well settled that an indictment must set forth the offence
with such certainty as to apprise the defendant of the nature of the
accusation upon which he is to be tried, and to constitute a bar to any
subsequent proceeding for the same offence.
Tested by this rule, the indictment under consideration is obviously
defective. Whether the defendant was to be tried for suffering gaming
in his house, or for suffering gaming on premises elsewhere in the
SECT. I.J UNITED STATES V. CRUIKSHANK. 903
county ; or whether it was for suffering a game upon which money was
won or lost, or upon which property was won or lost, the defendant
could not learn from anything contained in the indictment, and could
not, therefore, be presumed to have been able to make any available or
effectual preparation for defence against so vague and uncertain an
accusation. Nor would a conviction for suffering a game for money to
be played in his house have constituted a bar to a subsequent indict-
ment for suffering a game for property to be played elsewhere on his
premises.
Would it be pretended that, under the 2d section of the statute pun-
ishing crimes against the person, it would be sufficient to charge that
the defendant maliciously shot at and wounded another, with a gun or
other instrument, or that the defendant cut or stabbed such person
with a knife or other deadly weapon ? And yet it might, with the same
propriety, be said, in support of such an indictment, that it charged but
one offence ; that the shooting and stabbing were but the allegation of
the different modes and means by which the offence was committed, and
that under the 125th section of the Criminal Code such different modes
and means might be alleged in the alternative. It is clear, however,
that the section referred to cannot admit of any such construction.
The judgment is affirmed.
UNITED STATES v. CRUIKSHANK.
Supreme Court of the United States. 1875.
[Reported 92 U. S. 542.]
Error to the Circuit Court of the United States for the District of
Louisiana.
This was an indictment for conspiracy under the sixth section of the
act of May 30, 1870, known as the Enforcement Act (16 Stat. 140),
and consisted of thirty-two counts.
The first count was for banding together, with intent " unlawfully
and feloniously to injure, oppress, threaten, and intimidate" two citi-
zens of the United States, " of African descent and persons of color,"
"with the unlawful and felonious intent thereby" them "to hinder
and prevent in their respective free exercise and enjoyment of their
lawful right and privilege to peaceably assemble together with each
other and with other citizens of the said United States for a peaceable
and lawful purpose."
The fifth avers an intent to hinder and prevent the same persons
"in the exercise and enjoyment of the rights, privileges, immunities,
and protection granted and secured to them respectively as citizens of
the said United States, and as citizens of the said State of Louisiana,
by reason of and for and on account of the race and color " of the said
persons.
The eighth avers an intent "to prevent and hinder" the same per-
904 UNITED STATES V. CEUIKSHANK. [CHAP. XV.
sons "in their several and respective free exercise and enjoyment of
every, each, all, and singular the several rights and privileges granted
and secured" to them " by the constitution and laws of the United
States." 1
Mr. Chief Justice Waite delivered the opinion of the court : —
"We come now to consider the fifth and thirteenth and the eighth and
sixteenth counts, which may be brought together for that purpose.
The intent charged in the fifth and thirteenth is " to hinder and pre-
vent the parties in their respective free exercise and enjoyment of the
rights, privileges, immunities, and protection granted and secured to
them respectively as citizens of the United States, and as citizens of
said State of Louisiana," "for the reason that they, . . . being then
and there citizens of said State and of tlie United States, were persons
of African descent and race,. and persons of color, and not white citizens
thereof ; " and in the eighth and sixteenth, to hinder and prevent them
" in their several and respective free exercise and enjoyment of every,
each, all, and singular the several rights and privileges granted and se-
cured to them by the constitution and laws of the United States." The
same general statement of the rights to be interfered with is found in
the fifth and thirteenth counts.
According to the view we take of these counts, the question is not
whether it is enough, in general, to describe a statutory offence in the
language of the statute, but whether the offence has here been described
at all. The statute provides for the punishment of those who conspire
"to injure, oppress, threaten, or intimidate any citizen, with intent to
prevent or hinder his free exercise and enjoyment of any right or privi-
lege granted or secured to him by the constitution or laws of the United
States.'' These counts in the indictment charge, in substance, that the
intent in this case was to hinder and prevent these citizens in the free
exercise and enjoyment of " every, each, all, and singular" the rights
granted them by the Constitution, &c. There is no specification of
any particular right. The language is broad enough to cover all.
In criminal cases, prosecuted under the laws of the United States,
the accused has the constitutional right "to be informed of the nature
and cause of the accusation." Amend. VI. In United States v. Mills,
7 Pet. 142, this was construed to mean, that the indictment must set
forth the offence " with clearness and all necessary certainty, to apprise
the accused of the crime with which he stands charged ; " and in United
States V. Cook, 17 Wall. 174, that " every ingredient of which the offence
is composed must be accurately and clearly alleged." It is an ele-
mentary principle of criminal pleading that where the definition of an
offence, whether it be at common law or by statute, " includes generic
terms, it is not suflieient that the indictment shall charge the offence in
the same generic terms as in the definition ; but it must state the
species, — it must descend to particulars." 1 Arch. Cr. Pr. and PI. ,
291. The object of the indictment is, first, to furnish the accused with
1 Only so much of the case as relates to the fifth and eighth counts is printed here.
SECT. I.J UNITED STATES V. CEUIKSHANK. 905
such a description of tlie ciiaTge against him as will enable him to make
his defence, and avail himself of his conviction or acquittal for protec-
tion against a further prosecution for the same cause; and, second, to
inform the court of the facts alleged, so that it may decide whether they
are sufficient in law to support a conviction, if one should be had. For
• this, facts are to be stated, not conclusions of law alone. A crime is
made up of acts and intent; and these must be set forth in the indict-
ment, iwith reasonable particularity of time, place, and circumstances.
It is a crime to steal goods and chattels; but an indictment would
be bad that did not specify with some degree of certainty the articles
stolen. This, because the accused must be advised of the essential par-
ticulars of the charge against him, and the court must be able to decide
whether the property taken was such as was the subject of larceny.
So, too, it is in some States a crime for two or more persons to con-
spire to cheat and defraud another out of his property ; but it has
been held that an indictment for such an offence must contain alle-
gations setting forth the means proposed to be used to accomplish the
purpose.
This, because, to make such a purpose criminal, the conspiracy must
be to cheat and defraud in a mode made criminal by statute ; and as p,ll
cheating and defrauding has not been made criminal^ it is necessary for
the indictment to state the means proposed, in order that the court may
see that they are in fact illegal. State v. Parker, 43 N. H. 83 ; State
V. Keach, 40 Vt. 118; Alderman v. The People, 4 Mich. 414; State
V. Roberts, 34 Me. 32. In Maine, it is an offence for two or more to
conspire with the intent unlawfully and wickedly to cotamit any crime
punishable by imprisonment in the State prison (State v. Eoberts) ;
but we think it will hardly be claimed that an indictment would be good
under this statute which charges the object of the conspiracy to have
been '.' unlawfully and wickedly to commit each, every, all, and singu-
lar the crimes punishable by imprisonment in the State prison." All
crimes are not so punishable. Whether a particular crime be such a
one or not, is a question of law. The accused has, therefore, the right
to have a specification of the charge against him in this respect, in
order that he may decide whether he should present his defence by mo-
tion to quash, demurrer^ or plea; and the court, that it may determine
whether the facts will sustain the indictment. So here, the crime is
made to consist in the unlawful combination with an intent to prevent
the enjoyment of any right granted or secured by the Constitution, &c.
All rights are not so granted or secured. Whether one is so or not is
a question of law, to be decided by the court, not the prosecutor. There-
fore, the indictment should state the particulars, to inform the court as
well as the accused. It must be made to appear — that is to say, ap-
pear from the indictment, without going further — that the acts charged
will, if proved, support a conviction for the offence alleged.
But it is needless to pursue the argument further. The conclusion is
irresistible that these counts are too vague and general. They lack the
906 COMMONWEALTH V. HARRINGTON. [CHAP. XV.
certainty and precision required by the established rules of criminal
pleading. It follows that they are not good and sufHcient in law.
They are so defective that no judgment of conviction should be pro-
nounced upon them.
The order of the Circuit Court arresting the judgment upon the
verdict is, therefore, affirmed ; and the cause remanded, with
instructions to discharge the defendants.
COMMONWEALTH v. HARRINGTON.
Supreme Judicial Court of Massachusetts. 1880.
[Eeported 130 Mass. 35.]
SouLE, J. The only question in this case is whether a male person
who is convicted on a complaint for drunkenness, which does not allege
two previous convictions of a like offence within a year, can be sen-
tenced to any greater penalty than the payment of a fine of one dollar,
which is the penalty imposed by the St. of 1880, c. 221, § 1.
.It is contended, in behalf of the Commonwealth, that the greater
penalty can be imposed by virtue of § 2 of the same statute, which pro-
vides that, when such person " is convicted of the offence of drunken-
ness, and it is proved that he has been convicted of a like offence twice
before within the next preceding twelve months, he may be punished
by a fine not exceeding ten dollars, or by imprisonment in any place
now provided by law for common drunkards, for a term not exceeding
one year;" and provides further that "it shall not be necessary in
complaints under the act to allege such previous convictions."
The language of this section is broad enough to cover the case at
bar, and the rulings of the judge who presided in the Superior Court
when the motion for sentence was made and the evidence of the pre-
vious convictions of the defendant was produced, were in strict con-
formity to it.
We are of opinion, however, that the ruling was erroneous, and that
the evidence ought not to have been received. It is provided by article
12 of the Declaration of Rights that no subject shall be held to answer
for any crime or offence until the same is fully and plainly, substan-
tially and formally, described to him. When a statute imposes a higher
penalty on a third conviction, it makes the former convictions a part of
the description and character of the offence intended to be punished.
Tuttle V. Commonwealth, 2 Gray, 505 ; Commonwealth v. HoUey,
3 Gray, 458; Garvey v. Commonwealth, 8 Gray, 382. It follows that
the offence which is punishable with the higher penalty is not fully and
substantially described to the defendant, if the complaint fails to set
forth the former convictions which are essential features of it. That
clause of the statute, therefore, which provides that it shall not be
necessary, in complaints under it, to allege such previous convictions,
SECT. I.J STATE V. MACE. " 907
is inoperative and void, as being contrary to the provisions of the Dec-
laration of Rights.
The result is, that the defendant is to be sentenced for a single
offence of drunkenness.
STATE V. MACE.
Supreme Judicial Court of Maine. 1884.
[Eeported 76 Maine, 64.]
On exceptions.
Indictment for perjury. The verdict was guilty. A motion in arrest
of judgment stated as one reason : " Because said indictment does not
sufficiently charge an offence against the respondent under the constitu-
tion and laws of the State of Maine." The motion was overruled and
exceptions were taken to that ruling.
The indictment was in the form prescribed by E. S. 1871, c. 122, § 5.
Walton, J. The defendant is charged with having committed the
crime of perjury "by falsely swearing to material matter in a writing
signed by him." The indictment makes no mention of the character or
purpose of the writing. Nor does it state what the matter falsely sworn
to was. Nor does it contain any averments which will enable the court
to determine that the oath was one authorized by law. The question is
whether such an indictment can be sustained. We think it cannot. It
does not contain sufficient matter to enable the court to render an in-
telligent judgment. The recital of facts is not sufficient to show that
a crime has been committed. All that is stated may be true, and yet
no crime have been committed. The character of the writing is not
stated, nor its purpose ; nor the use made, or intended to be made, of
it. For aught that appears, it may have been a voluntary affidavit to
the wonderful cures of a quack medicine. Such an affidavit, as every
lawyer knows, could not be made the basis of a conviction for perjury.
In the language of our statute defining perjury, it is only when one who
is required to tell the truth on oath or affirmation lawfully administered,
wilfully and corruptly swears or affirms falsely to material matter, in a
proceeding before a court, tribunal, or officer created by law, that he is
guilty of perjury. R. S. c. 122, § 1. The oath must be one authorized
or required by law, to constitute perjury. Swearing to an extra-judicial
affidavit is not perjury. And the indictment must contain enough to
show that the oath was one which the law authorized or required, or it
will be defective and clearly insufficient, even after verdict ; for the
verdict will affirm no more than is stated in the indictment ; and if the
indictment does not contain enough to show that perjury has been com-
mitted, a verdict of guilty will not aid it. We think the indictment in
this case is fatally defective in not setting out either the tenor or the
substance of the writing sworn to by the accused, to the end that the
court might see whether it was one in relation to which perjury could
be committed.
908 STATE V. MACE. [CHAP. XV.
Besides, the writing referred to in the indictment may (and it would
be strange if it did not) contain more than one statement in relation to
matters of fact. The grand jury, upon the evidence before them, may
have come to the conclusion that the statement in relation to one of
these matters of fact was false, and thereupon voted to indict the de-
fendant, while the traverse jury, upon the evidence before them, may
have come to the conclusion that the statement in relation to that
matter was true, but that some other statement contained in the writing
was false, and thereupon convicted the defendant of perjury in swearing
to the latter statement ; and thus the defendant would be convicted
upon a matter in relation to which he had never been indicted by the
grand jury. Surely, an indictment which will permit of such a result
cannot be sustained.
True, the form followed in this case is one established by legislative
authority. But the authority of the legislature in such cases is limited.
Undoubtedly the legislature may abbreviate, ■ simplify, and in many
other respects modify and change the forms of indictments ; but it can-
not make valid and suflScient an indictment in which the accusation is
not set forth with sufHcient fulness to enable the accused to know with
reasonable certainty what the matter of fact is which he has got to
meet, and enable the court to see, without going out of the record,
that a crime has been committed. This the constitution of the State
forbids ; and to that instrument, the legislature as well as all other
tribunals must conform. The authority of the legislature in this partic-
ular, and the extent to which it may go in establishing forms, has been
judicially determined in this State, and the arguments, pro and con,
need not be repeated here. "We refer to State v. Learned, 47 Maine,
426.
The common law required indictments for perjury to be drawn with
great nicety and fulness, more so, it is believed, than the purposes of
justice required ; and the result was that but few such indictments
proved to be suflflcient when subjected to a close and searching exami-
nation. To avoid this inconvenience, the legislature, in 1865, enacted
two forms, which it declared should be sufficient. The first related to
perjury committed bypersons testifying orally before some court or other
tribunal, and, although much briefer than would have answered by the
strict rules of the common law, it was held sufficient in State v. Corson,
59 Maine, 137. The second related to perjury committed in swearing
to some writing in relation to which an oath is authorized or required
by law ; and the sufficiency of this latter form is now for the first time
before the law court for consideration ; and, for the reasons already
stated, and to be found more fully stated in the case cited (State ;'.
Learned, 47 Maine, 426), we are forced to the conclusion that it is not
sufficient ; that the legislature, in its laudable desire to prune away the
great prolixity of the forms required by the common law, cut too deep,
and did not leave enough to meet the requirements of the constitution
of the State. Exceptions sustained. Judgment arrested.
SECT. I.] STATE V. CAMPBELL. 909
STATE V. Mccarty.
Supreme Coukt of Rhode Island. 1891.
[Reported 17 R. 1. 370.]
Per Curiam. The defendant was indicted in the Court of Common
Pleas at its December term, 1890, for breaking and entering, in the
day-time, the house of one Jeremiah B. Fuller, in Providence, with the
intent to commit larceny therein. At the trial the prosecution called as
a witness the owner of the dwelling-house, who testified that his name
was Jedediah B. Fuller. When the case for the prosecution was closed,
the defendant moved that the indictment be quashed because of the
variance between the allegation of the owner of the house and the proof
submitted. The Court overruled the motion to quash, and upon motion
of the attorney-general, and against the defendant's objection, permit-
ted the indictment to be amended by striking out the name Jeremiah
and inserting the name Jedediah. The defendant excepted to the
rulings of the Court of Common Pleas in the matters stated, and the
jury having returned a verdict of guilty, now petitions for a new trial,
upon the ground, among others, that the Court of Common Pleas had
no authority to permit the amendment. We think that a new trial
should be granted. The amendment to the indictment being in a matter
of substance, could only properly have been made in the presence of
and with the concurrence of the grand jury (1 Bish. Crim. Proc. §§ 707-
711 ; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. Rep. 781) ; or, under Pub.
St. R. I. c. 248, § 4, with the consent of the accuse^.
Petition granted.
STATE V. CAMPBELL.
Supreme Court of Missouri. 1907.
[Reported 210 Mo. 202.]
Fox, P. J.^ The final complaint in which the sufficiency of this
indictment is challenged, that is, that it fails to comply with the con-
stitutional requirement in its conclusion, is by far the most serious
proposition disclosed by the record before us in this cause. Article 6,
section 38, of the Constitution of this State provides that " all writs
and process shall run and all prosecutions shall be conducted in the
name of the ' State of Missouri ; ' all writs shall be attested by the
clerk of the court from which they shall be issued ; and all indictments
shall conclude, ' against the peace and dignity of the State.' "
It will be observed that the conclusion to the indictment now under
^ Only so much of the case as discusses the question of form of indictment is
given. — Ed.
910 STATE V. CAMPBELL. fCHAP. XT.
consideration is " against the peace and dignity of State." The com-
plaint of learned counsel for appellant is directed against this conclu-
sion on the ground that the word "the" is omitted immediately preceding
the word "State."
At the very threshold of the bonsideration of the proposition now
under discussion there is no dispute that there must be substantial
compliance with the provisions of the Constitution respecting the con-
clusion that all indictments shall conclude "against the peace and
dignity of the State." It has been expressly ruled by this court that
no formal charge of crime is sufficient without the averment of the
conclusion to an indictment as contemplated by the Constitution.
[State V. Stacy, 103 Mo. 11; State v. Lopez, 19 Mo. 254; State v.
Pemberton, 30 Mo. 376.] This constitutional requirement that all
indictments shall conclude " against the peace and dignity of the
State," in efEect is a requirement that all indictments shall point out
in their conclusion that the offence as described in the main body of
the indictment is ' ' against the peace and dignity of the State " which
entertains and exercises jurisdiction of the offence charged.
A number of states have a similar constitutional requirement to ours
as to the conclusion of indictments or informations, and it is significant
that the appellate courts of the various states having a like constitu-
tional provision have uniformly held, whete such constitutional pro-
vision has been in judgment before them, that it was essential to the
validity of an indictment or information that the constitutional require-
ment be substantially complied with. An examination of the authori-
ties indicates some difference in the degree of exabtness required in
following the constitutional language in the various states, but they
are all practically uniform that there must be a substantial compliance
with such constitutional requirement.
In State v. Hays, 78 Mo. 600, the conclusion of the indictment em-
braced all the words required by the Constitution, but also embraced
the additional words " of Missouri." The conclusion in that case was,
" against the peace and dignity of the State of Missouri." The objec-
tion urged to that conclusion was, not that the conclusion did not em-
brace the words prescribed by the Constitution, but that the addition
of the words "of Missouri" invalidated the indictment. This objec-
tion was held by this court without merit, and this court said that " the
added words are but what the constitutional language implies, and
the addition in no wise enlarged, varied or changed the phrase or the
sense." In other words, it was in effect that the phrase embraced in
the conclusion required by the Constitution, "The State," in fact
meant the State of Missouri.
To the same effect is State v. Schloss, 93 Mo. 361. The conclusion
to the indictment in that case embraced the words required by the
Constitution, but also added "contrary to the form of the statute."
It was held and properly so that this contention was untenable for the
reason that the mere additional words would not invalidate the indict-
SECT. I,] STATE V. CAMPBELL. 911
ment when the conclusion embraced the language designated by the
Constitution.
In one of the leading cases, State v. Kean, 10 N. H. 347, the lan-
guage used in the conclusion was " against the peace and dignity of
our said State," instead of "the State" as required by the Constitu-
tion. It was held by the court in that case that the use of the language
was not such a departure from the language required by the Constitu-
tion as to vitiate the indictment. It will be observed in that case, as
well as in the Hays and Schloss Missouri cases, that while the language
used in the conclusion was not identical with that prescribed by the
Constitution, yet the language used did fully conform to the require-
ments of the Constitution by clearly indicating the State which was
offended, by the violation of the law which was charged in the body of
the indictments.
So, in the case of Zarresseller v. People, 17 111. 101. In that case
the indictment concluded " against the peace and dignity of the People
of the State of Illinois." The twenty-fifth section of the fifth article
of the Constitution of that State provides that aU prosecutions shall be
carried on "in the name and by the authority of the people of the
State of minois," and conclude " against the peace and dignity of the
same." It was very properly ruled in that case that the conclusion was
the same in substance as required by the Constitution and within the
spirit and meaning of the requisition.
In Anderson v. State, 5 Ark. 444, the indictment concluded " against
the peace and dignity of the people of the State of Arkansas." The
Constitution of that State required that the conclusion should be
"against the peace and dignity of the State of Arkansas." It was
correctly held that this slight deviation from the form prescribed in the
Constitution would not invalidate the indictment.
To the same effect is State v. Robinson, 27 S. C. 615, where the lan-
guage in the conclusion of the indictment was " the same State afore-
said," instead of "the State." It will be observed in that case that
all the constitutional words were present but the words "same" and
"aforesaid" were added. Clearly that case was properly decided
when it' held that the addition of those words did not change the sense
or meaning of the clause.
To the same effect is State v. Pratt, 44 Tex. 93, in which the word
" Texas " was added, and it was held that that additional word to the
concluding language required by the Constitution should not invalidate
the indictment.
In State v. Waters, 1 Mo. App. 7, as heretofore suggested, that
court, speaking through Judge Lewis, clearly pointed out the purpose
and meaning of the terms designated by the Constitution, " against the
peace and dignity of the State," that is, that it was to indicate
the power or authority against which the facts charged constituted an
offence. In other words, that while the exact language prescribed by
the Constitution need not be used, yet such terms must be used as will
912 STATE V. CAMPBELL. [CHAP. XV.
indicate the State against which the facts charged constitate an offence.
It is announced in that case that " the general doctrine is that if the in-
tent of the Constitution be substantially responded to in this part of
the indictment, a literal transcript of the formula is not essential. It
is further held that if the formula be present, other words, not per-
verting the meaning, will be treated as surplusage." In that case the
same objection was urged against the indictment as was insisted upon
in State v. Schloss, supra, that there was added to the conclusion pre-
scribed by the Constitutiou " and contrary to the form of the statute
in such cases made and provided by the State." It is manifest that
the concluding words prescribed by the Constitution were embraced in
the conclusion to the indictment in that case, therefore it was very
properly held that the conclusion was sufficient.
Mr. Bishop, in his work. New Criminal Procedure (4 Ed.), vol. 1,
sec. 651, after stating the ruling of some of the courts upon the propo-
sition now under consideration, reached this conclusion. He says :
' ' Derivable from all, and from the analogies of , the law, would seem
to be that unimportant words omitted from the constitutional form of
the conclusion, or changed therein, will not necessarily vitiate it; but
whatever alters the substance, even in what seems unimportant, will
render it void."
In Lemons v. State, 4 W. Va. 755, the conclusion of the indictment
was " against the peace and dignity of the State of W. Virginia."
The Constitution of that State provided, at the time the indictment in
the case was returned, that all indictments should conclude " against
the peace and dignjty of the State of West Virginia. " It was held
in that case that the abbreviation for the term " West " with the letter
" W" before Virginia was not a compliance with the provisions of the
Constitution and the indictment was held insufficient. This case is
cited with approval by Mr. Bishop in his Criminal Procedure, and is
also cited in State v. Waters, supra, and Judge Lewis in that case in
no way disapproves of the West Virginia case. He simply concluded
his review of the Lemons case by stating that "this was no case of
surplusage ; it was the rejection of a name given by the Constitution
and the adoption of a different one." Subsequent to the announcement
of the conclusion reached by the Supreme Court of Appeals of West
Virginia in the Lemons case, heretofore cited, the Constitution was
changed respecting the concluding terms of all indictments, and instead
of requiring the conclusion "against the peace and dignity of the
State of West Virginia," the same conclusion was required as in this
State, that is, "against the peace and dignity of the State," and in State
V. Allen, 8 W. Va. 680, the conclusion to the indictment conformed to
the requirements of the former Constitution and concluded in the terms
" against the peace and dignity of the State of West Virginia," instead
of concluding " against the peace and dignity of the State," as required
by the Constitution then in force. That case, in harmony with the
rule announced by this court, correctly held that the terms of the con-
SECT. I.] STATE V. CAMPBELL. 913
elusion as prescribed by the Constitution being embraced in the lan-
guage used, the mere addition of the State of West Virginia would not
vitiate the indictment. The Lemons case was referred to approvingly,
but distinguished from the Allen case.
It may be said as to the case of Lemons v. State, supra, that from
the language used by the learned judge rendering the opinion, it is sus-
ceptible of being interpreted as not being in perfect harmony with many
other of the appellate courts, by reason of its requiring a too strict and
literal compliance with the terms used in the Constitution; however,
by the subsequent case of State v. Allen, supra, it is clearly indicated
that the Virginia court is in harmony with the uniform rulings of nearly
all the appellate courts.
The Constitution of Wisconsin contains a similar provision to the
Constitution of this State and provides that all indictments shall con-
elude "against the peace and dignity of the State." In Williams v.
State, 27 Wis. 402, the indictment in judgment before the court con-
cluded " against the peace of the State of Wisconsin." In discussing
the terms of the conclusion of the indictment in that case, Lyon, J.,
speaking for the Supreme Court of Wisconsin, thus treats the proposi-
tion. He said : "Art. VII., sec. 17, of the Constitution provides, that
'all indictments shall conclude against the peace and dignity of the
State.' This mandate is imperative, and an indictment which does not
so conclude is necessarily bad. The courts have no authority to dis-
pense with that which the Constitution requires. The Constitutions of
Virginia, Texas and Missouri contain the same provision, and it has
been held by the Supreme Court of the two latter States, and by the
Court of Appeals of the former, that the conclusion required by the
Constitution is indispensable to the validity of the indictment," citing
Com. V. Carney, 4 Gratt. 546; State v. Durst, 7 Tex. 74; State v.
Lopez, 19 Mo. 254.
This brings us to the consideration of the two Texas cases in which
the identical proposition involved in this case was in judgment before
the Texas Court of Appeals in the cases of Wallace Thompson v. State,
15 Tex. App. 39, and in R. Thompson v. State, reported in the same
volume by the same court, page 168. Section 12 of article 5 of the
Constitution of Texas, at the time of the announcement of the decision
in those two cases, made the same requirement as to the conclusion of
all prosecutions, that is, that they should conclude " against the peace
and dignity of the State." In those cases the definite article " the "
which should immediately precede the word " State," was omitted, and
it was expressly ruled by that court that in the omission of the word
" the," as above indicated, there was a failure to comply with the re-
quirement of the Constitution ; that the conclusion in all prosecutions
should be " against the peace and dignity of the State." It is not inap-
propriate to say that the Texas Court of Appeals above cited has long
been recognized by both the bench and bar as one of high standing, and
wliile the propositions involved in those two cases are not discussed at
914 STATE V. CAMPBELL. [CHAP. XV.
any length, yet from the recognized ability of the eminent lawyers con-
stituting that court, the conclusion reached doubtless was not without
due and proper consideration. This is indicated in the latter case of
R. Thompson v. State, above referred to. In that case the court had
reached the conclusion that the judgment of the trial court was right
and had entered its order affirming tlie judgment, but the same fatal
defect in the conclusion of the information by the omission of the defi-
nite article " the " immediately preceding " State " having been over-
looked, a motion for rehearing was granted and the judgment of the
trial court reversed. It is obvious that the same proposition being
presented in both cases and one in which the judgment of the trial court
had been affirmed, that the court fully recognized the importance of the
psoposition, and while the expression of their conclusions was brief,
the consideration of the question was full and thorough.
Emphasizing the correctness of the conclusion reached in the two
cases last cited by the Texas Court of Appeals, the learned author,
Mr. Bishop, in support of the rule heretofore announced, that the omis-
sion of unimportant words from the constitutional form of the conclu-
sion would not necessarily vitiate an indictment or information, but
whatever alters the substance, even in what seems unimportant, will
render it void, directs the bench and bar to consult the cases of Thomp-
son V. State, 15 Tex. App. on pages 39 and 168.
In 10 Am. and Eng. Ency. Law (1 Ed.), 514, we also find in the
text that where the Constitution of the State requires that all prosecu-
tions shall conclude "against the peace and dignity of the State," the
omission of the word " the " before " State," in an information, is fatal
to it, citing in support of the text the cases heretofore indicated in the
16th Tex. App. at pages 39 and 168.
We have thus pointed out the views of the numerous appellate courts
applicable to this question, and we are now simply confronted with the
proposition as to whether or not, measured by the authorities as hereto-
fore indicated, the conclusion to the indictment in the case at bar suffi-
ciently conforms to the requirements of the Constitution of this State.
In responding to this proposition we deem it sufficient to say that, after
a careful and thorough consideration of all the authorities applicable to
the subject now under discussion, we see no escape from holding that
the conclusion to the indictment in this cause fails to comply with the
imperative mandate of the Constitution of this State. As heretofore
pointed out, the authorities are all in harmony that the conclusion to
the indictment must substantially conform to the requirements of the
Constitution, and in all cases where this proposition has been in judg-
ment before the appellate courts, where the language used was not
identical with the terms prescribed by the Constitution, it is significant
that the courts have uniformly pointed out that the terms used were
equivalent and in effect and substance embraced the conclusion required
by the Constitution, and, as said by the court of appeals in State v.
Waters, supra, the conclusion prescribed by the Constitution is for the
SECT. I.] STATE V. CAMPBELL. 913
purpose of indicating the power or authority against which the facts
charged constitute an offence. This being true, it is plainly manifest
that, the definite article "the" which should immediately precede the
word " State " being omitted, the conclusion to the indictment in the
case at bar falls far short of indicating the power or authority against
which the facts charged in the body of the indictment constitute an
offence.
While it may be conceded that the word " the " is a small one and in
many instances of little importance, however, if we are to longer rec-
ognize rules in the proper interpretation of language, then we see no
escape from the conclusion that the definite article " the " preceding
the word " State " is absolutely essential in order to designate the par-
ticular State against which the offence is charged to have been com-
mitted. It is clear that the omission of this word not only changes the
sense but the very substance of the clause, and, as was said by Mr.
Bishop in the discussion of the proposition of the conclusion prescribed
by the Constitution, " Whatever alters the substance, even in what
seems unimportant, will render it void." While it may be said that
the definite article " the " in many instances is an unimportant phrase,
yet as applicable to the conclusion prescribed by the Constitution of
this State, it is full of force and vitality. As was said by the learned
counsel in their brief in State v. Skillman, 209 Mo. 408, decided at the
present term of this court, "the article 'the* directs what particular
thing or things we are to take or assume as spoken of. It determines
what particular thing is meant ; that is, what particular thing we are to
assume to be meant. It is used before nouns with a specifying or par-
ticularizing effect." In the use of the definite article " the " immedi-
ately preceding " State " in the conclusion prescribed by the Constitution
we have pointed out the State whose peace and dignity has been
offended, and by the omission of such definite article we have a con-
clusion that does not designate the power or authority against which
the offence is committed. "The State," in the conclusion prescribed
by the Constitution of this State, means the State of Missouri, and
this in substapce was what was decided in the Hays case, 78 Mo. 600,
heretofore cited.
If this conclusion embraced language similar to that pointed out in
the cases to which we have heretofore referred, such as " against the
peace and dignity of our said State," or "against the peace and dignity
of State of Missouri," it might be very properly ruled that such lan-
guage was at least equivalent to the language prescribed by the Consti-
tution, for the reason that it indicated the power and authority against
which the offence as charged in the body of the indictment constitutes
an offence.
This case falls far short of conforming to or meeting the requirements
of the rule announced by Judge Lewis in State v. Waters, supra. It
was there said : "If the intent of the Constitution be responded to in
this part of the indictment, a literal transcript of the formula is not
916 STATE V. CAMPBELL. [CHAP.' XV.
essential." But in that same case it will be observed that the learned
judge said that the purpose and meaning of the conclusion was to indi-
cate the power or authority against which the facts charged constitute
an offence. Therefore it is obvious that the intent of the Constitution
has not been substantially responded to for the reasons heretofore sug-
gested; that in the omission of the definite article "the" preceding
" State " there is an absolute failure to indicate the power or authority
against which the offence is charged to have been committed.
