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Full text of "A practical treatise on criminal law and procedure in criminal cases in the state of Illinois, with complete forms"

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A 

PRACTICAL TREATISE 

ON 

CRIMINAL LAW, 



Ain> 



PKOCEDURE IN CRIMINAL OASES, 



BBFOBK 



JUSTICES OF THE PEACE 



aud IK 



COURTS OF RECORD 



a THE 



STATE OF ILLINOIS, 

I 



WITH 



J o ^r • 
' ' J * « 



PULL DIRECTIONS AND FORMS 

. V a w « 

fOB ^ . « 



EVERY CRIMINAL CASE. 






• « 



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•. - . ^^ 



BT ">•* 



IRA M. MC/^RE, 

AVTBOB OT ** MoOBX'sa^ZTIL JUBTIOB.^* 



CHtq^o : 
CALLAGHAN [AMD COMPANY. 




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M • • * 

• • 

"* ' : Entered, according to Act of Oongress, in the year 1876, 

• : I • By Callaghan & Co., 

V.7 ' In the Office of the Librarian of Congress, in Washington. 

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PREFACE. 



The object of this book is, first, to furnish magistrates^ sher- 
iffs and constables a full and complete gnide in criminal cases^ 
and, secondly, to furnish to the members of the profession 
and to the courts a concise statement of the law now in force 
relating to crimes and to the procedure for their punishment. 

The new constitution and the statutes recently revised ren- 
der a large portion of many of the books already written on 
criminal law inoperative and useless. This useless matter is 
so mixed up with the useful in these books as to make it bur- 
densome and diflBcult to select that which is in force from that 
which has been repealed; besides, it makes the books too large 
or too numerous for convenience. In this book I have en- 
deavored to select and separate all the rules of the common 
law now in force from those which have become inoperative, 
and to engratib the constitution and statutes upon them so as 
to form of the whole one uniform and consistent system of 
criminal jurisprudence, at the same time omitting all of the 
superfluous and inoperative portions of the criminal law. Ho 
pains have been spared to make the work plain, clear and in- 
telligible, and at the same time to compress it within such a 
compass as to have it contain in one volume all that is really 
useful and necessary, usually found in several volumes. The 
law is stated in the text as.it is believed to be in the state of 
Illinois with a reference to the English and American de- 
cisions on which it is based, and where the authorities are 
conflicting, or the rule is different in England or in any of 
the other states, the word ^^contrd*^ is added and the authori- 
ties so holding cited, so that the rule elsewhere may be readily 
ascertained by examining these authorities. 



iy FBBFAOE. 

This work is intended to comprise the whole of the 
criminal law in indictable cases from the commission of the 
offense to the arrest, examination, trial, conviction and sen- 
tence of the offender and to the reversal or affirmance of the 
judgment on error, with the necessary forms for each case. 
To most of these forms are added foot-notes on their compo- 
nent parts, showing just what words may be omitted and what 
are essential. 

In preparing the whole work I have used my best endeavor 
to make it a good one — ^with what success, is for others to 
judge. K it shall be really useful I shall be satisfied. 

lEA M. MOOEE. 
QunroT, III., January, 1876. 



CONTENTS. 



THS BBFEBEHCSS ABX TO IBM SBOTZOHS. 



CHAPTEK L 
Obdoes m Genebal 1-17 

OHAPtEK II. 

PSOGBEDIKOS IN CbIMIKAL OaSBS BEFOBB JuSTIOES OT THB 

Pbaob. 

L Proceedings to prevent the Commission of 

Crimes 18-39 

II. Arrest, Examination, Commitment, and Bail. 40-184 

I. The Complaint 40-46 

II. The Warrant 47-60 

III. The Arrest 61-184 

1. Under a Warrant 61-60 

2. Without Warrant 61-62 

3. Proceedings after the Arrest. . .. 63-66 

4. The Eeturn 66 

IV. The Examination 67-99 

V. Proceedings after Examination .... 100-184 

HL Search Warrants 185-168 

CHAPTER III. 

Fboceedings in Cases whioh mat be Tbied Befobe Justices 

OF THE Peace. 

I. G^eral Provisions Relating to the Jurisdic- 
tion, Arrest, Trial, Execution and Appeal. . . 164-158 



?i 00NTEKT8. 

CHAPTEE III.— OONTINUKD. 

BaoTEOV. 

n. Assault and Battery 159-194 

III. Miscellaneous Offenses which may be Tried be- 
fore a Justice of the Peace 195-284 

1. Affrays^ 195-197 

2. Unlawfal Assembly 198-190 

8. Befusing to Join Posse 200 

4. Keeping open Tippling Houses on Sun- 

day 201 

5. Disturbing the Peace of Society on 

Sunday 203 

6. Disturbing a Family on Sunday 204 

7. Disturbing the Peace 205 

8* Lewdness, Exposure of Person and 

other Acts of Indecency 206-208 

9. Disorderly House 209-219 

10. Disturbing Meetings 220-225 

11. Gaming 226-232 

12. Barratry 233-237 

18. Maintenance 238-242 

14. Compounding Crime 243-247 

15. Assuming a Corporate Name 248 

16. Refusing to Allow Prisoner to see 

Counsel 249 

17. Omitting to Label or Keep Record of 

Poisonous Drugs sold or Given Away 250-251 

18. Drunkenness 252-253 

19. Officer not Trying to Prevent Duel 254 

20. Officer Neglecting to Suppress an Un- 

lawful Assembly of Twelve or more 
Persons 255 

21. Illegal Fees 256-257 

22. Intimidation of Workmen 258 

28. Advertising Lotteries 259-260 

24. Vagabonds 261-262 

25. Selling Liquor without License 263-284 



OONTENTS. TU 

CHAPTER III.— OONTINUBD. 

Baonov. 

XV* QlFSKSES AOAINST PsOPBBTT WHICH MAT BB 

Tbied befobe a JuanoB of the Psaob 285-800 

1. Canada Thistles 285-286 

a. Failing to Protect Castor Beans , 287 

8. Cruelty to Animals 288, 290 

4. XJnnecessarilj Frightening Team by En- 

gineer 291 

5. Injuring br Destroying Baggage 293 

6. Defacing, Tearing down, etc., of Adver- 

tisements, Legal Notices, etc 293 

7. Failing to Protect Saltpetre Caves 294 

8. Bringing Animals into the State, In- 

fected, etc 295 

9. Trespass 296-297 

10. Setting Fire to Woods, Prairies and 

other Grounds 298 

11. Counterfeiting Trade Marks. 299 

12. Simulating Trade-Marks \ 800 

V. NijiSAKOBs 801-812 

1. General Provisions 801-808 

2. Obstructing and Encroaching upon 

Eoads 804-812 

CHAPTER IV. 

Spboifio Offenses. 

I. Treason 818-820 

II. Homicide * 821-376 

1. Murder 821-868 

2. Manslaughter 369-876 

in. Offenses against Pebsons 877-442 

1. Abortion 877-883 

2. Abduction T 884-886 

8. Assault with Intent to Commit a Felony. 887-898 

4. Assault with a Deadly Weapon 894-895 

6. Concealing Death of Bastard 896-898 



^iii . OONTBNTS. 

CHAPTER IV.— CoNTiNuiED. 

6. Criminal CarelessneBS 399-^1 

7. Cruelty to Children 402 

8. Dueling 403-414 

9. False Imprisonment 416-420 

10. Kidnapping 421-424 

11. Mayhem 425-429 

12. Poisoning 430 

18. Rape 431-440 

14. Sodomy 441-442 

IV. Offbnsbs against Pbopbrtt 443-552 

1. Arson and Burning 443-457 

2. Burglary 458-470 

3. Embezzlement 471-480 

4. Graves, Graveyards and Cemeteries. . . 481-482 

5. Larceny 483-514 

6. Malicious Mischief 515-532 

7. Altering and defacing Brands with In- 

tent to Steal, etc 533 

8. Receiving and Restoring Stolen Prop- 

erty 534-542 

9. Robbery 543-550 

10. Trespass 551-552 

V. FOBGBBY, CoulTlERFErriNO AND KsNDBXD Of- 

FENSB8 553-584 

1. Forgery 553-572 

2. Counterfeiting 573-579 

3. Having in Possession Counterfeit Coin, 

Forged and Counterfeit Public Securi- 
ties, Bank Bills, etc 580, 581 

4. Making or Knowingly Having in Pos- 

session Counterfeiting Tools 582, 583 

5. Forging and Counterfeiting Seals and 

Signatures of OfBce 584 

VL Ohbating, Swindling and Defrauding 585-620 

1. Cheating '. 585-587 

2. Swindling by Cards, Slight of Hand, etc 588 



CONTENTS. iZ 

CHAPTER IV— OONTINTJED. 

Saoncur. 

8. False Pretenses * 689-601 

4. False Heir 602 

6, Falsely Personating another 60S-604 

6. Frauds 605-606 

7. Fraudulent Stock 607-608 

8. Fraudulent Sale of Lands 609 

9. Fraudulent Conveyances 610 

10. Fraudulent Acknowledgment 611 

11. Fraudulent Receipts 612-613 

12. Lotteries 614-620 

"VH, Offenses against Public Mobalitt, Health 

AND Public Policy 621-660 

1. Adulteration 621-624 

2. Adultery 626-627 

8. Bigamy 628-683 

4. Circulating Obscene Books, etc , 634 

5. Currency Unanthorized 636 

6. Gaming Houses 636-638 

7. Gaming in a Tavern 639 

8. Gaming Decoys 640 

9. Gambling in Grain, etc 641 

10. Incest 642-644 

11. Prize Fighting 646-660 

Vm. Offenses Against the Public Justice 661-709 

1. Bribery. 661-658 

2. Conspiracy 669-666 

8. Escape. .! 666-680 

4. Falsely Assuming an Office 681 

6. Misconduct of Officers 682-688 

6. Perjury 689-702 

7. Kesistance to Officers 703-707 

8. Witnesses 708-709 

T^- Offenses against the Public Peace and 

Tranquillity 710-743 

1. Extortion by Tlxreats 710-713 

2. Intimidation 714-720 



Z CONTENTS. 

CHAPTER IV.— CoHTOsniED. , 

^ ., , Bxcnov. 

8. Libel : 720-735 

4. Racing 736 

6. Rout 737 

.6. Riot 738-739 

7. Suppression of Unlawful Assemblies. . . 740-742 

8. Injuries to Property by Unlawful As- 

semblies 743 

X. Accessories to Gbimes, Attempts to Commit 

Offenses and Offenses at Common Law. 744-754 

1. Accessories to Crimes 744-750 

2. Attempting to Commit an Offense. . . . 751-753 

3. Offenses at Common Law 754 

CHAPTER V. 

Proceedings in the Circuit Court in Criminal Cases. 

I. Jurisdiction of the Circuit Court 755-765 

11. The Grand Jury 766-774 

IIL The Indictment 775-818 

IV. Arrest Upon Indictment and Admitting to 

Bail 819-826 

V. Counsel, Motion to Quash Indictment, Ar- 
raignment AND Pleas 827-857 

VI. Proceedings Before Trial 858-900 

1. Change of Venue 858-879 

2. Procuring the Evidence 880-889 

3. Continuance 890-900 

VII. The Petit Jury 901-926 

VIIL The Trial 927-1002 

1. Miscellaneous Matters Incident to the 

Trial 927-930 

2. Openings of Counsel 931 

3. Presence of Prisoner 932-933 

4. Evidence 934-945 

5. Closing Arguments 946-947 

6. Instructions 948-970 



* 



00NTENT8. XL 

CHAPTER v.— Continued. 

Bmamom, 

7. Eetiring of the Jury to Deliberate of 

their Verdict 971-974 

8. The Verdict 975-982 

9. Eeception of the Verdict 988-986 

10. Amendment of the Verdict 986 

11. Motion for a New Trial 987-996 

12. Motion in Arrest of Judgment 997-1002 

IX. Sentence, JiTDeMENT, Beoosd and Ezbou- 

TioN 1003-1081 

1. Sentence and Judgment 1003-1013 

2. The Kecord 1014r-1020 

3. Execution of the Judgment 1021-1081 

X Wmts of Ebeob 1032-1048 

1. Bill of Exceptions. 1032-1036 

8. Miscellaneous Matters Belating to 

Writs of Error 1087-1048 



TABLE OF CASES CITED. 



In the following Table of Cases, where the plaintiff is King or Queen 
(Eex or Beg.), the State, Commonwealth, People, or the United States, the 
defendant's name is pat first; while the plaintiff^s stands first in the other 
cases. 



Ssonov 
Aaron, State «. (1 South, 281) 4, 988 

089 
Abbington, Bex v. (1 Esp. 226) 



788, 
784 
910 
486 



Abbott, Com. «. (18 Met 120) 

, People 9, (19 Wen. 192)^ ^ 

, State «. (11 Foster, N. H. 484) 

Abbey, Sute «. (29 Y t. 60) 680 

Abgood, Bex «. (2 Car. & P. 486) 710 
Abrahams «. Foshee (8 Iowa, 274) 829, 

877 
Abrams «. State (4 Iowa, 542) 209 

, State «. (6 Iowa, 11) 219, 800, 

801, 812, 854 
Abram, State «. (10 Ala. 928) 426, 428 
Absence, SUte «. (4 Port 897) 429 
Acker «. Campbell (22 Wen. 872) 496 
Ackley «. People (9 Barb. 609) 89 
Adams V. Barrett (5 Ga. 408) 
1>. Colton (2 JScam. 71) 



-, Com. fj. (4 Gray, 57) 
-, Com. V. (1 Gray, 481) 
-. Cora. V. (7 Gray, 48) 
- 0. Hardin (19 Ills. 278) 
- «. Kelly (By. A M. X57) 



891, 892 
898 
797 

797,808 
802 
844 

730 



— c. People (47 Ills. 876) 189, 190, 
840, 850, 851, 928, 924, 972, 973, 993 

— , People V. (17 Wen. 475) 797 
— , People «. (8 Denio, 190; 1 
N. Y. 178) 592 

— , Beg. V. (1 Den. C. C. 38) 496 
— , Bex V. (Russ. & By. 225) 501 
— , Bex c. (3 Car. &. P. 600) 510 
— , State V. (1 Hayw. 468) 510 

— 9. State (6 Engl. Ark. 466) 9211 



Adams «. State (11 Ind. 804) 1014 

— «. Smith (58 Ills. 418) 952 

— 0. U. S. (Morris Iowa, 169) 282 
Adamson, Beg. v, (1 Car. & K^ 

192) 696 

Addington, States., 1 Bailer 810, 

811) 601 

Adler, People «. (8 Park. C. B. 
. 254) 1,61,62,185 

Adley, Bex «. (1 Leach, 206) 854 

Ady, Bex «. (7 Car« & P. 140) 601, 698 
Ah Ki, People v. (20 Gal. 177) 509 
Ah Ping, People v. (27 Cal. m) 647 
Ah Tick, People «. (29 Cal. 575) 482 
Airey, B. c. (2 East P. C. 881) 594 
Ake, State «. (9 Texas. 822) 686 

Albright v. State (6 Wis. 78) 89, 888 
Alderman, Com. v, (4 Mass. 477) 14, 

166 

— V. People (4 Mich. 414) 660, 661 
Alexander v. Card (8 B. 1. 145) 44 

— , State «. (4 Hawks, 
182) 691, 692, 702 

Alison, Be^. «. (8 Car. & P. 418) 826 
Allard o. Lamirande 0^9 Wis. 

502) 289 

Allday, Bex v, (8 Car. & P. 186) 12 
Allen V, Downmg (2 Scam. 455) 891 
— , Bex f>. (7 Car. & P. 153) 376, 401 
— , Beg. V. (9 Car. & P. 521 ; 2 
Moody, 179) 482 

— , Beg. V. (1 Den. C. C, 864) 442 
— , People V. (5 Denio, 76) 479 

— V. Staples, (6 Gray, 491) 187, 188 
— , State V. (1 Ala. 442) 840, 851. 
— , State V. (B. M. Charlt 518) 

999,1000 



xiy 



IKDBX TO 0A8B8 CITED. 



Allen «. Stete (10 Ga. 86) 

, State «. (1 Hawka, 6) 

-, State 0. (4 Hawks, 856) 



Saonov 
885 
560,989 
197 
278 
797 
840 



, State V. (32 Iowa, 491} 

, State «. (33 Iowa, 248) 

«. State (5 Terg. 458) 

V. State (5 Wis. 829) 277, 792, 817 

Alley «. People (1 Oilm. 112) 117 

Allington, Rex v. (2 Stra. 678) 684 
Allison V. People (45 Ills. 89) 681, 994 

, State V. (3 Yerg. 428) 788 

Almon, Rex «. (5 Burr, 2686) 780, 783 

Alvord V. Ashley (17 Ills. 868) 806 
American Express Co. «. Hag- 

gard ^7 Ills. 465) 848 

v. Parsons (44 Ills. 812) 952 

Ames, State v. (10 Mo. 743) 46 
Ammermdn o. Teeter (49 Ills. 