It is not a satisfactory solution of this proposition to say we know
what was intended or meant by the conclusion, in the case at bar, or
that it was a mere matter of form. The proposition confronting us is
not what the pleader meant to say, but what did he say, and do the
terms used in concluding the indictment in this case substantially con-
form to the requirements prescribed by the Constitution? Constitu-
tional requirements are not ordinarily to be regarded as mere matters
of form. As was said in Cox v. State, 8 Tex. 1. c. 306 : " However
much we may feel disposed to consider a matter prescribed by the
Constitution ill-advised or useless — however much we may be inclined
to doubt the propriety of inserting into the organic, fundamental law
of the State requisites of forms with regard to procedure and practice
in the courts, — the answer is, the people themselves, the source of all
power and authority in a republican government, have spoken it ; and
with regard to their ipse dixit, when contained in the Constitution, which
is but the expression of their sovereign will, the courts can only bow
in humble obedience, and say, 'ita est scripta.' If plain and unambig-
uous, no ordinary rules of construction are applicable to these expres-
sions ; their inherent, binding authority is superior to all ordinary
rules."
Mr. Justice Emott in People v. Lawrence, 36 Barb. 1. c. 186, in dis-
cussing a constitutional question, used this language : "It will be
found, upon full consideration, to be diflScult to treat any constitutional
provision as merely directory and not imperative." This language was
fully approved by Judge Cooley. [Cooley's Const. Lim. (3 Ed.) 82.]
In Eice v. State, 3 Heisk. 1. c. 220, it was clearly as well as forcibly
announced that an ' ' indictment that does not conclude ' against the
peace and dignity of the State ' is a nullity. It is a positive injunc-
tion of the Constitution itself that such shall be the conclusion of every
indictment. It is, therefore, a matter that cannot be affected by legis-
lation, and a defect that cannot be ignored by the ciourts. An indict-
ment without these words is not an accusation of crime, and not an
indictment in the sense of the Constitution. No conviction upon such
an indictment could be permitted to stand, and a prisoner cannot waive
his rights in this respect, as it is the imperative mandate of the Consti-
tution that all crimes shall be prosecuted by presentment or indictment,
and that all indictments shall conclude ' against the peace and dignity
of the State.' The conclusion ' against the peace and dignity of the
State' cannot be dispensed with." [1 Green's Cr. Rep. 266.] The
SECT. I.J SERRA V. MOETIGA. 917
same doctrine is emphatically declared in Thompson v. Commonwealth,
20 Gratt. 724, and Carney's Case, 4 Gratt. 546.
In Nichols' v. State, 35 Wis. 308, the court, treating the subject of
the conclusion prescribed by the Constitution, said: " This formula is
a mere rhetorical flourish, adding nothing to the substance of the indict-
ment, and it is difficult to see why the mandate for its use was inserted
in the Constitution. Yet it is there, and must be obeyed. We enforced
obedience to it in Williams v. State, 27 Wis. 402. Of course, the ac-
cused cannot be possibly prejudiced or in any manner misled by the
omission of the formula from an indictment, and the use of it is held
necessary for the sole reason that the Constitution ordains that it shall
be used."
In our opinion the conclusion prescribed by the Constitution of this
State is not only one of form, but as well one of substance: "sub-
stance, because the Constitution requires it ; " and, as was said by Mr.
Bishop in the announcement of the rule, " whatever alters the substance,
even in what seems unimportant, will render it void." Our conclusion
upon this proposition is that the indictment in this cause fails to sub-
stantially comply in its conclusion with the terms prescribed by the
Constitution, and therefore should be held invalid.*
SEERA V. MORTIGA.
Supreme Codkt of the United States. 1907.
[Reported 204 U. S. 470.]
White, J. Articles 433 and 434, found in chapter 1 of title IX of
the Penal Code of the Philippine Islands, define and punish the crime
of adultery. The articles referred to are in the margin.^
It is conceded at bar that, under the Philippine law, the offence of
adultery, as defined by the articles in question, is classed as a private
offence, and must be prosecuted, not on information by the public
prosecutor, but by complaint on behalf of an injured party. In the
1 " The bill of rights for the Philippines giving the accused the right to demand the
nature and cause of the accusation against him does not fasten forever upon those
islands the inability of the seventeenth century common law to understand or accept a
pleading that did not exclude every misinterpretation capable of occurring to intelli-
gence fired with a desire to pervert." Holmes, J., in Paraiso v. U. S., 207 U. S. 368,
372.
" Akt. 433. Adultery should be punished with the penalty of prisidn correccional
in its medium and maximum degrees.
Adultery is committed by a married woman who lies with a man not her husband
and by him who lies with her knowing that she is married, although the marriage be
afterwards declared void.
Art. 434. No penalty shall be imposed for the crime of adultery except upon the
complaint of the aggrieved husband.
The latter can enter a complaint against both guilty parties, if alive, and never, if
he has consented to th-J adultery or pardoned either of the culprits.
918 SEERA V. MORTIGA. [CHAP. XV.
Court of First Instance of Albay, Eighth Judicial District, Philippine
Islands, Adriano Mortiga, the defendant in error, as the husband of
Maria Obleno, filed a complaint charging her with adultery committed
with Vicente Serra, the other plaintiff in error, who was also charged.
The complaint is in the margin. '^
The defendants were arraigned, pleaded not guilty, were tried by
the court without a jury and were convicted. The court stated its
reasons in a written opinion, analyzing the testimony and pointing out
that all the essential ingredients of the crime of adultery, as defined
by the articles of the penal code already referred to, were shown to
have been committed. The accused were sentenced to pay one-half
of the costs and to imprisonment for two years, four months and one
day. The record does not disclose that any objection was taken to the
sufficiency of the complaint before the trial. Indeed, it does not ap-
pear that by objection in any form, directly or indirectly, was any
question raised in the trial court concerning the suflJciency of the com-
plaint. An appeal was taken to the Supreme Court of the Philippine
Islands. In that court error was assigned on the ground, first, that
"the complaint is null and void because it lacks the essential requisite
provided by law ; " and second and third, because it did not appear
from the proof that guilt had been established beyond a reasonable
doubt. The conviction was aflirmed. The assignment of error, which
was based on the contention that the conviction was erroneous because
the complaint did not sufficiently state the essential ingredients of the
1 The United States of America,
Philippine Islands, Eighth Judicial District :
In the Court of First Instance of Albay.
The United States and Macario Mercades, in Behalf of Adriano Mortiga,
V.
Vicente Serra and Maria Obleno.
The undersigned, a practicing attorney, in behalf of Adriano Mortiga, the husband
of Maria Obleno, accuses Viucente Serra and the said Maria Obleno of the crime of
adultery, committed as follows :
That on or about the year 1899, and up to the present time, the accused, being both
married, maliciously, criminally and illegally lived as husband and wife, and continued
living together up to the present time, openly and notoriously, from which illegal
cohabitation two children are the issue, named Elias and Jos^ Isabelo, without the
consent of the prosecuting witness, and contrary to the statute in such cases made and
provided.
(Signed) Macakio Mekcades,
Attorney at Law.
(Signed) Adeiano Moktiga.
Albat, February 24, 1904.
Sworn and subscribed to before me this 24th day of February, 1904.
(Signed) F. Samson, Clerk.
Witnesses: Adriano Mortiga.
Bernardo Mortiga.
EuLALio Mortiga.
Placido Solano.
Casimira Marias.
SFXT. I.J SERRA V. MORTIGA. 919
offence charged, was thus disposed of by the court in its opinion :
" The objections to the complaint, based upon an insufficient statement
of the facts constituting the offence, cannot be considered here, because
they were not presented in the court below. United States v. Sarabia,
3 Off. Gaz. No. 29."
The assignments, based on the insufficiency of the proof to show
guilt beyond a reasonable doubt, were disposed of by an analysis of
the evidence which the court deemed led to the conclusion that all the
statutory elements of the crime were proven beyond a reasonable
doubt. An application for a rehearing, styled an exception, was made,
in which it was insisted that it was the duty of the court to consider
the assignment based on the insufficiency of the complaint, since not
to do so would be a denial of due process of law. The rehearing was
refused, and the sentence imposed below was increased to three years,
six months and twenty-nine days, on the ground that this was the
minimum punishment provided for the offence.
The errors assigned on this writ of error and the propositions urged
at bar to support them are confined to the assertion that the refusal of
the court below to consider the assignment of error concerning the
insufficiency of the complaint amounted to a conviction of the accused
without informing them of the nature and character of the offence with
which they were charged, and was besides equivalent to a conviction
without due process of law. It is settled that by virtue of the bill of
rights enacted by Congress for the Philippine Islands, 32 Stat. 691,
692, that guarantees equivalent to the due process and equal protection
of the law clause of the Fourteenth Amendment, the twice in jeopardy
clause of the Fifth Amendment, and the substantial guarantees of the
Sixth Amendment, exclusive of the right to trial by jury, were ex-
tended to the Philippine Islands. It is further settled that the guar-
antees which Congress has extended to the Philippine Islands are to
be interpreted as meaning what the like provisions meant at the time
when Congress made them applicable to the Philippine Islands. Kep.
ner v. United States, 195 U. S. 100.
For. the purpose, therefore, of passing on the errors assigned we
must test the correctness of the action of the court below by substan-
tially the same criteria which we would apply to a case arising in the
United States and controlled by the bill of rights expressed in the
amendments to the Constitution of the United States. Turning to the
text of the articles of the Philippine penal code upon which the prose-
cution was based, it will be seen that an essential ingredient of the
crime of adultery, as therein defined, is knowledge on the part of the
man charged of the fact that the woman with whom the adultery was
committed was a married woman. Turning to the complaint upon
which the prosecution was begun, it will be at once seen that it was
deficient, because it did not specify the place where the crime was
committed, nor does it expressly state that Vicente Serra, the accused
man, knew that Maria Obleno, the woman accused, was at the time of
920 SEEEA V. MOETIGA. [CHAP. XV.
the guilty cohabitation a loarried woman. It results that there were
deficiencies in the complaint which, if raised in any'form in the trial
court before judgment, would have required the trial court to hold that
the complaint was inadequate. But the question for decision is not
whether the complaint, which was thus deficient, could have been sus-
tained, in view of the Constitutional guarantees, if a challenge as to its
sUflflciency had been presented in any form to the trial court before
final judgment, but whether, when no such challenge was made in the
trial court before judgment, a denial of the guarantees of the statutory
bill of rights arose from the action of the appellate court in refusing
to entertain an objection to the sufficiency of the complaint because no
such ground was urged in the trial court. Thus reducing the case to
the real issue enables us to put out of view a number of decisions of
this court referred to in the margin,^ as well as many decided cases of
state courts referred to in the brief of counsel, because they are irrele-
vant, since all the former and, if not all, certainly all of the latter,
concern the soundness of objections made in the trial court, by the ac-
cused, to the sufficiency of indictments or informations.
In JEx parte Parks, 93 U. S. 18, the case was this: The petitioner
Parks afiplied to this court for a writ of habeas corpus. He had been
convicted and sentenced for the crime of forgery in a District Court of
the United States. The ground relied upon for release was that the
indictment stated no offence. The writ was discharged. Speaking
through Mr. Justice Bradley, it was said :
' ' But the question whether it was not a crime within the statute was
one which the District Court was competent to decide. It was before
the court and within its jurisdiction.
"Whether an act charged in an indictment is or is not a crime by
the law which the court administers [in this case the statute law of the
United States], is a question which has to be met at almost every stage
of criminal proceedings ; on motions to quash the indictment, on de-
murrers, on motions to arrest judgment, etc. The court may err, but
it has jurisdiction of the question. If it errs, there is no remedy, after
final judgment, unless a writ of error lies to some superior court, and
no such writ lies in this case."
In United States v. Ball, 163 U. S. 662, an attempt was made to
prosecute for the second time one Millard H. Ball, who had been ac-
quitted upon a defective indictment, which had been held bad upon the
proceedings in error prosecuted by others, who had been convicted and
who had been jointly prosecuted with Ball. Eeversing the court below,
the plea of autrefois acquit, relied on by Ball, was held good. It was
pointed out that the acquittal of Ball upon the defective indictment
was not void, and, therefore, the acquittal on such an indictment was
1 United States v. Cook, 17 "Wall. 168, 174; United States v. Carll, 105 U. S. 611 ;
Dunbar v. United States, 156 U. S. 185; Cochran & Sayres v. United States, 157
U. S. 286; Markham v. United States, 160 U. S. 319.
SECT, n.] STATEMENT OF THE CRIME. 921
a bar. This case was approvingly cited in Kepner v. United States,
195 U. S. 100, 129. It being then settled that the conviction on a de-
fective indictment is not void, but presents a mere question of error to
be reviewed according to law, the proposition to be decided is this :
Did the court below err in holding that it would not consider whether
the trial court erred because it had not decided the complaint to be
bad, when no question concerning its sufHciency was either directly or
indirectly made in that court ? Thus to understand the proposition is
to refute it. For it cannot be that the court below was wrong in re-
fusing to consider whether the trial court erred in a matter which that
court was not called upon to consider and did not decide. Undoubt-
edly, if a judgment of acquittal had resulted it would have barred a
further prosecution, despite the defective indictment. Kepner v. United
States, supra.
But it is said the peculiar powers of the Supreme Court in the Phil-
ippine Islands take this case out of the general rule, since in that court
on appeal a trial de novo is had even in a criminal case. But as pointed
out in the Kepner case, whilst that court on appeal has power to re-
examine the law and facts, it does so on the record and does not retry
in the fullest sense. Indeed, when the power of the court below to
review the facts is considered that power, instead of sustaining, refutes
the proposition relied on. Thus the proposition is that the court should
have reversed the conviction because of the contention as to the in-
sufficiency of the complaint, when no such question had been raised
before final judgment in the trial court, and when, as a necessary con-
sequence of the facts found by the court, the testimony offered at the
trial without objection or question in any form established every essen-
tial ingredient of the crime. In other words, the contention is that
reversal should have been ordered for an error not committed and
when the existence of injury was impossible to be conceived, in view
of the opinion which the court formed on the facts in the exercise of
the authority vested in it on that subject. Affirmed,
Mr. Justice Hablan dissents.
SECTION II.
Siatement of the Crime.
2 Hawkins, Pleas of the Crown, ch. 25, Sects. 57, 59.
The special manner of the whole fact ought to be set forth with such
certainty, that it may judicially appear to the court that the indictors
have not gone upon insufficient premises. And upon this ground it
seems to be agreed that an indictment finding that a person hath feloni-
ously broken prison, without shewing the cause of his imprisonment,
&c. , by which it may appear that it was of such a nature that the break-
ing might amount to felony, is insufficient. . . . Also it seems that
922 EEX V. LEDGINHAM. [CHAP. XV.
an indictment of perjury, not shewing in what manner and in what
court the false oath was taken, is insufficient, because for what appears
it might have been extrajudicial, &c.
Regularly every indictment must either charge a man with some par-
ticular offence, or else with several of such offences, particularly and
certainly expressed, and not with being an offender in general. For
no one can well know what defence to make to a charge so uncertain,
or to plead it either in bar or abatement of a subsequent prosecution ;
neither can it appear that the facts given in evidence against a defend-
ant on such a general accusation, are the same of which the indictors
have accused him; neither can it judicially appear to the court, what
punishment is proper for an offence so loosely expressed.
2 RoUe's Abridgement, 79. An indictment of a man that he is a
common forestaller, without alleging anything certain, is not good, be-
cause it is too general. 29 Ass. 45, adjudged. See 3 E. 2, action sur le
statut, 26. So an indictment that he is a common thief, without more,
is not good. 29 Ass. 45 ; 22 Ass. 73, 3 E. 2, action sur le statut, 26.
So an indictment for champerty is not good without more. 29 Ass.
45. So an indictment for conspiracy is not good without more. 29
Ass. 45. So an indictment for confederacy is not good without more.
Contra, 29 Ass. 45, but quaere. An indictment of a man for that he is
a common misfeasor is not good, because it is too general. 22 Ass. 73.
So an indictment that he is communis pads Domini Regis perturhator,
ac diversas lites & discordias tarn inter vicinos suos quam inter diversos
ligeos & subditos domini Regis apud W. in comitatu predicto injuste
excitavit moverit & procuravit, in magnum dispendium & perturba-
tionem vicinorum suorum predictorum & aliorum subditorum domini
Regis in comitatu predicto is not good, because too general. M. 6 Car.
B. El. per Curiam. Indictment quashed in Periam's case.
REX V. LEDGINHAM.
King's Bench. 1669.
[Reported 1 Mod. 288.]
Information setting forth that he was lord of the manor of Ottery
St. Mary, in the county of Devon, wherein there were many copyholders
and freeholders, and that he was a man of an unquiet mind, and did
make unreasonable distresses upon several of his tenants, and so was
communis oppressor et perturbator pads.
It was proved at the trial that he had distrained four oxen for three-
pence, and six cows for eight-pence, being amercements for not doing
suits of court, and that he was communis oppressor et perturbator pads.
The defendant was found guilty. But it was moved in arrest of
judgment that the information is ill laid :
First,- It is said he disquieted his tenants, and vexed them with un-
SECT. II.] COMMONWEALTH V. NEWBDEY BRIDGE. 923
reasonable distresses. It is true, that is a fault, but not a fault punish-
able in this way; for by the statute of Marlebridge, c. 4. 2. Inst. 106, 7,
he shall be punished by grievous amercements ; and where the statute
takes care for due punishment, that method must be observed.
Secondly, As to the matter itself, they do not set forth how much he
did take, nor from whom; so that the Court cannot judge whether it is
unreasonable or no, nor could we take issue upon them.
Thirdly, As to the communis oppressor et perturbator pads, they
are so general, that no indictment will lie upon them ; as in Cornwall's
case, Jones, 302, which indeed goeth to both the last points.
TwisDBN, J. Communis oppressor, &c., is not good*; such general
words will never make good an indictment, save only in that known
case of a barrator; for '■^communis barrectator" is a term which the
law takes notice of, and understands ; it is as much, as I have heard
judges say, as " a common knave," which contains aU knavery. For
the other point, an information will not lie for taking outrageous dis-
tresses. It is a private thing, for the which the statute gives a remedy>
viz. by an action upon the statute tarn quam.
Peb Cubiam. It is naught. — Adjoumatur.
COMMONWEALTH v. NEWBURY BRIDGE.
Sdpeeme Judicial Court of Massachusetts. 1829.
[Reported 9 Pick. 142.]
The indictment in this case recites that by a statute passed March
4, 1826 (St. 1825, c. 164) James Prince and others were incorporated
by the name of The Proprietors of the Newburyport Bridge, and that
by the, second section it is enacted that there shall be a draw not less
than thirty-eight feet wide, and a suitable pier on each side of the
bridge at the draw. The indictment then alleges that the defendants,
on and from the 1st of January, 1828, to the taking of this inquisition,
" have neglected and still do neglect to provide a suitable pier on each
side of the said bridge at the said draw, according to the requirement
of the act aforesaid, but have left the said bridge altogether destitute of
any pier at the said draw, by means whereof all vessels and river craft,
having masts higher than will readily pass under the said draw, are ob-
structed, hindered, and altogether prevented from passing said bridge,
to the common nuisance," &c.
At the trial, before Putnam, J., the defendants objected that the in-
dictment was found too soon, inasmuch as the three years allowed
them by the act, for completing the bridge, had not expired when the
indictment was found. They admitted that they had taken toll of
passengers for upward of a year. The objection was overruled.
A verdict against the defendants was taken, subject to the opinion
of the whole court.
924 COMMONWEALTH V. BEAN. [CHAP. XV.
The defendants also moved in arrest of judgment, because it is not
alleged in the indictment that any bridge had been built.
Per Coriam. The answer to the first objection is that the defend-
ants completed the bridge and took toll; and if so, we think they
were bound to provide the means prescribed by the st9,tute, to enable
vessels to pass with convenience through the draw.
But we think the objection that the indictment does not allege that
any bridge has been built is fatal. It may indeed be inferred by any
common reader that there was a bridge ; but no lawyer, considering
that inferences are not to be made in criminal cases, would say it
appears that a bridge had been built. There ought to have been an
express allegation to that effect. Indictment quashed.
COMMONWEALTH v. BEAN.
Supreme Judicial Court or Massachusetts. 1853.
[Reported 11 Cush. 414.]
The defendant was indicted upon the Rev. Sts. c. 126, § 42, which
enacts that every person who shall ' ' maliciously or wantonly break the
glass or any part of it, in any building not his own, or shall maliciously
break down, injure, mar, or deface any fence belonging to or inclosing
lands not Ms own, or shall maliciously throw down or open any gate,
bars, or fence, and leave the same down or open, or shall maliciously
and injuriously sever from the freehold of another any produce thereof,
or anything attached thereto, shall be punished by imprisonment in the
county jail, not more than one year, or by fine not exceeding one hun-
dred dollars." The indictment averred that the defendant, " with force
and arms, wilfully, maliciously, wantonly, and without cause, did break
and destroy the glass, to wit, two panes of glass of the value of ten
cents each, in a certain building there situate, not his own, but which
building then and there belonged to and was the property of one Dorcas
B. Prentice, &c."
After a verdict of gailty, the defendant moved in arrest of judgment,
because the indictment did not allege that the glass broken was a part
of the building, but only that it was in a building not his own.
Metcalf, J. It is admitted by the counsel for the Commonwealth,
that the section of the statute, on which this indictment is framed, was
intended to punish the malicious and wanton breaking of glass which
is part of a building. And it is argued by him, that the words used in
the indictment, being the same as those in the statute, must be held to
have the same meaning. But this does not necessarily follow. The
meaning of words in a statute may be, and not unfrequently must be,
ascertained by examination of the context. In the present case, it is
from the context that the words ' ' glass in a building " are understood,
on all hands, to mean glass which is part of a building. But the court
SECT. II.] STATE V. RUSSELL. 925
in ascertaining the offence with which the defendant is charged, cannot
look beyond the words of the indictment itself. If those words do not
sufficiently charge the offence which the statute was meant to punish,
the indictment is fatally defective. 2 Hawk. c. 25, § 111; Common-
wealth V. Slack, 19 Pick. 304 ; Commonwealth v. Clifford, 8 Cush. 215 ;
Commonwealth v. Stout, 7 B. Monr. 247. We are, therefore, of opin-
ion that the indictment in this case will not sustain a judgment against
the defendant. For aught that the indictment shows, the glass, which
he is charged with having maliciously and wantonly broken, may have
been panes of glass which were not a part of any building.
Judgment arrested.
STATE V. EUSSELL.
Supreme Court of Rhode Island. 1884.
IReported 14 R. L. 506.]
Exceptions to the Court of Common Pleas.
May 22, 1884. Durfee, C. J. The exceptions raise only one ques-
tion, namely : Is a complaint under Pub. Stat. R. I. cap. 244, § 22,
against a woman for being a common night-walker sufficient if it simply
charges her with being a common night-walker without alleging par-
ticular acts ? It is well settled that for the offence of being a common
scold or a common barrator such a charge is sufficient. The reason is,
the offence does not consist of particular acts but of an habitual prac-
tice evidenced by a series of acts. It may be argued that if a vicious
practice constitutes the offence, then the practice ought to be alleged
descriptively in the complaint or indictment. The answer is, the words
"common scold" and "common barrator" are words having a techni-
cal meaning in the law, and that they import ex vi terminorum all that
would be expressed if the practice were so alleged. In State v. Dowers,
45 N. H. 543, the same reasoning was held to be applicable where the
offence is the offence of being a common night-walker, and in that case
it was decided that it was enough to charge the offender with being a
common night-walker. We think the decision was correct. The words
" a common night-walker " are words having a technical "meaning in the
law, and it would therefore be superfluous to spread their definition on
the record. If, for the purposes of defence, the accused needs more
definite information than the record affords, she should ask for a bill
of particulars, which, of course, in so far as the offence is capable of
being particularized, ought to be and would be supplied. Whar-
ton's Crim. Plead. & JPrac. §.155; Commonwealth v. Davis, 11 Pick.
432; Commonwealth v. Pray, 13 Pick. 359 ; Commonwealth v. Wood,
4 Gray, 11. Exceptions overruled.
926 EEX V. . [CHAP. xv.
SECTION m.
Particular Allegations.
(a) Name.
REX V. .
Old Bailet. 1822.
[Reported Russ. 4r Ry. 489.]
The prisoner was indicted at the Old Bailey sessions in January,
1822, by the description of a person whose name was to the jurors un-
known. The offence with which he was charged was that of publishing
a blasphemous and seditious libel.
It appeared that, when apprehended, he refused to declare his name
before the magistrate, and the prosecutors, not being able to discover
his name, indicted him as a man whose name was unknown to the
jurors. When called to the bar, the indictment was read to him, and he
then refused to plead, and was remanded. At the following sessions, in
the month of February, the prisoner was again called to the bar and by
the advice of his counsel put in a demurrer in writing to the indictment.
The prosecutors had time given them until the next morning to reply ;,
but before they could do so the prisoner, by his counsel, moved the court
to be permitted to withdraw his demurrer, which was granted : and being
then called on for his plea, he pleaded not guUty ; and being told that
he must plead by some name, he refused to give in any name. The
learned Recorder was of opinion that his plea could not be received
without a name, and the prisoner was again remanded for want of a
plea. At the following sessions he was again called on to plead, and
again pleaded not guilty ; but refused to put in that plea by any name.
He was again told that the court could not receive his plea unless he
would plead by some name ; and, as he persevered in his refusal, he
was again remanded.
As this case. appeared to be without precedent, and might materially
affect the administration of justice, the learned Recorder requested the
opinion of the Judges upon the following points: first, whether the
prisoner could be admitted to put a plea on the record without a name ;
secondly, whether such a plea should be treated as a mere nullity, and
the prisoner be remanded from time to time, as in contempt for not
pleading ; thirdly, whether the refusal to plead by name would entitle
the court to enter up judgment by default; and, fourthly, whether,
in case the prisoner should ultimately plead by name, the court could
proceed to try him upon this indictment or should quash the indictment
as defective, and direct a fresh indictment to be preferred against him
by the name by which he might plead.
SECT. III.J EEGINA. V. WILSON. 927
, In Trinity term, 1822, this case being presented for consideration,
some of the learned Judges, before it was discussed, suggested that the
prisoner might be indicted as a person whose name was unltnown, but
who was personally brought before the jurors by the keeper of the
prison. An indictment was preferred accordingly, and the prisoner
was convicted.
REGINA V. JAMES.
Central Criminal Court. 1847.
IJReported 2 Cox C. C. 227.]
The indictment charged the prisoner with assaulting and stealing
from a female " two rings, &c., the property of Jules Henry Steiner."
The female was the wife of the owner of the property, and stated
that, to the best of her knowledge, her husband's name was Henry
Jules Steiner, and not Jules Henry Steiner.
Pollock, C. B., held the misnomer fatal; and the prisoner was
acquitted.
EECINA V. WILSON.
Crown Case Eeserved. 1848.
[Eepcyrted 2 Cox C. C. 426.]
The prisoner was convicted at Liverpool during the last Winter As-
sizes, before Coltman, J., who respited judgment and reserved the
following case : —
The prisoner was tried before me at the last Special Commission for
Liverpool.
The indictment in the first count charged that on &c., at &c., the
said E. Wilson did forge a certain warrant and order for the payment
of money, which said warrant and order for payment of money is as
follows ; that is to say, —
"No. Liverpool, December 8, 1847.
"To the cashiers of the Liverpool Borough Bank:
" Pay or bearer two hundred and fifty pounds.
"£250 Os. Qd. . John McNicole & Co."
with intent to defraud one John McNicole.'
It was objected, on behalf of the prisoner, that the signature of the
prosecutor to the cheque, as set out in the indictment, being John
McNicole and Co., and the signature to the cheque proved, John Mc-
NicoU, there was a variance. I, however, overruled the objection,
being of opinion that the substituting of the letter " e " for " 1 " did not
make it a different name. See Williams v. Ogle, 2 Str. 889 ; Aleberry
1 Part of the case, not involving the question of misnomer, is omitted.
928 COMMONWEALTH V. PERKINS. [CHAP. XV.
V. Walby, 1 Str. 231 ; Reg. v. Drake, 2 Salk. 660 ; Eex v. Beach, Cowp.
230 ; Rex v. Hart, 1 Leach, 145.
The jury found the prisoner guilty; but, entertaining some doubt
whether the conviction was right, I forbore to pass sentence on him,
and request the opinion of the judges thereon.
W. B. Brett, for the prisoner. — Upon the point of variance the law
is clear ; and the only question is, whether the court can say that the
two names are so identical in sound that no person could be misled.
Conviction affirmed.
REGINA V. DAVIS.
Crown Case Reserved. 1851.
[Reported 5 Cox C. C. 237.]
This case was reserved by the Dorsetshire Sessions.
The prisoner was indicted for stealing the goods of Darius Christo-
pher. The evidence proved the prosecutor's name to be Tryus
Christopher. The- chairman ruled that, in Dorsetshire, Darius and
Tryus were idem sonantia, but requested the opinion of the judges
upon the correctness of that ruling. When this case came on to be
heard, on the 8th February, before Jervis, C. J., Alderson, B., Williams,
J., Piatt, B., and Martin, B., the court intimated that it was a question
for the jury, and directed the case to be sent back, in order that it
might be stated whether the question had been left to the jury. The
case was now returned, with a statement that the question of variance
was not left to the jury.
Lord Campbell, C. J. — This conviction must be reversed. If it is
put as a matter of law, it is quite impossible for this court to say that
the two words are idem sonantia. The objection is said to have been
taken in arrest of judgment ; but I never heard of such a ground for
arresting the judgment since the great case of Stradley v. Styles.
Coleridge, J. — No doubt a Dorsetshire jury would have thought
the words idem sonantia. Cotiviction reversed.
COMMONWEALTH v. PERKINS.
Supreme Judicial Court, Massachusetts. 1823.
[Reported \ Pick. 388.]
The defendant being indicted by the name of Thomas Perkins, junior,
for a nuisance under the statute against gaming, pleaded in abatement,
at April term, 1822, of the Municipal Court, that his name was Thomas
Hopkins Perkins. The county attorney demurred generally, and there
was a judgment of respondeas ouster, a trial upon the general issue, and
an appeal to this Court.
Per Curiam. It is said on behalf of the Commonwealth that junior
SECT. III.] STATE V. LIBBY, 929
is no part of the name. This is true, but another objection to the in-
dictment is, that the defendant is called Thomas instead of Thomas
Hopkins. In 5 D. & E. 195, a person was sued by the Christian name
James Richard instead of Richard James, and it was held a misnomer
on account of the transposition. The indictment must give the defend-
ant his right Christian name. Defendant discharged.
STATE V. LIBBY.
Supreme Judicial Coukt of Maine. 1907.
[Reported 103 Me. 147.]
Spear, J. Numbers 264-265-266-279 and 280, all against the above
named respondent, come from the Superior Court for Kennebec County,
September term, 1905, on exceptions.
These are all indictments found against C. H. Libby for a violation
of the law against the sale of intoxicating liquors. The respondent
seasonably filed a plea in abatement in proper form and averred that
his name was Cyrille H. Libby and not C. H. Libby, as in the indict-
ment alleged. The State by the County Attorney filed a replication
that " The said Cyrille H. Libby who appears to said indictment, is the
same person against whom said indictment was presented, and is, and
at the time of finding said indictment was, called and known as well by
the name of C. H. Libby, as by the name of Cyrille H. Libby ; and this
he prays may be inquired of by the country." To this replication the
defendant demurred and the County Attorney for the State joined the
demurrer. The demurrer was overruled and the replication adjudged
good. The demurrer admitted all the facts stated in the replication.
The only question therefore presented by the exceptions is, if a person
is as well known by the initials C. H. as by the name Cyrille H., can
he be properly indicted in the name of the initials ?
In Robbins v. Swift, 86 Maine, 197, it was held: " Letters of the
alphabet, consonants as well as vowels, maybe names sufficient to dis-
tinguish different persons- of the same surname.'' If, therefore, the
letters of the alphabet or initials may be used to distinguish different
persons of the same surname, and the respondent admits that he is as
well known by the letters of the alphabet or the initials as by his full
Christian name, we can discover no logical reason why the indictment
is not suflflcient. Certainty is the object aimed at in requiring the inser-
tion of correct names in an indictment, and we know of no way in which
greater certainty could be attained than by the admissions of the re-
spondent, himself, as disclosed by the pleadings in this case.
Exceptions overruled.
930 EEX V. NAPPER. [CHAP. XV.
SECTION III. (continued),
(b) Time and Place.
SIR HENRY VANE'S CASE.
King's Bench. 1663.
[Reported Kelyng, 14.]
Memobandum, That in Trinity Term, 14 Car. 2, Sir Hen. Vane was
indicted at the King's Bench for compassing the death of King Charles
the 2d, and intending to change the kingly government of this nation;
and the overt acts which were laid were, that he with divers other
Unknown persons did meet and consult of the means to destroy the
king and government ; and did take upon him the government of the
forces of this nation by sea and land, and appointed colonels, captains,
and oflBcers, and the sooner to effect his wicked design, did actually
in the County of Middlesex raise war.^
Although the treason of compassing the king's death was laid in the
indictment to be the 30th of May, 11 Car. 2, yet upon the evidence it
appeared, that Sir Hen. Vane, the very day the late king was murdered,
did sit in Council for the ordering of the forces of the nation against the
king that now is, and so continued on all along until a little before the
king's coming in. It was resolved that the day laid in the indictment
is not material, and the jury are not bound to find him guilty that day,
but may find the treason to be as it was in truth either before or after
the time laid in the indictment ; as it is resolved in Syer's case, Co. PI.
Coron. 230. And accordingly in this case the jury found Sir H. Vane
guilty of the treason in the indictment the 30th of January, 1 Car. 2,
which was from the very day the late king was murdered, and so all his
forfeitures relate to that time to avoid all conveyances and settlements
made by him.
REX V. NAPPER.
Crown Case Reseeved. 1824.
[Reported 1 Moo. Cr. C. 44.]
The prisoner was tried and convicted before Mr. Justice Batlet, at
the Summer Assizes for Lancaster in the year 1824, of stealing in a
dwelling-house ; but a doubt having occurred whether the situation of
the house was suflflciently described in the indictment, the learned Judge
submitted that point to the consideration of the Judges.
The indictment stated that the prisoner, on the 6th August, 6 Geo.
4, at Liverpool, in the county aforesaid, one coat, value forty shillings,
1 Part of the case, not involving the allegation of time, is omitted.
SECT. III.] STATE V. SEXTON. 931
&c., of the goods and chattels of Daniel Jhckson, in the dwelling-
house of William Thomas, then and there being, then and there did
feloniously steal, &c.
The doubt was, whether it should not have been stated "in the
dwelling-house of William Thomas, there situate." Indictments for
burglary and arson generally contain such a statement, and so do indict-
ments for breaking a house in the daytime, or demolishing a house.
In Michaelmas Term 1824, the Judges met and considered this case,
and held that the indictment showed sufficiently that the house was
situate at Liverpool, and that the conviction was therefore proper.
STATE V. SEXTON.
Supreme Court of North Carolina. 1824.
[Reported 3 Hawks, 184.]
Indictment for an assault with intent to kill, tried before Paxton, J.
The bill was found in March Term, 1824, and charged the offence to
have been committed on the 19th day of August, 1824. The defendant
was put upon his trial at the same Term in which the bill was found,
and after the jury was impanelled, the prosecuting oflBcer moved the
court to amend the indictment as to the day on which the offence is
charged to have been committed. The court overruled the motion,
and the jury found the defendant guilty, in manner and form as charged
in the bill of indictment, and judgment was arrested, because the offence
was laid to have been committed on a day yet to come.
Per Curiam. It is a familiar rule that the indictment should state
that the defendant committed the offence on a specific day and year, but
it is unnecessary to prove, in any case, the precise day or year, except
where the time enters into the nature of the offence. But if the indict-
ment lay the offence to have been committed on an impossible day,
or on a future day, the objection is as fatal as if no time at all had been
inserted. Nor are indictments within the operation of the Statutes of
Jeofails, and cannot, therefore, be amended ; being the finding of a
jury upon oath, the court cannot amend without the concurrence of
the Grand Jury by whom the bill is found. These rules are too plain
to require authority, and shew that the judgment of the court was
right, and must be aflBrmed.
932 COMMONWEALTH V. TOLLIVEK. [cHAP. XV.
STATE V. SMITH.
Delaware. 185-.
[Reported 5 Harr. 490.]
The defendant was indicted and convicted for disturbing a religious
Society of Methiodists in Mispillion hundred, assembled for the purpose
of religious worship.
Mr. Gomegys moved in arrest of judgment that the indictment was
not sufficiently certain as to place. Religious meetings of the Methodists
were held at other places in Mispillion hundred than at the private
house where this meeting was held, and this indictment did not cer-
tainly inform the defendant tvhat meeting he was charged with disturb-
ing. {Buss. Gr. 837, n.)
The Court denied the motion, saying: The indictment is in the
usual form, and is framed under the act of assembly. Even without
an act of assembly, this would be an indictable offence, as the Christian
religion is protected by the common law. Unless time or place enter
into the crime itself, it is not material to state or prove it. The locality
of a road enters into the charge of obstructing it. But as to disturbing
a religious society, the place is unimportant, if within the county. It
is not necessary that the place should be specifically laid to guard
gainst another trial, for the identity of the two cases is to be tried
by the jury, on a plea of former acquittal or conviction.
COMMONWEALTH v. TOLLIVER.
Supreme Judicial Court of Massachusetts. 1857.
[Eeporied 8 Gray, 386.]
Indictment for an assault upon John Woods, at Boston. At the
trial in the Municipal Court, Abbott, J. , allowed the county attorney
to introduce evidence to prove an assault upon Woods in Chelsea, not-
withstanding the defendant's objection that this was a variance. The
defendant, being convicted, alleged exceptions.
Dewey, J. In criminal prosecutions of a character like the present,
it is unnecessary to prove the place of committing the offence to be
precisely in accordance with the allegation in the indictment. Place is
immaterial, unless when it is matter of local description, if the offence
be shown to have been committed within the county. All that is neces-
sary to be shown is that the offence was committed at any place within
the county. 2 Hawk. c. 25, § 84 ; 2 Eussell on Crimes (7th Amer.
ed.) 799 ; 1 Archb. Grim. PI. (5th Amer. ed.) 99. It was no objection
therefore to the competency of the evidence offered, that it tended to
prove an assault committed in Chelsea, while the indictment alleged the
SECT. III.] COMMONWEALTH V. TRAVERSE. 933
Bame to have been committed at Boston, both places being within the
county of Suffolk, and equally within the jurisdiction. This rule has
been so long recognized and acted upon that the case presents no new
or doubtful question to be solved. Exceptions overruled.
COMMONWEALTH v. TRAVERSE.
Supreme Judicial Court of Massachusetts. 1865.
[Reported 11 All. 260.]
Complaint dated April 3d, 1865, charging that the defendant " on
the third day of April, in the year of our Lord eighteen hundred and
sixty-five, at Newton, in the County of Middlesex, within six months
last past," was a common seller of intoxicating liquors in violation
of law.
At the trial in the Superior Court before Wilkinson, J., on appeal
from the judgment of the magistrate, convicting the defendant, the dis-
trict attorney offered no evidence of sales on the 3d of April, 1865, but
relied upon evidence of sales made at several times within six months
before that day. The defendant objected to this evidence, but it was
admitted, and the defendant was found guilty, and alleged exceptions.
Dewey, J. A well settled distinction has long prevailed as to the
mode of alleging the time of the commission of an offence which con-
sists of a single act, and that adopted in that class of eases where the
alleged offence consists of a series of distinct acts. In the former,
the precise day alleged is not material, and the evidence of such single
act before or since the day alleged, if before the finding of the indict-
ment and within the period permitted by the statute of limitations, is
sufficient.
On the other hand, in the cases where the offence consists of a series
of acts, the practice is to allege the same to have been committed on
a certain day named, and on divers days and times between that day
and some subsequent day named. The allegation that the acts were
done between a certain day named and the day of the finding of the
indictment has also been held sufficiently to designate the time of the
commission of the offence. This form of stating the time, as allowed
in this class of cases, gives to the prosecutor great latitude in the alle-
gation of time, but, having fixed it by the indictment, the government
is bound by it. And this has been held to be the rule where the acts
constituting such offence are alleged to have been committed on a
certain day named. The evidence must be confined to that day, and
evidence of the commission of the offence before or after that day is
incompetent. Commonwealth v. Elwell, 1 Gray, 462 ; Commonwealth
u. Gardner, 7 Gray, 494; Commonwealth v. Sullivan, 5 Allen, 513.
The further inquiry is, whether this complaint has properly charged
an offence on any other day than the third day of April. We are not
934 STATE V. BEATON. [CHAP. XT.
disposed to favor any greater laxity in the form of the indictment in
this class of cases than has been already sanctioned. Here the usual
order of such allegation of the time is reversed. Instead of alleging
the commission of the offence on a certain day, and on divers days and
times subsequently between that day and a day named, the allegation
is " within six months last past." We do not say that this charge
would be fatally bad, had there been no other defect in stating the
time. But there is no connecting word between the allegation of an
offence committed on the third of April, and the further allegation,
"within six months last past.'' It may be read as an averment that
the third day of April was within six months last past. We think
the only offence properly charged here is that of being a common
seller of intoxicating liquors on April 3d, I860. As already stated,
the allegation as to time is a material one, and the government must
prove the offence to have been committed on that day.
Exceptions sustained.
STATE V. JOHNSON.
Stjpkeme Court of Texas. 1869.
[Reported 32 Texas, 96.]
Appeal from Smith. Tried below before the Hon. Samuel L. Earle.
The appellee was indicted for the theft of $160 in coin and $60 in
currency, the property of B. H. Denson. The indictment was quashed
on his motion, and the district attorney appealed on behalf of the
State.
Lindsay, J. The motion to quash the indictment in this case was
properly sustained. There is no allegation in it, of either the time or
of the place of the commission of the offence. The first is necessary,
that it may appear from' the charge it is not barred by the statute of
limitations. The other is indispensable, that the court may know
whether it has jurisdiction of the cause. Por these defects it was
rightfully quashed. The judgment is affirmed. Affirmed.
STATE V. BEATON.
Supreme Judicial Court of Maine. 1887.
[Reported 79 Maine, 314.1
On exceptions to the ruling of the court in overruling the defendant's
demurrer to the complaint.
An appeal from the decision of a trial justice on a complaint and
warrant for fishing for and catching lobsters in violation of law.
Walton, J. Neither a complaint nor an indictment for a criminal
offence is sufficient in law, unless it states the day, as well as the month
SECT. III.] STATE V. DODGE. 935
and year, on which the supposed offence was committed. In this par-
' ticular, the complaint in this case is fatally defective. It avers that ' ' on
sundry and divers days and times between the twenty-third day of Sep-
tember, A. D. 1885, and the thirtieth day of September, A. D. 1885,"
the defendant did the acts complained of. But it does not state any
particular day on which any one of the acts named was committed.
Such an averment of time is not sufficient. State v. Baker, 34 Maine,
52 ; State v. Hanson, 39 Maine, 337, and authorities there cited.
Exceptions sustained. Complaint quashed.
STATE V. DODGE.
SuPKBMB Judicial Court op Maine. 1889.
[Reported 81 Maine, 391.]
Haskell, J.^ " Neither a complaint nor an indictment for a criminal
offence is sufficient in law, unless it states the day, as well as the month
and year on which the supposed offence was committed.'' State v.
Beaton, 79 Maine, 314.
An act, prohibited by statute on certain particular days only, must
be charged as having been committed on one of those pantieular days ;
for the time laid is a material element in the offence, and, unless laid
on a day within the statute, no offence would be charged. In the case
at bar, both time and place are material elements to constitute the stat-
ute offence. State v. Turnbull, 78 Maine, 392.
The statute prohibits the maintaining of closed weirs in certain inland
waters on Saturdays and Sundays between April 1st and July 15th.
R. S., c. 40, § 43. The indictment charges the maintaining of the weir
on June 1st, Tuesday, not close time, and on divers other days and
times between that day and July 15th. All this may have been law-
fully done. Saturday and Sunday are not pointed out as among the
" divers other days and times." The defendants are presumed to have
regarded law, not to have violated it.
True, the indictment avers that during Saturday and Sunday, June
12 and 13, the defendants were bound to carry and keep on shore the
netting which closes that part of the weir where fish are usually taken,
and that they did not do it. But if they did not maintain the weir on
those days they had no need to do it. It is said that the last clause in
the indictment sufficiently charges the offence. But the trouble with
that clause is, that it assumes what is nowhere alleged, that the defend-
ants during some Saturday or Sunday maintained the weir.
It is best for the proper administration of justice, that reasonable
exactness and precision of statement be required from those officers of
the law selected on account of their professional skill in this behalf.
Exceptions sustained.
1 The opinion only is given ; it sufficiently states the case.
93f) EEGINA V. MANSFIELD. [CHAP. XV.
SECTION III. {continued).
(c) Desceiption.
REGINA V. MANSFIELD.
Nisi Pbitjs. 1841.
[Reported Car. ^ Marsh. 140.]
The prisoner was indicted for receiving "25 lbs. weight of tin,"
knowing the same to have been stolen. The indictment had been re-
moved by certiorari, and came on to be tried at Nisi Prius. There were
two other indictments against the same prisoner, the one for stealing
iron, and the other for receiving brass, knowing it to have been stolen.
It appeared that the tin in question consisted of two pieces, which a
witness called "lumps of tin ; " but on cross-examination he admitted
that they were called in the trade " ingots," but added that that term
was applied as well to the pieces of tin as to the mould in which they
were cast, and was applied to the shape. The tin in question had been
cast into the. pieces for the purpose of being again melted up for use in
the prosecutor's manufactory, and in the middle of each was an inden-
tation for the purpose of breaking them in two, when wanted to be
melted up again.*
Upon the close of the case for the prosecution, Ludlow, Serjt., for
the prisoner, submitted that the tin was misdescribed. Instead of being
laid as so many pounds' weight of tin, it ought to have been described as
two ingots. Wherever an article has obtained a name in the trade
which is applicable to it, it must be described by that name. From the
case of Rex v. Stott, 2 Ea. P. C. 752, it would seem that it was erro-
neous to charge the prisoner with stealing so many pounds' weight of
iron, where it appeared that the articles stolen were actually manufac-
tured. It would be bad to describe a piece of cloth as so many pounds
of wool. The object is to enable the prisoner to plead autrefois acquit.
Talfourd, Serjt, and Greaves. Rex v. Stott is quite different from the
present case ; there the goods were actually made up into articles, which
had specific names ; here the article was still tin, and only put in the shape
in which it was, for the purpose of being afterwards manufactured ; it
is in the course of manufacture, not manufactured. Although it would
be bad to describe cloth as so many pounds of wool, still an end of a
bale of cloth may well be described as so many yards of cloth ; so a
leg of mutton may be described as so many pounds' weight of mutton.
As to the objection that the party could not plead autrefois acquit, it is
the same question : for if the description is sufficient here, it would be
suflBcient if autrefois acquit were pleaded. It is idem per idem.
1 Part of the case, not relating to the question of pleading, is omitted.
SECT. III.] • STATE V. NOBLE. 937
Coleridge, J. It seems to me that the description is sufHcient to
answer all the purposes which are required by law. First, it is the
subject of larceny equally, whether it be an ingot or so many pounds'
weight of tin. Secondly, as to the facility of pleading autrefois acquit,
the prisoner stands in the same situation, whether it be one or the other,
because there must be some parol evidence in all cases to shew what it
was that he was tried for before, and it would be as easy to prove one
as the other. The last question is, whether it is described with suffi-
cient certainty, in order that the jury may be satisfied that it is the
thing described. If this had been some article that, in ordinary par-
lance, had been called by a particular name of its own, it would have
been a wrong description to have called it by the name of the material
of which it was composed, as if a piece of cloth were called so many
pounds of wool, because it has ceased to be wool, and nobody could
understand that you were speaking of cloth. It would be wrong to say
so many ounces of gold, if a man stole so many sovereigns ; you would
there mislead by calling it gold. If it were a rod of iron, it would be
sufficient to call it so many pounds' weight of iron.
The case went to the jury, who returned a verdict of —
Not guilty.
STATE V. NOBLE.
Supreme Judicial Court of Maine. 1839.
[Reported 15 Maine, 476.]
Exceptions from the Court of Common Pleas, Smith, J., presiding.
Noble was indicted for fraudulently and wilfully taking from the
Kennebec River and converting to his own use certain logs. He was
found guilty on the first count only, thus describing the log: " One
pine log marked H X W, of the value of three dollars, of the goods and
chattels of J. D. Brown, Charles Melntire, and John Welch, and not
the property of said Noble." The evidence applied entirely to a pine
log marked "W X H X with a girdle," or circle cut round it. Brown
testified that one of their logs, partly sawed into blocks, with the mark
last mentioned was seen by him near Noble's house, " but that the log
described in the first count of the indictment was not of their mark, and
that he should not claim or know it as their property." Other objec-
tions were made, besides that arising from variation in the description
in the indictment and the proof, which need not be stated, nor the facts
on which they were founded. The Judge on this point instructed the
jury that the mark by which the log was described in the first count
might be rejected as surplusage, and if they found that the log which
was seen near Noble's house was removed from the river and sawed by
him, with the intention fraudulently and wilfully to convert it to his
own use, and that the same log was the property of said Brown, Me-
938 HASKINS V. THE PEOPLE. [CHAP. XV.
Intire, and Welch, then they would find Noble guilty on the first count.
Koble excepted to this instruction.^
Weston, C. J. It may be regarded as a general rule, both in crim-
inal prosecutions and in civil actions, that an unnecessary averment
may be rejected, where enough remains to show that an offence has
been committed, or that a cause of action exists. In Eicketts v. Solway,
2 Barn. & Aid. 360, Abbott, C. J., says, " There is one exception how-
ever to this rule, which is, where the allegation contains matter of de-
scription. Then if the proof given be different from the statement, the
variance is fatal." As an illustration of this exception, Starkie puts
the case of a man charged with stealing a black horse. The allegation
of color is unnecessary, yet as it is descriptive of that which is the
subject matter of the charge, it cannot be rejected as surplusage, and
the man convicted of stealing a white horse. The color is not essential
to the offence of larceny, but it is made material to fix the identity of
that which the accused is charged with stealing. 3 Stark. 1531.
In the case before us the subject matter is a pine log, marked in a
particular manner described. The marks determine the identity ; and
are therefore matter purely of description. It would not be easy to
adduce a stronger case of this character. It might have been suflScient
to have stated that the defendant took a log merely, in the words of
the statute. But under the charge of taking a pine log, we are quite
clear that the defendant could not be convicted of taking an oak or a
birch log. The offence would be the same ; but the charge to which
the party was called to answer, and which it was incumbent on him to
meet, is for taking a log of an entirely different description. The kind
of timber, and the artificial marks by which it was distinguished, are
descriptive parts of the subject matter of the charge, which cannot be
disregarded, although they may have been unnecessarily introduced.
The log proved to have been taken was a different one from that
charged in the indictment ; and the defendant could be legallj' called
upon to answer only for taking the log there described. In our judg-
ment, therefore, the jury were erroneously instructed that the marks
might be rejected as surplusage ; and the exceptions are accordingly
sustained.
/ HASKINS V. THE PEOPLE.
Court of Appeals of Nevt York. 1857.
[Reported 16 iV. T. 344.]
Writ of error to review a judgment of the Supreme Court, affirm-
ing, on error to that court, a judgment of the Oyer and Terminer of
Onondaga County.
The prisoner was indicted, with four other persons, for grand larceny,
1 Arguments of counsel are omitted.
SECT. III.] HASKINS V. THE PEOPLE. 939
the property alleged to have been stolen being money and bank notes,
the property of David J. Shaw. It was described in the indictment as
"two promissory notes for the payment of money, commonly called
bank notes, of the Stonington Bank, current money of the State of New
York, each of the value of fifty dollars ; bank bills of banks to the
jurors unknown, and of a number and denomination to the jurors un-
known, of the value of six hundred dollars; silver coin, current
money of the State of New York, of a denomination to the jurors
unknown, of the value of fifty dollars ; gold coin, current money of
the State of New York, of a denomination to the jurors unknown,
of the value of fifty dollars."
The plaintiff in error was tried separately in the Oyer and Terminer,
in June, 1857. Shaw, the owner of the money alleged to have been
stolen, resided at Summer Hill, Cayuga county. His iron safe, which
was kept in a wing in his house, rejnote from the apartment in which
he slept, was forced open during the night of the 27th of October, 1855,
and the contents, about $600 in money and some papers, were taken
away. Shaw swore that there were among the money at least two fif ty-
doUar bills of the Stonington Bank ; that the residue of the money was
in current bank bills, and gold and some silver coins. Upon the
examination of Shaw he was asked by the prosecution to state the
amount and kind of bills and of gold and silver coin. The prisoner's
counsel objected to the inquiry on account of the generality of the
description in the indictment. The objection was overruled and the
prisoner's counsel excepted. The witness described the different kinds
of money as well as he was able.^
Denio, C. J. The indictment was suflScient. When the substance of
the offence is set out, the jurors may omit a matter of description which
they cannot ascertain. The People v. Taylor, 3 Denio, 91, and cases
cited. If this were not so there would often be a failure of justice.
In the case of the stealing of a considerable parcel of bank notes or a
quantity of coin, it would frequently, and perhaps generally, happen
that the owner would not be able to specify the different kinds of notes
or the various species of coin. The description of them as bank notes,
and as gold or silver coin, together with a statement of the ownership,
with an averment that a more particular description cannot be given,
sufficiently identifies the offence to guard the prisoner against the
danger of another prosecution for the same crime. But this indictment
would be sufficient without any aid from this rule. Two of the notes
which the defendant stole, which were of an amount sufficient to consti-
tute grand larceny, were described with particularity ; and if it should
be granted that the other bills and the coin were not suflSciently de-
scribed, still they could be spoken of in the testimony among the cir-
cumstances attending the offence, though the conviction could only be
had as to the property of which there was a suflBcient description. The
exception upon this point was not well taken.
1 Part of the case, not relating to the question of pleading, is omitted.
940 COMMONWEALTH V. STONE. [cHAP. XV.
COMMONWEALTH v. STONE.
Supreme Judicial Court of Massachusetts. 1890.
[Reported 152 Mass. 498.]
Indictment alleging that the defendant, at a hearing in the Probate
Court holden at Worcester in the county of Worcester in this Common-
wealth, procured "Laura A. Fairbanks of Worcester ifi said county
of Worcester " to commit perjury. At the trial in the Superior Court,
before Aldrioh, J., one Laura A. Fairbanks, who was admitted to be
the person described in the indictment as of Worcester in this Com-
monwealth, testified, without contradiction, that at the time she testi-
fied in the Probate Court her residence was in Brookline in the State
of New Hampshire, and has been there since. The judge declined to
rule, as requested by the defendant, that " there is a variance between
the evidence and the allegations of the indictment in this, that the
indictment alleges perjury by Laura A. Fairbanks of Worcester, in the
county of Worcester in the • Commonwealth of Massachusetts, and
the evidence tends to prove perjury only by Laura A. Fairbanks, of
Brookline, New Hampshire."
The jury returned a verdict of guilty; and the defendant alleged
exceptions.
Devens, J. The gist of the charge in the indictment is, that the de-
fendant procured Laura A. Fairbanks to commit perjury in the trial
therein described. The Laura A. Fairbanks who testified in the Supe-
rior Court, it was admitted, was the same person who had testified in
the Probate Court where the perjury was alleged to have been com-
mitted, nor did it appear whether there was any person of the same
name who was a resident of Worcester. The indictment described the
Laura A. Fairbanks whom the defendant was charged with suborning
as " of Worcester in said county of Worcester '' in this Commonwealth.
This was an allegation that she was a resident of Worcester, and the
uncontradicted evidence was that the person who had testified in the
Probate Court, and also in the Superior Court, was at the time and
since a resident of New Hampshire.
It has been held that where a person necessarily mentioned in an
indictment is erroneously described as George E. Allen instead of
George Allen, or Nathan S. Hoard instead of Nathan Hoard, or the
Boston and Worcester Railroad Company instead of the Boston and
Worcester Railroad Corporation, the variance is fatal, unless it shall be
shown that the person so named is known by the one name as well as the
other, as the correct description of such person is necessary to identify
the offence. Commonwealth v. Shearman, 11 Cush. 546; Common-
wealths. Pope, 12 Cush. 272; Commonwealth v. McAvoy, 16 Gray,
235. Where a person or thing necessary to be mentioned in an indict-
ment is described with unnecessary particularity, the circumstances of
SECT. IV.] CASTKO V. THE QUEEN. 941
the description are to be proved, as they are made essential to its iden-
tity. Thus, in an indictment for stealing a horse, its color need not be
mentioned; but if it is stated, it is made descriptive of the animal,
and a variance in the proof of its color is fatal. 1 Greenl. Ev. § 65 ; •
3 Stark. Ev. (4th Am. ed. ) 1 530 ; Commonwealth v. Wellington, 7 Allen,
299 ; State v. Noble, 15 Maine, 476 ; Eex v. Craven, Russ. & Ry. 14.
Where circumstances are not descriptive of the crime, a discrepancy
between them as alleged and as proved is not important, but in the case
at bar the description of the person whom the defendant was charged
with suborning was essential to this identity. While it was not neces-
sary to have described this person by fier residence, when this allega-
tion was introduced it was to be proved, as it was this person whom
the defendant was charged with suborning. In an action for malicious
prosecution of the plaintiff upon a charge of felony, before Baron
Waterpark of Waterfork, a magistrate of the kingdom of Ireland, it
was held that proof of a prosecution before Baron Waterpark of
Waterpark was a fatal variance. Walters v. Mace, 2 B. & Aid. 756.
If, therefore, Fairbanks was not a resident of Worcester, but of New
Hampshire, the defendant was fentitled to a ruling that there was a
variance between the allegation of the indictment and the proof.
The Pub. Sts. c. 213, § 16, provide that certain defects of form, ap
by reason of the omission or misstatement of the degree, occupation,
&c., of the defendant, or of his place of residence, shall not vitiate the
indictment, but it has made no such provision in regard to others neces-
sarily mentioned therein. In general, it may be said that a misnomer,
or other misdescription of a defendant, has always been deemed of less
importance than that of one necessarily mentioned in the description of
the offence, as the defendant may plead in abatement if he deems the
matter of sufficient importance. The Pub. Sts. c. 205, §§ 5, 6, also,
which prescribe or rather modify the common law form of the indict-
ment for perjury, and subornation of perjury, do not suggest that there
is to be any further latitude in the description of the person whose
testimony has been alleged to be suborned than that which has hereto-
fore been permitted. Eaxeptions sustained.
SECTION IV.
Counts.
CASTRO, alias ORTON, alias TICHBORNE v. THE QUEEN.
House of Lords. 1881.
[Reported 6 App.Ga$. 229.]
This was an appeal against a decision of the Court of Appeal, which
had affirmed a judgment of the Queen's Bench Division. Law Rep.
9 Q. B. 360 ; 5 Q. B. D. 490.
942 CASTRO V. THE QUEEN. [CHAP. XV.
On the 8th of April, 1872, the grand jury at the Central Criminal
Court found a true bill against Thomas Castro, alias Arthur Orton,
alias Sir R, CD. Tiehborne, Bart, for perjury. The indictment con-
tained two counts. The first count charged that on the 10th of May,
1871, at Westminster, before Sir W. Bovill, Lord Chief Justice of the
Common Pleas, an issue, duly joined in an action of ejectment, came
on to be tried, in which the appellant was the claimant, and Franklin
Lushington and others were defendants, that the appellant appeared as
a witness for himself and was duly sworn, and gave answers in several
matters (which were particularly set forth), and that the appellant on
his oath falsely answered in thesB matters, and so committed the offence
of perjury against the peace of our lady the Queen, her crown and
dignity.
The second count charged that, on the 7th of April, 1868, a suit had
been instituted in Chancery, in which the appellant was the plaintiff,
and the Hon. Teresa Tiehborne, widow, and others were the defendants,
praying that in case it might be deemed requisite for him to take
proceedings at law for the recovery of the Tiehborne estates, the
defendants might be restrained by injunction from setting up certain
outstanding terms, &c., therein mentioned, and that on the said 7th of
April, 1868, the defendant made an affidavit in support of his motion
in the said suit, and therein made certain false statements (which were
fully set forth in the count), and did thereby commit perjury against the
peace, &c., as before.
The appellant pleaded not guilty. The indictment was removed into
the Queen's Bench. The trial, which began on the 23d of April, 1873,
and terminated on the 28th of February, 1874, took place before Lord
Chief Justice Cock burn. The verdict was in the following form : ' ' The
jurors so empannelled, &c., on their oath say that the said Thomas
Castro, otherwise called, &c., is guilty of the premises on him above
charged in and by both counts of the indictment aforesaid above speci-
fied, in the manner and form aforesaid, as by the indictment aforesaid
is above supposed against him." The judgment that followed was,
" That the said Thomas Castro, otherwise, &c., for the offence charged
in and by the first count of the said indictment, be kept in penal servi-
tude for the term of seven years now next ensuing. And that for and
in respect of the offence charged in and by the second count of the said
indictment, he, the said Thomas Castro, otherwise, &c., be kept in penal
servitude for the farther term of seven years to commence immediately
upon the expiration of his said term of penal servitude for his offence
in the first count of the said indictment."
On the 13th of December, 1879, Sir John Holker, Her Majesty's then
Attorney- General, granted his fiat for a writ of error, which was after-
wards issued, and the case was argued in the Court of Appeal, when
judgment was given for the Crown. 5 Q. B. D. 490. This appeal was
then brought.
SECT. IV.] CASTEO V. THE QUEEN. 943
Lord Blackburn.^ My Lords, notwithstanding the very consider-
able time which has been occupied in the argument, I have never been
able from the beginning to the end to entertain the least doubt that in
this case the judgment ought to be aflSrmed.
I must say at once I totally disagree with what has been repeatedly
asserted by both the learned counsel at the bar. I totally disagree that
the pleadings at common law in a criminal case and a civil case were
in the slightest degree different. I am speaking of course of the time
before the Judicature Acts passed which swept them all away. Many
enactments had from time to time been passed, relieving the strictness
of pleadings in civil cases, which did not relieve them in criminal cases ;
but the rules of pleading at common law were exactly the same in each
case. The course taken with regard to an indictment was this : The
Queen having sent her commission to the grand jury, or any other com-
mission to a proper tribunal, the tribunals so authorized presented all
the offences that came to their knowledge ; if it was brought sufficiently
to their knowledge that a man had committed, ten murders, fifty bur-
glaries, and a score of larcenies, they would find, not one finding as to
them all, but they would find in separate counts that he had committed
^each of those charged offences ; and if there were many other persons
(as generally there are) it would also be found that those other persons
had committed the offences proved against them also, and of this pre-
sentment one record was made up. Upon that, process could be issued
against a man so charged, to bring him upon his trial before a petty
jury, to try whether he was guilty of those offences so charged or not.
Now, at common law there was no objection whatever, in point of
law, to bringing a man who was charged with several offences, if those
charges were all felonies, or were all misdemeanors, before one petty
jury, and making him answer for the whole at one time. The chal-
lenges and the incidents of trial are not the same in felony and in mis-
demeanor, and therefore felony and misdemeanor could not be tried
together ; but any number of felonies and any number of misdemeanors
might." The contrary was asserted by the learned counsel, but, though
1 The concurring opinions of the Lord Chancellor and Lord Watson, and part of
Lord Blackburn's opinion, are omitted.
2 " It was a principle of the English law, and the rule has been adopted in some of
our States, that there can be no conviction for a misdemeanor upon an indictment for
a felony, even where the allegations of the indictment include such misdemeanor. The
reason for the rule was, that persons charged with misdemeanors had certain advan-
tages at their trials which were not allowed to those arraigned for felony, and it was
deemed unjust to suffer the too heavy allegation to take from them these privileges.
But the practice of withholding any substantial privilege from a person indicted for
felony, which is allowed to one indicted for misdemeanor, does not obtain in this
country, and therefore, in many of the States it is the practice to permit convictions
for misdemeanor on indictments for felony, where the latter includes the former.