400) 956 
Ammond, State «. (8 Murphy, 

123) . 694 

Amos V. State (10 Humph. 117) 589 

V. Sinnot (4 Scam. 440) 961 

Anderson v. Com. (6 Rand. 627) 625 

V. People (63 Ills. 53) 264 

— .-, People «. (2 Wheeler C. C. 



Bbotxov 

Anthony v. State (18 Sm. <& M. 
263) 838, 791 

— V. State (1 Meigs, 265) 884 
Antonio, State v. (2 Tread. 776) 579 

, State V. (2 Const. 776) 574, 576 

Appleby, Rex v. (8 Stark. 88) 948 

Appling, State o. (25 Mo. 515) 727 
Archibald t>. Argall (58 Ills. 807) 846 
Arden v. State (1 Conn. 404) 698 

, Com. «. 4 Pick. 251) 659 

t>. Loveleless (6 Rich. 511) 279 
V. State (28 Ind. 170) 964, 965 
Armstead v. Com. (11 Lei^h, 657) 909 
Armstrong o. Cooley (5 Gilm. 
512) 1088 

— V. Mock (17 Ills. 166) 1084 

— V. People (87 Ills. 459) 980. 1008 

— «. People (88 Ills. 613) 10, 952 

— V. State (4 Black. 247) 637 
— , U. 8. V. (2 Curtis, 446) 834 

— V. Webster (30 Ills. 333) 843 
Arnold, State f;.(12 Iowa, 480)509,867 

State «. 13 Ired. 184) 886 

V. Sleeves (10 Wen. 515) 56, 68 
V. Cost (3 G. & J. 219) 4 



390) 



, People «. (14 John. 294) 

- V, State (5 Pike Ark. 444) 
-, State V. (2 Bailey, 565) 

-, dtate V. (19 Mo. 241) 

- V. State (5 Pike, 445) 
-, State V. (1 Strob. 455) 
-, State «. (2 Tenn. R 6) 



851 

500 
323 
992 
99'i 
S2S 
80J5 
391 
180 
385 



Arrowsmith v, Mesurier (2 N, R. 

214) 417 

Arscott, Rex v. (6 Car. P. 408) 63, 568 
Arthur, State v. (21 Iowa, 325) 568, 580 

, State c. (23 Iowa, ^0) 953 

V. State (3 Texas, 408) 1015 

Xsh V. Putnam. (1 Hill, 303) 495 

Ashbrook v. Com. (1 Bush. 139) 303 



Andre v. John (5 Blackf. 857) 

V. State (5 Iowa, 396) 

Andrew v. Thayer (30 Wis. 228) 239. 
Andrews v. People ( 60 Ills. 354) 539, 

540, 952, 959, 989 

V. State (2 Sneed, 550) 932 

Andres v. Wells (7 John. 260) 733 
Androscoggin Railroad v. Rich- 
ards (41 Me. 233) 148 
Angel D. Com. (2 Va Cas. 281) 425 

, St^ite V. (7 Ired. 27) 323 

Ann, The (1 Gallis, 62) 11 

Anno. State (11 Humph. 150) 326, 

827, 335, 399 
Anon, State «. (2 Nott & McC. 27) 748 
Ansaleme, State o. (15 Iowa, 46) 2T7, 

782 
Anson v. Stewart (1 T. R 754) 213, 

234 
Anthes, Com. v. (5 Gray, 185) 973 
Anthony v. State, (4 Humph. 88) 226, 

636 

, State V. (7 Ired. 284) 907 

, State V. (1 McCord, 285) 76, 79 



Ashley, Com. v. (2 Gray, 356) 210, 216 
V. Petei-son, (25 Wis. 621) 187, 138 



Ashlock V. Com., (7 B. Monr. 44) 227 

c. Linder, (50 Ills. 169) 952, 959 

Ashlon, Reg. v. (2 Kuss. on C. 

406) 569 

Aslop V. Swathel, (7 Conn. 500) 949 
Aspinwall, Rex v. (3 Stark, Ev. 

700) 952) 436 

Asterly, Rex «. (2 East P. C. 729) 548 
Atkins 9. State, (16 Ark. 568) 351, 352, 

959, 999 
Atkinson, Reg. r. (2 Ld. Raym. 
1248) 817 

— , Rex V. (7 Car. & P. 669) 558, 563 
—, liex V. (2 East P. C, 673) 496 
— , Rex V. (1 Crawf. & Dix. C. 

510 
817 
950 



C. 161) 

, Rex V. (1 Salk. 882) 

tj. Snow, 30 Me. 364) 

, State 0. (9 Humph. 677) 14, 855 

, State V. (10 Humph. 6) 186 

Atwood, Rex v. (2 Leach, 521) 944 
Audley's Case, (3 Howell State 

Tr. 401) 76, 433 



INDEX TO CASES CITED. 



XV 



Skgtioh 
Angusdne v. State, (20 Texas, 450) 46, 
« 817 

Aulger V. People (84 Ills. 486) 412, 413 
Aulger V. Smith (84 Ills. 584) 190, 941 
Aulimer «. Governor (1 Texas, 

654) 704 

Ault V. Rawson (14 Ills. 485) 895 

Austin V. Allen (6 Wis. 134) 308 

, Com. V. (7 Gray, 428) 910 

, People V. 1 Park. Cr. R. 

154) 345, 850, 800 

, Rexr. (7 Car. & P. 796) 80U 

-, State t>. (12 Mo. 576) 636 



Austine v. People (51 Ills. 236) 387, 439. 

939 
Avery v. Buckley, (1 Root, 275) 170 

«. Ray (1 Mass. 12) 179, 188, 189, 

191 

, State V. (7 Conn. 226) 730 

, State 0. (7 Conn. 207) 724, 730, 758 

, State «. (64 N. C, 608) 341 

Axt, State «. (6 Iowa, 51 1) 815, 883 
Ayer, Com. v. (3 Cush. 150) 563 

. State V. (3 Frost. 301) 492,993. 994 

, State V. (3 Foster N. H. 

355) 805 

Ayers v. Metcalf, 39 Ills. 307) 942, 952 
Aylesworth v. People (65 Ills. 

301) 815, 835, 999, 1014 

Aylett, Rex t>. (1 T. R. 63, 09) 696 

Ayres, Rex v. (RuSs. & Ry. 43) 340 
Azire, Rex o. (1 Stra. 633) 76 

Babcock, State ©. (1 Conn. 40) 923 

, U. 8. V, (4 McLean, 113) 691, 693 

Bachelder c. U. b. (2 GalUs, 15) 703 
Buckler, Rex v. (5 Car. & P. 119) 561 
Backus, People v. (5 Cal. 275) 905, 924 
Bacon r. People, (14 Ills. 312) 108, 109 

, People P. (7 Wen. 219) 589 

Badeau c. Mead (14 Barb. 328) 306 
Badger, Rex v. (6 Jur. 994) 684 

, Rex V. (4 Q. B. 468) 104 

Badger & Clayton v. State (5 Ala. 

21) 108 

Badgley, People v. (16 Wen. 53) 558, 

938 
Barley v. State (1 Humph. 486) 
Bailey v. Campbell (1 Scam. 147) 

, Com. «. (14 La. An. 364) 

, Com. V. (1 Mass. 62) 

1?. Buck (11 Vt. 252) 

V. Hardy (12 Ills. 459) 

, People V. (2^ Cal. 577) 

, Rex V. (Russ. «fc R. 341) 

, State t>. (1 Fost. 345) 210, 216, 636 

, State i?.' (11 Foster N. H. 

521) 809 

V. State (22 Ind, 422) 7 

, State V. (21 Mo. 482) 793 



63(. 

14 
558 
245 

892 
479 
464 



SsonoH 

Bailey v. State (4 Ohio S. 440) 800 
Bainbridge, U. S. v. (1 Mason. 

83) 22 

Baird, Com. «. (1 Asham. 267) 176 
Bakeman, Com. v. (105 Mass. 58) 515, 

582, 852 
Baker v. Baker, (14 Wis. 181) 288 

, Com. V. (12 Cush. 188) 823 

V. Com. (7 Harris, 41^ 727 

V. Com. (19 Penn. 412) 635 

u. Com. (2 Va. Cas. 122) 498 

V. Lovett (6 Mass. 80) 32, 104 

• , Reg. V. (3 Cox C. C. 581) 465 

, Hex V. (1 Mod. 35) 726, 727 

, Rex V. (2 M. & Rob. 53) 885 

, People V. (1 Cal. 403) 891, 994 

, People V. (3 Hill, 159) 800, 802 

V. People, (2 Hill, 325) 638 

V. People (49 Ills. 309) 894 

V. Kicharason (1 Co wen, 77) 277 

V. State (4 Ark. 56) 799, 802 

V. State (15 Ga. 498) 909 

, State V. (4 Humph. 12) 847 

, State V. (1 Jones N. C. 267) 325 

, State V. (34 Me. 52) 46 

V. State (53 Missis. 243) 847 

, State V. (19 Mo. 683) 987 

, State V. (24 Mo. 437) 883 

V. Stale (12 Ohio S. 214) 747 

V. State (4 Pike, 56) 800, 802, 803 

— V. U. S. (1 Pin. Wis. 641) 626, 627 
Balch V. Shaw, 7 Cush. 283) 1017 
Baldwin v. Elphinstone (2 W. Bl. 

1038) 730 

— V. Hamilton (3 Wis. 747) 46 

— V. Haydon (6 Conn. 453) 177, 179 

— V. People (1 Scam. 304) 492, 41)3, 

508 

— V. Killian (63 Ills. 550) 991 
Baldwin's Case (2 Tyler, 473) 773 
Baldy, State v. (17 Iowa, 39) 782, 867 
Baley v. Deakins (5 B. Monr. 159) 239 
Ball V. Com. (8 Leigh, 726) 992. 

— , People V. (14 Cal. 101) 492 

— , People V. (4 C. H. Rec. 118, 
139) 510 

— , Rex V. (1 Camp. 324) 569 

— c. State (7 Blackf. 242) 226 
Ballance v. Leonard (37 Ills. 44) 1033, 

1034 
Balls, Rex v. CRnss. & Ry, 470) 5G9 
Ballston Spa. Bank v. The Ma- 
rine Bank (16 Wis. 120) 892 
Bainbridge, U. S. v. (1 Mason, 83) 104 
Banchor t>. Warren (33 N. H. 183) 280 
Bancroft v. Eastman (2 Gilm. 123) 847 

, State tj, (10 N. H. 105) 462, 469 

Bangor, State v. (38 Me. 592) 999 

Bangs, Com. v. (9 Mass. 387) 877 



INDEX TO CASES CITED. 



SscTioir 
Bank «. Hart (3 Day, 491) 907 

Bankers v. State (4 Ind. 114) 12 

Banks «. Farwell, (21 Pick. 156) 143 

, Rex V. (1 Esp. lU) a53 

Bankhead, State v. (25 Mo. 558) 220, 

222 
Banrouse v. State (1 Iowa, 374) 901 
Banta v. People (5$ Ills. 434) 108 

Barada o. State (13 Mo. 94) 279 

Barber, Reg. ©. (1 Car. & K 434) 816, 

981 
Barefoot, State v. (2 Rich. 209) 
Barefield o. State (4 Ala. 603) 
Barfield. State v. (8 Ired. 344) 
«. State (29 Ga. 127) 



Barge, Com. v. (3 Pa. R. 262) 
Barger o. Hobbs (67 Ills. 592) 

V. Stale (6 Blackf. 188) 

Barker v. Com. (2 Va. Cas. 122) 

V. Rex (3 Car. & P. 589) 

«. Barker (14 Wis. 131) 

V. Townsend (7 Taut 422) 



631 
657 
341 
562 
845 
1083 
847 
492 
4:^8 
289 

245 

Barksdale v. Toomer (2 Bailey, 

180) 990 

Barnard «. BarUett (10 Cush. 501) 141, 

144 

, Rex 9. (7 Car. & P. 784) 595 

Barnes v. Com. (2 Dana, 390) 281 

V. Comack (1 Barb. 392) 76 

V, Barber (1 Gilm. 401) 46 

V. Martin (15 Wis. 240) 180, 190 

«. People (18 Ills. 52) 492, 501 

V. State (20 Conn. 232) 806 

, State V. (32 Me. 530) 723, 853 

V. State (5 Yerg. 186) 46 

Barnett d. People ( 54 Ills. 380) 335 

, Rex ». (3 Car. & P. 600) 148 

Barney, Com. c. (10 Cush. 480) 448 

V, People (22 Ills. 160) 435, 489, 

921, 965, 991 

©. State (11 Sm. & M. 68) 774 

Baronet, Reg. t>. (Dears, 51) 348 

Barrett, Com. v. (118 Mass. 302) 405 

, Rex V. (2 Lewin, 264) 

, People V, (2 Cai. 304)) 

V. People (54 Ills. 325) 

, People V. (1 John. 66) 

, State p. (8 Iowa, 536) 

., State V. (42 N. H. 466) 



^ Sxonov 

Bartlelt v. Churchill (24 Vt. 218) 178, 

182 

, People V. (3 Hill, 570) 115 

Bartmcyer, State v. (31 Iowa, 601) 282 
Barton, People v. (1 Wheeler 0. 
C. 3T8J 484 

•B. State (18 Ohio, 221) 89 



a54 

14, 15 

4 

14 

564, 578 

999 



472 



Baney, Com. v. (116 Mass. 1) 
Barroime, State v. (^25 Missis. 

203) 
Barrow v. People (1 Com. 886) 
Reg. V. Law Rep. (ICC. 156) 
Barrows v. People (11 Ills. 121) 861, 

867 
Barry v. Ingalls (1 Tayl. 121) 179 
Bartholemy v. People (2 Hill, 248) 

733 



773 
883 
434 



Batchelder v. Currier (45 N. H, 

460) 68 

, State t>. (6 Vtik 479, 488) 81 

Batchley «. Moser (15 Wen. 215) 257 
Bateau v. West (28 Wis. 416) 306 

Bateman, Reg. v. (1 Cox C. C. 

186) 568 

Bates V. Buckley (2 Gilm. 389) 1033 

, State V. (23 Iowa, 97) 677 

Bathe ws v. Gallindo (4 Bing. 610) 76 
Batrick, Com. v. (6 Cush. 247) 280 
Battiste, U. S. v. (2 Sumner, 240, 

242) 992 

Baugh V. State (14 Ind. 29) 803 

Baughman, People v. (18 Ills. 

152) 46, 108, 118, 782. 788 

, State V. (20 Iowa, 497) 806 

Baurouse v. 8tate (1 Clark Iowa, 

374) 
Bavaria, U. S. v. (2 Dallas, 297) 
Baxter v. Dixie (Cas. temp. 

Hardw. 264) 

■— V. People (3 Gilm. 368) 479, 746, 

749,. 816, 890, 898, 909 

«. People (2 Gilm. 578) 859 



278 
•53 

76 



Beacall, Rex v. (1 Car. & P. 810) 479 
Beach v. Hancock (7 Post. N. 
H. 223) 166 

, Rex «. (Cowp. 229) 729 

— , Rex V. (1 Leach C. C. 138) 729 
Beal, Com. «. (Phila. Q. S. 1854) 484 
Beal's Case (1 Leon, 827) 326 

Bealoba, People v. (17 Cal. 389) 932 
Bean v. Bean (12 Mass. 21) 661 

— , , State tJ. (36 N. H. 122) 79, 998 
— , State V. (19 Vt. 530) 558 

Bear, Rex ©. (2 Salk. 417) 723, 727 
Beard, Reg. v. (34 Engl. Cp. L. 
329) 669 

— , Reg. c. (8 Gar. A P. 143) 563, 567, 
— , State V. (1 Dutcher, 384) 691. 833, 

931 
Beare, Rex v. (1 Ld. Raym. 414) o-*^*^. 



72' 



Beasley «. State (18 Ala. 535) 
Beasom, State v. (40 N. H. 367) 
Beatty, People v. (14 Cal. 566) 
«. Perkins (6 Wen. 882) 



-J. 



773 
141 



Beauchamp v. State (6 Blackf. 

299) 383, 341, 342, 345 

BeauYoir, Reg. v. (7 Car. & P. 17) 695 
Beck, People v. (21 Cal. 385) 648 



INDKX TO CASKS CITED. 



XVll 



Sbotiox 

Becker, State v. (20 Iowa, 438) 806 

Beckley, Com. v, (3 Met. 330) 909, 

1000 

Beckwith v. People (26 Ills. 500) 392 

395, 480, 800, 817 

, State V, (1 Stewart, 318) 792 

Bedford 9. State (5 Hamph. 552) 902 

993 

Beebee v. People (5 Hill, 32) 883, 923 

Beeler, Stale v. (1 Brev. 482) 571 

Beeley v, Wingfield (11 East, 46) 245 

Beeson, Rex v. (7 Car. & P. 142) 341 

Beets V. State (Meigs, 106) 339 

Bell V. Clapp (10 John. 265)54, 139, 144 

ij. Com. (8 Grat. 600) 841 

V. Mallory (61 Ills. 167) 87, 739, 

94:3 

V. Miller (5 Ohio, 250) 170 

«. People (1 Scam. 397) '817 

c. State (5 Engl. 536) 1015 

, Stat« V. (29 Iowa, 316) 469 

0. State (1 Swan, 42) 727 

V. State (20 Wis. 599) 458, 461 

Bellair v. State (6 Blackf. 104) 773 
Bellenlle v. Stookey (23 Ills. 441) 307 
Belliugall v. Duncan (2 Gilm. 