1 Bishop on Crira. Law (5th ed.) sees. 804, 805. ... In the late case of State v. Stewart
et ah, 59 Vt. 273, it is said : 'Although authorities can be found that lay down the rule
that felonies and misdemeanors, or different felonies, can not be joined in the same
indictment, stiU the rule in this and most of the States is otherwise. It is always and
944 CASTEO V. THE QUEEN. [CHAP. XV.
repeatedly challenged to do so, he did not cite any authority in support
of his contention. There was no legal objection to doing this ; it was
frequently not fair to do it, because it might embarrass a man in the
trial if he was accused of several things at once, and frequently the
mere fact of accusing him of several things was supposed to tend to
increase the probability of his being found guilty, as it amounted to
giving evidence of bad character against him. Whenever it would be
unfair to a man to bring him to trial for several things at once, an appli-
cation might be made to the discretion of the presiding judge to say,
" Try me only for one offence, or, try me only for two offences ; if one
was the real thing let me be tried for one and one only," and wherever
it was right that that should be done the judge would permit it. For
these mixed motives it was well established by a long series of decisions
(I confess I doubt whether they were right at first, but certainly they
have been both well established now and sanctioned by statute — that
is quite clear) that where the several charges were of the nature of
felony, the joining of two felonies in one count was so, necessarily, I
may say, unfair to the prisoner that the judge ought, upon an applica-
tion being made to him, to put the prosecutor to his election and send
them to two trials. It never was decided, even in felony, that, if that
application for the election was not made, the joining of several fel-
onies, that is to say, the taking several felonies which had been found
together, and trying those several felonies before one petty jury, was
wrong in point of law ; on the contrary, it was repeatedly held that it
was right enough, although, if the proper application had been made at
the proper time, in a case of felony, the party prosecuting would have
been put to his election or made to take one felony only, and not both
at the same time. But in cases of misdemeanor it was by no means a
matter of course that that should be done. I think that if the judge,
upon an application made to him, had been satisfied that to try the man
for several misdemeanors together would work injustice to the prisoner,
he had a perfect right to say, " I will not work this injustice by trying
them together, let us diminish them in number and try a reasonable
number and no more." I do not know whether that was ever done
in a case of misdemeanor, but I feel very little doubt that it may have
been.
I think that in such a case as the American case, Tweed v. Lis-
comb, 15 Sickel's New York Ap. Cas. 559, which was cited, where a
man was called upon- to answer before one jury at one time for two
everywhere permissible for the pleader to set forth the offence he seeks to prosecute,
in all the various ways necessary to meet the possible phases of evidence that may
appear at the trial. If the counts cover the same transaction, though involving
offences of different grades, the court has it in its power to preserve all rights of
defence intact.' See also Sterick u. Commonwealth, 78 Pa. St. 460; Hunter v. Com-
monwealth, 79 id. 503 ; Hutchinson v. Commonwealth, 82 id. 472 ; Hawker v. The
People, 75 N. Y. 487 ; Crosby v. Commonwealtli, 11 Mete. 575 ; State v. Hood, 51 Mt.
363; Commonwealth v. McLaughlin, 12 Cush. 612; State v Lincoln, 49 N. H. 464.''
Bakek, J., in Herman v. The People, 131 111. 594, 598, — Ed.
SECT. IV.] CASTEO V. THE QUEEN. 945
hundred offences, the man might not unreasonably have said, " That
is too much to put a man upon his trial for ; select five or six, try me
on those, let the rest stand over." I do not see that that would be at
all an unreasonable application. And in the present case, if an appli-
cation had been made to the Court of Queen's Bench to put the party to
■ his election, and if it had been said " I cannot be fairly tried for one
offence of perjury committed in Middlesex, if at the same time I am to
be tried for another perjury committed in London, therefore there mu^t
be two separate trials ; " if such an application had been made the
judges of the Queen's Bench would doubtless have said. We will listen
to the arguments that may be urged in its favor. What they could
possibly have been I do not know, but no such application was made.
The prisoner was tried upon the two counts before one petty jury. They
were taken both together, and then the result was that he was found
guilty upon both.
Something was attempted to be argued upon the wording here, namely,
that he was found ' ' guilty of the premises " in both counts, to the effect
that that did not mean the premises charged in each of the counts, but
meant only (if I understand the argument rightly) such premises as
were charged not only in the one but also in the other. In the first
place, that is not the meaning of the words ; and, secondly, it would
be utterly absurd, because the one count related to things which happened
in Middlesex, and the other related entirely to things which happened
in London three years before ; therefore there could be nothing identi-
cal in the two.
But he was found guilty, and then came the question what was to be
the sentence. It is clear that if the court had pleased to grant an ap-
plication these two counts might have been tried, the one in London
before a London jury, and the other in Middlesex before a Middlesex
jury; but for the act relating to the Central Criminal Court, which
gives that court jurisdiction over both Loudon and Middlesex, they
must have been so tried. But even now they might have been so tried,
and if they had been so tried, and if each jury, had found a verdict of
guilty on the counts brought before it separately, Rex v. Wilkes, 4 Burr.
2527 ; 19 How. St. Tr. 1075 ; 4 Bro. P. C. 360, would have been abso-
lutely in point as to the sentence. There would not have been a pretext
for saying there was the least difference.
But then it is put in the argument in this way, that when they are
both tried before one jury, and when the prosecutor has not been put
to his election, but the trial for both offences has taken place together,
the consequence must be that the prisoner is not to be punished in, the
same way as he would have been if he had been tried for each before
two separate judges, and he is therefore entitled to get off with less
punishment. Why? I am sure I cannot conceive, nor can I see that
any authority has been cited for that, at any rate in the English law,
nor does it proceed on any reason. In regard to the American case.
The People ex rel. Tweed v. Liscomb, 15 Sickel's New York Ap. Cas.
946 CASTEO V. THE QUEEN. [CHAP. XV.
559, which was cited, it might be enough to say that I observe that
the American case proceeds upon the express ground that the court
was acting upon New York decisions, subsequent to the Declaration
of Independence, and upon New York statutes, and not upon English
rules or English law. I dare say that decision may be right accord-
ing to those New York decisions and statutes, but the decision does
not apply here. They say that according to their view of the New York
statutes and the New York decisions, where there is but one trial before
one jury, it must be for one offence, and for one offence only, and upon
that they all rest. They, logically enough, say, if that is granted where
there are sentences passed for more than one offence, all but one must
be ultra vires ; accordingly they held that the power of passing a sen-
tence was exhausted by the first sentence. I leave it to the American
judges to say whether that was right or not according to American law.
I do not pretend to express an opinion on that, but I am quite clear
that it is not English law. I think the English decisions are all the
other way, and the reason of the case is, to my mind, quite clearly the
other way.
Now I will mention but one or two cases which prove it. I will not
quote them at length. The first is Young v. The King, 3 T. E. 98,
where the law is laid down in the way I have stated, that it is not a
matter of right and law that they shall not be tried together, but only
a matter of election. Then comes Rex v. Jones, 2 Camp. 131, where
Lord Ellenborough both laid down the law as I have stated it, and
acted upon it. Then Rex v. Kingston, 8 East, 41, where Lord Ellen-
borough again repeats the doctrine ; and lastly. Rex v. Robinson, 1
Moo. C. C. 413, which has been already cited, where it was said that
the doctrine of Rex v. Wilkes, 4 Barr. 2527 ; 19 How. St. Tr. 1075 ;
4 Bro. P. C. 360, ought to have been applied to a case where there were
two misdemeanors in separate counts tried together before one jury.
My Lords, taking all those cases together, I myself can feel no doubt
at all that, by the English law, and going by that alone, there is not a
pretence for this writ of error.
Judgment appealed from affirmed, and appeal dismissed.''-
1 " I have examined with some care the cases in the courts of this State and of
England to which we have been referred, or which have come under my observation,
and I find no authority for holding that the common law, as it existed in England in
April, 1 775, or as it exists and is administered in this State at this time, permits cumu-
lative sentences to be imposed upon conviction for several distinct misdemeanors,
charged in different counts in a single indictment, in the aggregate exceeding the
punishment prescribed by law as the extreme limit of punishment for a single mis-
demeanor. I do not regret this. A proper administration of the criminal law, as
well in the public interest as for the protection of those accused of crime, requires a
different rule. The power of the court was exhausted by one sentence to imprison-
ment for one year, and the payment of a fine of $250 ; or if several judgments can be
pronounced by a sentence, the same in the aggregate, distributing such punishment
and apportioning it to the convictions upon the several counts, according to the de-
merits of the offences charged in each ; each and every of the judgments and sentences,
in excess of that limit, was coram non judice. A judgment in the form and to the
SECT. IV.] COMMONWEALTH V. TUCK. 947
COMMOlSrWEALTH v. TUCK.
Supreme Judicial Coukt of Massachusetts. 1838.
[EepoHed 20 Pick 356.]
Morton, J.,^ delivered the opinion of the court. Several objections
have been made against the indictment and urged with ingenuity
and force. Although they may be inconsistent with each other, yet
their inconsistency is no fatal infirmity, and if either of them is well
founded and incurable, it must prevail. Some of them deserve serious
consideration.
The first objection is duplicity. It is argued that the indictment in
one count charges two distinct substantive offences, shop-breaking and
larceny. This objection assumes that both crimes are well charged.
Two questions arise upon this point: is the indictment double? and
if so, is the objection seasonably taken ?
The general rule, unquestionably, is that two or more crimes cannot
be joined in the same count of an indictment. Archb. Crim. PI. 25.
This rule, which is not only convenient in practice, but essential to the
rights of the accused and important to the due administration of crimi-
nal law, should not be disregarded. But it has exceptions. Where
two crimes are of the same nature and necessarily so connected that
they may, and when both are committed must constitute but one legal
offence, they should be included in one charge. Familiar examples of
these are, assault and battery, and burglary. An indictment for the
latter is similar to the one before us. 1 Stark. Crim. PI. (2d ed.) 39.
An assault and battery is really but one crime. The latter includes the
former. A person may be convicted of the former and acquitted of the
latter, but not vice versa. They must therefore be charged as one
offence. Bui. N. P. 15. So. in burglary, where the indictment charges
a breaking and entry with an intent to steal and an actual stealing
(which is the common form), the jury may acquit of the burglary and
convict of the larceny, but cannot convict of the burglary and larceny
as two distinct offences. The latter is merged in the former, and they
constitute but one offence. Rex v. Withal, 1 Leach, 102.
It is diflScult to distinguish the case at bar from burglary. An in-
extent allowed by law once pronounced, the power of the court hecsane functus officio
in respect to that prosecution and the indictment, except to see that the judgment was
executed. There was no longer any record of verdict upon which the court could act-
The jurisdiction over the person of the condemned was exhausted, and as if no prose"
cution had ever been instituted against him. The purposes of the prosecution and of
the indictment had been accomplished if the punishment for the offence is fixed by
Statute, a judgment in excess of the statutory limit is void for the excess, as we have
seen by adjudged cases." — Allen, J., in People exrel. Tweed v. Liscomb, 60 N. Y. 559,
590.
1 The opfnion alone is given, and part of it, not relating to the question of pleading,
is omitted.
948 COMMONWEALTH V. FITCHBUEG EAILKOAD. [CHAP. XV.
dictment setting forth that the defendant broke and entered the shop
with intent to steal, would be good. Can the addition of the fact that
he did steal, which is the best evidence of his intention, vitiate the in-
dictment? We cannot perceive that it does. It is true the main
charge might be established without proof of the larceny, and the lar-
ceny might be established without proof of the breaking and entry;
but wherein does this differ from burglary? The principles governing
both seem to be the same.
But even if duplicity existed in this indictment, it may well be
doubted whether the objection does not come too late. In civil actions
duplicity is cured by general demurrer or by pleading over. Archb.
PI. and Ev. 96. And in criminal cases it is extremely doubtful whether
it can be taken advantage of in arrest or error. Archb. Crim. PI. 21.
See Commonwealth v. Eaton, 15 Pick. 273. Indeed, we think the
better opinion is, that it cannot.
It is true that the statute of jeofails does not extend to criminal
prosecutions. A defective indictment cannot be cured by verdict. If
the crime be not correctly described, no judgment can be rendered
either upon verdict or plea of guilty. 2 Hale's P. C. 193 ; Common-
wealth V. Morse, 2 Mass. R. 130; Commonwealth v. Hearsey, 1 Mass.
R. 137.
But the objection now under consideration is totally different. It is
not that the offence is defectively set forth, but that more than one
offence is sufficiently set forth in the same indictment. The only argu-
ment which lies against the latter is, that it subjects the defendant to
inconvenience and danger by requiring him to prepare himself to meet
several charges at the same time. The appropriate remedy would be a
motion to the court to quash the indictment, or to confine the prose-
cutor to some one of the charges. Archb. Crim. PL 3.
COMMONWEALTH v. FITCHBUEG RAILROAD.
Supreme Jxidicial Court of Massachusetts. 1876.
[Reported 120 Mass. 372.]
Lord, J.^ The indictment in this case contained five counts, and as
appears by the bill of exceptions, all for the same offence although it
is not alleged, as sometimes it is, that the various counts are different
modes of charging the same offence. It has long been the practice in
this Commonwealth to charge several misdemeanors in different counts
of the same indictment, and to enter verdicts and judgments upon the
several counts, in the same manner and with the same effect as if a
separate indictment had been returned upon each charge. It has also
1 The opinion alone is given, and part of it, not relating to tlie question of pleading,
is omitted.
SECT. IV.] COMMONWEALTH V. FITCHBITEG RAILROAD. 949
been long established that the same offence may be charged, as com-
mitted by different means or in different modes, in various distinct
counts of an indictment, and that a general verdict of guilty upon such
indictment and judgment thereon is a conviction of but a single offence,
and is deemed to be upon that count of the indictment to which the
evidence is applicable.
The first count charges generally a killing of the person named
therein within the city of Somerville, by reason of the gross negligence
of the servants of the defendant in the management of a locomotive
engine then in charge of said servants.
The second count charges the killing to have been by collision at the
crossing at grade of a highway in Somerville, by reason of the same
negligence.
The third count charges that the death was caused, either by the
defendant's own neglect or the neglect of its servants, by collision at
the crossing at grade of a town way in Somerville, and that it was by
reason of neglect of the servants and agents in charge to ring the bell
or sound the whistle upon approaching said crossing as required by
law.
It is not necessary to refer to the other counts, as there was a verdict
of not guilty upon them.
The jury returned a verdict of guilty upon each of the first three
counts. The court are all of opinion that this must be deemed to have
been a mistrial. But one offence was charged, and the jury should
have been instructed to return a general verdict of guilty or not guilty
upon the whole indictment as for a single offence, which would have
been in conformity with the long and well established practice in this
Commonwealth ; or they should have been instructed to return a verdict
of guilty upon the count proved, if either was proved, and not guilty
upon all the others. As the record now stands, the defendant corpora-
tion was charged with five distinct misdemeanors, of three of which it
was found guilty, and of two of which it was found not guilty. The
bill of exceptions, however, shows that but one offence was committed,
and it is suggested that a nolle prosequi may be entered as to two of
the counts, and judgment upon the other. It is obvious that inasmuch
as the several counts may be supported by different evidence, and as
they are, at least to some extent, inconsistent with each other, it is im-
possible to determine which was proved, it being certain that all could
not have been. The verdict must. therefore be set aside.
950 CLAASEN V. UNITED STATES. [CHAP. XV.
CLAASEN V. UNITED STATES.
Supreme Court of the United States. 1891.
{Bmpmted 142 V. S. 140.]
Grat, J.^ There caa be no doubt of the sufficiency of the first count
on which the defendant was convicted. It avers that the defendant was
president of a national banking association ; that by virtue of his oflflce
he received and took into his possession certain bonds (fully described),
the property of the association ; and that, with intent to injure and de-
fraud the association, he embezzled the bonds and converted them to
his own use. On principle and precedent, no further averment was
requisite to a complete and sufficient description of the crime charged.
United States u Britton, 307 U. S. 655, 669; The King v. Johnson,
3 M. & S. 539, 549 ; Starkie Crim. PI. (2d ed.) 454 ; 3 Chitty Grim.
Law, 981; 2 Bishop Crim. Pro. §§ 315, 322.
This count and the verdict of guilty returned upon it being suflScient
to support the judgment and sentence, the question of the sufficiency of
the other counts need not be considered.
In criminal cases the general rule, as stated by Lord Mansfield before
the Declaration of Independence, is " that if there is any one count to
support the verdict, it shall stand good, notwithstanding all the rest are
bad." Peake v. Oldham, Cowper, 275, 276 ; Rex v. Benfield, 2 Bur.
980, 985. See also Grant v. Astle, 2 Doug. 722, 730. And it is set-
tled law in this court, and in this country generally, that in any crimi-
nal case a general verdict and judgment on an indictment or information
containing several counts cannot be reversed on error, if any one of the
counts is good and warrants the judgment, because, in the absence of
anything in the record to show the contrary, the presumption of law is
that the court awarded sentence on the good count only. Locke v..
United States, 7 Cranch, 339, 344 ; Clifton v. United States, 4 How.
242, 250; Snyder «. United States, 112 U. S. 216; Bond v. Dustin,
112 U. S. 604, 609 ; 1 Bishop Crim. Pro. § 1015; Wharton Crim. PL
& Pract. § 771.
The opposing decision of the House of Lords, in 1844, in the well
known case of O'Conuell v. The Queen, was carried, as appears by the
report in 11 CI. & Fin. 155, by the votes of Lord Denman, Lord Cot-
tenham and Lord Campbell against the votes of Lord Lyndhurst and
Lord Brougham, as well as against the opinions of a large majority of
the judges consulted, and the universal understanding and practice of
the courts and the profession in England before that decision. It has
seldom, if ever, been followed in the United States.
In Commonwealth v. Boston & Maine Railroad, 133 Mass. 383, 392,
1 The opinion only is given; it states the case. Part of the opimon, not relating to
the question of pleading, is omitted.
SECT, v.] NEW YORK CODE OF CRIMINAL PROCEDURE. 951
and in Wood v. State, 59 N. Y. 117, 122, relied on by the plaintiff in
error, the general rule was not impugned, and judgment upon a general
verdict was reversed because of erroneous instructions, duly excepted
to by the defendant at the trial, expressly authorizing the jury to con-
vict upon an insufficient count.
In the case now before us, the record does not show that any instruc-
tions at the trial were excepted to, and the jury did not return a general
verdict against the defendant on all the counts, but found him guilty of
the offences charged in each of the five counts now in question. This
being the case, and the sentence being to imprisonment for not less
than five years nor more than ten, which was the only sentence author-
ized for a single offence under the statute on which the defendant was
indicted, there is no reason why that sentence should not be applied to
any one of the counts which was good.
SECTION V.
Statviory Simplifications of Criminal Pleading.
NEW YORK CODE OF CRIMINAL PROCEDURE.
§ 284. The indictment is suflScient, if it can be understood therefrom :
1. That it is entitled in a court having authority to receive it, though
the name of the court be not accurately stated ;
2. That it was found by a grand jury of the county, or if in a city
court, of the city in which the court was held ;
3. That the defendant is named, or if his name cannot be discovered,
that he is described by a fictitious name, with the statement that it has
been found impossible to discover his real name ;
4. That the crime was committed at some place within the jurisdiction
of the court, except where . . . the act, though done without the local
jurisdiction of the county, is triable therein ;
5. That the crime was committed at some time prior to the finding of
the indictment ;
6. That the act or omission charged as the crime is plainly and con-
cisely set forth ;
7. That the act or omission charged as the crime is stated with such
a degree of certainty, as to enable the court to pronounce judgment,
upon a conviction, according to the right of the case.
§ 293. Upon the trial of an indictment, when a variance between
the allegation therein and the proof, in respect to time, or in the name
or description of any place, person, or thing, shall appear, the court
may, in its judgment, if the defendant cannot be thereby prejudiced
in his defence on the merits, direct the indictment to be amended, ac-
952 MASSACHUSETTS CEIMINAL PLEADING ACT OF 1899. [r.HAP. XV.
cording to the proof, on such terms as to the postponement of the trial,
to be had before the same or another jury, as the court may deem
reasonable.
MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899.
[Mass. Revised Laws, chap. 218.]
Sec. 18. The circumstances of the act may be stated according to
their legal effect, without a full description thereof.
Sec. 19. If the name of an accused person is nnknown to the grand
jury, he may be described by a fictitious name or by any other prac-
ticable description, with an allegation that his real name is unknown.
An indictment of the defendant by a fictitious or erroneous name shall
not be ground for abatement ; but if at any subsequent stage of the
proceedings his true name is discovered, it shall be entered on the
record and may be used in the subsequent proceedings, with a ref-
erence to the fact that he was indicted by the name mentioned in the
indictment.
Sec. 20. The time and place of the commission of the crime need
not be alleged unless it is an essential element of the crime. The alle-
gation of time in the caption shall, unless otherwise stated, be consid-
ered as an allegation that the act was committed before the finding of
the indictment, after it became a crime, and within the period of lim-
itations. The name of the county and court in the caption shall, un-
less otherwise stated, be considered as an allegation that the act was
committed within the territorial jurisdiction of the court. All allega-
tions of the indictment shall, unless otherwise stated, be considered to
refer to the same time and place.
Sec. 21. The means by which a crime is committed need not be al-
leged in the indictment unless they are an essential element of the
crime.
Sec. 22. If an allegation relative to a written instrument which con-
sists wholly or in part of writing, print or figures is necessary, it may
describe such an instrument by any name or designation by which it is
usually known, or by the purport thereof, without setting out a copy or
facsimile of the whole or of any part thereof; and no variance between
such recital or description and the instrument produced at the trial
shall be material, if the identity of the instrument is evident and the
purport thereof is sufliciently described to prevent prejudice to the
defendant.
Sec. 23. If an allegation relative to any bullion, money, notes, bank
notes, checks, drafts, bills of exchange, obligations or other securities
for money of any country, state, county, city, town, bank, corpo-
ration, partnership or person is necessary, it may describe it as money,
without specifying any particulars thereof ; and such descriptive alle-
SECT. V.J MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899. 953
gation shall be sustained by proof of any amount of bullion, money,
notes or other securities for money as aforesaid, although the partic-
ular nature thereof shall not be proved.
Sec. 24. The value, or prjee of property need not be stated, unless it
is an essential element of the crime. If the nature, degree or punish-
ment of a crime depends upon the fact that the property exceeds or
does not exceed a certain value, it may be described, as the case may
be, of more than that value, or of not more than that value.
Sec. 25. If an indictment for a crime which involves the commission
. or attempted commission of an injury to property describes the prop-
erty with sufficient certainty in other respects to identify the act, it
need not allege the name of the owner.
Sec. 27. In an indictment for the larceny of an animal, or for any
other crime in respect thereof, it may be described by the name by
which it is commonly known, without stating its age or sex or whether
it is alive or dead.
Sec. 29. An allegation that the defendant committed the act charged
shall be a sufficient allegation that he was responsible therefor.
Sec. 30. If an intent to injure or defraud is an essential element of
a crime, an intent to injure or defraud may be alleged generally, with-
out naming the person, corporation or government intended to be in-
jured or defrauded. Proof of an intent to injure or defraud any person
or body corporate shall be competent to support the allegation.
Sec. 31. Different means or different intents by or with which a
crime may- be committed may be alleged in the same count in the
alternative.
Sec. 33. Presumptions and conclusions of law, matters of which
judicial notice is taken and allegations which are not required to be
proved need not be alleged. An indictment shall not be considered
defective or insufficient because it omits to allege that the crime was
committed, or the act was done, "traitorously," "feloniously," " bur-
glariously," "wilfully," "maliciously," "negligently," "unlawfully,"
or otherwise similarly to describe the crime, unless such description is
an element of the crime charged, or because it omits to allege that the
crime was committed or done with " force and arms," or " against the
peace," or against the form of the statute or statutes, or against a by-
law, ordinance, order, rule or regulation of any public authority, nor
because it omits to state or misstates the title, occupation, estate or
degree of the defendant or of any other person named in the indict-
ment, or of the name of the county, city, town or place of his resi-
dence, unless such omission or misstatement tends to the prejudice of
the defendant. An indictment shall not be considered defective or in- '
sufficient by reason of describing a fine or forfeiture as enuring to the
use of the commonwealth instead of to the use of the county, city or
town, nor by reason of any misstatement as to the appropriation of
any fine or forfeiture, nor by reason of its failure to allege or recite a
special statute or a by-law or ordinance of a city or town or order of
954 MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899. [CHAP. XV.
the mayor and aldermen or selectmen or rules or regulations of any
public board of officers.
Sec. 34. An indictment shall not be quashed or be considered defec-
tive or insufficient if it is sufficient to enable the defendant to under-
stand the charge and to prepare his defence ; nor shall it be considered
defective or insufficient for lack of any description or information
which might be obtained by requiring a bill of particulars as provided
in section thirty-nine.
Sec. 35. A defendant shall not be acquitted on the ground of vari-
ance between the allegations and proof if the essential elements of the
crime are correctly stated, unless he is thereby prejudiced in his defence.
He shall not be acquitted by reason of immaterial misnomer of a
third party, by reason of an immaterial mistake in the description of
property or the ownership thereof, by reason of failure to prove un-
necessary allegations in the description of the crime or by reason of
any other immaterial mistake in the indictment.
Sec. 37. An excuse, exception or proviso which is not stated in the
enacting clause of a statute creating a crime or which is stated only by
reference to other provisions of the statute need not be negatived in
the indictment unless it is necessary for a complete definition of the
crime. If any .statute shall prescribe a form of indictment in which
an excuse, exception or proviso is not negatived, it shall be taken that
it is not necessary to a complete definition of the crime that they should
be negatived. If a statute which creates a crime permits an act, which
is therein declared to be criminal, to be performed without criminality
under stated conditions, such conditions need not be negatived.
Sec. 38. The words used in an indictm'ent may, except as otherwise
provided in this section, be construed according to their usual accepta-
tion in common language ; but if certain words and phrases are defined
by law, they shall be used according to their legal meaning.
The following words, when used in an indictment, shall be sufficient
to convey the meaning herein attached to them, —
Adultery. — The sexual intercourse by a married man with a woman
not his wife, by an unmarried man with a married woman, by a married
woman with a man not her husband.
Affray. — The fighting together of two or more persons in a public
place to the terror of the persons lawfully there.
False Pretences. — The false representations made by word or act
which are of such a character, or which are made under such bircum-
stanees and in such a way, with the intention of influencing the action
of another, as to be punishable.
Forgery. — The. false making, altering, forging or counterfeiting of
any instrument described in section one of chapter two hundred and
nine, or any instrument which, if genuine, would be a foundation for
or release of liability of the apparent maker.
Fornication. — The sexual intercourse between a man and an un-
married woman.
SECT, v.] PEOPLE V. OLMSTEAD. 955
Murder. — The killing of a human being with malice aforethought.
Rape. — The unlawful forcible carnal knowledge by a man of a
woman against her will or without her consent; or the carnal knowledge
by a man of a female child under the statutory age of consent.
Rohhery. ^— The taking and carrying away of personal property of
another from his person and against his will, by force and violence, or
by assault and putting in fear, with intent to steal.
Stealing. — Larceny. — The criminal taking, obtaining or converting
of personal propert}-, with intent to defraud or deprive the owner
permanently of the use of it ; including all forms of larceny, criminal
embezzlement and obtaining by criminal false pretences.
Sec. 39. The court may, upon the airaignment of the defendant, or
at any later stage of the proceedings, order the prosecution to file a
statement of such particulars as may be necessary to give the defend-
ant and the court reasonable knowledge of the nature and grounds of
the crime charged, and if it has final jurisdiction of the crime, shall so
order at the request of the defendant if the charge would not be other-
wise fully, plainly, substantially and formally set out. If there is a
material variance between the evidence and the bill of particulars, the
court may order the bill of particulars to be amended, and may postpone
the trial, which may be before the same or another jury, as the court
may order. If, in order to prepare for his defence, the defendant
desires information as to the time and place of the alleged crime or as
to the means by which it is alleged to have been committed, or more
specific information as to the exact nature of the property described
as money or, if indicted for larceny, as to the crime which he is
alleged to have committed, he may apply for a bill of particulars as
aforesaid.
Sec. 40. In an indictment for criminal dealing with personal property
with intent to steal, an allegation that the defendant stole said properly
shall be suflflcient ; and such indictment may be supported by proof
that the defendant committed larceny of the property or embezzled it,
or obtained it by false pretences.
PEOPLE V. OLMSTEAD.
SnPBEME COUKT OF MICHIGAN. 1874.
[Reported 30 Mich. 431.]
Campbell, J.* The respondent was informed against for manslaughter
in killing one Mary Bowers, whom it is averred he did " feloniously,
wilfully and wickedly kill and slay, contrary to the statute in such
ease made and provided," etc. The information does not name the
offence, nor the manner or means of its commission.
1 Only so much of the opinion as deals with the validity of the indictment is
given. — Ed.
956 PEOPLE V. OLMSTEAJD. [CHAP. XV.
Upon the trial the prosecution, in opening, stated that the prisoner
was charged under § 75^2 of the Compiled Laws, which is as follows .
" Every person who shall administer to any woman pregnant with a
quick child any medicine, drug, or substance whatever, or shall use or
employ any instrument or other means, with intent thereby to destroy
such child, unless the same shall have been necessary to preserve the
life of such mother, or shall have been advised by two physicians to be
necessary for such purpose, shall, in case the death of such child or of
such mother be thereby produced, be deemed guilty of manslaughter."
The preceding section makes the malicious killing of an unborn
quick child manslaughter, if done by an injury to the mother which
would have constituted her murder if she had died.
The succeeding section makes all unnecessary attempts to produce
the miscarriage of a pregnant woman, whatever may be the result,
punishable as a misdemeanor.
The distinction, therefore, is clearly- taken, as depending on the in-
tent to destroy a living unborn child, and supplies a defect at the com-
mon law, whereby such attempts were not felonious, and in some cases,
at least, may not have been punishable at all.
The elements of the crime, as applied to the case before us, are
found in the death of the mother, produced by acts intended to destroy
a quick child ; that term being used in the statute as an unborn child
liable to be killed by violence. The ambiguity which, according to
Mr. Bishop, seems to exist in some statutes, as to the foetal condition,
is not found in our statutes, which cover the whole ground by different
provisions. Comp. L., §§ 7541, 7542, 7543; Bishop on Statutory
Crimes, §§ 742-750, and cases. . . .
Objection was made that the information was not properly framed
to support the conviction.
The information is very brief, and consists of the single statement
that respondent, on a day and year and at a place named, ' ' one Mary A.
Bowers feloniously, wilfully and wickedly did kill and slay, contrary
to the statute in such case made and provided, and against the peace
and dignity of the state of Michigan."
It is not claimed by any one that this would have been a good in-
dictment at common law, not only for formal defects, but also for not
indicating in any way the means or manner of causing death. But it
is justified under our statute, which dispenses with allegations of these,
and declares it sufficient "to charge that the defendant did kill and
slay the deceased." G. L., % 7916.
Respondent claims that the constitutional right " to be informed of
the nature of the accusation" involves some information concerninf
the case he is called on to meet, which is not given by such a general
charge as is here made. And courts are certainly bound to see to it
that no such rights is destroyed or evaded, while they are equally bound
to carry out all legislative provisions tending to simplify practice so
far as they do not destroy rights.
SECT, v.] PEOPLE V. OLMSTEAD. 957
The discussions on this subject sometimes lose sight of the principle
that the rules requiring information to be given of the nature of the ac-
cusation are made on the theory that an innocent man may be indicted,
as well as a guilty one, and that an innocent man will not be able to
prepare for trial without knowing what he is to meet on trial. And the
law not only presumes innocence, but it would be gross injustice unless
it framed rules to protect the innocent.
The evils to be removed by the various acts concerning indictments
consisted in redundant verbiage, and iu minute charges which were not
required to be proven as alleged. It was mainly, no doubt, to remove
the necessity of averring what need not be proved as alleged, and
therefore gave no information to the prisoner, that the forms were
simplified. And these difficulties were chiefly confined to common-law
offences. Statutory offences were always required to be set out with
all the statutory elements. Koster v. People, 8 Mich. R. 431. The
statute designed to simplify indictments for statutory crimes, which is
in force in this state, and is a part of the same act before quoted,
reaches that result by declaring that an indictment describing an offence
in the words of the statute creating it, shall be maintained after verdict.
C L., § 792S. But both of these sections must be read in the light
of the rest of the same statute, which plainly confines the omission of
descriptive averments to cases where it will do no prejudice. And so
it was held, in Enders v. People, 20 Mich. E. 233, that nothing could
be omitted by virtue of this statute, which was essential to the de-
scription of an offence.
Manslaughter at common law very generally consisted of acts of
violence, of such a nature that indictments for murder and man-
slaughter were interchangeable, by the omission or retention of the
allegation of malice, and of the technical names of the offences. In a
vast majority of cases a very simple allegation would be enough for
the protection of the prisoner.
But where the offence of manslaughter was involuntary homicide,
and involved no assault, but arose out of some negligence or fault
from which death was a consequential result, and sometimes not a
speedy one, the ordinary forms were deficient, and the indictment had
to be framed upon the peculiar facts, and could convey no adequate
information without this. See 2( Bishop's Cr. Proced., § 538.