591) 867 

Bellows «. Shannon (2 Hill, 91) 56 
Belatead, R. v, (Russ. & Ry. 411) 501 
Belton, Com. v. (6 Cu8h. 427) 449 
Belwood, Reg. v. (11 Mod. 80) 678 
Ben V. State (22 Ala. 9) 806 

Benedict, State Mil Vt 236) 166 

V. State (14 Wis. 424) 838 

Beneke, State v, (9 Iowa, 207) 901 
Benesh, Com. v. (Thatch. Or. C. 

684) 993 

Benfleld, Rex «. (2 Bur. 980) 316, 727, 

803, 805, 817 

, StAte V. (23 loWa, 155) 155, 

840, 849, 850, 352 
Benham, State v, ( 7 Conn. 414) 187 
Bennett v. Com. (8 Leigh, 745) 998 

, Com. V. (2 Va. Cases, 235) 432, 

803 

V. People (16 Ills. 160) 277 

, Rex V. (1 Stra. 101) 14 

, Slate V. (2 Const R. 692 ; 3 

Brev. 514) ^ 510 

«. State (8 Engl. 694) 992 

«. State (8 Ind. 167) 46 

, State V. (14 Iowa, 479) 492, 505 

^ Slate V, (31 Iowa, 24) 627 

«. State (Mar. & Yerg. 183) 847 

0. State (1 Swan Tenn. 411) 853 
V. Sla*^ (2 Yerg. 472) 845 



Ssonov 
Bentham v. State (1 Iowa, 542) 848 
Benton, State v. (2 Dev. & Bat. 
196) 909,911,914,915 

, State. «. (15 N. H. 169) 89 

Bentz, State v, (11 Mo. 27) 8, 216 

Bergen v. People (17 Ills. 426) 881, 

642, 644, 881, 883, 938 
Berkct, Reg. v. (Russ. A Ry. 86) 507. 

668 

Berkshire, State v,(2 Ind. 207) 12, 678 

Bcrrian v. State (2 Zab. 0) 46 

Berry v. Adamson (6 B. iss Cres. 

528) 57 

, Com. V. (5 Gray, 93) 847 

, Reg. u. (Bell C. C. 95) 497 

V. State (10 Ga. 511) 923, 924, 940, 

959, 993 

». Wilkinson, 1 Scam. 164), 866 

Berse, Com. v. (108 Mass. 487) 430 
Bertheol, State v. (6 Blackf. 474) 801, 

636 

Besimeir e. People (15 Ills. 440) 48, 

108, 117 

Best, Reg. v. (2 Ld. Raym. 1168) 659, 

661 
, Reg. 9. (1 Salk. 174) 664 



Betton, Com. v. (5 Cush. 427) 470 

Bevans, State 9. (37 Iowa, 178) 684, 779, 

992 
Bevington v. State (2 Ohio, N. S. 

160) 564 

Bibb V. Reid (3 Ala. 88) 919 

Biddle v. Com. (13 Serg. v. R. 405) 901 
Bielby, State ©. (21 Wis. 204) 277, 543, 

801, 803, 806 
Bigelow, Com. v. (8 Met 235) 669 

V. Sterns (19 John. 39) 932 

Bilbie o. Lumley (2 East, 469) 11 

Bill V. Clapp (10 tfohn. 263) 141 

V. Mallory (61 Ills. 167) 739 

r. People (14 Ills. 432) 951, 959 

, People V. (10 John. 95) 76, 79 



BiUinghum, Rex t>. (2 Car. & P. 

234) 173 

Binder c. State (5 Iowa, 467) 187 

Bingley, Rex v. (5 Car. A P. 602) 544 
Bird, llext>. (2 Car. <& K. 817) 397, 398 

, lieg. V. (9 Car. & P. 44) 462, 463, 

501 

0. State (14 Ga. 43) 

State «. (1 Mo. 585) 



Benson, People v. (fi Cal. 221) 436. 4:^ 

, Rex V. (2 Campb. o06) 693 

Benthall, State v. (5 Uumph. 619) 195< 
2* 



Birks V. Houston (63 Ills. 77) 
Biimiugham and Gloucester R. 
R., Reg. V. (9 Car. & P. 469) 

, Reg. (3 Q. B. 223) 

Biron, Com. v. (4 Dall. 125) 
Bishop V. Edgertou (26 Ills. 54) 

, Peoi>le V. (5 Wen. Ml) 

T. Slate (30 Ala. 34, 39) 



989 
992 
891 



801 

845 
340 
89K 
]^r^ 
570 



■ 



• •• 



Xyiu 



Ilia>JBX TO GASB8 CITEIX 



. _ B»oTxoifr taorxoH 

Bishop, State 9, (1 Chip. Vt. 120) 6»1 Boies v. Henney (82 Ills. 189) 1084 

V, Stale (9 Georgia, 121) 804, 806, 1 , State v. (84 Me. 235) 704 

044 Boise, State v. (1 McMillan, 181) 808 
Bishop Hill Colony v. Edgarton, ^~^ — ° — /a a-, t^ ^ oo^ix ««/» 

26 Ills. 54) 1084 
Bissell V. Ryan (28^1118. 572) 008, 086, 
V. New York C. R R Co. (26 

Barb. 630) 806 



Bitting, State «. (13 Iowa, 600) 801 
Bivens 9. State (6 Engl. 455) 1015 

Bixby 9. State (15 Ark. 305) 003 

V. Slate (15 Barb. Ark. 305) 003 

Blackson, Rex v. (8 Car. & P. 43) 802 
Black well. State d. (0 Ala. 70) 167 
Blake v. Allen (Sir F. Moore, 610) 567 

V. Dow (18 Ills. 261) 052 

, Com. V. (12 Allen, 188) 46 

0. Barnard (0 Car. & P. 626) 167 

. People V, (1 Wheeler Cr. C. 

400) 531 

, State V. (30 3Ie. 332) 4^2 

Blanchard v, Morris (15 ills. 35) 002 
Bland v. People (3 Scam. 364) 558, 570, 

048 052 

«. State (2 Carter, 608) ' 093 

Blanding, Com. v. (3 Pick. 304) 724, 

732, 733 
Blankman, People v. (17 Wen. 

258) 48, 108, 1 13 

Blarcum, People v. (2 John. 105) 466 
Blatner t>. Weis (10 Ills. 246) 042 

Blemen v. Com. (7 Bush. Ky. 320) 333 
Bliasdale, Rex v. (4 T. R. BOO) 279 
Blodgetl, State v. (1 Root, 534) 549 

, U. S. V. (35 Ga. 336) 773 

Bloomer v, Sherill (11 His. 483) 058 

V. State (3 Sneed, 66) 168, 388, 418, 

847 



Boles V. State (0 Sm. & M. 2^'4) 050 
Bolicg V. Luther (2 Tayl. 202) 702 
Bolkom, Com. «. (3 Pick. 281) 226, 630 
Boiling, Bx parte (31 Ills, m 154 
BoUman, Bx parte (4 Cranch, 76 ; 

Cond. R 33) 317, 818 

Boltz, Rex «. (8 Dowl. & Ry. 65) 033 
Bond V. People (30 Ills. 26) 052, 058, 

080 091 

, State «. (8 Iowa,' 540) 11,^492, 

504,981 
Bondreaux, State 9. (14 La. 88) 000 
Bonnell, State v. (2 Harring. Del. 

520) 
Bonner, Com. «. (0 Met., 410) 
., Rex. «. (8 Car. & P. 386) 



Bonney, State «. (34 Me. 223) 
Bonsell «. U. S. (1 Greene Iowa, 

HI) 
Bontien, R 9. (Russ. & Ry. 260) 
Booby 9. State (4 Yerg. Ill) 
Boon, Com. 9. (2 Gray, 74) 
, State 9. (13 Ired. 244) 



504 
733 

888 
720 



Bloomfield, Reg.9. (C. &M. 536) 509 
Bloomhuff 9. State (8 Blackf. 

205) 218 

Bloss 9. Tobey (2 Pick. 320) 451, 453 
Blow 9. Gage (14 Ills. 209) 495 

Blunt 9. Com. (4 Leigh, 689) 504 

Blute 9. Scribner (23 Wis. 357) 305 
Blythe 9. Stat<i (4 Ind. 525) 829 

Board of Education 9. Green- 

haum (39 Ills. 610) 935 

Board man 9. Fowler (1 John. C. 

413) 119 

9. Wood (3 Vt. 570) 000, 014 

Bodckee, State 9. (34 Iowa, 520) 964 
Bodine, People 9. (1 Denio, 281) 86, 
89, 909, 911, 913, 917, 991 
Bodwell 9. Osgood (3 Pick. 379) 733 
Boggett 9. Frier (11 Ea8^ 301) 466 
Boggs 9. Bindscoff (28 Ills. 58) 851 
Bohannon 9. Com. (8 Bosh. Ky. 

482) m, 8621 



746 

566 

904 

40 

460 

Boose 9. State'(10 Ohio S^ 575) 1014 

Booth 9. Town of Carthage (57 

Ills. 102) 036 

Booiie, liex 9. (2 Bur. 864) 670, 678 
Booty man. Rex 9. (5 Car.& P. 

590) 234 

Borden 9. Finch (15 John. 121) 633 
Boslick 9. State (34 Ala. 266) 558 

, State 9. (H*irring. Del. 563) 4, 

030 
Boswofth, Com. 9. (22 Pick. 307) 044, 

989 
Bothwell 9. Brown (51 Ills. 234) 245, 

246 
Boughton 9. Mulshoe (Moor., 

408 ; S. C. Vin. 482) 
Boulter, Rex 9. (9 Eng. L. & Eq. 

537) 
Bourne, Rex 9. (5 Car. & P. 120) 
, lieg. 9. (1 Den. C. C. 22) 



60 

600 

354 

806 

9. Stout (62 Ills. 262) ' 42,052 

Bowen 9. Rutherford (60 Ills. 41) 052, 

093 

9. Schuyler (41 Ills. 192) 405, 052 

Bower 9. St^te (5 Mo. 364) 041 

Bowers 9. People (17 Ills. 378) 703, 

705, 1008 

, State 9. (17 Iowa, 46) 812 

Bowling, State 9. (10 Humph. 52) 392 
Bowman, Rex 9. (6 Car. «fc P. 101) 187 

, State 9. (25 Missis. 203) 774 

, State 9. (6 Vt. 504) 674, 582 

V, St John. (48 Ills. 887) 184 



INDEX TO GA8B8 CITBD. 



XIX 



SsoTioxr 
Boyce, Rex v. (1 Moody C. C. 99) »90 



Boyd, Com. v. (1 <Jray, 564) 

0. State (17 Ga. 194) 705 

0. Bute (2 Humph. 89) 532 

, SUte V, (2 Hill 8. C. 288) 847 

V. Slate (2 Port 100) 778 

Boyle, In re (9 Wis. 2U) 704 

0. Levings (28 Ills. 814) 993, 

1088 1034 

, State u. (28 Iowa, 522) 323,335 

Boyled v. Com. (2 Serg. & R. 50) 896 
Boynton, Com. jd. (116 Mass. 343) 

543 944 

r. Holmes (38 Ills. 59) ' 991 

V. Phelps (62 Ills. 210) 986, 989 

V. Renwick (46 Ills. 280) 1034 

Bradford v. State (3 Humph. 370) 582 
Bradley v. Heath (12 Pick. 163) 734 

, State f). (9 Richardson, 168) 76, 

79, 816 
Bradshaw v. Heath, (13 Wen. 407) 68:3 

v. Hubbard (1 Gilm. 890) 907, 916 

Bradstreet v. Ferguson (17 Wen. 

181 ; 23 Wen. 638) 20 

Brudwav ^at tarn v. Leworlhy, 

(9 John. 251) 245 

Brady, Com. v. (5 Gray, 78) 695, 697 

V. Price (19 Texas, 285) 58 

, Slate V. (27 Iowa, 126) 510 

, State 9. (14 Vt. 353) 461, 469, 605 

Brain, Com. v. (9 Leigh, 633) 941 

, Rex V. (6 Car. & P. 349) 329 

Brainard, State v. (25 Ills. 572) 949 
Bramgan 9. Rose (3 Gilm. 129) 851 
Branch Bank of Mobile v. Mur- 

phv (8 Ala. 119) 11 

Bransly, People v. (32 N. Y. 525) 169 
Brant o. State (14 Iowa, 180) 520 

Brantley v. State (13 8m. & M. 

468) 
Brauer v. State (25 Wis. 418) 
Brauham, Com. v. (8Bush. Ky. 

387) 
BrHwdshaw v. Morehouse (1 

Gilm. 395) 
Brawner v. Lomax(28 Ills. 496) 844 
Bray, State v, (13 Ired. a89) 680 

, V, State (1 Mo. 18o) *93, 828, 791 

Brazier, Rex v. (1 East P. C. 44) 436 

, Rex V. (Russ. & Ry. 837) 502 

Breck, State «. (1 Hill S. C. 363) 173 
Breeme, Rex v. (1 Leach, 220) 14, 451 
Breese v. State (12 Ohio S. 146) 805 
Brennan v. People, (15 Ills. 511) 14, 15, 

144, 332, 886, 839, 455, 600, 746, 747, 

749 800 
, Reg. V. (18 Crawf. & Dix C. ' 

C. 109, 110) 518 

Brennao's Liquors, State v. (25 



573 Brenner « Frazier (8 Iowa, 77) 



Conn. 278) 



Saonov 
901 
807 
Brenham v. State (1 Iowa, 54d) 429 
Brewster, State v. (7 Vt. 118, 122) 509 
Brice, Rex v, (Russ. & Ry. 450) 468, 

464 
120 
805 



Brickett, Com. v. (8 Pick. 188) 
Bridges, State v. (24 Mo. 858) 
Brigham, People o. (1 City H. 
Kec. 30) 
, People V. (2 Mich. 550) 



894 

,- .. , , 568 

Briggs, Com. v. (5 Pick. 429) 943, 980, 

992 
-, Reg V. (2 Moody & Ry. 199) 88 
-, Rex «. (1 Moody, 318) 828 



895 
433 

894 

851 



733 
992 

119 

898 
684 



Brineler o. Dawson (4 Scam. 541) 638 
Bristol V. Phillipps (3 Scam. 287) 

1034 
Britan v. State (8 Humph. 203) 207 
Britt f>. State (9 Humph. 31) 589 

Britton, U. S. o. (2 Mason C. C. 

464) 558, 729 

Brobston v. Cahill (64 Ills. 856) 560 
Brockway v. People (2 Hill, 558) 219 
Brogy V. Com. (10 Grat. 722) 883 

Bn)mage v. Prosser (4 B. & Cres. 

25()) 
Bromley v. People (27 Ills. 20) 
Bronson, Com. v. (14 B. Monr. 

361) 
Brooks ff. McKinney (4 Scam. 

309) 

, Rex c. (2 T. R. 190, 195) 

, People V, (1 Denio,457)682, 683, 

684 

, State V. (9 Ala. 10) 774, 848 

t>. State (2 Yerg. 482) 206, 207 

Broughtou, State v. (7 Ired. 96) 938 
Broward v. State (9 Fla. 422) 832 

Br()wn»s Case (3 Greenl. R. 177) 531 
Brown v. Berry (47 Ills. 175) 990 

V. Com. (11 Leigh, 769) 909 

, Com. V. (4 Mass. 580) 502 

r. Com. (8 Mass. 59) 784, 999 

, Com. V. (116 Mass. 389) 818 

, Com. V. (3 Rawie, 207) 

V, Com. (2 Va. Cas. 516) 

V. Illinois C. R. R. Co. (42 

Ills. 366) 

, Reg. V. (Car. & M. 314) 178, 645 

, Reg c. (17 Law J. N. S. M. 

842 
930 
548 
119, 
120 
558 



461 
411 

851 



C. 145) 

— , Rex V. (4 Car. & P. 588) 
— , Rex c. (2 East P. C. 731) 
— «. People (26 lUs. 28) 114, 



0. People (66 Ills. 844) 

V. People (4 Gilm. 489) 580, 9.>0 

V. State (13 Ark. 96) 847 



INDEX TO OA8E8 CITED. 



SxonoK 

Brown v. State (8 Blackf. 561) 14 

, State V. (16 Conn. 54) 14 

, State V. (1 Dev. 137) 492 

V. State (5 Engl. 574) 226 

V. State (28 Ga. 199) 952 

, State V. (2 Murphy, 224) 797 

«. State (7 Humph. 155) 1014 



State ©. (8 Humph. 89) 807,833 
-, State V. (17 Iowa, 46) 894 

-, State V. (16 Iowa, 814) 113 

-, Stale V. (25 Iowa, 561) 368, 501, 

509. 510, 749 
-, Stale V. (31 Me. 520) 279, 748 
-, Slate V. (3 Strob. 508) 499 

-, Slate '«. (1 Winston, No. 2, 

803 

60 
809 



54) 

— V. Tracy (9 How. N. Y. Pr. 
R. 93) 
, U. S. V. (3 McLean. 233) 



Brownell o. Manchester (1 Pick. 

232) 498 

Brownfield «. Brownfield (58 

Ills. 152) 
Browning v. State (30 Missis. 656) 952 

V. State (33 Missis. 48) 897 

Brownlow, State v. (7 Humph. 63)723 
Bruce, Com. v. (6 Peun. Law J. 

236) 644 

, State V. (24 Me. 71) 710 

V. Truett (4 Scam. 454) 993, 1033 

Bruin, State v. (34 Mo. b'dl) 509, 510 
Brunell, State o. (29 Wis. 485) 211, 

212 
Brunson. State o. (2 Bailey, 149) 625 
Brunswick, K. «. (Moody & Ky. 

27) 
Brush 9. Seguin (24 Ills. 254) 
Bryan v. B^es (15 Ills. 87) 

, Rex V. (2 Stra. 866) 

, Reg. V. (40 Eng. L. & Eq. 

589) 

«. Stale (4 Iowa, 350) 



Bryant v. Bates (15 Ills. 87) 
V. State (9 Humph. 635) 



501 
935 

185 
591 

593 

779 

62 

939 



c. Bryant (10 Yerg. 271) 774, 

V. Bryant (10 Yerg. 527) 847 

Bryden, Com. o. (9 Met. 137) 797 

Buchanan v. Curtis (25 Wis. 99) 306 

\ State V, (5 Har. & J. 371) 

664 
Buck V. State (2 Harring. & J. 

426) 802, 803 

, State «. (46 Me. 531) 492 

Buckingham, Com. v. (2 Wheeler 

C. C. 198) 730 

Buckland v. Com. (8 Leigh, 732) 558 

V. Goddard (36 Ills. 206) 1034 

, People V, (13 Wen. 592) 2i1 



SXUTlOlf 

Buckles 9. Harlan (54 Ills. 361) 847 
Buckley «. Slate (2 Greene Iowa, 

162) 558, 782 

Buckmaster v. Beams (4 Gilm. 
443) 1035 

— D. Cool (12 Ills. 74) 1034 

Buckner, State t?. (25 Mo. 167) 932 
Buck worth, Rex v. (2 Keeb, 403) 883 
Buddick, Reg. v. (8 Car. & P. 237) 543 
Bugbee, State v, (22 Vl. 33) 279 

Buhs, State v, (18 Mo. 318) 932 

Buley, State v. (8 Port. 47) 425 

Bulger V. Hoffman (45 Ills. 353) 1034 
Bullock V. Babcock (3 Wen. 391) 171 
D. State (10 Ga. 46) 895 



Bulson V. People (31 Ills. 409) 14, 113, 

130, 186 
Bunger, State v. (14 Lou. An. 

461) 847, 948, 952 

Burchard «. Booth (4 Wis. 67) 169, 

188, 189, 191 
V. State (2 Oregon, 78) 805 



Burden, People v. (9 Barb. 467) 699 
Burdett, Rex 9. (4 Barn. & Aid. 
95) 412, 571, 730, 732 

V. State (9 Texas, 43) 186 

Burgaine, Rex v. (1 Sid. 409) 591 
Burge, State v. (7 Iowa, 225) 299 

Burger v. Hobbs (57 Ills. 592) 1033 
Burgess, People «. (35 Cal. 115) 461 
, Reg. V, (Leigh & C. 299) 498 



Burgon, Reg. «. (36 Engl. L. & 

Eq. 615) 693 

Burgwin v. Babcock (11 Ills. 30) 902 
Burk V. State (2 Harring. & J. 

426) 800 

Burke v. Com. (J. J. Marsh, 675) 934 
, Com. «. (105 Mass. 376) 435 

, State V. (9 Iowa, 204) 810 

. State V. (30 Iowa, 331) 177, 850 
Burket, Rex v. (Andr. 230) 833 

Burkett 9. Bond (12 Ills. 88) 1034 
, State V. (2 Mill, 155) 14 



Burknapp v. Wight (14 Ills. 803) 857 
Burks, Rex ©. (7 T. R. 4) 723 

Burlingame v. Turner (1 Scam. 

588) 896, 1034 

Burlingham, State tj. (15 Me. 104) 847 
Burnett, Rex o. (4 M. «fc S. 272) 301 
Burnham, State v. (15 N. H, 396) 660 
Burnham, State v. (9 N. H. 34) 734 
Burns v. Com. (3 Met. Kv. 13) 949 
— , State V. (20 N. H. 5o0) 277 

— , U. 8. V. (5 McLean, 23) 576, 577, 

578 

Burnside, State «. (37 Mo. 343) 916 
Burr, U. S. v. (4 Cranch, 469) 317. 318 
Burridge, Rex v. (3 P. Wins. 493) 679 
Burroughs, People v. (1 Park. 



INDEX TO CASES CITED. 



SXCTIOX 

O. R. 312) 691 

-^, State V, (2 Halst. 426) 604, 531 
-, U. 8. 9. (3 McLean, 405) 492 



Barrows, Rex o. (Russ. & Ry. 519) 433 

V. Stale (7 Engl. 65) 589, 593 

, State V. (11 Ired. 477, 48:3) 506 

Burst V, Wayne (13 Ills. 664) 1034, 

1035 
Burt, State v. (25 Vt. 373) 46, 703 

Bunles v. State (4 Md. 278) 959. 

Bush, People v. (4 Hil. 133) 448, 457, 

751, 753 
, People V. (3 Parker Cr. R. 

552) 463 

Bnahnell v. Scott (21 Wis. 451) 306 
Buster «. State (26 Ala. 107) 919, 952 
Butcher, Com. v. (4 Grat. 544) 809 

, Reg. V. (2 Mootly & Rv. 228) 931 

Butler, Com. o. (1 Allen, 4) ' 839 

V. FoKl (1 C. & M. 162) 705 

V. Foster (14 Ala. 323) 107 

, People V. (16 John. 203) 449 

, People V. (1 City Hall Kec. 

66) 218 

V. Porter (17 John. 145) 46 

, Heg. c. (2 Car. *Sc K. 221) 89 

V. Stale (5 Blackf. 280) 226, 636 

V. Stale (13 Sm. & M. 470) 108 

Buu c. State (7 Humph. 45) 548 

Buttan V. State (3 Humph. 203) 279 



Ssonov 
Caldwell «. State (17 Conn. 467) 212, 

216 

, Com. V. (14 Mass. 830) 

, «. Rundell (1 Jones, 293) 

V. State (5 Texas, 18) 

. State V. (2 IVIer, 212) 



46 

108 
889 
758 
993 
11 
Call, Com. f>. pi Pick. 509) 626, 794, 

940 999 
, People V. (1 Denlo, 120) ' 496 
, State V. (48 N. H. 126) 595 



Calhoun v. O'Neil (53 Ills. 354) 
, People «. (3 Wen. 420) 



Butters v. Haughwort (42 Ills. 19) 495 
Buitervvorth, l&x o. (Kuss »Sc Ry. 

520) 817 

Button, Reg. v. (11 Q. B. 929; 12 

Jur. 4017; 
-, U. S. V. (2 Mason, 468) 



Callaghan, Com. v. (2 Va. C. 460) 656 
Callanan, Rex o. (6B. A Cress. 

102) 691 

Callendine, State «. (8 Iowa, 289) 658, 

782,864 
Callicott, Rex «. (Russ. & Ry. 

212) 578 

Calton V. Com. (5 Met. 582) 808 

Calvin, State v. (R. M. Charl. 151) 564 
Cambisco v. Maffett(2 Wash. C. 

C. 98) 
Ctimeron, State v. (2 Chand. 172) 
V. State (8 Miss. 494) 



Camiield, Rex o. (1 Moody, 42) 
Camp V. State (3 Ga. 419) 

V. (State 25 Ga. 689) 

V, State (3 K. Dey, 417) 

, State V. (23 Vt. 551) 



11 
919 
206 
466 
436 
1000 
436 
989 

89 
492 
950 



392 
549 
793 
691 



Buttrick, Com. p. (100 Mass. 12) 
Buxton «. Couch (3 Salk. 269) 
Buzzard v. Slate (20 Ark. 106) 840,851 
Buzzell, Com. v. (16 Pick. 153; 910 
Byam o. Stale (17 Wis. 145) 817 

Byrne t. State (12 Wis. 519) 54:5, 741, 

801, 803, bU6, 847 
Bvkerdike, Rex v. (1 Moody & 

'R. 179) 714 

Bvkes, Rex v. (1 Moody & R. 179) 601 
-^, Rex c. (Russ. <fc Ry. 292) 499 
OeLhreTa, Bz parte (I Wash. C. C. 

232) 53 

Caddv V. Barlow (1 Man. & Ry. 

275) 186 

Cadie, State v. (18 .U-k. 613) 817 

Cadman, Rex v. (U. & M. C.'C. 

114) 382 

Cadwell c. State (5 Texas, 18) 389 

Carly, People v. (6 Hill, 490) 5()3 

Cain p. Stale (2 Jones N. C. 201) 952 

r. Slate (18 Texas, 387) 790 

Calder v. Bull (3 Dall. 386; 13 



Campbell, Com. v. (7 Allen, 541) 
— , Com. V. (105 Mass. 436) 

— V. Day (16 Vt. 558) 

— «. People (16 Ills. 17) 12, 87, 177, 

330, 350, 351, 352 
V. People (8 Wen. 636) 691, 693, 

696 

, Rex V. (Boston L. Rep. 324) 344 

, Rex V. (1 Moody, 179) 496 

V. State (23 Ala. 28) 540, 938 

V. Slate (U Ga. 355) 844, 992 

, Slate V. (1 Rich. 124) 881, 883 

, Slai^i V. (2 Tyler, 177) 683 

0. State (9 Yerg. 333) 993 

Canada v. Com. (9 Dana, 304) 932 

Cauahan, State v. (17 Iowa, 256) 952 
Cnnby v. Griffin (3 Harring. 333) 115 
Cancemi v. People (18 N. Y. 129) 901, 

902 

V. People (2 Smith, 16 N. 

Y. 501) 909 

Candwell Reg. v. (17 Q. B. 503) 933 
Cauitt; People©. (2 Park Cr. K. 

587) 503, 510 

Cannady v. People (17 Ills. 159) 46, 

277, 780 

Cannon v. Kenny (3 Scam. 10) 501 
Cannon v. State (3 Texas, 31) 994 

Canon, State v. (18 Iowa 372) 385 



IKD£X TO OASES OITED. 



BMcmos 
Canterbuty, State «. (8 Foster, 

195) 800 

Cantrill V, People (3 Gilm. 856) 703 
Capps V, State (4 Iowa, 802) 789, 791 
Carey, Coin. v. (12 Cush. 246) 62 

, Com. «. (2 Pick. 47) 560, 562, 564 

, People V, (4 Park. Cr. R. 

238) 216 

Garland, State v. (3 Dev. 114) 691 
Carlile, Rex v. (8 Barn. & Aid. 

161) . 724,730 

Carlin v. State (4.Terg. 143) 196 

Carnahan, State v. (17 Iowa, 256) 991 
Carnal «. People (1 Park. Cr. H. 

272) 912, 914 

, People V. (1 Park. 256) 994 

Carney, People «. (3 City Hall 

Rec. 44) 461 
Carpenter, Com. v. (108 Mass. 15) 711 
V. County of Dane, (9 Wis. 

274) 828, 829 

f>. People (3 Gilm. 147) 1012 

- — V, People (4 Scam. 197) 192, 392, 

395, 800, 97« 

V. People (8 Barb. 603) 384, 386 

V. State (14 Ind. 109) 636 

State V. (23«I(>wa, 506) 735 

-, State V. (20 Vt. 9) 7Q8, 



Case, Reg. v, (1 Engv L. & £q. 
544) 



SxoTioir 



173,435 

, Reg. fj. (Temp. & M. 318) 435 

Casey, Com. t. (11 Cush. 417) 886 

, State V. (Busbee, 209) 186 

Cash 0. State (2 Tenn. 198) 196 

Cash V, State (10 Humph. Ill) 799, 

803 
Cass V. Campbell (63 Ills. 259) 952, 992 
9. State (2 Greene Iowa, 353) 867 



709 



Carr, liex v. (8 Car. & P. 163) 399 

, Rex V. (Russ. & Ry. 377) 751,752 

, Rex ©. (1 Sid. 418) 694 

V. Jones (3 Smith, 491) 724 

, Slate V. (1 Post. 166) 993 

, State «. (4 Iowa, 290) 113 

, State ». (5 N. H. 367) 558, 560 

Can-igan, State v, (24 Conn. 296) 809 
Carrington, Com. v. (16 Mass. 37) 974 
Carrol v. State (23 Ala. 28) 355 

Cars, Slate c. (34 N. H. 510) 999 

Carson, Com. i?. (1 Wheel. C. C. 

48«) 895 

Carter «. City of Chicago, 57 

Ills. 283 807 

V. Dow. (16 Wis. 299) 16, 46 

0. People (2 Hill, 317) »90 

, Rex V. (2 East P. C. 935) 558 

V. Slate (2 Ind. 617) 323, 328, 383 

, State V. (39 Me. 262) 13« 

V. State (12 Texas, 500) 7 

V. Stato (20 Wis. 6i7) 448, 803 

Cajtw right 0. Wright (1 Dowl. & 

Ryl. 230) 72:^ 

Caruth v. Sugland (4 Grav, 7) 432 
Carwile v. State (35 Ala. 392) 19() 

Cai-y, People c. (4 Park. C. R. 238) 216 
Caryl, People r. (3 Park. Cr. R. 

326) 174 

Cabborous, People v. (IS John. 

351) 



Cassedy, State v. (1 Richardson, 

90) 281 

Castlehaven, Rex v, (1 St. Tr. 387) 440 
Caswell V. Cooper (18 Ills. 532) 935 
, People V. (21 Wen. 86) 
, State V, (2 Humph. 399) 



1 — y- — ■ — J — — 

Catlin, Com. v, (4 Mass. 8) 
V. Henlen (9 Wis. 476) 

, Slate V. (3 V t. 520) 



538 
279 
217 
246 
94<J 
Calor. Rex v, (4 Esp. 117) 560 

Cawood, Com. «. (2 Va. Cas. 527) 1014 
Central Bank©. St. John (17 Wis. 

163) 981 

Certain Intoxicating Liquors, 

Com. V. (6 Allen, 596) 142 

Ceyford's Case (7 Greenl. 57) 631 

Chabbock, Com. v. (1 Mass. 144) 939 
Chad wick, People v. (2 Park. Cr. 

R. 103) 564 

Chamberlain v. People (28 N.Y. 
85) 69.1 

, State V, (30 Vt. 555) 693, 701 



Chambers «. People (4 Scam. 352) 15, 

46, 779, 782, 803, 980 
, State «. (2 Greene Iowa, 309) 492, 

783 

Champeny, Rex t?. (2 Lewin, 258) 69y 
Champer d. State (14 Ohio S. 437) ITU 
Champiin «. Morgan (20 Ills. 181) 306, 

310 
-, Reg. «. (1 Car. & K. 746) 4^34 
Chaodler, State i7. (2Harrlug. 553) 7'J7 
, Stale c. (3 Hawks, ^93) 5G0 



Chapman c. Cawrey (50 His. 512) 22. 

42, \)hi 
— , Com. «. (11 Cush. 422) 33:i 

, Com. c. (13 Mci. 68) 724 

— , 0. Com. (5 Whart. 427) 46, 4-18, 

— , Com. tJ. (1 Va. Cr. C. 138) 



©. Gillett (2 Conn. 40) 



Chappel, Com. p. (116 Mass. 7) 
0. Statu (8 Yerg. 166) 



Charles t>. People (1 Com. N. Y. 

18U) 
.Chiu'ics worth, R'jg. c. (1 Bist. tt 
j S. 4(iU) 
141 0. Williams (16 Ills. 338) 



655, 
657 
6iJ3 
263 
1014 

618 



1034 



INDEX TO GASES CITED. 



ZXlll 



SscnoK 
Charlewood'8 Case, (2 East P. C. 

689 496 

Cliandlen State v. (8 Hawks, 898) 

, Slate «. (24 Mo. 371) 888 

Charter, Rcx». (18 Shaw, J. P. 

766) 435, 212 

Chase «. Debolt (2 Gilm. 371) 993 

V, Jennings (38 Me. 44) 907 

V. People (40 Ills. 857) 6, 87, 184, 

335, 902, 907, 908, 916, 945 

V. Chase (1 Walker, 156) 176 

Chaancey, Com. v. (2 Ashm. 90) 993, 

999, 1000 
Cheek v. State (1 Ala. Sel. Cas. 