The offence for which the respondent in this case was put on trial,
originated in the statute defining it, and could not have come within
any of the descriptions of manslaughter at common law. An innocent
person, charged under the information, could form no idea whatever
from it of the case likely to be set up against him. He might, perhaps,
be fairly assumed bound to prepare himself to meet a charge of man-
slaughter by direct Violence or assault. But which one was meant, out
of the multitudinous forms of indirect and consequential homicide that
might occur after a delay of any time not exceeding a year, from an
original wrong or neglect, and of which he might or might not have
958 COMMONWEALTH V. KELLEY, [CHAP. XV.
been informed, he could not readily conjecture. Nothing could inform
him of this statutory charge, except allegations conforming to the
statute. These, we think, he was entitled to have spread out upon
the accusation. Without them he was liable to be surprised at the
trial, and could not be expected to prepare for it.
We are not prepared to hold this information bad upon its face, for
we are disposed to think, and it was practically admitted on the argu-
ment, that it may apply to the ordinary homicides by assault. It was
not, therefore, until the evidence came in, that it was made certain the
case was different. The question of sufDciency does not arise directly
upon the record, but on the bill of exceptions, and the error was in
permitting a conviction on it.
The other questions are closely connected with this, and need not be
considered further.
It must be certified to the court below that the verdict should be set
aside, and that no further proceedings on this charge should be had
under this information a,s it stands.
The other Justices concurred.
COMMONWEALTH v. KELLEY.
StTPREME Judicial Court of Massachusetts. 1903.
[Reported 184 Mass. 320.]
Hammond, J.^ It is further argued by the defendant that, even if
the evidence did show that he committed a crime, it was embezzlement
and not larceny, that these two offences are different in law, and that
since the count upon which he was convicted alleges larceny it is not
supported by proof of embezzlement. It appears that at the trial the
defendant urged this distinction, and requested the judge to rule that
the evidence did not show him guilty of larceny, and to direct a verdict
of acquittal. This the judge refused to do. He further requested the
judge to rule that the statute which provides that ' ' whoever embezzles,
or fraudulently converts to his own use, money, . . . shall be deemed
guilty of simple larceny," (Pub. Sts. c. 203, § 37,) does not merge
the two offences or make the embezzlement larceny. The judge re-
fused to make this ruling, "not because it was not true as a bare
proposition of law but because it was not called for upon the facta
disclosed."
The count evidently was drawn under R. L. c. 218, § 38, and it
complies with the form set forth at the end of that chapter, under the
title "larceny ;" and the question is whether it covers the crime of
embezzlement. The provisions of this chapter so far as material to this
1 Only so much of the opinion as discusses the sufficiency of the indictment is
given. — Ed.
SECT, v.] COMMONWEALTH V. KELLEY. 959
question first appear in St. 1899, c. 409, which was passed in accord-
ance with the report and recommendation of the commissioners (see
Senate Doc. No. 234 of that year) appointed under c. 85 of the Ee-
solves of 1897, " to investigate and report upon a plan for the simpli-
fication of criminal pleadings, and to prepare a schedule of forms of
pleadings to be used in criminal cases." Prior to that statute, although
one guilty of embezzlement was, in the language of the statutes,
"deemed ... to have committed the crime of simple larceny," or in
the later forms, " deemed guilty of simple larceny," still it was held
that that kind of larceny was of a peculiar and distinctive charac-
ter and that the indictment must contain, in addition to all the requisites
of an indictment for larceny at common law, allegations setting forth
the fiduciary relation, or the capacity in which the defendant acted.
Accordingly it has been held that proof of embezzlement will not
sustain an indictment charging merely a larceny, and that proof of
larceny will not sustain a charge of embezzlement. Commonwealth
V. Simpson, 9 Met. 138; Commonwealths. King, 9 Cush. 284; Com-
monwealth V. Berry, 99 Mass. 428. Somewhat akin to these two
crimes in many respects is that of obtaining money or goods by false
pretences ; and an indictment for this offence differs from that of lar-
ceny or embezzlement. It was felt by the commissioners that " the
over-refined and illogical distinctions " between these three crimes
"have led to scandalous abuses of justice by acquittals," and, " to
obviate the possibility of miscarriage of justice on this account," they
proposed " a single form of indictment for the three crimes, containing
simply an allegation that defendant ' stole' certain goods." See 1899,
Senate Doc. No. 234, pp. 16, 17. The St. of 1899, following the rec-
ommendation of the commissioners, contains a simple form for larceny,
but no separate form for embezzlement or for obtaining money or
goods by false pretences. In § 12, under the head of " Meaning of
Words," it is provided that " the following words when used in an
indictment shall be sufficient to convey the meaning herein attached to
them;" and among others are these: "Stealing. — Larceny. — The
criminal taking, obtaining, or converting of personal property with
intent to defraud or deprive the owner permanently of the use of it;
including all forms of larceny, criminal embezzlement, and obtaining
by criminal false pretences." The count in question was drawn up
under the provisions of this statute as subsequently enacted in R. L.
C. 218, § 38. Under this last statute the word "steal" in an indict-
ment becomes a term of art and includes the criminal taking or con-
version in either of the three ways above named, and hence the
indictment is sustained, so far as respects the criminal nature of the
taking or conversion, by proof of any kind of larceny, embezzlement
or criminal taking by means of false pretences. If it be objected that
this construction makes the indictment so indefinite that the accused is
not sufficiently informed of the nature of the charge which he is called
upon to meet, the answer is that it is provided in the same statute
960 COMMONWEALTH V. KELLEY. [CHAP. XV.
(§ 39) that " the court may, upon the arraignment of the defendant, or
at any later stage of the proceedings, order the prosecution to file a
statement of such particulars as may be necessary to give the defend-
ant and the court reasonable knowledge of the nature and grounds of
the " accusation, and, if requested by the accused, shall so order in
all cases in which the court has final jurisdiction, where the accusation
would not be otherwise fully, plainly, substantially and formally set
out ' ' If there is a material variance between the evidence and the
bill of particulars, the court may order the biU of particulars to be
amended, and may postpone the trial, which may be before the same
or another jury, as the court may order. If, in order to prepare for his
defence, the defendant desires information as to the time and place of
the alleged crime or as to the means by which it is alleged to have been
committed, or more specific information as to the exact nature of the
property described as money, or, if indicted tor larceny, as to the crime
which he is alleged to have committed, he may apply for a bill of par-
ticulars as aforesaid." This is a suiBcient protection to the accused.
Indeed it is manifest that since under the former practice the right to
a bill of particulars was a matter that lay within the discretion of the
court and therefore could not be claimed as of right, (Commonwealth v.
Wood, 4 Gray, 11,) this statute, which makes the right to such a bill
absolute, places the accused in a better position than he was before.
Of course the bill of particulars cannot enlarge the scope of the indict-
ment. It cannot specify a charge not covered by the indictment. Its
only purpose is to specify more particularly the acts constituting the
offence.
In view of these considerations we are of opinion that the count
in question must be regarded as including within its ' ' four corners "
any criminal act of taking or conversion of money the property of the
estate therein named, to the amount of $1,000, committed by the de-
fendant within the jurisdiction of the court, and within the statute of
limitations, whether the offence be larceny, embezzlement, or obtaining
by criminal false pretences ; and consequently that it covered the crime
of embezzlement as described in Pub. Sts. c. 203, § 46, of which under
instructions not objected to, except as above stated, the jury convicted
the defendant.
It is further urged by the defendant that, inasmuch as the offence of
which he was convicted was committed prior to the statute, it is as to
that offence an ex post facto law, and for that reason unconstitutional
as applied to his case. But this position is untenable. The statute
neither creates a new crime nor in any way changes one existing at the
time it took effect ; nor does it increase or in any way affect the pun-
ishment for any crime. It does not establish any new presumption of
fact or of law against the accused, nor in any other way alter any
rule of evidence or the nature of the evidence required to convict.
The defendant was tried for the same crime, under the same pre-
sumptions as to his guilt or innocence and under the same rules of
SECT, v.] STATE V. BEOWN. 961
evidence as he would have been tried before the statute. It relates
purely to the matter of technical pleading as to the words to be used
in setting forth a criminal act, and even in this respect is favorable to
the accused in that the right to a bill of particulars, which theretofore
was within the discretion of the court, has become absolute. In no
respect is the situation of the accused changed to his disadvantage.
No citation of authorities is needed to show that the statute as thus
interpreted is not an ex post facto law within the meaning of either the
Federal or State constitutions. The defendant was not prejudiced by
the action of the court at the trial in dealing with his requests.*
STATE V. BROWN.
StlPBEMB COUET OF WISCONSIN. 1910.
[Reported 143 Wis. 405.]
As indictment was returned by a grand jury impanelled in MarinBtte
county, wherein it was attempted to charge the defendant, in the first
count, with obtaining money by false pretences from Marinette county.
The defendant demurred ; and to review an order sustaining such de-
murrer and a judgment discharging the defendant, the state prosecutes
a writ of error to this court.''
Baknes, J. This case comes before us by virtue of sec. 4724 a,
Stats. (Laws of 1909, ch. 224), on a writ of error sued out to review
the decision of the lower court in sustaining a demurrer to an indict-
ment. It is the first cause brought to this court at the instance of the
state to review a judgment in a criminal action since the above statute
was enacted.
The defendant contends that the indictment is faulty in the follow-
ing particulars: (1) In not averring that defendant obtained the money
referred to in the various counts in the indictment.'
1. Sec. 4423, Stats. (1898), provides that "Any person who shall
designedly, by any false pretences . . . and with intent to defraud,
obtain from any other person any money," shall be punished as therein
provided.
" The gravamen of the crime is the obtaining of the property de-
scribed. . . . This statute, like other criminal statutes, must receive
strict construction." Bates v. State, 124 Wis. 612, 615, 103 N. W. 251,
and cases cited.
It is contended by the defendant that the allegation of the indict-
ment, "By which false pretences the said Thomas W. Brown did then
1 See Com. v. King, 202 Mass. 379. — Ed.
" This statement is substituted for that of the Reporter. — Ed.
s Only so much of the opinion as deals with this objection to the indictment is
given. — Ed.
962 STATE V. BROWN. [CHAP. XV.
and there unlawfully and feloniously induce the said Marinette county
to pay the said Thomas W. Brown the said sum of eighteen dollars and
eighty cents of its money, good and lawful money of the United States,
the said Marinette county then and there relying upon the said repre-
sentations so made " does not charge that the defendant Brown ob-
tained the money, or even that the county, parted with it. It is urged
that the word " induce " may well mean to persuade, to convince, or to
tempt, and that defendant might tempt, persuade, or convince the
county that it should pay the money in question, but that until he
actually received it no crime was committed under the section of our
statutes referred to. The following authorities are cited as sustaining
the defendant's position: Comm. v. Lannan, 1 Allen, 590; State v.
Phelan, 159 Mo. 122, 60 S. W. 71 ; Connor v. State, 29 Fla. 455, 30
Am. St. Eep. 126 ; State v. Lewis, 26 Kan. 123 ; Kennedy v. State,
•34 Ohio St. 31 0. The point decided in each of the authorities cited is
closely analogous to the one raised in the case before us, and the trial •
court with considerable reluctance concluded to follow the decided
cases. No case decided under a similar statute has been called to our
attention where an indictment such as the one before us has been held
good.
Precedents from foreign jurisdictions on matters of pleading and
practice in criminal cases are often illusory and misleading. Some
courts have adopted extremely strict and often highly technical rules
for the construction of indictments and informations. Others have
followed more liberal and more reasonable rules. In many of the
states the rigor of rules formerly laid down has been mitigated by
statute law. On a question such as the one before us the judgments
of other tribunals may aid, but they cannot control or conclude this
court.
The indictment in this case states that the defendant " did . . .
induce said Marinette county to pay " him the sum of $18.80. Taking
this language in its usual acceptation, it means that Marinette county
paid over to the defendant, and that the defendant received and ob-
tained from it, the sum stated, and it would, we think, be so construed
by ninety-nine out of every hundred persons reading it. The learned
counsel for the defendant frankly admitted on the argument that such
was the impression it created on his mind when he first read it, and
that he arrived at the conclusion that a different meaning might be at-
tributed to it only after his industry had been rewarded by finding the
cases cited.
If it be conceded that the language used might be susceptible of the
meaning contended for by defendant, it does not follow that the in-
dictment is bad, assuming that the language used would in its ordinary
and usual acceptation be understood to mean that the defendant in
fact obtained the money.
It has never been held in this state that certainty to a certain intent
in particular was required in criminal pleading, although such certainty
SECT. V.J STATE V. BKOWN. 963
is, or at least formerly was, required in many jurisdictions. 1 Bouv.
Law Diet. (Rawle's Rev.) 300, and cases cited. In State v. Downer,
21 Wis. 274, it was held that " certainty in charging the offence to a
common intent is all that is required, by the rules of pleading in regard
^o indictments." Such certainty is attained " by a form of statement
in which words are used in their ordinary meaning, though by argu-
ment or inference they may be made to bear a different one." 1 Bouv.
Law Diet. (Rawle's Rev.) 299.
The letter as well as the spirit of our statute law is utterly antagonis-
tic to the idea of applying exceedingly strict and technical rules to the
construction of indictments or informations. This is particularly true
where, as here, the defendant is not deprived of any substantial right
by adopting a more liberal rule of construction and one more consonant
with reason and better calculated to promote the ends of justice.
Sec. 4658, Stats. (1898), provides that an information shall be suffi-
cient if it can be understood therefrom that the offence charged is set
forth with such degree of certainty that the ceurt may pronounce judg-
ment upon a conviction according to the right of the case. Sec. 4659
provides that no indictment or information shall be deemed invalid by
reason of any defect or imperfection in matters of form which shall not
tend to the prejudice of the defendant. Sec. 4669 provides that words
used in the statutes to define a public offence need not be strictly pur-
sued in charging an offence under such statutes, but other words con-
veying the same meaning may be used. Sec. 4706 provides that no
indictment or information in a criminal case shall be abated, quashed,
or reversed for any error or mistake, where the person and the case
may be rightly understood by the court, and the court may on motion
order an amendment curing such defect.
Sec. 2829, Stats. (1898), provides that the court shall in every stage
of an action disregard any error or defect in the pleadings or proceed-
ings which does not affect the substantial rights of the adverse party.
This statute has been held to apply to criminal as well as to civil cases.
Odette V. State, 90 Wis. 258, 262, 62 N. W. 1054 ; Cornell v. State,
104 Wis. 527, 80 N. W. 745; Vogel v. State, 138 Wis. 315, 329, 119
N. W. 190. Sec. 2829, Stats. (1898), has to some extent been ampli-
fied by sec. 3072 m, Stats. (Laws of 1909, ch. 192).
Believing as we do that the language used in the indictment would
in its ordinary acceptation be understood to charge the defendant with
having received or obtained the money, and bearing in mind that it is
not necessary to use the exact language of a statute in pleading, and
being further convinced that the defect complained of does not tend to
prejudice the defendant, we feel no hesitancy in saying that the de-
murrer should not have been sustained on the ground upon which it
was held good. The indictment states an offence under the Downer
Case, cited supra. To hold the pleading bad would be to ignore that
decision as well as the statutes cited. The statutes referred to should
be so construed as to effectuate the purpose which the legislature had
964 STATE V. BROWN. [CHAP. XV.
in mind in passing them. State ex reL McKay v. Curtis, 130 Wis.
357, 110 N. W. 189.
The rights of a defendant in a criminal case should be jealously and
scrupulously guarded and protected by the courts. But this does not
mean that a person accused of crime should be turned loose on mere
technicalities which in no way involve the merits of the case. Such
maladministration of our criminal law should not be encouraged or tol-
erated. If the defendant in this case did not obtain the moneys
charged in the various counts in the indictment, he has a perfect de-
fence to each and every count therein contained and is not deprived of
any right to avail himself of such defence.
SECT. I.] VAUX'S CASE. 965
CHAPTER XVI.
FORMER CONVICTION OR ACQUITTAL.
SECTION I.
Double Jeopardy.
VAUX'S CASE.
Queen's Bench. 1592.
[Reported 4 Coke, H a.]
WrLLiAM Vatix, at the sessions of peace for the county of Northum-
berland, held 27 Julii, anno 32 Eliz. before the justices of peace of the
same county, was indicted of voluntarily poisoning of Nicholas Ridley,
which indictment was removed into the King's Bench ; and in discharge
thereof the said Vaux pleaded that at another time, sc. 12 Augusti,
anno 30 Eliz., at Newcastle upon Tyne, in the county of Northumber-
land, before the Justices of Assise of the same county the said Vaux
was indicted : quod cum Nich' Ridley nuper de W. in ' com' prced^
Armig' jam defunctus, per multos annos ante obitum suum nuptus
fuisset cuidam Margaretm uxori ejus, et nullum exitum habuit, proed'
Will' Vaux nuper de K. in com' C. generos' subdold, cauth, et diabolice
intendens mortem, venenationem, et destructionem ipsius Nicolai, et
DeumprcB oculis non habens, 20 Decembris, anno 28 Eliz. apud W.
prcedicf felonici, voluntarie, et ex malitia sua precogitata, persufxde-
bat eundem NichoV recipere et Where quendam potum mixtum cum
quodam veneno vocat' cantharides, affirmans et verijicans eidem NicK
quod' prmd' potus sic mixtus c%im prced' veneno vocat' canth' non fuit
intoxicatus (Anglice poisoned) sed quod per reception' inde prcBd'
Nich' exit' de corpore dictcB Margaretce tunc uxoris sum procuraret,
et haberet ratione cujus quidem persuasionis et instigationis prced'
Nich' postea, scil. 16 Januarii anno supradicto apud T. in com' N.
prced' nesciens proedictum potum cum veneno in forma prcedict' fore
mixt', sed fidem adhibens prcedicf persuasioni dicti Willielmi recepit
et bibit, per quod prcedictus Nicholaus immediate post receptionem
veneni prcedicti per tres horas immediate sequent' languebat, et postea
prced' 16 Jan. anno supradict' ex venenatione et intoxicat' prced' apud
T. prced' obiit: et sic prced' Will' Vaux felonici et ex moMtia sua
prcBcogitata prcefat' Nich' voluntarie et felonice modo et forma prcecT
intoxicavit, interfecit, et murdravit, contra paceni, &c. Upon which
indictment the said Vaux was arraigned before the same Justices, and
pleaded not guilty ; and the jurors gave a special verdict, and found,
966 TAUx's CASE. [chap, xti,
quod prmd' Nlch' Ridley venenatus fuit Anglice poisoned, per recep-
tionem prced' cantharides, et quod prced' Will' Faux non fuit prcesens
tempore quo prmd; Nich' Ridley recepit prced' canth' sed utrum, &c.
And thereupon judgment was given by the said justices of assise in this
manner : super quo visis, et per cur' Jiic intellectis omnibus et singulis
prcemissis, pro eo quod videtur cur" hie super tota materia per vere-
dictum prced' in forma prced! compert' , quod prced' venenatio per re-
ception' canth' et prced' procuratio prced' Will' ad procurand' praid'
Nich' ad accipiend' prced' canth' modo et forma prout per verdict'
prced' compert' fuit non fuit felonia et murdrum voluntar': idea con-
siderate est quod prced' Will' Vaux, de felonia et murdro prced' indicta-
mento prced' superius specifieaf necnon de dicta felonica venenatione
prced' Nich' Ridley in eodem indictamento nominati eidejn Will' im-
posit' eat sine die : and as to the felony and murder he pleaded not
guilty.
And, first, it was resolved per totam curiam that the said indict-
ment upon which Vaux lyas s.o arraigned was insuflScient ; and princi-
pally because it is not expressly alleged in the indictment that the said
Ridley received and drank the said poison, for the indictment is prmd'
Nich' nesciens prmd' potum cum veneno fore intoxicatum, sed fdem
adhibens diet' persuasioni dicti W. recepit et bibit, per quod, &c. So
that it doth not appear what thing he drank, for these words (venenum
prced') are wanting ; and the subsequent words, scilicM per quod prwdict'
N. immediate post receptionem veneni prmdict' &c., which words imply
receipt of poison, are not sufficient to maintain the indictment, for the
matter of the indictment ought to be full, express, and certain, and shall
not be maintained by argument or implication, because the indictment
is found by the oath of laymen. 2. It was agreed per curiam that
Vaux was a principal murderer, although he was not present at the
time of the receipt of the poison, for Otherwise he would be guilty of
,such horrible offence, and yet should be unpunished, which would be
inconvenient and mischievous : for every felon is either principal or
accessory, and if there is no principal there can be no accessory, quia
accessorium sequitur principalem; and if any had procured Vaux to
do it, he had been accessory before ; quod nota a special case, where
the principal and accessory also shall both be absent at the time of the
felony committed. ^ 3. It was resolved by the Lord Wray, Sir Thomas
Gawdy, Clench, and Fenner, Justices, that the reason of auterfoits
acquit was because where the maxim of common law is that the life of
a man shall not be twice put in jeopardy for one and the same offence,
and that is the reason and cause that auterfoits acquitted or convicted
of the same offence is a good plea; yet it is intendable of a lawful
acquittal or conviction, for if the conviction or acquittal is not lawful,
his life was never in jeopardy ; and because the indictment in this case
was insufficient, for this reason he was not legitimo modo acquietatus,
and that is well proved, because upon such acquittal he shall not have
an action of conspiracy, as it is agreed in 9 E. 4. 12 a. b. vide 20 E. 4, 6.
SECT. I.] EEGINA V. DEANE. 967
And in such case in appeal, notwithstanding such insufficient indict-
ment, the abettor shall be enquired of as it is there also held : and
although the judgment is given that he shall be acquitted of the felony,
yet this acquittal shall not help him, because he was not legitimo modo
acquietatiis ; and when the law saith that auterfoits acquitted is a good'
plea, it shall be intended when he is lawfully acquitted ; and that agrees
with the old book in 29 E. 3, Corone 444, where it is agreed if the pro-
cess upon indictment or appeal is not suflBcient, yet if the party appears
(by which all imperfections of the process are saved) and is acquitted,
he shall be discharged ; and if the appeal or indictment is insufficient
(as our case is) there it is otherwise : but if one, upon an insufficient
indictment of felony, has judgment, quod suspend' per colV, and so at-
tainted, which is the judgment and end which the law has appointed
for the felony, there he cannot be again indicted and arraigned until
this judgment is reversed by error ; but when the offender is discharged
upon an insufficient indictment, there the law has not had its end ; nor
was the life of the party, in the judgment of the law, ever in jeopardy ;
and the wisdom of the law abhors that great offences should go un-
punished, which was grounded without question upon these ancient
maxims of law and state ; maleficia non debent remanere impunita, et
impunitas continuum, affectum trihuit delinquendi, et minatur inno-
centes qui parcit nocentibus : so if a man be convicted either by verdict
or confession upon an insufficient indictment, and no judgment there-
upon given, he may be again indicted and arraigned, because his life
was never in jeopardy, and the law wants its end ; and afterwards,
upon a new indictment, Ihe said Vaux was tried and found guilty, and
had his judgment and was hanged.
EEGINA V. DEANE.
Liverpool Winter Assizes. 1851.
[Reported 5 Cox C. C. 501.]
The prisoner was indicted for forging the acceptance to a bill of ex-
change for £154 16s. 3d.
The jury had been sworn and charged to inquire into the guilt of the
prisoner.
Simon, for the prosecutor, had opened the case, when
Monk, for the prisoner, having come into court during the opening
of the learned counsel for the prosecution, informed his lordship that
the prisoner was not prepared with his defence ; upon which
Erle, J., discharged the jury from giving a verdict, observing that,
with the consent of both parties, there was power to do so ; and such
consent being then given, the trial was accordingly postponed to the
following day. His lordship added that Mr. Barou Parke held the
same opinion.
968 COMMONWEALTH V. GREEN". [CHAP. XVI.
COMMONWEALTH v. ALDERMAN.
Sdpeemb Judicial Court of Massachusetts. 1808.
[Reported 4 Mass. 477.]
The defendant being arraigned on an indictment for an assault and
battery, and being enquired of by the clerk whether he was guilty or
not guilty, said that he was guilty, but added that he had himself in-
formed a justice of the peace for the county of his offence, by whom he
had been sentenced to pay a fine, &c.
The Court directed the clerk to enter the plea of guilty alone observ-
ing that it had heretofore been solemnly determined that a conviction
of a breach of the peace before a magistrate, on the confession or in-
formation of the offender himself was no bar to an indictment by the
grand jury for the same offence.^
COMMONWEALTH v. GREEN.
ScPKEMB Judicial Court op Massachusetts. 1822.
[Reported 17 Mass. 515.]
Parker, C. J.^ The prisoner having been convicted by the verdict
of a jury of the crime of murder at the last term of the court, moved
for a new trial ; because, as alleged in his motion, one Sylvester Stod-
dard, who had been sworn as a witness on the part of government, and
who had testified to the jury, had been convicted of the crime of larceny,
in a court having jurisdiction of the offence within the State of New
York ; whereby, as is alleged, he was rendered infamous, and for that
reason his testimony could not be received in a court of justice in this
Commonwealth. A copy of the record of that conviction has been pro-
duced in support of the motion ; and sufficient evidence has been given
to satisfy the court, for the purpose of sustaining this motion, that the
Sylvester Stoddard, who was sworn and examined on the trial of the
prisoner, was the subject of that conviction. It appeared also that
judgment was rendered upon that conviction, and was executed upon
the convict, within the public prison of the State of New York.
It has been argued by the attorney and solicitor-general that by law
a new trial cannot be granted of a capital felony ; and it appears by
the English text-books, and by several decisions cited in support of the
position, that in cases of felony, a new trial is not usually allowed by
the courts of that country. But whatever reasons may exist in that
' " A like decision was made in Low's case, about A. D. 1783. In neither case was
there any notice to the party injured." 6 Dane Abr. 732. — Ed.
2 Part of the opinion only is given. — Ed.
SKCT. I.] COMMONWEALTH V, GREEN. 969
country for this practice, we are unable to discern any sufficient ground
for adopting it here.
That a prisoner, who has been tried for a felony, and acquitted,
should not be subjected to a second trial for the same offence, seems
consistent with the humane principles of the common law, in relation to
those whose lives have been once put in jeopardy. But the same hu-
mane principles would appear to require that after a conviction, a pris-
oner should be indulged with another opportunity to save his life, if
anything had occurred upon the trial which rendered doubtful the jus-
tice or legality of his conviction. Nemo bis debet vexari jpro una et
eddem causa is a maxim of justice, as well as of humanity ; and was
established for the protection of the subject against the oppressions of
government. But it does not seem a legitimate consequence of this
maxim that one who has been illegally convicted should be prevented
from having a second inquiry into his ofEence ; that he may be ac-
quitted, if the law and the evidence will justify an acquittal.
It is true that, in England, the utmost caution is used on capital
trials in favor of life ; and if an irregularity materially affecting the
trial occurs to the injury of the accused, the court usually represents
such matter to the crown, and a pardon is generally granted. But it is
the right of every subject of that country, and of every citizen of this,
to have a fair and legal trial before his peers, the jury ; and it is hardly
consistent with that right, that it should be left to the will or discretion
of the judge whether a representation of an actual irregularity shall
be made to the pardoning power ; or to the discretion of the latter,
whether that power shall be exercised in favor of a person unlawfully
convicted.
Where the error appears of record, in either country, the court will
arrest the judgment after a verdict of guilty ; and the party may be
again indicted and tried for the same offence. If the error does not
appear of record, but arises from inadvertency of the judge, in reject-
ing or admitting evidence, or from misbehavior of the jury, or other
cause which would be good ground for a new trial in civil actions or
misdemeanors, justice and consistency of principle would seem to de-
mand that the person convicted should, upon his own motion, have
another trial ; instead of being obliged to rely upon the disposition of
the court to recommend a pardon, or of the executive power to grant
it. It is not enough, that the life of the accused will generally be safe
,in the hands of such highly responsible public agents. The right of
the subject to be tried by his peers, according to the forms, as well as
principles, of law, is the only certain security that " at all times and
under all circumstances " that protection which the constitution extends
to all will be effectually enjoyed.
Nor is it for the public safety and interest that new trials should be
refused in such cases. For it must be obvious that in most cases of
irregularity which would be a good cause for another trial if in the
power of the court to grant it, a pardon, upon the representation of the
970 COMMONWEALTH V. LOUD. [CHAP. XVI.
court, would be thought to follow of course ; and thus, in many cases,
public justice might be prevented on account of defect in form, or some
irregularity not affecting the merits of the case, which mischief might
be avoided by another trial.
For these reasons we think there is a power in this court to grant a
new trial on the motion of one convicted of capital offence, sufficient
cause being shown therefor ; notwithstanding the English courts are
supposed not to exercise such authority ; and if this opinion needs sup-
port, the case of John Fries, who, after conviction of treason, was tried
a second time, and the case in South Carolina, cited at the bar from
Bay's reports, are sufHcient for this purpose. In the case of the United
States V. Fries, Mr. Eawle, the district attorney, admitted the power of
the court to grant a new trial, and argued only against the propriety of
exercising the power in that case. Judge Iredell expressly admitted
the power ; and Judge Peters, who was against a new trial, although he
yielded to the Circuit Judge, did not deny the authority of the court
to grant it. In a late case also, in New York, The People v. Goodwin,
which was a case of felony, it was decided that the cause might be
taken from the jury, and a new trial ordered.
COMMONWEALTH v. LOUD.
SuPBEME Judicial Court of Massachusetts. 1841.
[Beported 3 Met. 328.]
The defendant was tried in the Court of Common Pleas, before
"Warren, J., on an indictment found at April term, 1841, charging him
with feloniously stealing, &c., certain lumber. After the testimony
against him had been introduced, and the judge had instructed the jury
that the testimony, if believed by them, proved a larceny, the defendant
proposed to prove a prior conviction of the same offence, as a bar to
this indictment; and offered, for that purpose, a record of certain pro-
ceedings before a justice of the peace in and for this county. On
inspecting that record, it appeared that L. H. Loud, in January, 1841,
presented a complaint to said Justice, in which he alleged that on the
10th of August, 1840, certain lumber (admitted to be the same that
was described in the indictment) was feloniously taken, stolen, and car-
ried away, and that the complainant had probable cause to suspect, and
did suspect, that the defendant did feloniously take, steal and carry
away the same ; that the said justice thereupon issued a warrant against
the defendant, on which the defendant was carried before the justice
and arraigned ; that the defendant pleaded that he was not guilty, and
that after a full hearing the justice found him guilty, and imposed ou
him a fine of ten dollars with costs of prosecution.
It was proved or admitted that the defendant paid the said fine and
costs.
SECT. I.] COMMONWEALTH V. LOUD, 971
The judge ruled that said proceedings did not constitute a bar to
this prosecution, and the jury found the defendant guilty. To this
ruling the defendant excepted.
PoTNAM, J. This case comes before us ou exceptions to the ruling
of the Court of Common Pleas, and we decide it on the last which ap-
pears to be made, namely, that the defendant offered to prove the record
and proceedings of a prior conviction for the same offence, before a
justice of the peace, as a bar, but that the court ruled that the same
did not constitute a bar to this prosecution. And the attorney-general
admits that this case is to be taken and considered by the court as if
that plea had been formally made with proper averments; that the
larceny of which the defendant was convicted was of the same prop-
erty for the stealing of which he has been again indicted and con-
victed ; and that the defendant submitted to the former judgment, and
performed the sentence. But it is contended for the Commonwealth,
that the supposed former conviction was not only erroneous, but was
merely void.
In the case of Commonwealth v. Phillips, 16 Pick. 211, it was held
that a conviction, on a complaint in similar form to that which was
used in the case at bar, was erroneous ; and the judgment was arrested.
The defendant excepted to that judgment, as he well might. • But
in the case at bar, the defendant waived any exception to the judg-
ment, complaint, proceedings, or sentence ; and he has performed the
sentence.
The Commonwealth now desire to have those proceedings held for
nothing, so that, by an indictment in technical and legal form, the de-
fendant may be again tried and punished for the same offence of which
he has been informally convicted. We cannot think that those proceed-
ings before the magistrate were merely void. On the contrary, it is
reasonable to believe that the complainant intended to prosecute for a
larceny. The defendant understood it so, and so did the magistrate.
Now the judgment that the defendant was guilty, although upon pro-
ceedings which were erroneous, is good until the same be reversed.
This rule of criminal law is well settled. It was the right and privi-
lege of the defendant to bring a writ of error, and reverse that judg-
ment ; which writ would have been sustained by the case before cited
of Commonwealth v. Phillips ; but he might well waive the error and
submit to and perform the judgment and sentence, without danger of
being subjected to another conviction and punishment for the same
offence. Vaux's case, 4 Co. 45 ; 2 Hale P. C. 251 ; 2 Hawk. c. 36, § 10,
et seq.; 1 Stark. Crim. PL (2d ed.) 329, 330.