107, 116) 801 

, State «. (18 Ired. 114) 747, 748 

Cheeseman, Rex v. (7 Car. & P. 

455) 376 

Cherry, Rex v. (2 East P. C. 556) 494 

, Rex V. (1 Leach, 286) 498, 494 

, State V. (1 1 Ired. 475) 166 

, State V. (2 Murphy, 7) 796 

V, State (7 Ohio, 222) 511 

, State V, (1 Swan Tenn. 160) 803 

Chesley, Com. v. (107 Mass. 224) ^53, 

855 
Chess «. State (1 Blackf. 198) 574 

Chevalier, Com. v. (7 Dana, 134) 462 
Chicago & Alton R. R. Co. v. 

Adler (56 Ills. 344) 911 

tJ. Flagg (43 Ills. 864) 178 

t». Muiray (62 Ills. 327) 952, 991 
_-. ^^ 

952 



V. Sullivan (63 Ills. 294) 
«. Utlcy (9S Ills. 410) 



991 
952 



C. B. & Q. U. KCo. u. Dunn (61 

Ills. 886) 

V, George (19 Ills. 510) 

V. Gregory (58 Ills. 274) 952, 989 

Chicago & Gr. East. R. R. Co. «. 

Fox (41 Ills. 106) 952 

C. R. I. & P. R. R. Co. «. Collins 

(56 Ills. 212) 816 

«. Herring (57 Ills. 59) 991 

V. Reidy (66 Ills. 44) 952, 992 

f}. McKean (40 Ills. 22m 1034 

Chic^o, Milwaukee & Si. Paul 

R. R. Co. t). Melville (66 Ills. 

329) 1033, 1034 

C, N. W. R. R. Co. ©. Dement 

(44 Ills. 74) 953 

C. & N. W. R. R. Co. f>. Peacock 

(48 Ills. 253) 171 

Chichester's Case (Aleyn, 12) 826 
Chick V. State (7 Humph. 161) 425, 

426 
Chidery, Reg, v. (1 Den. C. C. 

515) 752 
alild V. Affliek (9 B. & Cres. 403) 734 
, Com. t>. (10 Pick. 262) 959 



BxcTioir 
Child, Com. v. (18 Pick. 198) 999 
V. North (1 Keb. 254) 661 



Chittenden v. Evans (48 Ills. 52) 952, 

1083 
Chitty, State v. (1 Bailey, 879> 235, 

236, 1000 
Choice V. State 031 Ga. 424) 7 

Chovin, State v. (7 Iowa, 204) 174 
Cole «. Choteau (18 Ills. 439) 891 
Chouteau v. Pierre (9 Mo. 3) 910 

Christy, Reg. v. (1 Cox, 239) 593 

Church, Com. ». (1 Bar. 105) 801 

Churchill, Com. v. (2 Met. 118) 993 
Chumasero v. People (18 Ills. 405) 108, 

118,825 
Churchill, Com. «. (5 Mass. 174) 847 
, Com. D. (2 Met. 118) 998 



City of Alton v. Illinois Trans- 
portation Co, (12 Ills. 38) 810 
City of Champaign v. Patterson 

(50 Ills. 61) 989 

City of Bellville v. Stookey (23 

Ills. 442) 305, 307 

Cit^' of Bloomington v, Heigh- 

land (67 Ills. 280) 932 

City of Chicago «. Rogers (61 * 

Ills. 188) 983 

City of Chicago v. Smith (48 

Ills. 107) 952 

City of East St. Louis v. Weh- 

rung (46 Ills. 892) 282 

City of Milwaukee «. Davis (6 

Wis. 377) 306, 807 

City of Oswego v. The Oswego 

Canal Co. (6 N. Y. 257) 806 

City of Peoria «. Johnston (56 

Ills. 45) 805, 300, 307, 310 

Clapp, Com. v. (5 Pick. 41) 618 

Clare v. State (5 Iowa, 509) 277 

Clarissa, State v. (11 Ala. 57) 752, 773, 

774 
Clark V. Binney (2 Pick. 113) 724 

V. Boyle (51 Ills. 104) 953 

f). Cleveland (6 Hill, 344) 65 

, Com. V. (2 Ashm. 105) 897 

, Com. V. (2 Brown, 223) 773 

, Com. V. (6 Grat. 675, 684) 751, 

833 

, Com. V. (2 Met. 23) 180 

V. Com. (16 B. Monr. 206) 51^1 

— ^, Com. tJ. (2 Va. Cas. 401) 847 

V. Ellis (2 Blackf. 8) 692 

D. Harkness (1 Scam. 57) 309 

V. Ostrander (1 Cowen, 441) 915 

V. Pageter (45 Ills. 185) 991 

, People «. (1 Park. Cr. R. 

360) 9^3 

«. People (1 Scam. 118) 47, 363, 

448, 461, 857 



XXIV 



INDEX TO CASES CITED. 



SXOTION 

Clark, People v. (8 Seld. 885} 845 



— , Reg. fj. (1 Car. & K. 421) 461, 

469 

— , Ree. t>.(Dcai-s. 397 ; 29 Engl. 

Com. L. & Eg. 542) 434 

— , Rex «. (1 East, 46) 817 

— , Rex «. (Russ. & Ry. 181) 507, 

544 

— , Rex V, (2 Stark. N. P. C. 

241) 486, 437 

684 
392 
982 
336 
989 
510 
696 
463 



-, Rex V. (2 Stra. 1216) 

- V. State (12 Ga. 360) 

- 9, State (4 Humph. 254) 

- f). State (8 Humph. 671) 
-, State c. (12 Ired. 151) 
-, State V. (4 Strob. 311) 
-, Stale V. (2 TNler. 282) 

- V. Clark (42 Vt. 629) 
•, U. S. V. (2 Crauch. C. C. R. 



158) i 

ClarkBon, State v, (3 Ala. 378) 839 
Claycomb v. Munger (51 Ills. 

378) 844 

Clayton, Reg. v. (1 Car. & K. 
* 128) 457,748 

V, Warden (4 Conn. 230) 631 

Clemens, State v. (38 Iowa, 257) 944 
Clement v. Bushway (26 Ills. 200) 993 

T, Chives (4 Man. & R. 127) 724 

Clementine v. State (14 Mo. 112) 211, 

212 
Clements, State v. (32 Me. 279) 177, 

1»0 
Clemson v. Krupper (Breese, 

162;2d. Ed. 210) 1034 

Cleveland v. Skinner (56 Ills. 501) 12;] 
Clewi's, Rex v. (4 Car. & P. 221) 941 
Click V. State (a Texas, 282) 421 

Cliendon, Rex v. {2 Ld. R^ym. 

1572) 803 

CHtford V. Brandon (2 Cam])b. 

358) 225, 661 



BaoTiov 
Cochrane, People «. (1 Wheeler 

C. C. 84) 589, 540 

V. State (6 Md. 400) 448, 845 

Cocker v. State (2 Ark. 58) 851 
, State V. (3 Harring. Del. 

554) 469 

Cockcrolt V, Smith (2 Salk. 642) 428 
Cockin's Case (2 Lewin, 285) 610 
Cockley v. State (4 Iowa, 477) 895, 805 
Codd, People v. (2 City Hall Rec. 

171) 733 

Cody «. State (8 How. Missis. 

27) 1014 

Coe, Rex v. (6 Car. & P. 408) 888 

— , Com. V. (115 Mass. 481) 560, 589, 

591, 597, 601 
Coflfe, Rex v. (1 Lev. 189) 81 

Cotfey, People v. (4 City Hall 

Rec. 52) 569 

, State V. (N. C. Tenn. 272) 693, 

694 
Coffin V. Coffin (4 Mass. 1) 784 

Cogdell, People v. (1 Hill, 94) 500, 

991 
Coggins V. State (7 Port 263) 226 
Cohen, Rex v. (1 Stark. R. 511) 701 
Coker v. State (20 Ai'k. 53) 923 

Cokely v. State (4 Clark Iowa, 

477) 46, 155, 181 

Col burn, People «. (1 Wheeler 

Cr. C. 479) 76 

Colby V. Sampson (5 Mass. 310) 676 
Colet?. Choteau, 18 Ills. 439) 891, 898 

V. Com. (5 Grat. 690) 89, 492 

, People V. (4 Pack. Cr. R. 35) 330 

c. Suite (o Engl. Ark. 818) 932 

. Slate V. (17 Ills. 674) 773 

». Cole (17 Wis. 074) 774, 847 

, State V. (19 Wis. 129) 564, 569 

, U. S. V. (5. McLean, 513) 663, 

664 
Coleman v. Allen (3 J. J. Maish, 



229) 990 

, Com. T. (8 Cush. 215, 217) 543,1 , Rex v. (2 East P. C. 672) 496 

, Slate V. (5 Porter, 52) 803 



-, Reg. tj. (2 Car. ife K. 202) 
- V. State (5 Blackf. 224) 
V. State (29 Wis. 329) 784, 



420 
436 



Clinch, State v. (8 Iowa, 401J 
Clough, People v. (17 Wen. 351) 
Clow V. Wright (Brayt. 118) 
Cloys, Reg. o. (5 Cox, 146) 
Coats V People (4 Park. Cr. R. 

662) 802, 944; 

Cochran v. Ammon (16 Ills. 316) 79' 

817, 993, 

, State V, (2 Dev. 63) 569i 

«. State (7 Humph. 544) 980, 992, 

994, 995 



549 

563lColley, Rex. v. (Moody & M. 329) 930 

492 Collier, People v. (1 Manning, 137) 691 

HOOColliiigwood, Reg. v. (6 Mod. 2tiS) 753 

026'Collins v. Blantern (2 Wils<m, 

594! 841) 245 

— V. Claypole (Breese, 164, 
2d Ed. 212) 898 

— V. Fisher (50 Ills. 359) 42 

— c. Hayte (50 Ills. 337) 42, 714 

— ©. People (48 Ills. 145) 

— V People (39 Ills. 235) 



V. Renison (Sayer, 138) 



909, 9o2 
492, 507, 
543, 981 
180 



., Reg. V. (Leigh & C. 471) 75;i 



INDEX TO CASES CITED. 



XXV 



SzoTiox' SaonoH 

Collins V. State (33 Ala. 434) 539 Cook v. State (11 Ga. 53) 797 

, State V. (20 Iowa, 85) 949 v. State (4 Zab. N. J. 843) 8a3 

, State t?. (32 Iowa, 38) 350, 358j v. Yarwood (41 Ills. 118) 848, 849 

353, 867, 881, 884 Cf»oke v, Birt (5 Taunt. 765) 706 

, State V. (8 Hawks, 191) 574, 582 , Reg. b. (8 Car. & P. 582) 567. 

St^e V. (1 McCord, 355) 279| 568, 569 



t?. Sungs (G Moore, 111) 57 

». Todd (17 Missis. 537) 179, 188, 

189, 191 
952 
810 
328 
805 



t). Waters (51 Ills. 78) 



218 



Colson V. State (7 Blackf. 590) 
Colt, People V. (3 Hill. 432) 
Colter. State p. (6 R I. 195) 
Col umbos, U. 8. o. (5 Cranch. C. 

C 304) 

Colvin, State v. (11 Humph. 599) 186 
Combe's Case (Nov, 101) 563 

Combs V. People (39 Ills. 183) 113 
Com. of Highways, People v. (52 

Ills. 498) ' 306 

Comfort u. Fulton (13 Abbott N. 

Y. Pr. K 376) 45, 46 

V. People (54 Ills. 404) 509 

Comstock, State v. (25 Vt. 553) 780 

V. Wood (50 Ills. 352) 42 

Conant v. Grifflu (48 Ills. 410) 631, 633 
Cone. Slate r. (1 Jones, N. C. 18) 439 
Conkwright v. People (35 Ills. 

204) 89, 509, 510, 540, 952, 991 

Conlee, State r. (25 Iowa, 2:i7) 782 
Conlev V. Palmer (2 N. Y. 182) 279 

, State V. (39 M9. 78) 79, 323 

Conoly V. People (3 Scam. 474) 46, 388, 

461, 782, 817, 831, 834 
Connaughty r. State (1 Wi8. 159) 332 
Connehan v. Ford (9 Wis. 240) 306 
Connell, Com. t. (3 Grat. 587) 678, 680 

, Reg. V. (1 Car. & K. 100) 577 

Connor p. Com. (3 Binu. 38) 45 

F. Com. (2 Va. Cas. 30) 691, 696 

, Rec. tJ. (2 Car. & K. 51S) 325 

, U. S. u. (3 McLean, 5«3) 11, 701 

1. People (20 Ills. 382) 113 

Conrad, Slater. (21 Mo. 271) 834 

Constable, Rex p. (7 Dowl. ^ Ry. 



683) 

Conwav, State v. (18 Mo. 321) 
Cook, fcom. V. (12 Mel. 93) 
, Com. V. (1 Robinson, 729) 



c. Dowling (3 Doug. 75) 
C.Ellis (6 Hill, 467) 
r. Granfi:e(18 0hio.52«) 
c. Hughes (Ry. & M. 112) 
, People «. (10 Mich. 164) 
, People V. (8 N. Y. 6T) 
, People V. (2 Park. Cr. R. 



Cooladge v. Choate (11 Met. 79) 
Cooley, Cora.v. (6 Gray, 860) 
Coolid_ge, U. S. v. (2 Gallis, 364) 
Coon, People v. (15 Wen. 277) 



639 

56 

14 

683, 

684 

65 

892 

176 

181 



Cooper V. Adams (2 Blackf. 294) 

, Com. V. (15 Mass. 187) 

c. McJunkin (4 Ind. 290) 

, People V. (13 Wen. 379) 

. Rex V. (5 Car. & P. 534) 456, 747 

, Slate V. (1 Green N. J. 362) 839 

, State 0. (16 Vt. 551) 469 

, Slate V. (Zab. 52) 877 

Cooper's Case, (Cro. Car. 544) 854 
Cooster, SUite v. (10 Iowa, 455) 228, 

637, 801, 806 
Cope. Rex v, (1 Stra. 144} 661, 664 
Copeland, Reg. v. (C. & M. 516) 593 

1>. State (7 Humph. 479) 841, 992 

, Stale V. (2 Swan, 626) 840, 852 

Copp, State «. (15 N. H. 212) 703. 

808 
Coppenburg, State v, (2 Strob. 

273) 488, 542 

Corbin v. Shearer (3 Gilm. 482) 952 
Corey, Com. v. (2 Mass., 524) 246 

V. Rusisell (3 Gilm. 366) 1033, 

1034 
Corlies v. Waddell (1 Barb. 355) 108 
Cornelius v. Boucher (Breeae, 12, 

2d Ed. 32) 898, 921 

V. Com. (15 B. Mour, 539) 851. 

990 

V. State (7 Engl. 782) 

Cornell, U. S. v. (2 Xiason, 91) 333, 

845,908 



12) 



0. Staats (18 Barb. 407) 



Corning v. Corning (2 Seld. 97) 179 

188 189 

Cornish. Com. v. (0 Bin. "Md) * 695 
932 Cornwall, Rex 0. (Russ. & Ry. 
504 336) 

385 Corporation of Albany, People v. 
691. (11 Wen. 539) 
701 Coslet, Rex v. (1 Leach, 236) 
6y3;Cosrello, People 1?. (1 Denio,83) 
1861 

TO'Cottarel, People v. (18 John. 115) 449, 
733; 456 

962 Cotton, Com. v. (8 Grav, 488) 639 

693 , Rex c. (W. Kel. 125) 684 

. State V. (4 Fost. 143) 84, 793 

492 p. State (31- Missis. 504) 950 

892 V. State (4 Texas, 260) 899 



397 

171 
494 
801, 
944 



XXVI 



INDEX TO CASES CITED. 



SSCTION 



S>OTi02r 



950 
827 

878 
45 
091 
G6:j 
503 
226 
999 



Cotton u. State (7 Texas, 547) 
Couch «. State (24 Texas, 507) 
Coughlin 0. People, 18 Ills. 266) 

County Court v. Buck (27 Ills. 

440) 
County of Dane «. Smith (18 

Wis, 583) 
County of Hock Island v. County 

of Mercer (24 Ills. 36) 

tj. Steele (31 Ills. 543) 

Coureen t>. Ely (87 Ills. 838) 
Covinffton, State v. (4 Ala. 003) 

, State V. (2 Bailey, 569) 

Covy V, State (4 Port. 186) 

V. State (a Sm. & M. 4(>o) 

Cowen V People (14 Ills. 348) 589, 592, 

594, 597, 599, 907 

V, Smith (3o Ills. 416) 993 

, State r. (7 Ired. 239) 549 

Cowley V, Com. (U Met. 575) 803 
Cox, People v. (9 Cal. 32) 323, 999 

, Hex D. (1 Car. & K. 494) 492 

, Rex. (1 Leach, 71) 691, 791 

, State V. (10 Iowa, 351) 89» 

Coxe V. Whitney (9 Missis. 531) 1»8 
Coxhead, Rex v. (1 Car. & K. 

623) 396, 897 

Coyles t>. Hurtin (10 John. 85) 59 

Crabti'ee v. Hagenbough, (23 Ills 

349) 963 

Cradock, Rex v. (1 Enel. R. 569) 803 
CVaft V. Borte (1 Sauna. 242a. n. 

2) 723 

Craig, Com. t). (6 Randolph, 731) 115 

, U. S. V. (4 Wash. C. C. 729) 569 

Cramp, Rex. v. (Russ. & Ry. 327) 752 
Cranage, Rex v. (1 Salk. 385) 546 
Crandall v. Dawson (1 Gilm. 559) 699 

, U. S. V. (4 Cranch C. C. 683) 733 

Crane, Com. v. (1 Va. Cas. 78) 



107: Crittenden v. French (21 Ills. 599) 86 

2171 , U. S. V. (Hemp. 61) 46, 833 

12,|Crocker, Rex u. (2 Leach, 987; 
9601 Russ. & Ry. 97) 369, 570 



-, Rex V. (4 -Car. & P. 544) 

. State V. (3 Harring. 554) 

Crocket v. State (33 Ind. 416) 
Croff ©. Ballinger (18 Ills. 203) 
Crofts, Rex v. (7 Mod. 397J 
V. People (2 Scam. 442) 



88f$ 
805 
203 
4^53 
279 
558 

Crogan, State v. (8 Iowa, 528) 46, 210, 

214, 461, 636, 809 

Croghan c. State (22 Iowa, 567) 

p. State (22 Wis. 444) 435 



Cromie v. Van Nortwlck (56 Ills. 

353) 1034 

Crooke, Rex v. (2 East P. C. 921) 558 
Cropper u. U. S. (Morris Iowa, 

259) 331, 988 

Cross V. People (47 Ills. 152) 46, 77, 

558, 566, 569, 817, 944 

, State 0. (12 Iowa, 66) 392, 435, 

439 891 

, State V, (27 Mo. 332) 7, 932, 1016 

Croswell, People v. (3 John. C. 
353) 

D. People (13 Mich. 427) 



728 
435 
Croteau, State o. (23 Vl. 14) 992 

Crow, Slate c. (1 Ired. 376) 167, 169 
, State ©. (10 West L. Jour. 

435 

245 



501) 
Crowel qui tarn v, Woodworth 

fU John. 474) 
Crowhurst, Reg. v. (1 Car. & K. 

370) 
, Rex p. (2 Ld. Raym. 1363) 



Crowinshield, Com. o. (10 Pick. 

497) 
Croxdale v. State (1 Head. 139) 
Crozier ©. Cooper (14 Ills. 139; 
p. Cundy (9 D. & Ry. 224) 



510 
788 

943 

558 
993 
144 



340 
V, State (3 Ind. 193) 20b Cruikshank p. Brown (5 Gilm.' 77) 832 



Crump, Com. v. (I Va. Cas. 172) 
Crump^s Cast* (1 Car. & P. 65«) 
Crumpton p. Newman (12 Ala. 
199) 
, lit-g. 0. (C. & M. 597) 



932 
504 



707 

327 

216, 



Crank, State o. (2 Bailey, 66) 323 

Cratcm, Slate v, (6 Ired. 104) 342, 933, 

1016 
Crawford, State v. (2 Dev. 425) 427 

0. Slate (2 Ind. 132) 507 

V. Slate (2 Yerg. 60) 994 Crupper, Com. v. p5 Dana, 466) 

Crayton, Slate d. (6 Ired. 164) 840' 226, 636 

Crt-evy, Rex v. (I M. & S. 273) 733, 734lCruse, Rex v. (2 Moodv R. 53) 8 

Creight, State v. (1 Brev, 169) 817 Crutchlcy, Rex v. (7 Car. & P. 
Crespigny, Rex p. (1 Esp. 2.H0) 697, 701 814) 329 

Creighl<m,Rex p. (Russ.& Ry. 62) 479 Cuddx , Reg. p. (1 Car. & K. 210) 843 
Crilley p. State (20 Wis. 24;j) W7, 509 CulbiTtsou p. Galena (2 Gilm. 
Crippen v. People (8 Mich. 117) 905 131) 1033 

Crisman p. People (3 Gilm. 351) 117 Culkin, Rex p. (5 Car. & P. 121) 332 



Orisse, People v (4 Deuio, 525) 581), Culver, Com. p. (2 Peuu. Law 

594,597, GOi; Jour. 302) 



724 



INDEX TO CASES CITED. 



ZXVU 



SiCTTOW 

Cumden, Rex o. (3 Campb. 89) 208 
Cammings v. McKiDney (4 Scam. 

57) lOBd, 1084 

Cummins 9. Latham (4 B. Monr. 

la^} 240 

Cunningham v. Com. (9 Bosh. 

Ky. 149) 881 

V. Craig (53 Ills. 253) 1083 

0. Hudson River Bank (21 

Wen. 557) 560 
, People V. (1 Denio, 524) 801, 952 



-, State 0.(21 Iowa, 433) 
«. State (14 Mo 402) 



Cuplfind, Rex v. (11 Mod. 887) 
Ciu-e, State V. (7 Iowa, 479) 
Curley, State v. (33 Iowa, 859) 



492 
108 
656 
636 
792, 
810 
403 
56o 
859 
637 



Curlin c. State (4 Yerg. 143) 
Curling, People v. (1 John. 820) 
Curran o. Beach (20 Ills. 260) 
Currier, State t>. (23 Me. 43) 
Curry, State ©. (1 Jones N. C. 280) 340 
C^irtiii V, Carson (2 N. H. 539) 177 

c. Hubbard (4 Hill, 487) 356, 463 

V. Hurlbut (2 Conn. 309) 279 

«. Massey (6 Gray, 261) 733 

c. People (Breese, 197, '2d 

Ed. 265; 1 Scam. 285) 46, 193, 323, 
888, 461, 789, 790, 791, 799, 800, 803 

o. Sage (85 Ills. 22) 991 

, Suue c. (Hayw. 471) 56 

Cushlan, Rex v. (Jebb. 113) 567 

CuBhman «. Ryan (1 Story, 91) 169, 188 

191 
Dacy, Cora. v. (107 Mass. 206) 792 

«. Stale (17 Ga. 439) • 892 

Dailey o. State (10 Ind. 536) 577, 992 
Daily, Com. t?. (12 Cush. 80) 902 

. Com. V. (110 Mass. 503) 452,461, 

466 
992, 
993 



Dains v. State (2 Humph. 442) 



Dale, JB^ parte (28 £ng. L. ^ Eq. 

16.3) 730 

, Rex «. (7 Car. & P. 852) 597 

, State c. (3 Wis. 795) 46 

-> 1». Wood (7 Moore, 23) 177 

Daley ^ Com. o. (4 Penn. Law J. 

154) 832 
Dalloway, Rex v, (2 Cox C. C. 

273) 876 
Damewood «. State (1 How. 

Missis. 262) 492 

Damon, People c. (18 Wen. 851) 14, 

908, 912 
Damp V. Town of Dane (^9 Wis. 

419) 308 

Dana, Com. o. (2 Met. 829) 187, 618 



V. State (2 Ohio S. 91) 



Danbert, State v, (42 Mo. 242) 
Dandy, State c. (1 Brev. 395) 
Danforth, State v. (3 Conn. 112) 
0. Streeter (28 Vt. 490) 



Sbotiov 
558 
510 
244 
427 
242 



Daniel v. State (8 Sm. & M. 401) 504 
Daniels, Com. «. (2 Va. Cas. 402) 220 

. Reg, «. (6 Mod. 99) 753 

V. People (21 Ills. 442) 805, 306 

«. Shields (38 Ills. 197) 1033, 1034 



9. State (24 Texas, 389) 952 

Dann, Rex o. (1 Moody, 424) 855 

Dant, Reg. v, (Leigh & C. 567) 326 
Darby, Rex c. (3 Mod. 139) 727 

Darcey, Reg. «. (1 Crawf. & Dix. 

C. C. 33) 753 

Dark, State «. (8 Blackf. 526) 558 
Darst t). People (51 Ills. 286) 902 

Dart V. Horn (20 Ills. 212) 952 

DaYc «. State (22' Ala. 23) 984, 949 
Davenport, Com. «. (2 Allen, 299) 216 

800 
David V, Ransom (1 Greene Iowa, 

383) 282 

Davidson, Com. v. (1 Cush. 88) 597 

, State «. (20 Mo. 212) 108 

«. Wheeler (Morris Iowa, 

288) 108, 869 

Davis 0. Capper (10 B. & Cres. 28) 68, 

69 

«. Clements (2 N. H. 890) 48 

, C^m. D. (9 Mass. 415) 664 

, Com. «. (11 Pick. 432) 238, 284, 

235,801 

V. Davis (23 Me. 403) 

c. Hoxie (1 Scam. 406) 

©. People (19 Ills. 74) 



281 

952 

823, 908, 

916 972 

• c. People (50 Ills. 200) ' 980 

, People t». (21 Wen. 309) 562, 564 

, Rex t>. (6 Car, & P. 177) 539 

, Rex «. (7 Car. & P. 785) 57, 931 
"^ g^^ 

684 

14 

468, 

464 

17 

730 

14 

76 

805 

854 

950 

226 

226 

170 



Rex «, (2 East P. C. 709) 
-, Rex V, (Loft, 62) 
-, Rex V. (12 Mod. 9) 
-, Rex V. (Russ & Ry. 499) 



-, Rex t. (Sayer, 133) 
-, Rex «. (3 Yates, 128) 
-, Slate V. (4 Blackf. 345) 
-, State n. (Brev. 3) 

- V. Stale (3 Cold. 77) 

- V. State (2 Ga. 674) 
-c. State (lOGa. 101) 
-«. State (22 Ga. 101) 

- ©. State (7 Ham. 204) 
-, State u. (1 Hill, S. C. 46) 
-, State ©. (1 Ired. 125) J 66, 167, 

168, 177 



• •• 

ZXVlll 



INDBX TO OASES OITED. 



Davis, State v. (29 Mo. 321) 

©. State (7 Ohio, 204) 

V. State (15 Ohio, 72) 

«. Taylor (41 Ills. 405) 

t?. Walker (00 Ills. 452) 



Dawson v. People (25 N. Y. 809) 805 

V. Robbins (5 Gilm. 72) 992 

, State V. (17 Iowa, 584) 154, 755 

Day V. Cushmau (1 Scam. 475) 309 

1). Gelston (22 Ills. 102) 891 

, Reg. V, (9 Car. & P. 722) 434 

, Rex V. (9 Car. & P. 449) 173 

Dayton, State v. (3 Zab. 49) 46, 691, 

693, 696, 847 
Deakin, Rex v. (2 East P. C. 653) 501 
Dean o. Uorton (2 McMullan, 

147) 188 

, Com. V. (109 Mass. 349) 392, 805 

, Com. 0. (110 Mass. 64) 589 

«. Gecmau (44 Ills. 286) 1083 

, People V. (6 Cowen, 27) 560 

V. State (2 Sm. & M. 200) 108 

D. Tennessee (Mart. & Yerg. 

127) 127, 226, 686 

V, White (5 Iowa, 266) mQ 

Dearing, liex «. (Cro. Eliz. 193) 323 
Deathridge o. State (Sneed Tenn. 

75) 939 

De Bow V. People (1 Denio, 9) 662, 564 
Declotts, State v. (19 Iowa, 447) 333, 

345 
Dedham, Com. (16 Mass. 139) 508, 

785, 839, 847 
Dedrew v. People (2 N. Y. 183) 393 
Deer o. State (14 Mo. 348) 996 

Deen v. Cunne (46 Ills. G9) 1034 

De La Foret, State v. (2 Nott 

*fc McC. 217) 53 

Deleany, Rex v. (Jebb, 88) 14, 374 
Deleval, Rex ©. (3 Bur. 1434, 

1438) 
Delong, State v. (12 Iowa, 454) 
Del worth t>. Com. (12 Grat. 689) 
Delue, State v, (2 Pin. Wis. 204) 
Dempsey v. People (47 Ills. 323) 

749,816,995 
Dent V. Davison (52 Ills. 110) 1035 

, Reg. tJ. (1 Car. *fc K 24y) 597 

Denman v. Bloomer (11 Ills. 177) 9")0 
Den u is v. People (1 Park. Cr. R. 

469) 5(>4 

V. Slate (5 Pike, 230) 818 

, Stale t). (3 Gill & J. 8) 3:^S 

D'Eon, Rex v. (1 Blk. Rep, 514) 890, 

«92, «94 
Depardo, liex v. (1 Taunt. 26) 330 
Derriug, Rex v. (2 Car. «fc P. 418) 938 
Deshlero. Beers (32 Ills. 368) 951 
Detective v. State (36 Iowa, 343) 944 



Sbotiovi Sxctiov 

800 Deveauvior, Rex «. (7 Car. & P. 17) 695 

2, 636 Devoe «. Com. (3 Met. 316) 461, 701 

8 Devoto V. Com. (3 Met. Ky. 417) 539 

847 Dow V. Lewis (51 Ills. 255) 495 

909 Dewick, People v, (2 Park. Cr. 

R. 230) 

De Witt, Com. v. (10 Mass. 154) 

, State V. (2 Hill S. C. 282) 

State V. (82 Mo. 571) 



207 
940 
912 
46 
746, 



914 
505 
661 
498 
733 
823 
809 



Dexter v. Spear (4 Mason, 115) 
Dias V. State (7 Blackf. 20) 
Dick V. State (30 Missis. 631) 
Dickey, U. 8. v. (Morris Iowa, 412) 691 
Dickenson, Rex v. (1 Saund. R 

135a, note.) 46 

, Rex V. (Russ. & R. 420) 504 

Dickerson, State v. (24 Mo. 365) 703 
Dickhut V, Durrell (11 His. 72) 1033, 

1034 
Dickinson «. Breeden (80 Ills. 279) 45, 

703 

, U. S. V, (1 Hemp. 1) 484, 999 

Dicklotts, State v. (19 Iowa, 447) 335 
Dickson, U. S. v. (2 McLean, 325) 802 
Dignowitty v. State (17 Texas, 

521) 499 

Dill 9. State (25 Ala. 15) 58 

Dillingham v. State (5 Ohio N. S. 

280) 593 

Dillon V. State (9 Ind. 408) 46, 999 
Dilworth v. Com. (12 Grat. 689) 916 
Dineen, State v. (10 Minn. 407) 965 
Dines, State «. (10 Humph. 612) 847 
Dir.gee, State v. (17 Iowa, 232) 625 
Dingier, liext). (2 Leach, 4th Ed. 

561) 881 

Dingley, Rex v. (1 Show, 53) 469 

Dingly, Rex v, (2 Leach, 840, 841)461, 

469 
Dimon v. People (17 Ills. 416) 304, 

305, 306, 309 
Diversy v. Kellog (44 Ills. 114) 942 
Divine, People v. (1 Edin. Sel. 

Cas. 594) 

«. State (4 Ind. 240) 

V. State (4 Iowa, 444) 



Dixon V. Gralmm (5 Dow. 267) 



People r. (4 Park. 651) 



333 
277 

277 
103, 
993 
10,88 



Keg. V. (30 Engl. L. »fc Eq. 
59?) 500 

— , Rex y. (10 Mod. 335, 337) 8, 216, 

301, 636, 797 

— V. Stale (4 Greene Iowa, 381)815, 

8^i3 

— V. Stale (3 Iowa, 416) 392, 77.^ 

800 
— , U. S. V. (4 Cranch. C. C. 107) 

686 



INDKX TO CASES CITED. 



XXIX 



SxonoN 
Doan e. State (26 Ind. 495) 466 

Doane, Com. v. (1 Uush. 5) 11, 504 
Dobbs, Rex v. (2 East P. C. 518) 469 
Dobkins v. State (2 Humph. 424) 753 
Dobson, Rex v. (7 East, 218) 596 

Dockman, Com. v, (Thatch. C. C. 

238) 849 

Dodd V, Hamilton (2 Taylor, 31) 503 
Dodds «. Board (43 Ills. 95) 62, 185 
Dodge V. Deal (28 Ills. 803) 892, 898 

9. State (4 Zab. 455) 601, 693, 698, 

699 
Dodson, Reg. v. P Den. C. C. 35) 58 
Doe 0. Johnson (2 Scam. 522) 891 

V. Morris (3 Ad. & El. 46) 549 

, People V, (1 Mann Mich. 