The evidence which was offered, we think, constituted a good defence
to the indictment. The bill of exceptions is sustained. Therefore the
verdict should be set aside, and the defendant should go thereof dis-
charged, without day.
972 UNITED STATES V. BALL. [CHAP. XVL
UNITED STATES v. BALL.
StiPEEME Court op the United States. 1896.
[Reported 163 U. S. 662.]
Gray, J.* At October term, 1889, of the Circuit Court of the
United States for the Eastern District of Texas, the grand jury re-
turned an indictment against Millard Fillmore Ball, John C. Ball and
Robert E. BoutweU, for the murder of William T. Box, alleging that
the defendants, being white men and not Indians, on June 26, 1889, in
Pickens county, in the Chickasaw Nation, in the Indian Territory, did
unlawfully and feloniously, and with their malice aforethought, and
with a deadly weapon, to wit, a gun, held in their hands, and loaded
and charged with gunpowder and leaden balls, make an assault upon
the body of William T. Box, and " did shoot off and discharge the con-
tents of said gun in an^ upon the body of said William T. Box, in-
flicting thereon ten mortal wounds, of which mortal wounds the said
William T. Box did languish, and languishing did die."
Upon that indictment, the three defendants were arraigned, and
pleaded not guilty, and were tried together upon the issues so joined.
The trial began on Wednesday, October 30, 1889, and proceeded from
day to day until Saturday, November 2, when the jury retired to con-
sider of their verdict, and no verdict having been returned at the usual
hour of adjournment, the court was kept open to receive the verdict.
On Sunday, November 3, 1889, the jury returned a verdict as follows :
" We, the jury, find the defendants J. C. Ball and R. E. Boutwelt
guilty, as charged in this indictment ; and we find M. Fillmore Ball
not guilty." The court, on the same day, made the following order :
" It is therefore considered by the court that the defendants J. C. Ball
and R. E. Boutwell are guilty, as charged in the indictment herein,
and as found by the jury ; and it is ordered that they be remanded to
the custody of the marshal, and be by him committed to the county
jail of Lamar county, to await the judgment and sentence of the court.
It is further ordered that the defendant M. F. Ball be discharged and
go hence without day."
Afterwards, at the same term, John C. Ball and Robert E. Bout-
well were adjudged guilty and sentenced to death, and sued out a writ
of error from this court ; and in the assignment of errors filed by them
in the Circuit Court, (as appears by the record transmitted to this
court in that case,) specified among other things, " because no legal
indictment was returned into court against respondents," in that the
indictment on which they were tried " nowhere alleges when and where
said William T. Box died; " and " for the errors stated and apparent
1 Only so much of the opinion as discusses the question of former jeopardy is given.
— Ed.
SECT. I.] UNITED STATES V. BALL. 973
upon the record therein, respondents pray that the judgment be re-
versed, and the cause remanded for a new trial." And the brief then
filed in their behalf concluded by submitting that the judgment ought
to be reversed, and the indictment dismissed.
Upon that writ of error, this court, at October term, 1890, held that
that indictment, although sufficiently charging an assault, yet, by rea-
son of failing to aver either the time or the place of the death of Box,
was fatally defective, and would not support a sentence for murder ;
and therefore reversed the judgments against John C. Ball and Robert
E. Boutwell, and remanded the case with directions to quash the in-
dictment, and to take such further proceedings in relation to them as
to justice might appertain. Ball v. United States, 140 U. S. 118, 136.
At April term, 1891, of the Circuit Court, that indictment was dis-
missed; and the grand jury returned against all three defendants a
new indictment, (being the one now before the court, ) like the former
one, except that, after charging the assault, with malice aforethought,
and with a loaded gun, upon Box on June 26, 1889, in Pickens county
in the Indian Territory, it went on to charge that the three' defendants
' ' did then and there shoot off and discharge the contents of said gun
at, in and upon the body of said William T. Box, inflicting thereon a
mortal wound, of which mortal wound the said "William T. Box did
languish, and languishing did then and there instantly die, and did
then and there die within a year and a day after the infliction of the
said mortal wound as aforesaid."
To this indictment the defendant Millard F. Ball filed a plea of
former jeopardy and former acquittal, relying upon the trial, the ver-
dict of acquittal, and the order of the court for his discharge, upon the
former indictment ; a certified copy of the record of the proceedings
upon which was annexed to and made part of his plea.
The defendants John C. Ball and Boutwell filed a plea of former
jeopardy, by reason of their trial and conviction upon the former in-
dictment, and of the dismissal of that indictment.
Both those pleas were overruled by the court, and the three defend-
ants then severally pleaded not guilty.
At the trial, it appeared that William T. Box was killed on June 26,
1889 ; the defendants offered in evidence the record of the proceedings
upon the former indictment ; and it was admitted by all parties that
the offence charged in the former indictment and that charged in the
present indictment was one and the same transaction and offence, to
wit, the killing of Box by the three defendants ; that the defendants in
the two indictments were the same persons ; and that no writ of error
was ever sued out upon the judgment or order entered upon the former
indictment as to Millard F. Ball.
The Circuit Court, among otber instructions, instructed the jury to
find against both pleas of former jeopardy, because this court had de-
cided that the former indictment was insufficient as an indictment for
murder. The jury returned a verdict of guilty of murder against all
974 UNITED STATES V. BAIL. [OHAP. XVI.
three defendants ; each of them was adjudged guilty accordingly, and
sentenced to death ; and thereupon they sued out this writ of error.
The first matter to be considered is the effect of the acquittal of
Millard F. Ball by the jury upon the trial of the former indictment.
In England, an acquittal upon an indictment so defective that, if it
had been objected to at the trial, or by motion in arrest of judgment, or
by writ of error, it would not have supported any conviction or sentence,
has generally been considered as insufficient to support a plea of former
acquittal. 2 Hale P. C. 248, 394 ; 2 Hawk. P. C. c. 35, § 8 ; 1 Stark.
Crim. PI. (2d ed.) 320 ; 1 Chit. Crim. Law, 458 ; Archb. Crim. PI. &
Ev. (19th ed.) 143 ; 1 Russell on Crimes (6th ed.), 48. And the gen-
eral tendency of opinion in this country has been to the same effect.
3 Greenl. Ev. § 35 ; 1 Bishop's Crim. Law, § 1021, and cases there
cited.
The foundation of that doctrine is Vaux's case, 4 Rep. 44, in which
William Vaux, being duly indicted for the murder of Nicholas Ridley
by persuading him to dyink a poisoned potion, pleaded a former ac-
quittal, the' record of which set forth a similar indictment alleging that
Ridley, not knowing that the potion was poisoned, but conflding in the
persuasion of Vaux, took and drank (without saying " took and drank
said potion ") ; a plea of not guilty ; a special verdict, finding that
Ridley was killed by taking the poison, and that Vaux was not present
when he took it ; and a judgment rendered thereon that the poisoning
of Ridley and persuading him to take the poison, as found by the ver-
dict, was not murder, and that the defendant go without day — eat sine
die. Upon a hearing on the plea of autrefois acquit, the Court of
Queen's Bench was of opinion that Vaux was a principal, although not
present when Ridley took the poison ; but that the indictment was in-
sufficient, for not expressly alleging that Ridley drank the poison ; and
that " because the indictment in this case was insufficient, for this rea-
son he was not legitimo modo acquietatus," " nor was the life of the
party, in the judgment of the law, ever in jeopardy."
Yet the decision in Vaux's case was treated, both by Lord Coke and
by Lord Hale, as maintainable only upon the ground that the jtidgment
upon the first indictment was quod eat sine die, which might be given
as well for the insufficiency of the indictment, as for the defendant's
not being guilty of the offence ; and Lord Hale was clearly of opinion
that a judgment quod eat inde quietus could not go to the insufficiency
of the indictment, but must go to the matter of the verdict, and would be
a perpetual discharge. 3 Inst. 214 ; 2 Hale P. C. 394, 395. And Mr.
Starkie has observed : " The doctrine expounded in this case does not
appear to consist with the general principle on which the plea of autre-
fois acquit is said to depend, since an acquittal upon a special verdict
would leave the defendant exposed to a second prosecution, whenever
a formal flaw could be detected in the first indictment at any subse-
quent period." 1 Stark. Crim. PI. 320, note.
In the leading American case of People v. Barrett, 1 Johns. 66,
SECT. I.J UNITED STATES V. BALL. 975
while a majority of the court, consisting of Chief Justice Kent and
Justices Thompson and Spencer, followed the English authorities. Jus-
tices Livingston and Tompkins strongly dissented, and their reasons
were fully stated by Mr. Justice Livingston, who, after distinguishing
cases in which upon the first trial there had been no general verdict of
acquittal by the jury, but only a special verdict, upon which the cour^t
had discharged the defendant, as well as cases in which the defendant
himself had suggested the imperfection in the first indictment, and
thereupon obtained judgment in his favor, said : " These defendants
have availed themselves of no such imperfection, if any there were,
nor has any judgment to that effect been pronounced. This case, in
short, presents the novel and unheard of spectacle, of a public oflacer,
whose business it was to frame a correct bill, openly alleging his own
inaccuracy or neglect, as a reason for a second trial, when it is not
pretended that the merits were not fairly in issue on the first. That a
party shall be deprived of the benefit of an acquittal by a jury, on a
suggestion of this kind, coming too from ths oflScer who drew the in-
dictment, seems not to comport with that universal and humane prin-
ciple of criminal law, ' that no man shall be brought into danger more
than once for the same offence.' It is very like permitting a party to
take advantage of his own wrong. If this practice be tolerated, when
are trials of the accused to end ? If a conviction take place, whether
an indictment be good, or otherwise, it is ten to one that judgment
passes ; for, if he read the bill, it is not probable he will have penetra-
tion enough to discern its defects. His counsel, if any be assigned to
him, will be content with hearing the substance of the charge without
looking farther ; and the court will hardly, of its own accord, think it
a duty to examine the indictment to detect errors in it. Many hun-
dreds, perhaps, are now in the state prison on erroneous indictments,
who, however, have been fairly tried on the merits. But reverse the
case, and suppose an acquittal to take place, the prosecutor, if he be
dissatisfied and bent on conviction, has nothing to do but to tell the
court that his own indictment was good for nothing ; that it has no
venue, or is deficient in other particulars, and that, therefore, he has a
right to a second chance of convicting the prisoner, and so on, toties
quoties." 1 Johns. 74.
In Commonwealth v. Purchase, 2 Pick. 521, 526, Chief Justice
Parker, speaking of the doctrine which allows a man to be tried again
after being acquitted on an indictment substantially bad, said that
" ingenuity has suggested that he never was in [^jeopardy, because it is
to be presumed that the court will discover the defect in time to pre-
vent judgment ; " but that this " is bottomed upon an assumed infalli-
bility of the courts, which is not admitted in any other case."
In the Revised Statutes of Massachusetts of 1836, c.*123, §§ 4, 5,
provisions were inserted, which, as the commissioners who reported
them said, were ' ' intended to define and determine, as far as may be,
the cases in which a former acquittal shall, or shall not, be a bar to a
976 UNITED STATES V. BALL. [CHAP. XVL
subsequent prosecution for the same offence ; '' and were as follows :
' ' No person shall be held to answer on a second indictment, for any
offence of which he has been acquitted by the jury upon the facts and
merits, on a former trial ; but such acquittal may be pleaded by him in
bar of any subsequent prosecution for the same offence, notwithstand-
ing any defect in the form or in the substance of the indictment on
which he was acquitted. If any person, who is indicted for an offence,
shall on his trial be acquitted upon the ground of a variance between
the indictment and the proof, or upon any exception to the form or to
the substance of the indictment, he may be arraigned again on a new
indictment, and may be tried and convicted for the same offence, not-
withstanding such former acquittal." Similar statutes have been passed
in other States. 1 Lead. Crim. Cas. (2d ed.) 632.
The American decisions in which the English doctrine has been fol-
lowed have been based upon the English authorities, with nothing added
by way of reasoning.
After the full consideration which the importance of the question
demands, that doctrine appears to us to be unsatisfactory in the
grounds on which it proceeds, as well as unjust in its operation
upon those accused of crime ; and the question being now for the
first time presented to this court, we are unable to resist the con-
clusion that a general verdict of acquittal upon the issue of not
guilty to an indictment undertaking to charge murder, and not ob-
jected to before the verdict as insuflScient in that respect, is a bar to a
second indictment for the same killing.
The Constitution of the United States, in the Fifth Amendment, de-
clares, " nor shall any person be subject to be twice put in jeopardy of
life or limb." The prohibition is not against being twice punished, but
against being twice put in jeopardy ; and the accused, whether convicted
or acquitted, is equally put in jeopardy at the first trial. An acquittal
before a court having no jurisdiction is, of course, like all the proceeld-
ings in the case, absolutely void, and therefore no bar to subsequent
indictment and trial in a court which has jurisdiction of the offence.
Commonwealth v. Peters, 12 Met. 387 ; 2 Hawk. P. C. c. 35, § 3 •
1 Bishop's Crim. Law, § 1028. But although the indictment was fatally
defective, yet, if the court had jurisdiction of the cause and of the
party, its judgment is not void, but only voidable by writ of error;
and, until so avoided, cannot be collaterally impeached. If the judg-
ment is upon a verdict of guilty, and unreversed, it stands good, and
warrants the punishment of the defendant accordingly, and he could
not be discharged by a writ of habeas corpus. Ex parte Parks, 93
U. S. 18. If the judgment is upon an acquittal, the defendant, indeed,
will not seek to have it reversed; and the government cannot. United
States u Sanges, 144 U. S. 310. But the fact that the judgment of a
court having jurisdiction of the case is practically final affords no
reason for allowing its validity and conclusiveness to be impugned in
' another case.
SECT. I.] UNITED STATES V. BALL. 977
The former indictment set forth a charge of murder, although lacking
the requisite fulness and precision. The verdict of the jury, after a
trial upon the issue of guilty or not guilty, acquitted Millard F. Ball of
the whole charge, of murder, as well as of any less offence included
therein. Eev. Stat., § 1035. That he was thereupon discharged by
the Circuit Court by reason of his acquittal by the jury, and not
by reason of any insufficiency in the indictment, is clearly shown by
the fact that the court, by the same order which discharged him, com-
mitted the other defendants, found guilty by the same verdict, to
custody to await sentence, and afterwards adjudged them guilty and
sentenced them to death upon that indictment. Millard F. Ball's
acquittal by the verdict of the jury could not be deprived of its legiti-
mate effect by the subsequent reversal by this court of the judgment
against the other defendants upon the writ of error sued out by them
only.
It is true that the verdict finding John C. Ball and Robert E. Bout-
well guilty as charged in the indictment, and finding Millard F. Ball
not guilty, was returned on Sunday ; as well as that the order there-
upon made by the court, by which it was considered that the first two
defendants were guilty as charged in the indictment and found by the
jury, and be remanded to custody to await the judgment and sentence
of the court, and that Millard F. Ball be discharged and go without
day, was made on the same day. That order, indeed, as already ad-
judged by this court, could not have effect as a judgment against the
two defendants who had been convicted, because no judgment can
lawfully be entered on Sunday. Ball v. United States, 140 U. S. 118,
131; 3 Bl. Com. 277. But when a case is committed to the jury on
Saturday, their verdict may be received and the jury discharged on
Sunday. This has been generally put upon the ground that the recep-
tion of the verdict and discharge of the jury is but a ministerial act,
involving no judicial discretion; or that it is an act of necessity; and
it certainly tends to promote the observance of the day more than
would keeping the jury together until Monday. Hoghtaling v. Ogborn,
15 Johns. 119 ; Van Eiper v. Van Riper, 1 Southard (4 N. J. Law),
156 ; Huidekpper v. Cotton, 3 Watts, 56 ; Baxter v. People, 3 Gilman,
368, 385 ; Hiller v. English, 4 Strob. 486 ; Cory v. Silcox, 5 Indiana,
370 ; Webber v. Merrill, 34 N. H. 202 ; Reid v. State, 53 Alabama,
402; Meece v. Commonwealth, 78 Kentucky, 586, 588; State w. Ford,
37 La. Ann. 443, 466.
As to the defendant who had been acquitted by the verdict duly re-
turned and received, the court could take no other action than to order
his discharge. The verdict of acquittal was final, and couid not be
reviewed, on error or otherwise, without putting him twice in jeopardy,
and thereby violating the Constitution, However it may be in Eng-
land, in this country a verdict of acquittal, although not followed by
any judgment, is a bar to a subsequent prosecution for the same of-
fence. United States v. Sanges, 144 U. S. 310; Commonwealth v.
978 BRENNAN V. THE PEOPLE. [CHAP. XVI.
Tuck, 20 Pick. 356, 365 ; West v. State, 2 Zabriskie (22 N. J. Law),
212, 231 ; 1 Lead. Crim. Cas. 532.
For these reasons, the verdict of acquittal was conclusive in favor
of Millard F. Ball ; and as to Hm the judgment must be reversed, and
judgment rendered for him upon his plea of former acquittal.
It therefore becomes unnecessary to consider any of the other ques-
tions raised at the trial which affect Millard F. Ball only ; and we pro-
ceed to consider those affecting the other defendants, John C. Ball and
Robert E. Boutwell.
Their plea of former conviction cannot be sustained, because upon a
writ of error sued out by themselves the judgment and sentence against
them were reversed, and the indictment ordered to be dismissed. How
far, if they had taken no steps to set aside the proceedings in the
former case, the verdict and sentence therein could have been held to
bar a new indictment against them need not be considered, because it
is quite clear that a defendant, who procures a judgment against him
upon an indictment to bej.set aside, may be tried anew upon the same
Indictment, or upon another indictment, for the same offence of which
he had been convicted. Hopt v. Utah, 104 U. S. 631 ; 110 U. S. 574;
114 U. S. 488; 120 U. S. 430; Eegina -y. Drury, 3 Cox Crim. Cas.
544; 8. C. 3 Car. & Kirw. 193; Commonwealth v. Gould, 12 Gray,
171. The court therefore rightly overruled their plea of former jeop-
ardy ; and cannot have prejudiced them by afterwards permitting them
to put in evidence the former conviction, and instructing the jury that
the plea was bad.
BRENNAN v. THE PEOPLE.
Supreme Court or Illinois. 1854.
[Reported 15 Illinois, 511.]
Treat, C. J.^ An indictment for the murder of Albert Story was
found against Kern Brennan, James Tewey, Michael Tewey, Martin
Ryan, and eight other persons, at the November term, 1853, of the La
Salle Circuit Court. The defendants were arraigned during the same
term, and pleaded not guilty to the indictment. The prisoners were
then put upon their trial. The jury found Kern Brennan, James Tewey,
and Michael Tewey guilty of the murder of Story. They also found
Martin Ryan guilty of manslaughter, and fixed the period of his im-
prisonment in the penitentiary at eight years. The record then recites :
' ' Thereupon come the defendants, and move for a new trial herein ;
and the' court being advised, sustains the motion, and grants a new
trial." The same defendants were again put upon their trial for the
murder of Story, at the May term, 1854. The jury found the four
1 Only so much of the case as involves the question of double jeopardy is given.
-Ed.
SECT. I.] BRENNAN V. THE PEOPLE. 979
prisoners guilty of murder, and sentence of death was passed upon
them.
Was the prisoner, Ryan, properly put upon his trial a second time
for the murder of Story? An indictment for murder embraces the
charge of manslaughter. The lesser is included in the greater accusa-
tion. On such an indictment, the jury may find the prisoner guilty of
manslaughter. And such a finding amounts to an acquittal of the
charge of murder. The finding of the inferior is necessarily a discharge
of the superior offence. Ryan was regularly put upon his trial on the
indictment, and was found guilty of manslaughter. In contemplation
of law, the jury rendered two verdicts as to him ; one acquitting him of
the murder of Story ; the other convicting him of the manslaughter of
Story. He was thus legally tried for the offence of murder and ac-
quitted. It is perfectly clear that he could not again be put in jeopardy
on the same charge, unless that acquittal was set aside at his instance-
A verdict either of acquittal or conviction is a bar to a subsequent
prosecution for the same offence, although jio judgment has been en-
tered upon it. Mount v. The State, 14 Ohio, 295 ; The State v. Nor-
vell, 2 Yerger, 24; Hunt v. The State, 25 Miss. 378. It does not
appear from the record that Ryan has ever waived the benefit of the
verdict of acquittal. It is true that he united with the other prisoners
in asking for a new trial, but that application as to him must be re-
garded as extending only to the charge upon which he was convicted.
He had no occasion for another trial, except as to the charge of man-
slaughter. Being legally acquitted of the charge of murder, he surely
did not desire that to be again investigated. It is not to be presumed
that he would voluntarily place himself in peril upon a charge, on which
he had already been tried and acquitted. Even if the court, upon his
motion, could open the whole case, the record does not show that such
a power was either invoked or exercised. The application for a new
trial did not necessarily relate to the charge upon which he was ac-
quitted. It naturally referred to the charge on which he was convicted.
Nor did the court, in terms, set aside the entire finding of the jury. It
simply granted the prisoners a new trial. The order was no broader
than the application. There were two distinct findings as to Ryan,
and, therefore, there was not the least necessity for disturbing the one
acquitting him of murder: The one might be set aside, and the other
be allowed to stand. , The verdict was not an entire thing, which should
wholly stand or fall. This view gives full effect to the order of the
court. There was still a charge upon which Ryan could be again tried.
This view of the question is sustained by adjudged cases. The case
of Campbell v. The State, 9 Yerger, 333, is strongly in point. The
prisoner was tried upon an indictment containing three counts. He
was acquitted on the first and third counts, and convicted on the
second. He entered a motion for a new trial, and the court, in sus-
taining it, set aside the entire finding of the jury. On the second trial,
he objected to being tried on the counts upon which he had been ac-
980 TKONO V. UNITED STATES. [CHAP. XVI.
quitted ; but the court ordered him to be tried on the whole indictment.
On this trial, he was acquitted on the first and second counts, and con-
victed on the third. On error, it was held that he was entitled to
judgment of acquittal upon the first and third counts, because as to
them he was legally discharged on the first trial ; and that he was
entitled to the same judgment on the second count, because as to that
he was acquitted upon the second trial. The court remarked : " It is
not necessary to determine how far a party could be held, even to an
express waiver of the benefit of a verdict of acquittal. It is enough,
that in this case he has not done so. He moved for a new trial. We
are not to suppose his application was more extensive than his neces-
sities. As he had been acquitted upon two counts, he could have no
motive to ask for another trial, except upon the one on which he was
found guilty ; and we are not to understand his application as going
further. But the record shows that the judge, in granting a new trial,
set aside the verdict. This was error ; it improperly revived the pro-
ceedings upon those counts upon which he was acquitted. But although
they were improperly revived, it was error to try the defendant a
second time upon them. Having been once tried upon all the counts
and acquitted of some of them, to try him again upon the same counts
would be putting him in jeopardy a second time for the same charge."
The same doctrine is recognized in the cases of Slaughter v. The State,
6 Humph. 410 ; Morris v. The State, 8 S. & M. 762 ; and Hunt v. The
State, 25 Miss. 378.
In the opinion of the court, Eyan was improperly tried a second time
for the murder of Story. He had previously been tried for that offence,
and his innocence legally established. The verdict of acquittal re-
mained in full force ; and he could not again be put in jeopardy on the
same charge, without the violation of an express provision of the
constitution.
The judgment as to Ryan must be reversed, and the cause will be
remanded. He may still be put upon his trial on the charge of man-
slaughter. As respects the other prisoners, the judgment must be
affirmed. Judgment affirmed.
TRONO V. UNITED STATES.
Supreme Court of the United States. 1905.
[Reported 199 U. S. 521.]
The plaintiffs in error were proceeded against in the court of first
instance of the province of Bulacan, Philippine Islands, upon a com-
plaint accusing them of causing the death of Benito Perez "• with great
cruelty and evident premeditation ... by means of blows given with
tlie butts of guns, they cooperating one with the other." In other
SECT. I.] TRONO V. UNITED STATES. 981
words, the accused were complained of as guUty of murder in the first
degree.
They were tried in the court above mentioned and were acquitted of
the crime of murder and convicted of the crime of assault, which is in-
cluded in the crime of murder charged in the complaint, and they were
therefore sentenced by the court to suffer a penalty of six months' im-
prisonment and to pay a certain sum to the heirs of Perez, with sub-
sidiary imprisonment in case of insolvency.
All three of the accused appealed to the Supreme Court of the Phil-
ippine Islands from the judgment and sentence of the trial, court. The
Supreme Court, having heard the case, reversed the judgment of the
court of first instance and convicted the accused of the crime of homi-
cide (in substance, murder in the second degree), which is included in
and is a lower degree of the crime charged in the complaint, but is a
higher degree of crime than that of which the accused were convicted
in the court below. Two of them (Angeles and Trono) were sentenced
to fourteen years, eight months and one day, and Natividad to impris-
onment for eight years and one day, and all three to the payment of
an indemnity to the heirs of the deceased.
The accused have brought the case here by writ of error to the Su-
preme Court of the Philippine Islands, for the purpose of reviewing
the judgment of that court.
Peckham, J. The plaintiffs in error seek a reversal of the judgment
in their case on the ground that the Supreme Court of the Philippine
Islands had no power to reverse the judgment of the court of first in-
stance, and then find them guilty of a higher crime than that of which
they had been convicted in that court, and of which higher crime that
court had acquitted them, and they contend that such conviction by
the Supreme Court of the Islands was a violation of the act of Con-
gress, passed July 1, 1902, 32 Stat. 691, a portion of the fifth section
of that act providing that " no person for the same offence shall be
twice put in jeopardy of punishment."
This language is to be found in connection with other language in
the same act, providing for the rights of a person accused of crime in
the Philippine Islands. The whole language is substantially taken
from the Bill of Rights set forth in the Amendments to the Constitu-
tion of the United States, omitting the provisions in regard to the
right of trial by jury and the right of the people to bear arms, and con-
taining the prohibition of the Thirteenth Amendment, and also pro-
hibiting the passage of bills of attainder and ex post facto laws.
The important question to be determined is, whether this action of
the Supreme Court of the Islands did violate the act of Congress, by
placing the accused twice in jeopardy.
The meaning of the phrase, as used in the above-mentioned act of
Congress, was before this court in Kepner v. United States, decided in
May, 1904, 195 U. S. 100, where will be found a very full discussion of
the subject. The plaintiff in error in that case had been acquitted of the
982 TEONO V. UNITED STATES. [CHAP. XVI.
crime charged against him in the court of first instance, but the Gov-
ernment, not being satisfied with the decision, appealed to the Supreme
Court, and that court reversed the judgment of acquittal and found
Kepner guilty of the crime of which the court of first instance had ac-
quitted him, and sentenced him to a term o£ imprisonment, and sus-
pended him from any public office or public trust, and deprived him
of the right of suffrage. This court, upon writ of error, held that, in
reversing upon the appeal of the Government, the judgment of the
court of first instance, and itself convicting the accused and pronounc-
ing judgment against him, the Supreme Court of the Islands violated
the provision in question, and its judgment was therefore reversed and
the prisoner discharged. It was also held that the Government had no
power to obtain a review of a judgment or decision of the trial court
acquitting an accused party, and that the phrase in question was to
be construed as the same phrase would be construed in the instru-
ment from which it was originally taken, viz., the Constitution of
the United States, and thaj; the settled and well-known meaning of the
language, as used in the Constitution, must also be taken when the
same language is used in the act of Congress, and not as it might pos-
sibly be construed with reference to Spanish law or Spanish procedure.
The difference between that case and the one now before the court
is obvious. Here the accused, while acquitted of the greater offence
charged in the complaint, were convicted of a lesser offence included in
the main charge. They appealed from the judgment of the court of first
instance and the Government had no voice in the matter of the appeal,
it simply followed them to the court to which they appealed. We re-
gard that fact as material and controlling. The difference is vital
between an attempt by the Government to review the verdict or deci-
sion of acquittal in the court of first instance and the action of the ac-
cused person in himself appealing from the judgment and asking for
its reversal, even though that judgment, while convicting him of the
lower offence, acquits him of the higher one charged in the complaint.
We may regard the question as thus presented as the same as if it
arose in one of the Federal courts in this country, where, upon an in-
dictment for a greater offence, the jury had found the accused not
guilty of that offense, but guilty of a lower one which was included in
it, and upon an appeal from that judgment by the accused a new trial
had been granted by the appellate court, and the question was whether,
upon the new trial accorded, the accused could be again tried for the .
greater offence set forth in the indictment, or must the trial be confined
to that offence of which the accused had previously been convicted,
and which conviction had, upon his own motion, been set aside and
reversed by the higher court.
This question has given rise to much diversity of opinion in the
various state courts. Many of them have held that the new trial must
be confined to the lesser offence of which the accused had been con-
victed oh the first trial, while other courts have held precisely the con-
SECT. I.j TRONO V. UNITED STATES. 983
tiary, and that upon a new trial the whole ease was open as if there
had been no former trial. Most, if not all, of these two classes of
(laaes have been cited by the respective counsel in this case and will be
found in their briefs herein. It would be unprofitable to cite and refer
to each of them in detail here. They have been carefully examined.
Tiiose cases which limit the new trial proceed upon the ground, as
stated in People v. Bowling, 84 N. Y. 478, 48,3, by Folger, Chief
Judge, as follows :
" The matter at the bottom is the constitutional provision that 'No
person shall be subject to be twice put in jeopardy for the same of-
fence' (Const, of N. Y., Art., 1, par. 6), and yet new trials are granted
in criminal cases on the motion of the accused, and if he gets a new
trial he is thus subject to be twice put in jeopardy. This is done on the
ground, that by asking for a correction of errors made on the first
trial, he does waive his constitutional protection, and does himself ask
for a new trial, though it brings him twice in jeopardy. But that
waiver, unless it be expressly of the benefit gf the verdict of acquittal,
goes no further than the accused himself extends it. His application
for a correction of the verdict is not to be taken as more extensive
than his needs. He asks a correction of so much of the judgment as
convicted him of guilt. He is not to be supposed to ask correction or
reversal of so much of it as acquitted him of offence. He, therefore,
waives his privilege as to one, and keeps it as to the other. It is upon
this principle, that where, by a verdict of guilty on one count or for
one offence, and an acquittal on or for another, there has been a par-
tial conviction on an indictment, and on writ of error there has been a
reversal of the conviction, the acquittal still stands good, and is, as to
that count or offense, a bar. As to that, the plea of autrefois acquit can
be upheld, though the plea of autrefois convict cannot be upheld as to the
offence of which the verdict was guilty. The waiver is construed to
extend only to the precise thing concerning which the relief is
sought."
But in the subsequent case of People v. Palmer, 109 N. Y. 413, 419,
"the effect of the statute of New York, known as sections 464 and 544
of the Code of Criminal Procedure, was under consideration. Those
sections enacted as follows :
" Sec. 464. The granting of a new trial places the parties in the
same position as if no trial had been had. ..."
" Sec. 544. When a new trial is ordered, it shall proceed in all re-
spects as if no trial had been had."
The statute was held valid, and that it did not violate the constitu-
tutional provision against subjecting a person to be twice put in jeop-
ardy for the same offence, as the jeopardy was incurred with the con-
sent of and as a privilege granted to the defendant upon his application.
And generally, it may be said that the cases holding that a new trial
is not limited in the manner spoken of proceed upon the ground that in
appealing from the judgment the accused necessarily appeals from the
984 TEONO V. UNITED STATES. [CHAP. XVI.
whole thereof, as well that which acquits as that which condemns;
that the judgment is one entire thing, and that as he brings up the
whole record for review he thereby waives the benefit of the provision
in question, for the purpose of attempting to gain what he thinlss is a
greater benefit, viz., a review and reversal by the higher court of the
judgment of conviction. Although the accused was, as is said, placed
in jeopardy upon the first trial, in regard not only to the offence of
which he was accused, but also in regard to the lesser grades of that
offence, yet by his own act and consent, by appealing to the higher
court to obtain a reversal of the judgment, he has thereby procured it
to be set aside, and when so set aside and reversed the judgment is
held as though it had never been. This was in substance decided in
United States v. Harding et al., tried in the United States Circuit
Court in 1846, 26 Fed. Cas. 131, before Mr. Justice Grier, then a
member of this court, and this is the ground substantially upon which
the decisions of the other courts are placed.
In Kring v. Missouri, J07 U. S. 221, it was stated by Mr. Justice
Miller, who delivered the opinion of the court, that it was admitted
that by the law of Missouri, as it stood at the time of the homicide, the
prisoner having been convicted of murder in the second degree upon an
indictment charging him with murder in the first degree, if that convic-
tion was set aside he could not again be tried for murder in the first
degree. That law was in force at the date of the homicide for which
Kring was sentenced to death, but it was subsequently, and before
his retrial, ' changed so as to deprive him of the benefit to which he
would otherwise have been entitled, and this court held that that change
was, as to him, ex post facto and void. It was also said by the court that
there was " no question of the right of the State of Missouri, either by
her fundamental law or by an ordinary act of legislation, to abolish this
rule, and that it is a valid law as to all offences committed after its en-
actment. The question here is, Does it deprive the defendant of any
right of defence which the law gave him when the act was committed
so that as to that offence it is ex post facto ? " This court answered
that question in the affirmative.
In our opinion the better doctrine is that which does not limit the
court or jury, upon a new trial, to a consideration of the question of
guilt of the lower offence of which the accused was convicted on the
first trial, but that the reversal of the judgment of conviction opens up
the whole controversy and acts upon the original judgment as if it had
never been. The accused by his own action has obtained a reversal of
the whole judgment, and we see no reason why he should not, upon a
new trial, be proceeded against as if no trial had previously taken place.
We do not agree to the view that the accused has the right to limit his
waiver as to jeopardy, when he appeals from a judgment against him.
As the judgment stands before he appeals, it is a complete bar to any
further prosecution for the offence set forth in the indictment, or of
any lesser degree thereof. No power can wrest from him the right to
SECT. I.] TRONO V. UNITEl) STATES. 985
SO use that judgment, but if he chooses to appeal from it and to ask
for its reversal he thereby waives, if successful, his right to avail him-
self of the former acquittal of the greater, offence, contained in the
judgment which he has himself procured to be reversed.
It is urged, however, that he has no power to waive such a right,
and the case of Hopt v. Utah, 110 U. S. 574, is cited as authority for
that view. We do not so regard it. This court held in that case that
in the Territory of Utah the accused was bound, by provisions of the
Utah statute, to be present at all times during the trial, and that it
was not within the power of the accused or his counsel to dispense with
such statutory requirement. But on an appeal from a judgment of
this nature there must be a waiver to some extent on the part of the
accused when he appeals from such judgment. When the first trial is
entered upon he is then put in jeopardy within the meaning of the
phrase, and yet it has been held, as late as United States v. Ball, 163
U. S. 662, 671 (and nobody now doubts it), that if the judgment of
conviction be reversed on his own appeal, he cannot avail himself of
the once-in-jeopardy provision as a bar to a new trial of the offence of
which he was convicted. And this is generally put upon the ground
that by appeal he waives his right to the plea, and asks the court to
award him a new trial, although its effect will be, if granted, that he
wiU be again tried for the offense of which he has been once convicted.
This holding shows that there can be a waiver of the defence by reason
of the action of the accused. As there is, therefore, a waiver in any
event, and the question is as to its extent (that is, how far the accused
by his own action may be deemed to have waived his right), it seems
much more rational and in better accord with the proper administra-
tion of the criminal law to hold that, by appealing, the accused waives
the right to thereafter plead once in jeopardy, when he has obtained a
reversal of the judgment, even as to that part of it which acquitted
him of the higher while convicting him of the lower oflence. When at
his own request he has obtained a new trial he must take the burden
with the benefit, and go back for a new trial of the whole case. It
does not appear to us to be a practice founded on solid reason to per-
mit such a limited waiver by an accused party, while himself asking
for a reversal of the judgment.
There is also the view to be taken that the constitutional provision
was really never intended to, and, properly construed, does not cover,
the case of a judgment under these circumstances, which has been
annulled by the court at the request of the accused, and there is,
therefore, no necessity of relying upon a waiver, because the correct
construction of the provision does not make it applicable.
A further question is made as to the power of the Supreme Court of
the Islands to reverse the judgment appealed from and itself convict
the accused on appeal. The Supreme Court, in so doing, acted within
its power of jurisdiction. It is a result of the ordinary procedure in
the courts of that country, proceeding under the act of Congress
986 SIMMONS V. UNITED STATES, [cHAP. XVI.
already referred to. See statement of the procedure in the case here-
tofore cited, Kepner v. United States, 195 U. S. 100.
The judgment of the Supreme Court of the Philippine Islands is
right, and it is Affirmed?-
SIMMONS V. UNITED STATES.
Supreme Court op the United States. 1891.
{Reported 142 U. S. 148.]
Gray, J.^ The general rule of law upon the power of the court to
discharge the jury in a criminal case before verdict, was laid down by
this court more than sixty years ago, in a case presenting the question
whether a man charged with a capital crime was entitled to be dis-
charged because the jury, Jaeing unable to agree, had been discharged,
without his consent, from, giving any verdict upon the indictment. The
court, speaking by Mr. Justice Story, said : " We are of opinion that
the facts constitute no legal bar to a future trial. The prisoner has
not been convicted or acquitted, and may again be put upon his de-
fence. We think that; in all cases of this nature, the law has invested
courts of justice with the authority to discharge a jury from giving any
verdict, whenever in their opinion, taking all the circumstances into
consideration, there is a manifest necessity for the act, or the ends of
public justice would otherwise be defeated. They are to exercise a
sound discretion on the subject; and it is impossible to define all the
circumstances which would render it proper to interfere. To be sure,
the power ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes ; and, in capital
cases especially, courts should be extremely careful how they interfere
with any of the chances of life in favor of the prisoner. But, after all,
they have the right to order the discharge ; and the security which the
public have for the faithful, sound and conscientious exercise of this
discretion rests, in this, as in other cases, upon the responsibility of
the judges, under their oaths of office." United States v. Perez, 9
Wheat. 579.
A recent decision of the Court of Queen's Bench, made upon a full
review of the English authorities, and affirmed in the Exchequer Cham-
ber, is to the same effect. Winsor v. The Queen, L. R. 1 Q. B. 289,
390 ; s. c. 6 B. & S. 143, and 7 B.. & S. 490.
There can be no condition of things in which the necessity for the
exercise of this power is more manifest, in order to prevent the defeat
of the ends of public justice, than when it is made to appear to the
1 Holmes, J., concurred in the result. FnLiEK, C. J., and Harlan, White, and
McKenna, JJ., dissented. — Ed.
2 Part of the opinion only is given ; it states the case. — Ed.
SECT. I.] VANDEKCOMB'S CASE. 987
court that, either by reason of facts existing when the jurors were
sworn, but not then disclosed or known to the court, or by reason of
outside influences brought to bear on the jury pending the trial, the
jurors or any of them are subject to such bias or prejudice as not to
stand impartial between the government and the accused. As was well
said by Mr. Justice Curtis in a case very like that now before us, " It
is an entire mistake to confound this discretionary authority of the
court, to protect one part of the tribunal from corruption or prejudice,
with the right of challenge allowed to a party. And it is, at least,
equally a mistake to suppose that, in a court of justice, either party can
have a vested right to a corrupt or prejudiced juror, who is not fit to
sit in judgment in the case." United States v. Morris, 1 Curtis C. C.
23, 37.
Pending the first trial of the present case, there was brought to the
notice of the counsel on both sides, and of the court, evidence on oath
tending to show that one of the jurors had sworn falsely on his voir dire
that he had no acquaintance with the defendant ; and it was undisputed
that a letter, since written and published in the newspapers by the
defendant's counsel, commenting upon that evidence, had been read by
that juror and by others of the jury. It needs no argument to prove
that the judge, upon receiving such information, was fully justified in
concluding that such a publication, under the peculiar circumstances
attending it, made it impossible for that jury, in considering the case,
to act with the independence and freedom on the part of each juror
requisite to a fair trial of the issue between the parties. The judge
having come to that conclusion, it was clearly within his authority to
order the jury to be discharged, and to put the defendant on trial by
another jury ; and the defendant was not thereby twice put in jeopardy,
within the meaning of the Fifth Amendment to the Constitution of the
United States.
VANDEKCOMB'S CASE.
Crown Case Reserved. 1796.
[RepoHed 2 Leach {ith ed.) 708.]
Mr. Justice Bulleb, in June Session, 1796, after stating the plead-
ings, delivered the opinion of the Judges upon this case.^ This is a
demurrer to a special plea of autrefois acquit in bar of an indictment
for a burglary with intent to commit a felony. The question raised by
this demurrer has been argued before all the Judges of England. On
that argument it was contended on behalf of the prisoners, that as the
dwelling-house in which, and the time when, the burglary is charged to
have been committed are precisely the same both in the indictment for
the burglary and stealing the goods, on which the prisoners were ac-
1 The opinion only is given ; it sufficiently states the case. — Ed.
988 vandbecomb's case. [chap. xvi.
quitted, and in the Indictment for the burglary with intent to steal the
goods, which is now depending, the offence charged in both is in con-
templation of law the same offence, and that of course the acquittal on
the former indictment is a bar to all further proceeding on the latter.
To support this proposition two cases in Kelyng's Reports were relied
on. It is quite clear that at the time the felony was committed there
was only one act done, namely, the breaking the dwelling-house. But
this fact alone will not decide this case ; for burglary is of two sorts :
first, breaking and entering a dwelling-house in the night time, and
stealing goods therein ; secondly, breaking and entering a dwelling-
house in the night time, with intent to commit a felony, although the
meditated felony be not in fact committed. The circumstance of
breaking and entering the house is common and essential to both the
species of this offence ; but it does not of itself constitute the crime in
either of them ; for it is necessary to the completion of burglary that
there should not only be a breaking and entering, but the breaking and
entering must be accompanied with a felony actually committed or
intended to be committed; and these two offences are so distinct in
their nature, that evidence of one of them wiU not support an indict-
ment for the other. In the present case, therefore, evidence of the
breaking and entering with intent to steal, was rightly held not to be
suflScient to support the indictment, charging the prisoner with having
broke and entered the house, and stolen the goods stated in the first
indictment ; and if crimes are so distinct that evidence of the one will
not support the other, it is as inconsistent with reason as it is repug-
nant to the rules of law to say that they are so far the same that an
acquittal of the one shall be a bar to a prosecution for the other. ^
These cases establish the principle that unless the first indictment
were such as the prisoner might have been convicted upon by proof of
the facts contained in the second indictment, an acquittal on the first
indictment can be no bar to the second. Now, to apply the principle
of these cases to the present case : The first indictment was for bur-
glariously breaking and entering the house of Miss Neville and stealing
the goods mentioned ; but it appeared that the prisoner broke and
entered the house with intent to steal, for in fact no larceny was com-
mitted, and therefore they could not be convicted on that indictment ;
but they have not been tried for burglariously breaking and entering
Miss Neville's house with intent to steal, which is the charge in the
present indictment, and therefore their lives have never been in jeopardy
for this offence. For this reason the Judges are all of opinion that the
plea is bad ; that there must be judgment for the prosecutor upon the
demurrer ; and that the prisoners must take their trials on the present
indictment.
1 His Lordship then examined the following authorities : Turner's case, Kelyng,
30 ; Jones and Bever's case, Kelyng, 52 ; 2 Hawk. P. C. c. S,"), sect. 3 ; Foster C. L.
361; Eex V. Pedley, 1 Leach (4th ed.), 242.
SECT. I.J KEGINA V. OALVI. 989
REX V. PLANT.
Chestkr Assizes. 1836.
[Reported 1 C.^ P. 575.]
Mdbdbr. — The prisoners were tried for the murder of Edward
Plant, a child of the female prisoner, by poisoning him. In some of
the counts of the indictment both prisoners were charged as joint prin-
cipals in the actuail murder : and in others Louisa Plant was charged
with the actual murder, the other prisoner being charged as present,
aiding and abetting.
It appeared that the two prisoners co-habited together, and that
both went towards a druggist's shop, when he gave something into her
hand, and she went into the shop and bought the poison ; and, on com-
ing out, gave something to the male prisoner. It further appeared
that the female prisoner, about a fortnight after this, took the deceased
up stairs and gave him the poison, the male prisoner being in the back-
yard of the house at the time.
Upon this indictment the female prisoner was convicted, and the
male prisoner acquitted, on the ground that he was not present with the
other prisoner at the time of the murder, and that he was on this evi-
dence an accessory before the fact.
The prisoners were again indicted ; the female prisoner as a princi-
pal in the murder, and the male prisoner as an accessory before the
fact. To this indictment the prisoner Birchenough pleaded his acquittal
on the former indictment: to this plea there was a demurrer.
Gottingham, for the prisoner Birchenough, submitted, that a person
who had been tried as a principal in a case of felony, and acquitted,
could not be tried as an accessory before the fact to the same felony,
and cited 1 Hale P. C. 626, and 2 Hale P. C. 244.
Lord Denma-N, C. J., held that the plea of former acquittal was no
bar to the present indictment, and that the prisoner Birchenough must
take his trial ; but his Lordship reserved the point for the consideration
of the Judges.
The jury on this indictment found both the prisoners guilty.
REGINA V. CALVI.
Central Criminal Court. 1857.
[Reported 10 Oox C. C. 481n.]
Antonio Db Salvi was indicted for the wilful murder of Robert
Henderson Robertson.
A plea of autrefois acquit was pleaded, to which the Crown demurred.
990 KEGINA V. CALVI.
Pollock, C. B. — We are of opinion that this is not a good plea.
The prisoner is now indicted for murder, and murder may be committed
without any intent to kill. If a man intends to maim and causes death,
and it can be made out most distinctly that he did not mean to kill,
yet if he does acts and uses means for the purpose of accomplishing
that limited object, and they are calculated to produce death and death
ensues, by the law of England that is murder, although the man did
not mean to kill. On the former occasion the prisoner was charged
with wounding with intent to kill. The jury found that he did not
intend to kUl, and there the intention was of the essence of the crime ;
that is not so in the present indictment ; it is not necessary here to
prove an intention to kill, it is only necessary to prove an intention
to inflict an injury that might be dangerous to life, and that it resulted
in death ; that is sufficient to sustain the present charge. Try this
by the very test presented to us. It is said that it is no bar to the
second indictment that a party has been acquitted on the first unless
the facts proved on the second indictment might have produced a
conviction on the first. But a party may be convicted upon an indict-
ment for murder by evidence that would have no tendency to prove
that there was any intent to kill, nay, by evidence that might clearly
show he meant to stop short of death, and even took some means
to prevent death, but if that illegal act of his produces death, that
is murder. Two authorities have been cited with reference to an
acquittal or a conviction in a police court : one of them was a case
before Mr. Justice Coltman, which turned entirely upon the particular
statute (9 Geo. 4, c. 91, s. 28) ; and as to the case in 6 Law Chronicle,,
it is evident that that proceeded upon some statute applicable to Scot-
land, or if it did not, I entirely dissent from the doctrine there laid
down. The only suggestion that raised for a moment a doubt in my
mind was to the effect that an acquittal of an assault with intent to kiU
was an acquittal both of the assault and of the intent ; but I think that
is not so. The 'acquittal of the whole offence is not an acquittal of
every part of it, it is only an acquittal of the whole. Therefore the
result of such an acquittal would only be that the acts were not done
with intent to kill, and although it was urged that under a recent Ajct
of Parliament it was competent to the jury on the previous occasion to
convict of unlawfully wounding, I am not sure if the whole record had
been before us that that would have presented any sort of answer. But
the record is not before us ; all we have is that the jury acquitted the
party of the wounding with intent to kill ; that is the only thing we have
to deal with. It appears to me, therefore, with reference to all the
authorities that have been laid before us, that the two offences are not
the same, that the plea cannot be supported, and that the prisoner must
answer over. I am authorized to state that Mr. Justice Crompton, and
Mr, Baron Watson, before whom the case came at the last Sessions,
have looked into the matter, and concur in the view now taken.
Martin, B., said he was of the same opinion. After alluding to the
SECT. I.] REGINA V. MORRIS. 901
peculiar form of the plea, -which omitted to aver the identity of the
crime now charged with that of which the prisoner had been acquitted,
and which omission in his opinion was fatal to the plea, he referred to
that portion of the argument founded upon the maxim that no man
could be tried twice for one and the same crime. That maxim pre-
sented a true criterion by which to test this question. Is the crime
here one and the same ? Now the offence for which the prisoner has
been tried was one of intent, and was therefore complete the moment
the stab was given, whereas the offence for which he was now indicted
could only be consummated by the death of the party. To the mind of
a lawyer this must be deemed conclusive against the plea.
WiLLES, J. — In order to support this plea it must be shown that the
former acquittal was an acquittal of all that state of facts which might
constitute the party a murderer. Now on comparing the two indict-
ments it was clear that the jury had not so acquitted the prisoner ; all
that was then disposed of was that he did not wound with intent to kill.
It could not be assumed that the jury negatived the wounding ; there-
fore, if the wounding, coupled with circumstances not showing an
intention to kill, might constitute murder, the prisoner ought now to be
tried for that offence, and that this might be the case was clearly shown
by the fact that persons inflicting wounds whilst engaged in the com-
mission of burglary or robbery without any intention to kill would be
guilty of murder where death ensued. In my opinion, the same matter
was not again in discussion. The demurrer must be allowed, and judg-
ment given for the Crown.
The prisoner was then given in charge both upon the indictment and
inquisition for the wilful murder of Robert Henderson Robertson. The
jury found the prisoner guilty of manslaughter.
REGINA V. MORRIS.
Ceown Case Reserved. 1867.
[Reported 10 Cox C. C. 480.]
Case reserved for the opinion of this court by Mr. Baron Pigott : —
Thomas Morris was tried before me at the Stafford Spring Assizes,
upon an indictment for the manslaughter of Timothy Lymer, by inflict-
ing bodily injuries on him on the 26th June.
It was proved, in evidence, that the prisoner had been summoned
before the magistrates at the instance of the said Timothy Lymer, for
the assaults which caused the death, and was convicted and sentenced
to imprisonment with hard labor. He underwent that punishment.
Timothy Lymer died on the 1st of September from the injuries
resulting from the above-mentioned assaults. It was contended under
sect. 45 of the 24 & 25 Vict. c. 100, that the conviction for the assaults
992 EERINA V. MOKEIS. [CHAP. XVI.
afforded a defence to the present indictment for manslaughter. See R.
V. Elrington, 9 Cox Crim. Cas. 86.
There was a substantial question raised by the evidence, whether the
manslaughter was the result of injuries inflicted by the prisoner Morris
or the prisoner Gibbons, joined in the present indictment, and whether
they were acting in concert.
I thought it desirable to let the prisoner Morris have the benefit of
either of the defences, and for that purpose to let the questions of fact
go to the jury upon the plea of not guilty, and to reserve the question
of law under the aforesaid sect. 45, for the opinion of this court.
The prisoner Gibbons was acquitted, and the prisoner Morris was
convicted.
If the court should be of opinion that a conviction for the assault at
the instance of the injured person, under sect. 45, affords a defence in
law to an indictment for manslaughter resulting from that assault, then
a plea of not guilty to be entered ; otherwise the prisoner Morris to be
called up for judgment at the next assizes. G. Pigoti.
G. Browne, for the prisoner. — The conviction cannot be sustained.
The prisoner having been convicted for the assault upon Lymer, and
undergone the imprisonment to which he was sentenced for it, was
thereby released from all further proceedings in respect thereof, though
unfortunately the assault has resulted in the death of Lymer. The 24
& 25 Vict. c. 100, s. 45, enacts that, " If any person against whom any
such complaint as in either of the last three preceding sections men-
tioned shall have been preferred by or on the behalf of the party-
aggrieved shall have obtained such certificate, or having been convicted,
shall have paid the whole amount adjudged to be paid, or shall have
suffered the imprisonment, or imprisonment with hard labor, awarded,
in every such case he shall be released from all further or other pro-
ceedings, civil or criminal, for the same cause." This enactment is
similar to one in the repealed statute (9 Geo. 4, c. 31, s. 27), upon
which, in Keg. v. Walker, 2 Moo. & Rob. 446, it was held that a con-
viction for the assault before justices was a bar to an indictment for
feloniously stabbing in respect of the same matter. And so again in
Reg. V. Elrington, 9 Cox Crim. Cas. 86, it was held that a certificate
of justices of the dismissal of a complaint for an assault might be
pleaded in bar to an indictment founded on the same facts, for doing
grievous bodily harm, and occasioning actual bodily harm. In Reg. v.
Stanton, 5 Cox Crim. Cas. 324, Erie, C. J., expressed a similar
opinion. He also referred to 1 Hawk. P. C, bk. 1, c. 13, s. 4.
[Martin, B., referred to the case of Reg. v. Salvi, 46 Central Criminal
Court Sessions Paper, 884.J
No counsel appeared for the prosecution. Cur. adv. vult.
Kelly, C. B. — In this case I have the misfortune to differ with my
learned brethren, who are of opinion that the conviction ought to be
affirmed. The prisoner was charged before the magistrates with an
SECT. I.] EEGINA V. MORRIS. 993
assault under the 24 & 25 Vict. c. 100, at the instance of the party
aggrieved, and now deceased, Timothy Lymer ; he was convicted and
sentenced to imprisonment with hard labor, and has undergone that
sentence. The assault, the unlawful act, with which he was charged,
is the same assault and one and the same act as that which caused the
death of Lymer, and of which he has been convicted under the present
indictment. I think, therefore, that the case comes within the precise
words of sect. 45 of the 24 & 25 Vict. c. 100, which provides that in
such a case " he shall be released from all further or other proceedings,
civil or criminal, for the same cause." It is true -that the offence is
now charged in other language ; that which before the magistrates was
described as an insult, Is now described as manslaughter ; but it is
one and the same act, and the cause of the prosecution before the
magistrates, and the cause of this prosecution, are one and the same
cause. The case, therefore, comes within the letter as well as the
spirit of the Act of Parliament, and I think that to sustain the convic-
tion would be directly to violate the maxinii or principle of the law
nemo debet his vexari (here we might say puniri) pro eddem causd.
Cases may, indeed, be suggested in which there might be a failure of
justice, as where an assault should have been treated lightly by a
magistrate, and upon conviction a light sentence passed, and yet
from the subsequent death of the party assaulted the offence might
amount to murder. But such a case must be rare and exceptional,
and I think we ought to presume that the magistrates will in all cases
under this or any other Act of Parliament do their duty. And as
where the charge is made at the instance of the party aggrieved, it
may also be presumed that the whole of the evidence would be fully
brought before the magistrates, and, upon conviction, an adequate
punishment inflicted accordingly, I do not think that it was the inten-
tion of the Legislature, or is consistent with natural justice, that the
accident of the subsequent death of the party should subject the accused
to a repetition of the trial and punishment. Salvi's case is clearly dis-
tinguishable. There the prisoner was indicted for the murder of one
Robertson, and pleaded a plea of autrefois acquit, the acquittal having
been on an indictment for wounding with intent to kill. It was clear
that this acquittal might have been pronounced upon the ground of the
jury having negatived the intent to kill, and yet that the prisoner might
well be guilty of the murder without an intent to kill the individual
murdered, as if he had shot at another man, but unintentionally killed
Eobertson. The plea, therefore, of autrefois acquit was in that case
properly overruled. Here, however, the prisoner has been tried, con-
victed, and punished for the very same offence in all its parts, though
under another name, as that for which he is now indicted, and again
convicted, and it seems to me that to allow this conviction to stand is .
to punish a man twice for the same cause, in violation of the before-
mentioned maxim and of the express language of the Act of Parliar
ment. I think, therefore, that the conviction ought to be quashed.
994 EEGINA V. MORRIS. [CHAP. XVI.
Maetin, B. — I am of opinion that the conviction ought to be sus-
tained. The facts are : Thomas Morris was convicted of an assault on
Timothy Lymer, and committed to prison under the 24 & 25 Vict,
c. J 00, s. 42. He hasiindergone that punishment, and Timothy Lymer,
the man assaulted, has since died In consequence of that assault.
Now, this indictment is for the manslaughter of that man ; and the
question is, whether the suffering of the imprisonment for the assault
is an answer to that indictment, and that depends on the meaning of
the words " for the same cause " in the statute. I agree with the Lord
Chief Baron that the case of Reg. v. Salvi is not expressly in point.
Salvi had been acquitted of an assault with intent to murder, but con-
victed of an assault with intent to do grievous bodily harm, and the
prosecutor having subsequently died from the assault, he was indicted
for murder ; and it was held that he might be properly so indicted, for
that murder might be committed without any intent to kill, as, for
instance, if a man, intending only to maim, caused death, that is murder.
I think that decision was correct. I should be sorry to draw a distinc-
tion between the words "for the same cause" in the plea of autrefois
acquit, on which that case was adjudicated, and the same words in the
stat. 24 & 25 Vict. c. 100, s. 45. It would be a very serious thing if
there were any distinction. The statute gives a release from all further
or other proceedings, civil or criminal ; and if a different construction
were adopted, it would follow that if an action were brought under
Lord Campbell's Act in respect of the death of the person assaulted,
the conviction and punishment for the mere assault would be a bar to
any claim for compensation. I apprehend that that cannot be so ; and
that the cause on which the justices adjudicated was not the same as
that for which the prisoner has been convicted under this indictment.
A new offence, in my opinion, arose when the man died. I therefore
think that this conviction was right.
Byles, J. — I am of opinion that the prior conviction for the assault
under the 24 & 25 Vict. c. 100, s. 45, affords no defence to the subse-
quent indictment for manslaughter, the death of the deceased having
occurred after the conviction, but being a consequence of the assault.
The form and intention of the common law pleas of autrefois convict
and autrefois acquit show that they apply only where there has been a
former judicial decision on the same accusation in substance, and where
the question in dispute has been already decided. There has, in the
present case, been no judicial decision on the same accusation, and the
whole question now in dispute could not have been decided, for at
the time of the hearing before the magistrates whether the assault
would amount to culpable homicide or not depended on the then future
contingency whether it would cause death. The case of Reg. ?). Salvi,
if not precisely in point, is nevertheless a strong authority for this view
of the law. But reliance is placed on the words of the statute 24 & 25
Vict. c. 100, s. 45, " for the same cause." It is to be observed that
that statute does not say for the same act, but " for the same cause."
SECT. I.] COMMONWEALTH V. EGBY. 995
The word " cause " may undoubtedly mean " act," but it is ambiguous,
and it may also, and perhaps with greater propriety, be held to mean
"cause for the accusation." The cause for the present indictment
comprehends more than the cause in the former summons before the
magistrates, for it comprehends the death of the party assaulted. It is
therefore, at least in one sense, not the same cause. But if these obser-
vations on the meaning of the word " cause," as used in the statute,
should appear to savour too much of refinement, and to be used in
support of a forced construction, it must be remembered that it is a
sound rule to construe a statute in conformity with the common law
rather than against it, except where or so far as the statute is plainly
intended to alter the course of the common law. An additional reason
in this case for following the common law is the mischief which would
result from a different construction. My brother Martin has already
illustrated the mischief in civU eases by a reference to Lord Campbell's
!A.ct, and in criminal cases the mischiefs might be much greater. A
murderer, for example, by suffering or obtaining a previous conviction
for an assault, might escape the due punishment of his crime.
Ejeating, J., and Shbb, J., concurred. Conviction affirmed.
COMMONWEALTH v. ROBY.
Supreme Judicial Court of Massachusetts. 1832.
[Reported 12 Pick. 496.]
The defendant was indicted for the murder of Maria Leonard, He
pleaded a special plea in bar, in which he alleged that he had previously
been convicted, sentenced and committed for a felonious assault upon
the said Leonard with intent to murder her, which is the same offense.-'
Shaw, C. J. We are all of opinion, that the facts constituting the
felony and murder charged in the indictment now pending, would not
have been competent evidence to warrant a conviction of the offence
charged in the indictment in the Municipal Court. That offence was a
misdemeanor, to wit, an assault, charged to have been committed with
a felonious intent to murder. The offences are distinct in their nature,
of a distinct legal character, and in no case could a party on trial for
the one be convicted of the Other.
The indictment for murder necessarily charges the fact of killing, as
the essential and most material fact, which gives its legal character to
the offence. If the party assaulted, after a felonious assault, dies
within the year and day, the same act, which till the death was an
assault and misdemeanor only, though aggravated, is by that event
shown to have been a moi-tal wound. The event, strictly speaking,
does not change the character of the act, but it relates back to the time
1 This statement of facts is substituted for that of the reporter. Part of the opin-
ion is omitted. — Ed.
996 COMMONWEALTH V. KOBY. [CHAP. XVI.
of the assault, and the same act, which might be a felonious assault
only, had the party not died, is in truth shown by that event to have
been a mortal wound, and the crime, which would otherwise have been
an aggravated misdemeanor, is thus shown to be a capital felony.
The facts are essentially different, and the legal character of the crime
essentially different. . . .
If on an indictment for a felony there cannot be a conviction for a
misdemeanor, it seems to be a necessary inference, that on an indict-
ment for a misdemeanor, if the evidence be such as to prove a felony
actually committed, the prisoner must be acquitted of the misdemeanor,
in order to being indicted for the felony.
This construction is strongly corroborated by considering the effect
of a pardon.
It was stated at the bar, in the course of the argument, that inas-
much as an assault is a necessary ingredient in the crime of murder,
a pardon of an assault would by necessary consequence operate as a
pardon of the murder, f he argument is certainly countenanced by a
passage in Lord Hale. " If a man give another a mortal stroke, and
he dies thereof within a year and a day, but mesne between the stroke
and the death there comes a general pardon, whereby all misdemeanors
are pardoned, this doth pardon the felony consequentially, because the
act, that is the offence, is pardoned, though it be not a felony till the
party die ; " 1 Hale's P. C. 425 ; for which Cole's case is cited from
Plowden. If such would be the effect of a pardon, it would go far to
support the argument in favor of the plea in bar ; for it is difficult to
perceive any substantial distinction between a former acquittal or
former conviction and a pardon. Each effectually secures the party
charged from further prosecution. But we are satisfied, from the most
careful examination of the question, that such would not be the effect
of a pardon. This subject is fully considered in Foster's Crown Law,
an authority of the highest character in questions of this nature.
Case of Nicholas, Foster's Cr. L. 64. The prisoner was indicted for
petty treason. It was argued in his behalf, that he was entitled to the
benefit of the act of general pardon passed at the last session, which
took effect after the poison was administered, but before death ensued.
It was admitted that wilful murder and petty treason were excepted,
but it was insisted that until the death ensued, which was after the act
of pardon took effect, the offence could be considered in no other light
than a high misdemeanor, and the pardon operated upon it in that
light ; and consequently the homicide, which was but the consequence
of the offence pardoned, was likewise pardoned ; and the above passage
from Lord Hale was relied upon. To this it was answered by the
recorder, that Hale, in this passage, grounds himself singly on the
authority of Cole's case ; and then the recorder proceeds to show that
Cole's case, as reported, does not warrant the rule in the latitude con-
tended for. The case is examined at length. The doubt was, whether
the act could operate so as to pardon a felony which was not completed,
SECT. I.] WEMYSS V. HOPKINS. 997
the death not having happened when the act went into operation. But
the Effect of the decision of the court was, that the felony having had
its commencement, before the pardon took place, and that species pf
felony, that is, manslaughter, being pardoned by the act, the prisoner
was entitled to the benefit of the pardon, though the felony was not
completed, by the death of the party, till after the act ; and the pardon
should operate in favor of the prisoner, in the same manner as it would
have done if the felony had been complete, and in no other manner.
And in the principal case (Nicholas's) it was therefore held, that the
pardon of misdemeanors, though at the time when the act took effect
the offence committed was a high misdemeanor only, did not so operate
as to pardon the felony, and the prisoner was convicted and executed.
It proceeds manifestly on the ground, that though, at the time the
pardon took effect, the only offence with which the prisoner was charge-
able was the felonious assault, the death not having ensued, and if so,
was pardoned by force of the general act, by a subsequent event not
caused by any further agency of the prisoner, ^he crime was not changed
from trespass to felony, but was shown to have been a felony from the
time of the mortal wound given, and so not included in the pardon.
This renders it manifest that they are distinct offences, in fact and in
law ; the one pardoned being within the terms of the act, and the other
not so, being excepted.
WEMYSS V. HOPKINS.
, Queen's Bench. 1875.
\RepoHed L. R. 10 Q. B. 378.]
Case stated by justices of Cardiganshire under 20 & 21 Vict. c. 43.
At the petty sessions at Aberystwith, on the 26th of June, 1872, a
complaint was preferred by the superintendent of police against the
appellant, under 5 & 6 "Wm. 4, c. 50, s. 78, for that the appellant,
on the 15th of June, 1872, being the driver of a certain carriage on a
certain highway, called Penpache Road, did then and there, by negli-
gence or wilful misbehavior, to wit, by striking a certain horse ridden
by the now respondent, cause certain hurt and damage to the now
respondent, passing on the highway, by causing severe bruises and
concrfssion of the hip-joint.