451) 853, 913 

V. Roe (1 John C. 402) 993 

Doebler, U. 8. «. (Baldwin, 519, 

522) 549, 569 

Dohuly, Com. «. (10 Cush. 52) 461, 

469, 573, 798 
Dolby, Rex v. (1 Car. & E. 238) 914 
Dole V. Erskine (85 N. H. 503) 177, 

178 

V, Kennedy (88 Ills, 282) 952 

, State «. (3 Blackf. 230) 226, 686 

Dollarhide «. U. a (1 Morris, 

233) 394 

Dolphin V. Pedley (27 Wis. 469) 808 
Dominick e. State (4 Ala. 680) 852 
Donnally, Rex v. (1 Leach, 196, 

197) 548, 549 

Donnel v. U. B. (Morris Iowa, 

141) 847 

Donnell, Rex «. (7 Car. & P. 138) 148 
Donnelly «. Harris (41 Ills. 126) 169, 

188 191 

V. State (2 Dutch. 468, 601) ' 

800, 888, 933, 940 

9. People (11 Ills. 562) 817, 888, 

999 
Doom 9. State (R. M. Charlt. 1) 994 
Donnelly's Case (2 East P. C. 

718) 548 

Donner, State «. (8 Vt 424) 181 

Donolly, Rex o. (2 East P. C. 

715, 788, 798) 548 

Donoho «. State (86 Ala. 281) 463 
Doran. Com. v, (14 Gray, 87) 46 

Dormer v. State (2 Ind. 308) 226, 636 
Dorr, State v, (38 Me. 498) 504 

Dorset, People v, (5 City Hall 

Rec. 77) 582 

DoTus, Com. «. (108 Mass. 488) 710, 

711 
Dougherty v. People (4 Scam. 

179) 88, 789 



Bkctiok 

Douglas's Case (1 Moody, C. C. 

480) 897 

Douglas ©. Com. (8 Watts, 685) 896 
Douglass «. Parker (48 Ills. 146) 1084 

, «. Rex (1 Campb. 212) 595, 597 

, «. Rex (1 Moody, 462) 698 

, People V, (4 Cowen, 84) 923 

, State t>. (1 Iowa, 550) 193. 

, State V. (17 Me. 193) 492 

V. State (3 Wis. 820) 886, 999 



Dourden, State v. (2 Dev. 448) 564 

Dow t». Prescott (12 Mass. 419) 116 

, State u. (27 Iowa, 278) 598 

,State V. (33 Me. 498) 589 

, State.©. (21 Vt. 484) 279, 748 

Dowdy V. Com. (9 Grat. 727) 800 

Dowell, State v. (3 Gill <& J. 810) 492 

Dowlin liex o. (1 Peak Cas. 170) 694 

, Rex V. (5 T. R. 311) 691 



Downer, State v. (21 Wis. 277)277, 281, 

283 
, State V. (8 Vt. 424) 703 

974 
633 
792 



Downs, Com. v. (108 Mass. 488) 
Dows V. Cobb (12 Barb. 640) 
Doyle, Com. v. (110 Mass. 103) 



V. State (17 Ohio, 222) 774, 847 
Drake v. Brander (8 Texas, 351) 1015 

V. Com. (10 B. Monr. 225) 189 

V. Curtis (1 Cush. 395) 949, 952 

V. Ramsey (5 Ohio, 251) 170 

Reg, c. (Holt, 425) 780 

, State V. (36 Me. 866) 48 



Drawdy, State v. (14 Rich. 87) 76, 79 
Drennan v. People (10 Mich. 169) 56 
Drew V. Beal (62 Ills. 164) 1033, 1084 
, Com. V. (3 Cush. 279) 14, 847 
, Com. V. (4 Mass. 891) 10, 833, 

854, 355, 874, 993 
, Com. t>. (19 Pick. 179) 12, 691, 

595, 597, 599 
V. State (6 Engl. 82) 226 

, U. S. t>. (5 Mason, 28) 7 

Dressers. Ainsworth (9 Barb. 619) 989 
, State V. (54 Me. 569) 849 



DriscoU, Reg, «. ( 1 C. & Mars. 

214) 178, 179 

Drummond, Rex «. (1 Leach 

Cr. Cas. 378) 880 

Ducher v. State (18 Ohio, 308) 461, 

468, 466 

Dudley, State «. (7 Wis. 664) 76, 323, 

626, 627 
Duffey, R. v. (4 Cox. C. C. 190) 851 
Dufflc'ldtj. Cross(13 Ills. GO!)) 902, 1034 

V, Delancey (36 Ills. 258) 052 

, Reg. V, (5 Cox C. C. 404) 714 

Duffin, Rex. f>, (Russ. & Ry. 365) 890 
Duffy, People v. (1 Wheel. C. C. 

123) 980 



INDEX TO CASES CITED. 



Sbotton 
• 492 



24 

982 



Duffy, Com. «. (11 Cush. 145) 
DuKan, Com. v. (12 Met. 288) 
Duhammel, State v. (2 Hairing. 

582) 
Duke, Bex «. (1 Salk. 400) 
Dukes V. State (11 Ind. 557) 328, 851 

V, Rowley (24 Ills. 210) 1014 

Dumoss V, Francis (15 Ills. 546) 809 
Dimcan o. Com. (6 Dana, 295) 178, 187 

V, Niles (32 Ills. 541) 895 

V. People (1 Scam. 457) 817 

, 8ta*.e V. (6 Ired. 98) 797 

, State V. 6 Ired., 23«) 778, 774 

, State V. (7 Yerg. 271) 778, 774, 

847 
Dunham, Com. v. (Thatch. C. C. 

513) 14, 847, 895 

V. People (4 Scam. 172) 809 

Dunkley, Rex v. (1 Moody, 90) 710 
Dunlap V, Davis (5 Gilm. 85) 891 

-, S^Ate V. (24 Me. 77) 589, 595 



840 
619 
944 
589 
841 
992 
412 



Dunn c. Com. (6 Barr. 884) 885, 983, 

101b 

, Com. V. (8 Smith Pa. 9) . 

V. People (40 Ills. 466) 

c. People (29 N. Y. 528) 

, Rex V. (Ry. & Moody, 146) 

, State V. (18 Mo. 419) 

Dunning v. Fitch (06 Ills. 51) 
Dupont, State v. (2 McCoi-d, 884) 
Dupree c. State (38 Ala. 880) 851, 888 
Durant «. People (18 Mich. 851) 589 
Durham v. Goodwin (54 Ills. 469) 952. 

991 

D. People (4 Scam. 172) 14 

Durkee, U. S.«.(l McAllister, 196) 499 
Dutel V, State (4 Greene Iowa, 

125) 811, 882, 88;J 

Dutton 0. State (5 Port. Ind. 588) 847, 

871 
Duvall, SUte v. (26 Wis. 415) 82;) 
Dwinnells f>. Boynton (8 Allen, 

310) 187, 188, 189 

Dwyer, State €. (2 Hill S. C. 287) 492 

- - ~ ■'" 11 

999 
944 
852, 
1010 
90T 
200 
597 



SXOTXOV 

Earp t). Com. (9 Dana, 802) 891, 898 
704 Earls of Essex, Rex v. The, (1 

Moore, 621) 849 

Early, State v.^S Harring. 562) 707, 

709 
Easland, Com. «. (1 Mass. 15) 76, 79 
Eastman, Com. v. (1 Cush. 189) 79, 660, 
638, 684, 661, 664, 842, 844 
Eastwood, People v. (14 N. Y. 565) 7 
Eaton, Com. v. (15 Pick, 275) 618, 806 
, State V. (8 Harring. Del. 

554) 461, 469 

Ebcrle, Com. v. (3 Serg. & R., 9) 943. 

989 
Eberly v. Moore (24 How. U. 8. 

147, 158) 839 

Eccles, Rex v, (1 Leach, 274, 276) 714 
Eckfert v. Des Coudres (1 Rep. 

Con. Ct. 69) 993 

Eckfoid, People v. (7 Co wen, 585) 888, 

834,842 
Edge ©. Com. (7 Barr. 275) 802 

Edgecombe v, Rodd (5 East, 294) 245 
Eddy, Com. c. (9 Law R. N. S. 

611) 5 

E'lmonds, Rex v. (4 Barn. & 

Aid. 471) 907,909,915 



Dye V. Com. (7 Grat. 062) 
Dyer v. Com, (28 Pick. 402) 
Dyle, People o. (21 N. Y. 578) 
Dyson v. State (26 Missis. 802) 

Eagan, Com. v. (4 Gray, 18) 
Eagle, State v, (2 Humph. 414) 
Eagleton, Reg. v. (Dears, 515) 

, Reg. V. (33 Eng. L. «fc Eq. 

540) 
Eames o. Hennessy (22 Ills. 681) 891, 

892 

, Smith «. (3 Scam. 76) 9Ui* 

Earns 0. Blackhart (12 Ills. 195) 952 

959 



V. Com. (19 Pick. 124) 
V. Ferris (7 Cur. & P. 542) 
V. Edwards (12 Cush. 187) 



798 
69 
999 

787 

921 

1088 



Edwards, Com. v. (1 Ashm. 46) 

V. Edwards (81 Ills. 474) 

V. Patterson (5 Gilm. 126) 

, Rex V. (6 Car. & P. 521) 544, 545 

, lit'X V. (8 Car. «fc P. 611) 899 

, Rex V. (Tremo. P. C. 108) 591 



, State V. (32 Mo. 548) 224 

V. Vandemack (18 Ills. 638) 1088, 

1084 
Eells V. People (4 Scam. 498) 46, 782 
Eggington, Rex v. (1 Leach, 918) 508 
Eggleston V. Suite (6 Blackf. 486) a58 



V. Buck (24 Ills. 262) 



Elam V. Badger (28 Ills. 498) 
Elder v, Morrison (10 Wen. 128) 
, State V. (21 La An. 157) 



1018 

991 

59 

, 453 

Eldersham, Rex o. (8 Car. & P. 

396) 4, 752 

Eldridgc v. Huntington (2 Scam. 

992 
14 
909 
177 
186 
578 
229, 817 
797 
941 



585) 
Elijah V. State (1 Humph. 102) 
iEUington, State v. (7 Ired. 61) 
! Elliot V. Brown (2 Wen. 497) 
, i;«)m. V. (2 Mass. 872) 
, Rex V. (I Leach, 175) 
P. Slate (26 Ala. 78) 
, State V. (7 Blackf. 280) 



-, State «. (15 Iowa, 72) 



IIJDEX TO CASES CITED. 



ZXXl 



SsoTioir 
175 



Elliot, State v. (11 N. H. 540) 
Elliott V. State (3 Sneed Tenn. 

107) 817 

V. Levings (54 Ills. 218) 1034 

, State V. (14 Texas, 423) 809 

Ellis, Reg. V. (Holt, 636) 738 

, St^te V. (4 Mo. 474) 688 

Ellison, State v, (8 Blackf. 225) 691 
Ellsworth V. Thompson (13 Wen. 

658) 188 

Elwell, Com. v. (2 Met. 190) 816 

Emeigh, State v. (18 Iowa, 123) 328, 

388,4:32 
Emery r. Hnty (46 Ills. 258) 952 

V. Chelsev (18 N. H. 198) 57 

Emmerson r. Noble (iJ2 Me. 380) 280 
Emmet, Stale v. (23 Wis. 632) 818 
Englc, State v. (1 Zab. 347) 989 

Engleman v. Stale (2 Carter Ind. 

91) 46,492,802 

Ennis v. State (3 Greene Iowa, 

67) 471 

Enoch, People v. (13 Wen. 159) 46, 

432 

, Rex V. (5 Car. & P. 539) 329 

Enslow, State v. (10 Iowa, 115) 529 
Eutick «. Carrington (19 St. Tr. 

1029) 141, 142, 150 

Epps V. State (19 Ga. 102) 914 

Eri>well, Rex c. (3 T. R 707) 883 

Errisi^man v, Errissman (25 Ills. 

136) 930 

Erskine p. Com. (8 Grat. 627) 452,453 

r. Davis (2o Ills. 251) 323 

Erver c. Ambrose (4 B. <& Oes. 

2r>) 693 

Ervington, Reg. r. (2 Moodr, 223) 692 
Erwin, People v. (4 Denio, 129) 301 

r. Slate (13 Mo. 306) 46 

Esmon c. Stale (1 Swan Tenn. 14) 16 
E>op, R^'x V, (7 Car, & P. 456) 11, 683 
Estes c. State (2 Humph. 496) 115 

, State V. (46 Me. 150) 593 

Est;y V. Grant (55 Ills. 341) 1033 



Evans, State c. (1 Tenn. 215) 880 

Everett v. State (6 Ind. 495) 79 

Ewbanks v. Town of Ashley (86 

Ill§. 177) 16 

Ewing V. Runkle (20 Ills. 448) 952 
Eyre, Com. v. (1 Serg. & R. 847) 167, 

170 
Eyman t. People (1 Gilm. 4) 809, 683, 

921, 980 
Faderman, Reg. «. (1 Den. C. C. 

468, 570) ^ 842, 845 

Fagent, Rex v. C! Car. & P. 238) 886 
Fairbanks v. Witter (18 Wis. 287) 18« 
Fairfield, State v. (37 Me. 517) 281 
Fairlee v. People (11 Ills. 1) 323, 888, 

400 789 834 
Falk V. People (42 Ills. 332)* 973.' 991, 

992 
Fallows, Rex v. (5 Car. & P. 508) 545, 

547, 550 
Fannagan Ck)m. v. (7 Watt, 418) 895 
Fanon, State p. (10 Rich. Law 8. 

C. 165) 691 

Parbach v. State (24 Ind. 77) 12 

Faris v. State (3 Ohio N. S. 159) 181 
Farlan v. People (13 Ills. 9) 826 

Farley, Com. v, (Thatch. C. C. 

654) 606 

— , State V. (4 McCord, 317) 724, 

720 
Farmer, State v. (4 Ired. 224) 432 
Farnsworth v, Agnew (27 Ills. 

42) 1033 

Farr, State v. (33 Iowa, 553) 332, 898 

, State V. (12 Rich. 24) 839, 848 



Etting p. U. S. Bank (11 Wheat. 

59) 952 

Eubank v. People (50 Ills. 496) 113 
Eubanks v. People (41 Ills. 48o) 891, 

892, 952, 991 
Evans o. Com. (8 Met. 453) 461 

V. Fisher (5 Gilm. 453) 1035 

V. Lohr (2 Scam. 511) 1034 

, Reg. V. (Bell C. C. 187) 596 

, Rex V. (I Russ. on Crimes, 

489) 326 

, Rex p. (3 Stark, 85) 733 

p. Rogers (N. & ^l. 563) 993 

, State p. (1 Hay w. 281) 427 

, State V. (5 Ired. 603) 216 



Farrand v. Bouchell (Harper, 80) 897 
Farrar, State v. (41 N. H. 53) 422, 424 

0. State (2 Ohio S. 54) 89 

Farre, Rex p. (J. Kel. 43) 466 

Farrel, Rex p. (1 Leach C. C. 322) 545 
Fan-ell p. People (16 Ills. 506) 4U6 

p. McKee (36 Ills. 231) 892, 898 

, Com. p. (105 Mass. 189) 851 



Farrer, Slat<; p. (1 Hawks, 487) 412, 

727, 753 
Farrington, Rex p. (Russ. & Ry. 

207) 456 

Farris p. People (58 Ills. 29) 113, 118 
Farris v. State (3 Ohio S. 159) 703 
Farrow, State p. (10 Rich. 165) 691 
Faulk p. Kellums (54 Ills. 187) 986 
Faui-er, Slate p. (1 Hawks, 487) 418 
Faust, State p. (2 Brev. 487) 803 

Fawcett, Rex c. (2 East P. C. 862) 591 
Fearnley, Rex v. (1 T. R. 316, 

320) 842, 844 

Fealherstone, Reg. v. (26 Eng. 

L. & Eq. 570) 497 

Fees, State v. (19 Wis. 591) 800, 808, 847 



xxxii 



INDEX TO CASES CITED. 



S«CTrox[ SsoTioir 

Felix «. State (18 Ala, 720) 341, 343 Fiizsiminons, State «. (30 Mo. 
Fell, liex tj. 1 Ld. Raym. 425) 670, i 236) 930 

678 Fizell v. Stale (25 Wis. 364) 388, 432 



Feller, State v. (25 Iowa, 67) fl2:J 

Feluer, Stale v. (19 Wis. 561) 392, 800 
Felter, State v. (25 Iowa, 67) 774 

, Slate V. (32 Iowa, 49) 5, 867, 897, 

94ii 
Fentou's Case (Loft, 27) 
Fenton v. People (4 Hill, 120) 
u. Reed (4 John. 52) 



Flack V. Aukeny (Breese, 144, 
2d Ed. 187) 46 

V. Harrington (Breese, 165, 

2d Ed. 213) 44, 46 

Fla^Tir u. Roberts (67 Ills. 485) 879 
59 Flanders, People d. (18 John. 



58J* 
631 
69.") 