The appellant was convicted and fined £2.
At the petty sessions at Aberystwith, on the 7th of August, 1872,
a complaint was preferred by the respondent against thejappeUant,
under 24 & 25 Vict. c. 100, s. 42, for that the appellant did, on the
15th of June, 1872, unlawfully assault, strike, and otherwise abuse
the respondent.
The appellant was convicted and fined £1.
On the hearing of the last complaint, the justices found as a fact
998 WEMYSS V. HOPKINS. [CHAP. XTI.
that the appellant did, on the 15th of June, 1872, unlawfully and
wilfully strike and push against the horse upon which the respondent
was riding, and also against the respondent herself, and caused her to
fall from the horse to the ground, whereby she sustained a concussion
of the hip- joint.
It was contended on behalf of the appellant that, as he had been con-
victed of the complaint preferred against him on the 26th of June, he
could not be convicted again for what was the same offence
The question for the court was whether the appellant, having been
convicted on the 26th of June, 1872, under 3 & 4 Wm. 4, c. 50, upon
the complaint of the superintendent of police, could again be convicted
on the 7th of August, 1872, under 24 & 25 Vict. c. 100, s. 42, upon the
complaint of the respondent.^
Blackburn, J. I think the fact that the appellant had been con-
victed by justices under one Act of Parliament for what amounted to
an assault is a bar to a conviction under another Act of Parliament for
the same assault. The defence does not arise on a plea of autrefois
convict, but on the weU-established rule at common law that where a
person has been convicted and punished for an offence by a court of
competent jurisdiction, transit in rem judicatam ; that is, the conviction
shall be a bar to all further proceedings for the same offence, and he
shall not be punished again for the same matter ; otherwise there might
be two different punishments for the same offence. The only point
raised is whether a defence in the nature of a plea of autrefois convict
would extend to a conviction before two justices whose jurisdiction is
created by statute. I think the fact that the jurisdiction of the justices
is created by statute makes no difference. Where the conviction is by
a court of competent jurisdiction, it matters not whether the conviction
is by a summary proceeding before justices or by trial before a jury.
It is necessary in the present case to have it proved, just as in the case
of a defence upon the plea of autrefois convict, that on a former occa-
sion the appellant was charged with the same assault, although not in
the same words, yet in terms the same, and that he was then convicted
and punished. That is the substantial averment in a plea of autrefois
convict. Reg. v. Elrington, 1 B & S. 688; 31 L. J. (M. C.) 14, and the
other cases cited do not apply, for the provisions of § 28 of 9 Geo. 4,
c. 31, which have been re-enacted in .24 & 25 Viet. c. 100, s. 45, go
further than the common law, and release a person who has been con-
victed and paid the fine ; or who, being acquitted, has obtained a cer-
tificate freeing him from further proceedings, civil or criminal, for the
same cause. In this case we must rely upon the common law. It seems
that the same identical matter was brought before a competent tribunal
and the appellant was convicted and punished for it. I do not know
whether serving the punishment makes any difference ; but he was
convicted and sentenced for it, and therefore he cannot be tried again
for the same thing before another tribunal ; and the justices who con-
' Argument of counsel is omitted.
SECT. I.j STATE V. INGLES. 999
vieted the appellant a second time made a mistake, and the conviction
must be quashed.
Lush, J. I am also of opinion that the second conTiction should be
quashed upon the ground that it violated a fundamental principle of
law, that no person shall be prosecuted twice for the same offence.
The act charged agaiust the appellant on the first occasion was an
assault upon the respondent while she was riding a horse on the high-
way, and it therefore became an offence for which the appellant might
be punished under either of two statutes. The appelant was prosecuted
for the assault, and convicted under one of the statutes, 3 & 4 Wm. 4,
c. 50, s. 78, and fined, and be therefore cannot be afterwards convicted
again for the same act under the other statute.
Field, J. I am of the same opinion. The case seems to fall within
the principle enunciated in the text-books, particularly in Paley on
Convictions, 5th ed. p. 145, and Broom, Legal Maxims, 3d ed. p. 312 ;
and I think the circumstance that this was a conviction under a juris-
diction created by statute does not make any difference in principle.
A person cannot be twice punished for the lame cause.
Judgment for the appellant.^
STATE V. INGLES.
Superior Court op North Carolina. 1797.
[Reported 2 Haywood, 4.]
Indictment for a riot with others, and for beating and imprisoning
Edward D. Barry. The defendant pleaded that he had been heretofore
indicted in the County Court of Edgcombe for an assault and battery
on the said Barry, and thereon had been convicted and fined, which
indictment and conviction had been grounded on the same facts that
this indictment was preferred for.
Per Curiam. After argument by Baker for the State, and White
for the defendant, the truth of this plea is admitted by the demurrer.
The State cannot divide an offence consisting of several trespasses into
as many indictments as there are acts of trespass that would separately
support an indictment, and afterwards indict for the offence compounded
of them all; as, for instance, just [first?] to indict for an assault,
then for a battery, then for imprisonment, then for a riot, then for a
mayhem, &c. But upon an indictment for any of these offences the
court will enquire into the concomitant facts, and receive information
thereof, by way of aggravating the fine or punishment, and will propor-
tion the same to the nature of the offence as enhanced by all these
circumstances ; and no indictment will afterwards lie for any of these
separate facts done at the same time. This plea is a good one, and
must be allowed.
The plea was allowed, and the defendant discharged.
1 See Hankins v. People, 106 111. 628 ; cf. State v. Thornton, 37 Mo. 360.
1000 STATE V. DAMON. [CHAP. XVI.
STATE V. DAMON.
Supreme Court of Judicature of Vermont. 1803.
[Reported 2 Tyler, 387.]
CuRiA.^ It appears that the defendant wounded two persons, in the
same affray, at the same instant of time, and with the same stroke. On
a regular complaint made, he has been convicted before a court of com-
petent jurisdiction, for assaulting, beating, and wounding Frederick
Miller, one of those persons. He stands here indicted for assaulting,
beating, and wounding Elias Doty, the other of those persons ; and the
defendant pleads in bar the former conviction, which he alleges to have
been for the same offence. The only question is whether the defendant
has been already legally convicted of the offence charged in the indict-
ment. Of this there can be no doubt ; for it is apparent on the record
that the assault arid battery charged in the indictment, and that of
which he was convicted by Mr. Justice Bandall, were at the same
place and in the same affray, and the wounds made by the same instru-
ment and by the same stroke.
This is not a question between either of the persons injured by the
assault and battery and their assailant ; redress has been, or may be
obtained by them by private actions ; but it is a question between
the government and its subject, and the court are clearly of opinion
that the indictment cannot be sustained. The indictment charges the
defendant with having disturbed the public peace by assaulting and
wounding one of its citizens. For this crime he shows that he has been
legally convicted by a court of competent jurisdiction. He cannot
therefore be again held to answer in this court for the same offence."
Prisoner discharged.
1 The opinion only is given ) it sufficiently states the case. — Ed.
^ The question here is: Can a person, -during the same eyening, at a hall, commit
a separate assault and battery upon each of two individuals? The evidence tends to
show that, as matter of fact simply, it was done in this case. But the appellant claims
that how many soever of assaults and batteries he may have committed during the
period of excitement at the ball, they all amounted in law to but one offence, and that
therefore the first fine inflicted for that offence, viz., that by Justice Brown, for the
assault and battery on Frank Kelly, was a bar to all subsequent prosecutions for
assault and battery committed during the period of excitement before mentioned. We
cannot concur in this view. We think appellant might be prosecuted for each sepa-
rate assault and battery. — Pekkins, J., in Greenwood «. State, 64 Ind. 250.
SECT. I.] STATE V. LEWIS. 1001
STATE V. LEWIS.
Supreme Court or North Carolina. 1822.
[Reported 2 Hawks, 98.]
Ax September term, 1821, of Pitt Superior Court, two bills of indict-
ment against the prisoner were found by the grand jury ; the one for
burglary and larceny, the other for a robbery. The larceny in the one
bill, and the robbery in the other, were for the same goods and chattels,
and there was but one taking. At the same term the prisoner was
found guilty of the larceny, and not guilty of the burglary. On this
conviction the attorney-general did not pray any judgment, nor was
any pronounced ; and, at the time of the prisoner's arraignment, no
motion was made by his counsel that the prosecuting officer should
elect on which indictment he would try the prisoner. At March term,
1822, the prisoner was brought to the bar, knd the attorney-general
directed a nol. pros, to be entered on the indictment which had been
tried at the preceding term, but the court (Norwood, J., presiding)
refused to permit the nol. pros. The attorney-general then moved to
arraign the prisoner on the indictment for robbery; this also was
refused by the court until the first indictment should be disposed of,
and on the refusal of the attorney-general to pray judgment on the first
indictment, the court quashed the indictment for robbery. On motion
of prisoner's counsel, his clergy was allowed him on the conviction for
larceny, and, on the further refusal of the attorney-general to pray judg-
ment, the prisoner was ordered to be discharged ; whereupon, in behalf
of the State, the prosecuting officer appealed to this court.
Hall, J. It is admitted in this case that both indictments are for
the same felonious taking of the same goods. The defendant is found
guilty of a grand larceny on that indictment which charges a burglary
and stealing.
The other indictment is for a robbery ; a robbery is a larceny, but of
a more aggravated kind. The first is a simple larceny. The other is
a compound or mixed larceny, because it includes in it the aggravation
of a felonious taking from the person.
Now, suppose the defendant should be tried and found guilty on the
second indictment? It must certainly follow that he had been tried
twice for the feloniously taking of the same goods. It is true, if the
first conviction is a bar to a trial on the second indictment, the prisoner
would go untried as to that which constitutes the difference between
simple larceny and mixed and compound larceny, viz., a taking from the
person. In such case he would be convicted of a felonious taking, but
not of a felonious taking from the person. Whereas, should he be tried
and convicted on both indictments, it might be said he had been con-
victed twice of a felonious taking, and once of a felonious taking from
1002 PEOPLE V. McGOWAN. fCHAP. XVI.
the person, wHch I think would be at points with the principle " that
no one should be twice put in peril for the same crime." This principle
has such deep root in the criminal law, and is cherished by so many
judicial decisions, that it is not deemed necessary to refer to any of
them.
I therefore think the conviction on the first indictment for burglary
and larceny a good plea to a trial on the second indictment for robbery.
I also think that the record of these proceedings, and the admissions of
the attorney-general were sufficient to authorize the judge below to
discharge the prisoner. And in this opinion the rest of the court
concurred.
PEOPLE V. McGOWAN.
Supreme Coukt of Jitdicature op New York. 1837.
' [Reported 17 Wend. 386.]
Error from the Albany Oyer and Terminer. The defendant was
indicted at the Albany general sessions in June, 1837, for grand larceny,
in stealing one watch of the value of $110, one watch of the value of
$65, one watch of the value of $45, one gold watch of the value of $110,
one gold watch of the value of $65, and one silver watch of the value of
$45, the property of one Alexander M'Harg. The prisoner pleaded
that at the Albany general sessions held in March, 1837, he' was in-
dicted for robbery, being charged with entering a shop, putting one
James De Forrest in bodily fear, and violently taking and feloniously
stealing one gold watch of the value of $110, one silver watch of the
value of $65, and one other silver watch of the value of $45, the prop-
erty of De Forrest ; and also with entering; the shop, putting De Forrest
in bodily fear, and violently taking and feloniously stealing one gold
watch of the value of $110, one silver watch of the value of $65, and
one other silver watch of the value of $45, the property of Alexander
M'Harg ; that he was arraigned and pleaded not guilty to the said in-
dictment; that the issue thus joined was tried at the Albany Oyer and
Terminer, in April, 1837, and that he was duly acquitted by the verdict
of a jury. The prisoner then averred his identity and the identity of
the offences charged in the two indictments, and prayed to be dis-
missed. The district attorney put in a replication, denying the identity
of the offences, and upon the issue thus joined the prisoner was tried.
The record of acquittal set forth in the plea was produced, and the
counsel for the prisoner insisted that the prisoner was entitled to a
verdict in his favor ; but the presiding judge charged the jury that to
entitle him to a verdict it was necessary that the evidence to support the
last indictment would have been sufficient to support the first indict-
ment, and that as the proof to support a charge of larceny was not
sufficient to sustain a charge of robbery, th^ offences charged in the two
SECT. I.] PEOPLE V. MCGOWAN. 1003
indictments were not the same, and consequently the acquittal on the
first indictment was no bar to a conviction on the second, and that it
was their duty to find the prisoner guilty. The jury found accordingly.
The prisoner having excepted to the charge of the judge,, sued out a
writ of error.
By the Court, Cowen, J. ;The first indictment, though for a rob-
bery, involved the question of simple larceny, of which the prisoner,
under that indictment, might have been convicted. So far therefore as
the nature of the offence is concerned, the plea was valid; the prisoner
had, within the issue, been tried and acquitted of the larceny. The rule
laid down by the Court of Sessions applied ; for the same proof would
sustain either indictment to the extent necessary for the purposes of
the plea.
In this respect no proof was necessary on the part of the prisoner.
The replication admitted the former indictment and acquittal, and took
issue only upon the identity of the offences. In such case it is well
settled that where the former indictment might have been sustained by
showing the offence charged in the second, a prima facie case is made
out for the prisoner. It then lies with the people to show, by evidence
aliunde, that the offences are substantially different in point of fact, or
to give some other answer.
In the case before us, it is said for the people that the two offences
differ in respect to the identity of property ; the former indictment
speaking of six gold and silver watches, three of which belonged to
De Forrest, and three to M'Harg ; whereas, now it is charged that all
the six, viz., three watches, and three gold and silver watches, belonged
to the latter; and that the prisoner admits by his plea that he stole
these six which belong to M'Harg. We cannot but see, however,
that the difference is mere matter of form ; and that proof might
have been received at the last trial of the same facts which would have
been sufficient to sustain the indictment upon the first. The admission
in the plea is not of every formal allegation which the counsel for the
people may choose to insert in a second indictment. It admits the
substance, which is grand larceny of some watch belonging to M'Harg,
and that is just such an offence as might have been shown upon the
first trial. There is no such substantial conflict in the indictments as
to preclude the common averment that the offences are one and the
same, and not other or different.
The replication thus admitting a former trial and acquittal upon an
indictment sustainable by the same proof which would be receivable
under the second, the prisoner was, as his counsel insisted, prima facie
entitled to a verdict. It lay with the counsel for the people to prove
their case, and then to show by further testimony that it was not the
case before presented, nor which might have been insisted upon at the
trial for the robbery.
At all events, the prisoner was entitled to go farther on his part, and
show that, in truth, the former trial was concerning a robbery, or a
1004 COMMONWEALTH V. CLAIR. [CHAP. XVL
larceny of M'Harg's watch. This would have exhibited an oflfence
covered by the last indictment, and precluded all farther inquiry con-
cerning it, until the people should reply by contradictory proof, or by
setting up, on new proof, a really distinct and untried offence. But the
ruling of the court below cut the prisoner off from all farther proof.
The whole case was thrown upon a substantial difference between the
offences involved in the two indictments, appearing on their face.
The great object in respect to that class of pleas in bar to which this
belongs is to see, in the first place, whether the former and the present
declaration or indictment are of sufficient capacity to let in the same
cause of action or offence under each. If so, the former trial is,
jiritna facie, always a bar. The parties should, however, be allowed
free scope for inquiry as to what was, in truth, the substantial matter
before litigated. If that were the same, and the case was tried upon
its merits, the decision becomes conclusive, especially in a criminal
proceeding.
The verdict at the general sessions must be set aside, and a new trial
had in that court.
COMMONWEALTH v. CLAIR.
Supreme Judicial Court of Massachusetts. 1863.
[Reported 7 Allen, 525.]
Indictment for embezzling sixteen Melton cloth overcoats, the prop-
erty of David M. Hodgdon.
At the trial in the Superior Court, before Ames, J. , the defendant
pleaded in bar a previous acquittal upon the same charge ; and it was
admitted, on the part of the Commonwealth, that the defendant had
been duly tried and acquitted on an indictment charging him with
embezzling a quantity of Melton cloth, lasting, velvet, flannel, wadding,
and other materials used in making overcoats, the property of said
Hodgdon, which had been delivered to the defendant to be made into
overcoats; and that the present indictment was for the same crime
intended to be covered by the first indictment. The principal facts
which appeared in both cases were, that Hodgdon delivered the ma-
terials to the defendant as aforesaid, and that several overcoats were
made up and returned, but the work proved unsatisfactory, and they
were redelivered for completion to the defendant, who subsequently did
the acts relied upon as proof of the embezzlement.
The judge overruled the plea in bar, and the defendant alleged
exceptions.
BiGELOw, C. J. The obvious and decisive answer to the defendant's
plea in bar of autrefois acquit is, that the first indictment charges a
different offence from that set out in the indictment on which the
defendant is now held to answer. The principle of law is well set-
SECT. I.] COMMONWEALTH V. CLAIR. 1005
tied that in order to support a plea of autrefois acquit the offences
charged in the two indictments must be identical. The test of this
identity is to ascertain whether the . defendant might have been con-
victed on the first indictment by proof of the facts alleged in the second.
The question is not whether the same facts are offered in proof to sus-
tain the second indictment as were given in evidence on the trial of the
first ; but whether the facts are so combined and charged in the two
indictments as to constitute the same offence. It is not sufficient to say,
in support of a plea of autrefois acquit, that the transaction or facts on
which the two indictments are based are the same. It is necessary to
go further, and to ascertain and determine whether they are so alleged
in the two indictments as to constitute not only the same offence in
degree or kind, but also that proof of the same facts offered to sustain
the second indictment would have well supported the first. The King
V. Vandercomb, 2 Leach (4th ed.), 708 ; Commonwealth v. Eoby, 12
Pick. 496, 500 ; Commonwealth v. Wade, 17 Pick. 400. The last case
affords an apt illustration of the practical application of the rule. The
defendant was indicted for burning a dwelling-house by setting fire to
the barn of A. and B. The evidence showed that it was the barn of A.
and C. 'This variance in the description of the offence was held to be
fatal, and the defendant was acquitted. He was subsequently indicted
for burning the same house by setting fire to the barn of A. and C. On
a plea of autrefois acquit it was held that the previous acquittal on the
first indictment was no bar. The facts offered in support of the two
indictments were the same, but different offences were charged in them.
The averment of property in the barn was material, and this fact being
alleged differently in the two indictments, they were not for the same
offence either in form or substance. So in the case at bar. The
defendant was first indicted for embezzling cloth, velvet, flannel, and
■other materials of which overcoats were made. This indictment would
not have been supported if it appeared that, at the time when the
alleged embezzlement was committed by the defendant, these articles
no longer existed separately, but had been used and converted into gar-
ments properly called and known as overcoats. There would have been
in such case a material variance in the description of the articles embez-
zled ; the evidence would not have corresponded with the allegation in
the indictment of embezzling cloth and other materials, and the defend-
ant would have been rightly acquitted on that ground. It is common
learning that in indictments for larceny, embezzlement, and kindred
offences, the description of the property which forms the subject of the
offence must be proved as laid. A person indicted for stealing shoes
cannot be convicted by proof that he had stolen boots ; nor is an indict-
ment for stealing a sheep, which by legal implication avers that the
animal was alive when stolen, supported by evidence that it was in fact
dead when feloniously taken. If an article has obtained in common
parlance a particular name, it is erroneous to describe it by the name of
the material of which it is composed. Archb. Crim. PI. (5th Am. ed.)
1006 COMMONWEALTH V. CLAIE. [CHAP. XVI.
48; Roscoe's Crim. Ev. (5th ed.) 203; Rex v. Edwar.ds, Russ. & Ry.
497; Rex v. Halloway, 1 C. & P. 128; Regina v. Mansfield, Car. &
M. 140.
In the second indictment the defendant is charged with embezzling
overcoats. This is a different offence from that charged in the first
indictment. Nor would the evidence which would be sufficient to sup-
port it have warranted a conviction on the charge of embezzling the
materials of which the coats were made. He has therefore been
acquitted of a different offence from that now charged against him.
Such acquittal is no bar to the present indictment.
Exceptions overruled.
APPENDIX
The following definitions of the principal crimes are taken chiefly from Black-
stone's Commentaries, and from the codes and statutes of California, Indiana, New
York, and Ohio. It is believed that, so far as the commgn-law definitions of these
crimes have been changed in any jurisdiction by statute, the changes will not
materially vary from those here given.
Treason.
Const. U. S-, art. 3, sec. 3. Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies, giving them aid and com-
fort. No person shall be convicted of treason unless on the testimony of two wit-
nesses to the same overt act, or on confession in open court.
For treason in England, see 4 Bl. Com. 74.
N. Y. Penal Code, sees. 37-40. Treason against "^he people of the state con-
gists in
1. Levying war against the people of the state, within this state ; or
2. A combination of two or more persons by force to usurp the government of the
state, or to overturn the same, shown by a forcible attempt, made within the state,
to accomplish that purpose ; or
3. Adhering to the enemies of the state, while separately engaged in war .with a
foreign enemy, in a case prescribed in the constitution of the United States, or giving
to such enemies aid and comfort within the state or elsewhere.
Treason is punishable by death.
To constitute levying war against the people of this state, an actual act of war
must be committed. To conspire to levy war is not enough.
Where persons rise in insurrection with intent to prevent in general, by force and
intimidation, the execution of a statute of this state, or to force its repeal, they are
guilty of levying war. But an endeavor, although by numbers and force of arms, to
resist the execution of a law in a single instance, and for a private purpose, is not
levying war.
Cal. Pen. Code, sees. 37-38. Treason against this state consists only in levying war
against it, adhering to its enemies, or giving them aid and comfort, and can bt) com-
mitted only by persons owing allegiance to this state. The punishment of treason
shall be death.
Misprision of treason is the knowledge and concealment of treason, without other-
wise assenting to or partaking in the crime. It is punishable by imprisonment in
the state prison for a term not exceeding five years.
(This is the common form of definition. Ohio inserts the word " knowingly.")
Escape, Rescue, etc.
4 Bl. Com. 129-131. An escape of a person arrested upon criminal process
by eluding the vigilance of his keepers before he is put in hold is also an offence
against public justice, and the party himself is punishable by fine or imprisonment ;
but the officer permitting such escape, either by negligence or connivance, is much
more culpable than the prisoner.
Breach of prison by the offender himself, when committed for any cause, was felony
at the common law ; or even conspiring to break it : but this severity is mitigated by
1007
1008 APPENDIX.
tlie statute 1 Edw. II., which enacts that, no person shall have jadginent of life or
member for breaking prison, unless committed for some capital offence.
Rescue is the forcibly and knowingly freeing another from an arrest or imprisoument.
Barretry.
4 Bl. Com. 134. Common barretry is the offence of frequently exciting and stirring
up suits and quarrels between his majesty's subjects, either at law or otherways.
N. y. Pen. Code, sec. 132. Common barratry is the practice of exciting groundless
judicial proceedings.
Maintenance.
4 Bl. Com. 134. Maintenance is ... an officious intermeddling in a suit that no
way belongs to one by maintaining or assisting either party with money or otherwise
to prosecute or defend it. ... A man may, however, maintain the suit of his near
kinsman, servant, or poor neighbour, out of charity and compassion, with impunity.
Cal. Pen. Code, sec. 161. Every attorney who, either directly or indirectly, buys
or is interested in buying any evidence of debt or thing in action, with intent to bring
suit thereon, is guilty of a misdemeanor.
<
Champerty.
4 Bl. Com. 135. Champerty, campi-partitio, is ... a bargain with a plaintiff or
defendant campum partire, to divide the land or other matter sued for between them
if they prevail at law ; whereupon the champerter is to carry on the party's suit at
his own expense.
(These crimes are ojbsolete in most states.)
Embracery,
4 Bl. Com. 140. Embracery is an attempt to influence a jury corruptly to one side
by promises, persuasions, entreaties, money, entertainments, and the like.
Extortion,
4 Bl. Com. 141. Extortion is an abuse of public justice, which consists in any officer's
unlawfully taking, by colour of his office, from any man, any money or thing of value,
that is not due to him, or more than is due, or before it is due.
Perjury,
4 Bl. Com. 137. Perjury is . . . committed when a lawful oath is administered in
some judicial proceeding to a person who swears wilfully, absolutely and falsely in a
matter material to the issue or point in question.
Subornation of perjury is the offence of procuring another to take such a false oath
as constitutes perjury in the principal.
Cal. Pen. Code, 118. Every person who, having taken an oath that he will testify,
declare, depose, or certify truly before any competent tribunal, officer or person, in
any of the cases in which such an oath may by law be administered, willfully and con-
trary to such oath, states as true any material matter which he knows to be false, is
guilty of perjury.
Ind. Rev. Stat., sec. 2006. Whoever, having taken a lawful oath or affirmation in
any matter in which, by law, an oath or affirmation may be required, shall, upon such
oath or affirmation, swear or affirm willfully, corruptly, and falsely touching a matter
material to the point in question, shall be deemed guilty of perjury. . . .
Oh. Rev. Stat., sec. 6897. Whoever, either verbally or in writing, on oath lawfully
APPENDIX. 1009
administered, willfully and corruptly states a falsehood, as to any material matter, in a
proceeding before any court, tri bunal or officer created by law, or in any matter in rela-
tion to w;bich an .oath is authorized by law, is guilty of perjury, and shall be imprisoned
in the penitentiary not more than ten nor less than three years.
N. Y. Pen. Code, sees. 96-99, 101. A person who swears or affirms that he will
truly testify, declare, depose, or certify, or that any testimony, declaration, deposition,
certificate, affidavit, or other writing by him subscribed, is true, in an action, or a
special proceeding, or upon any hearing, or inquiry, or on any occasion in which an
oath is required by law, or is necessary for the prosecution or defense of a private right,
or for the ends of public justice, or may lawfully be administered, and who in such
action or proceeding, or on such hearing, inquiry or other occasion, willfully and know-
ingly testifies, declares, deposes or certifies falsely, in any material matter, or states
in his testimony, declaration, deposition, affidavit, or certificate, any material matter
to be true which he knows to be false, is guilty of perjury.
It is no defense in a prosecution for perjury that an oath was administered or taken
in an irregular manner. . . .
It is no defense to a prosecution for perjury that the defendant was not competent
to give the testimony, deposition, or certificate of which falsehood is alleged. It is
sufficient that he actually was permitted to give such testimony or make such deposi-
tion or certificate.
It is no defense to a prosecution for perjury that the defendant did not know the
materiality of the false statement made by him ; or that it did not in fact affect the
proceeding in and for which it was made. It is sufficient that it was material, and
might have affected such proceeding.
An unqualified statement of that which one does not know to be true is equivalent
to a statement of that which he knows to be false.
Affray.
4 Bl. Com. 145. Affrays (from affraier, to terrify) are the fighting of two or mora
persons in some public place, to the terror of his majesty's subjects : for, if the fight-
ing be in private, it is no affray but an assault. Affrays may be suppressed by any
private person present, wno is justifiable in endeavouring to part the combatants,
whatever consequence may ensue. But more especially the constable, or other similar
officer, however denominated, is bound to keep the peace ; and to that purpose may
break open doors to suppress an affray, or apprehend the affrayers ; and may either
carry them before a justice, or imprison them by his own authority for a convenient
space till the heat is over ; and may then perhaps also make them find sureties for
the peace.
Riot, etc.
4 Bl. Com. 146. Biots, routs, and unlawful assemblies, must have three persons at
least to constitute them. An unlawful assembly is when three or more do assemble
themselves together to do an unlawful act, as to pull down enclosures, to destroy a
warren or the game therein ; and part without doing it, or making any motion
towards it. A rout is where three or more meet to do an unlawful act upon a common
quarrel, as forcibly breaking down fences upon a right claimed of common or of way ;
and make some advances towards it. A riot is where three or more actually do an
unlawful act of violence, either with or without a common cause or quarrel : as if
they beat a man ; or hunt and kill game in another's park, chase, warren, or liberty ;
or do any other unlawful act with force and violence ; or even do a lawful act, as
removing a nuisance, in a violent and tumultuous manner.
Forcible Entry.
4 Bl. Com. 148. Forcible entry or detainer is committed by violently taking or
keeping possession of lands and tenements with menaces, force and arms, and without
the authority of law. (So Ind.)
1010 APPENDIX.
Cal. Pen. Code, sec. 418. Every person using, or procuring, encouraging, or assist-
ing another to use, any force or violence in entering upon or detaining any lands or
other possessions of another, except in the cases and in the manner allowed by law, is
guilty of a misdemeanor. ( So New York.)
Murder.
See ante, pp. 461, 471.
Manslaughter.
See ante, p. 473.
See a division of this crime into degrees in New York, Fen. Code, sees. 189 to 201.
Mayhem.
See ante, p. 419.
Rape.
See ante, pp. 419, 455.
Rohhery.
See ante, pp. 419, 699.
t
Assault and Battery.
See ante, pp. 420-434.
Arson.
See ante, p. 797.
For degrees of arson, see N. Y. Pen. Code, sees. 486-488.
Burglary.
See ante, p. 780.
For degrees of burglary, see N. Y. Pen. Code, sees. 496-498.
Larceny and Kindred Crimes.
See ante, pp. 488 ff., 706, 718, 758.
Cal. Pen. Code, sees. 484, 503, 532. Larceny is the felonious stealing, taking,
carrying, leading, or driving away the personal property of another.
Embezzlement is the fraudulent appropriation of property by a person to whom it
has been intrusted.
Every person who knowingly and designedly, by false or fraudulent representation
or pretenses, defrauds any other person of money or property, or who causes or pro-
cures others to report falsely of his wealth or mercantile character, and by thus
imposing upon any person obtains credit, and thereby fraudulently gets into possession
of money or property, is punishable, ...
N. Y. Pen. Code, Sec. 528. A person who, with the intent to deprive or defraud
the true owner of his property, or of the use and benefit thereof, or to appropriate the
same to the use of the taker, or of any other person, either,
1. Takes from the possession of the true owner, or of any other person ; or obtains
from such possession by color or aid of fraudulent or false representation or pretense,
or of any false token or writing ; or secretes, withholds, or appropriates to his own
use, or that of any person other than the true owner, any money, personal property,
thing in action, evidence of debt or contract, or article of value of any kind; or
2. Having in his possession, custody, or control, as a bailee, servant, attorney,
agent, cl6rk, trustee, or officer of any person, association, or corporation, or as a public
officer, or as a person authorized by agreement, or by competent authority, to hold or
take such possession, custody or control, any money, property, evidence of debt or
APPENDIX. 1011
contract, article of value of any nature, or thing in action or possession, appropriates
the same to his own use, or that of any other person other than the true owner or
person entitled to the benefit thereof;
Steals such property, and is guilty of larceny.
Mass. E. L. ch. 208, Sect. 26. Whoever steals, or, with intent to defraud, obtains
by a false pretence, or whoever unlawfully and, with intent to steal or embezzle, con-
verts or secretes with intent to convert, the money or personal chattel of another,
whether such money or personal chattel is or is not in his possession at the time of
such conversion or secreting, shall be guilty of larceny.
Malicious Mischief.
4 Bl. Com. 244. Malicious mischief, or damage, is the next species of injury to
private property, which the law considers as a public crime. This is such as is done,
not animo furandi or with an intent of gaining by another's loss ; which is some,
though a wealc excuse; but either out of a spirit of wanton cruelty, or black and
diabolical revenge. In which it bears a near relation to the crime of arson ; for as
that affects the habitation, so this does the other property, of individuals.
Forgery.
4 Bl. Com. 247. Forgery or the crimen falsi is '. . . the fraudulent making or
alteration of a writing to the prejudice of another man's right.
Oh. Rev. Stat. sec. 7091. Whoever falsely makes, alters, forges, counterfeits, prints
or photographs any (here are enumerated such instruments as may be forged) with
intent to defraud ; or utters or publishes as true and genuine any such false, altered,
forged, counterfeited, falsely printed or photographed matter, knowing the same to
be false, altered, forged, counterfeited, falsely printed or photographed, with intent to
defraud, is guilty of forgery.
(This is substantially the form of statute in most states. For degrees of forgery,
see N. y. Pen. Code, sees. 509-519.)
Piraci/.
4 Bl. Com. 72. The offence of piracy by common law consists in committing those
acts of robbery and depredation upon the high seas which, if committed upon land,
would have amounted to felony there.
2 Bish. Crim. Law, sec. 1058. Piracy is any forcible depredation on the high sea?
perpetrated in general hostility to mankind for the gain or other private ends of
the doers.
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