Fergus v. Hoard (15 Ills. 357) 
Ferguson, Rex v. (29 Engl. L. & 
Eq. 536) 803, 1000 



166) 568 

, State V. (38 N. H. 324) 563 

Flanigan, Com. v. (7 Watts & 

Ser-. 415) 993 

Fleet, Rex u. (1 Barn. & Aid. 379) 724 



, State V. (2 Hill S. C. 619) 344,Fleming c. State (11 Ind. 234)470, 907 



Ferris v. Ward (4 Gilm. 499) 309 

Field V. Carr (59 Ills. 198) 305, 306 

, Com. V. (4 Leigh, 648) 434 

, Com. V. (13 Mass. 321) 56, 59 

, State V. (14 Me. 214) 351 

, State V. (Peck R. 140) 938 

Fielding, Rex v. (2 Bur. 719) 684 

Fife D. Com. (5 Casey Pa. 429) 88 

Fight V. State (7 Ham. 180) 573, 580, 

932 
1. State (7 Ohio pt. 1, 180) 



-, State D. (5 N. H. 257) 



573, 

9;J:] 

279 

46 

848 



908 

Fletcher v. People (52 Ills. 396) 176, 

419 
, Rex V. (4 Car. & P. 545) 502, 504 

17 
986 
809 
990 
479 
802 
683 



Flinn v. Barlow (16 Ills. 39) 
Flint c. People (45 Ills. 259) 
Flood V. Preltyman (24 Ills, 597) 
Flower, Rex o. (5 B. »fc C. 736) 

, Rex c. (3 Car. & P. 412) 

Floyd 0. Baker, (12 Co. 23) 

c. State (7 Engl. 43) 416, 417, 748 

, State 0. (6 Jones N. C. 392) 840 

, Slate 0. (15 Mo. 349) 310 



Finan, State v. (10 Iowa, 20) 
Finch V. Stale (6 Blackf. 533) 
Findley v. People (1 Mich. 234) 

V. People (1 Mannins:, 234) 848 

Findon, Rex d. (6 Car. & P. 132) 88 

Fink V. City of Milwaukee (17 Fogerty, Com. v, (8 Gray, 489) 
Wis. 27) 46, 277, 780, 781 Foggy, Com. c. (6 Leigh, 638) 
Finn, Com. v. (108 Mass. 466) 501 Foley v. State (9 Ind. 363) 
V. Com. (5 Rand, 701) 569, 883, , State o. (45 N. H. 466) 



Five, State v. (26 Me. 312) 558, 800 
Flynn, Com. v (3 Cush. 529) 
, State V. (36 X. H. 64) 



Finnerty ©. Tipper (2 Campb. 

72) 733 

Fiott V, Com. (12 Grat. 564) 891 

Fish, State v. (3 Dutcher, 323) 448 



448 
150 

432 
845 
395 

211 

88 



Poller V. Slaie (16 Ohio S. 588) 
Forbes, Rex v. {I Crawf. & Dix. 
C. C. 157) 225 

, Rex V. (7 Car. & P. 224) 563, 567, 

569 
, Rex V. (Holt N. P. 599) 



Fisher v. McGirr (1 Gray, 1) 189, 146 
-, People V. (20 Barb. 652) 901 
■ ©. People (28 Ills. 283) 5, 921, 959, Ford, Com. «. (5 Grav, 475) 

963, 965, 972, 973, 991. , Rex v. (J. Kel. 51) 

- «. Fisher (14 Wen. 9) 14, 661,714,! v. Slate (4 Chand. 148) 

951 , State v. (2 Root, 93) 

-, Refr V. (8 Car. & P. 182) 341, 



-, Slat(^ c. (3 Strob. 517) 



881 
182 
855 
44 
549 
989 



-, Rex V. (2 Camob. 563) 
- V. State (43 Ala'. 17) 
•, State V. (1 Dev. 504) 
-, St^te V. (3 Ired. Ill) 



34-2 Forde o. Skinner (4 Car. & P. 239) 176 
724'l?'orresrer c. Guard (Breese, 44, 
463, 2d Ed, 74) 892. 993, 995 

661|Forshner, State t). (43 N. H. 89) 436 
220 Forsyth, Rex v. (Runs, ifc Ry. 274) 49 



, State u. (2 Nott & McC. 261) 992 Fort, State c. (1 Car. Law R. 510) 
V, Steven (16 Ills. 397) n.u m. „.. „ , ... /. ^ t . ... r,n 



Fitch, Reg. «. (Deare. & B. 187) 

Fitz 9. Stale (14 Mo. 413) 
Fitzpatrick'8 C. (3 Howell, State 
Tr.419) 



918 Foss c. Isett (4 Greene Iowa, 76, 
497, 1 425) 

568 Foster v. Com. (8 Walts & Serg. 
79. 77) 

' , Rex V. (7 Car. & P. 495) 

438' , R.tJ. (29 Eng. L. & Eq. 648) 569 



999 

48 

845 
582 



I 



INDKX TO CAGES CITED. 



• • • 

:xiu 



Skctios 

Foster, Rex v. (Russ & Ry. 459) 693 

f>. State (89 Ala. 229) 855 

, State V. (11 Iowa, 20) 479 

, State V. (37 Iowa, 403) 480 

V. State (31 Missis. 421) 1014 

V. Poster (9 Texas, 65) 847 



Fonlker's Case QZ Robinson, 836) 560 
Fourteen Packages U. S.«. (Gil- 
pin, 285) 959 
Fonts V. State (4 Greene low^a, 500) 5, 

823 
V. State (7 Ohio N. S. 471) 



Fowler v. Arnold, (25 Ills. 284) 
«. Com. (4 Monr. 128) 



Siorroir 
Freeman, U. S. v. (4 Mason, 505) 326, 

327, 899 
French, v. Marstin (4 Fost. N. H. 
440) 



182 
P. People (3 Park. Cr. R. 114) 279 

88 



-, Rex V. (Russ. & Ry. 491) 
V. State (12 Ind. 670) 



909 

848. 

108 

62 

574 



Fox V. Gaunt (8 B. & Aid. 798) 

t>. Ohio (5 How. U. S. 410) 

, State «. (1 Dutch. N.J. 566) 828, 

909 
V. State (9 Ga. 878) 892. 898 



o. Smith (8 Co wen, 23) 



985 
5Cb 



Foye, U. S. «. (1 Curt. C. C. 864) 
Fralick, People v, (Hill & Denio, 

68) 463 

Francis, R. v. (Russ. & Ry. 209) 566 

, Rex «. (Comyns, 478) 549 

, Rex V. (2 Str. 1015) 550 

Francisco v. State (4 Zab, N. J. 

80) 415, 805, 806 

Franey v. True (26 Ills. 184) 843 

Franklin v. State (28 Ala. 9) 1020 

. State V. (8 John. C. 299) 658 

Franks, Rex v. (2 Leach, 644) 571 
Fraser, Rex 0. (2 Russ. & M. 407) 630 
Frasurev. Zimmerly (25 Ills. 202) 952 
Pray. Rex v. (1 East P. C. 236) 841 
Frazee «. Milk (56 Ills. 485) 78 

Frazier v. Laughlin (1 Gilm. 185) 1086 
Freake, Rex v. (Comb. 18) 727 

Frederick «. Com. (4 B. Monr. 7) 216 
Fredrick v. Gaston (1 Greene 

Iowa, 401) 959 

Free, State o. (19 Wis. 591) 888 

Freer, People v. (1 Cai. 485) 983 

Freeth, Rex «. (Russ. & Ry. 127) 591 
Preeland v. People (16 Ills. 880) 14, 

823, 392, 395 

, People tj. (6 Cai. 96) 323 

Freeleigh v. State (8 Mo. 606) 618, 619, 

867 

Freeman «. People (4 Denio, 29) 5. 

909, 911 912, 918, 915, 917 

. State t>. (6 Blackf. 248) 774 

, State V. (5 Conn. 848) 994 

, State V. (8 Iowa, 429) 49, 708, 792 

, State V. (27 Iowa, 883) 867 

, State V. (18 N. H. 488) 833 

, State V (1 Speirs 57) 823 

V. Tinsley, (50 Ills. 497) 891 

3* 



Prey, Com. (14 Wright Pa., 245) 999 
Friar 1). State (3 How. Missis. 422) 924 

V. State (7 How. Missis. 865) 993 

Frier, State v. (1 Wright O., 20) 824 
Fries, People o. (Wheeler St. Tr. 

666) 
Frigate tJ. State (2 Humph. 897) 
Frilzell V. Cole (42 Ills. 862) 
Frizell V. Cole (29 Ills. 465) 942, 952 



317 
228 



Frost V. Com. (9 Monr. 362) 

V. Paine (12 Me. Ill) 

, Reg. V. (9 Car. & P. 129) 

V. Thomas (24 Wen. 418) 



948 
240 
817 
56 
Fry, Reg. v. (Dears & B. 449) 597 
Fulford, State «?. (Phil. N. C. 563) 492 
Fuller, Com. v, (8 Met..318) 514 

V. Little (60 Ills. 28) 993 

, People tJ. (2 Parker, 16) 387, 876, 

909 914 

, People V. (17 Wen. 211) 

, Rex V. (1 B. & P. 180) 

, Rex V. (2 Leach, 790) 

V. State (1 Blackf. 68) 

V. State (18 Ohio S. 438) 



63,66 
805 
806 
46 
964 
479 
492 



Fulton V. State (8 Engl. 168) 
Furlong, State v. (1 App. 225) 

, State V, (19 Me. 225) 492, 501, 510, 

511, 512 
, State V. (26 Me. 69) 691, 692, 702 



Furmeaux, Rex «. (Russ. & Ry. 

885) 479 

Funk, State v, (17 Iowa, 866) 916 
Fumlval, R. v, (Russ. & Ry. 445) 461 
Fyles, State v, (8 Brev. 804) 890, 892 
Gabe v. State (1 Engl. 540) 578, 847 
Gable, Com. v, (7 Serg. <& R. 423) 805 
Gaddy v. McLeave (59 Ills. 182) 1088, 

1084 
Gaflfrey, State v. (4 Chand. 163) 448 
Gage V. Shelton (8 Rich. 242) 899, 451 
Gager, State v. (28 Conn. 232) 222, 224 
Gahan v. People (58 Ills. 160) 815, 999 

V. People (1 Park. C. R 878) 681 

Gale 0. Spooner (11 Vt. 152) 959 

Gales, People «. (18 Wen. 322) 801 
G. C. U. R. R. Co. «. Jacobs (20 

Ills. 478) 950 

Gallagh v. Brandt (52 Ills. 80) 1033 
Gallagher, Com. v. (4 Penn. Law 

Jour. 516) 989 
1). State (26 Wis. 428) 45,46,226 



INDEX TO OASES CITED. 



BxoTTOir 

Gallagher, U. B. «. (2 Paine, 447) 894 
Gallimore «. Dazy (12 Ills. 148) 1088 
Galloway, People v. (17 Wen. 540) 503 

. Rex V, (1 Moody, 284) 802, 808 

Gammon, Rex t>. (5 0. & P. 821) 483 
Ganche v. Mayer (18 Ills. 52) 601 
Gannett, Com. v. (1 Allen, 7) 211, 212, 

215 
Garbutt, People v. (17 Mich. 9) 7, 946 
Gardenheir v. State (6 Texas, 858) 392 
Gardiner a. Haynie (42 Ills. 291) 1083, 

1084 

V. People (20 Ills. 480) 815, 1014 

V. People (3 Scam. 83) 336, 600, 

811, 812, 813, 816, 833, 867, 879, 

909, 948, 999 

, Reg. t. (1 Car. & K. 628) 503 

, Rex «. (1 Car. & P. 479) 548 

, Rex V. (J. Kel. 46) 496 

, Rex V. (2 Moody C. C. 95) 699 

, State V. (2 Mo. 23) 68:^ 

, State V. (Wright, 392) 938 

V. Tisdale (2 Wis. 153) 306, 310 

V. Thibodeau (14 La. An. 

732) 
Garland, State «. (3 Dev. 114) 
V. State (2 Swan, 18) 



Garnett, People v. (29 Cal. 622) 
GarrtJ. Selden(4N. Y. 91) 
Garret. People vjfi Cal. 203) 
-, State V. (1 Winston No. 1, 



58 
701 
993 
930 
734 
883 



56 



144) 

— , People «. (6 McLean, 286) 883 
— , People V. (5 City Hall Rec. 
137) 4 

V. Wiggins (1 Scam. 837) 809 



Garrignes, State v. (1 Hayw. 241) 15 
GaiTibon v, McGregor (51 Ills. 

473) 232 

Garther v. Blowers (11 Md. 536) 189 

V. State (14 Ind. 281) 218 

Garvey, State v. (11 Min. 154) 7 

Gass V. Howard (48 Ills. 223) 891 
Ga.ssaway, People v. (23 Cal. 551) 509 
Gates V. Lounsberry (20 John. 

427) 177, 180 

V. People (14 Ills. 435) 331, 511, 

812, 908, 910, 911 

, People «. (18 Wen. 322) 589, 691 

, People V. (15 Wen. 159) 448, 451 

Gay, Rex ©. (7 Car. & P. 230) 888 

, State V. (10 Mo. 440) 816, 817, 

1009 
, U. B. «. (2 Gallison, 359, 

361) 706 

Geach, Reg. v, (9 Car. & P. 499) 567 
Gear c. Bullerdick (84 Ills. 75) 146 
Gcbhart v. Adams (23 Ills. 899) 46, 84, 

792, 857' 



Saonov 
Geebrick «. State (5 Iowa, 492) 282 
Gehr, People v. (8 Cal. 859) 909 

9. Hagerman (26 Ills. 488) 952 

Genner v. Sparks (6 Mod. 173) 57, 166 
Gentleman v. Soule (32 Ills. 272) 305, 

306,310 
Gently v. State (6 Ga. 503) 573 

V. State (3 Yerg. 451) 668 



Genung, People v. (11 Wen. 18) 599, 

601 959 
George «. Bradford (3 Car. & P. * 
464) 

Reg. V. (Car. &. M. Ill) 



Georgia v, Wright (18 Ga. 888) 
Gerard o. People (3 Scam. 862) 



57 
79 
895 
14, 
1001 



Gkrhardt, State v. (8 Jones Law 

N. C. 178) 281 

Gering «. State (1 McCord, 673) 281 
Gerkin, State v, (1 Ired. 121) 426, 427 
Getchell, People v, (6 Mich. 496, 

504) 599 

Gibbon, Reg. v. (Leigh <& C. 

109) 696 

Gibbon's Case (Poster, 107) 464 

Gibbon's Case (1 Southard, 40) 413, 

464 
Gibbons «. Johnson (3 Scam. 63) 1083, 

1034 

V. Pepper (4 Mod. 405) 175 

c. People (23 Ills. 518) 227, 923, 

925, 995 
«. People (83 Ills. 442) 227 



Gibbony v. State (14 Grat. 582) 220 
Gibson, Com. ©. (2 Va. Cas. 70) 323, 

986, 1020 

, Com. V. (2 Va. Caa. Ill) 886 

, Reg. V. (8 East, 107, 111) 323, 

845, 851 

V. State (39 Ala. 693) 932 

, State V. (29 Iowa, 295) 872, 937 

, State V. (10 Ired. 214) 178, 179 

V. State (9 Port. Ind. 264) 992 

Giddens, Reg. t>. (C. A M. 684) 805 
Gighcr, State v. (23 Iowa, 818) 552, 



Gilbert v, Emmons (42 Ills. 142) 

V. People (1 Denio, 41) 

, Rex V, (Moody, 185) 

V, State (7 Humph. 524) 



927 
42 
734 
496 
993 
, State u. (24 Mo." 380) 823,790 

, State u. (13 Vt. 647) 46, 784 

, U. S. V. (2 Summer, 19) 324, 892, 

995 
Gildersleeve «. People (10 Barb. 

35) 108 

Giles, Rex v. (I Moody, 166) 668, 747 

1>. Stale (6 Ga. 276) 993 

«. State (10 Ga. 611) 724^ ^^ 



JNDEX TO 0A8BS OITED. 



6>0TI0W 

Gilham vi State Bank of Illinois 

(2 Scam. 245) ^ 935 

Gill, Rex V. (1 Stra. 190) 175 

«. People (42 Ills. 822) 1033, 1084 

r. Skclton (54 Ills, 158) 1034 

Gillespie, Ck)m. v. (7 Serg. & R. 

469) 618, 803, 1000 
V. State (9 Port. Ind. 380) 892, 

895,987 
Gillett V. Sweat (1 Gilm. 475) 991 
Gillick, State «. (7 Iowa, 288) 335, 836, 

773, 774, 886 

, State V. (10 Iowa, 86) 812, 909, 

923 
Oillon, Rex v. (1 Moody C. C. 85) 390 

V. Wilson (3 Monr. 217) 170, 177 

Gilmore v. Ballard (1 Scam. 252) 1034 

, People V. (2 City Hall Rec. 

Xo. 2, p. 5) 531 

Gilson, Rex v. (Rnss, & Ry. 138) 455 

«. Powers (16 Ills. 355) 864, 8t'i7 

Ginrich 9. People (34 Ills. 449) 114, 

1 15 895 
Givens v, Bradley (3 Bibb, 192) ' 189 

V. Roger (11 Ala. 543) 232 

, Slate V. (5 Ala. 748) 562, 504 

Glacken v. Com. (3 Met. Ey. 232) 589, 

598 
Glea.son v. Com. (110 Mass. 66) 811 
GI017 V, State (8 Engl. Ark. 236) * 992 
Glover «. Com. (Ill Mass. 395) 462, 

492, 746 
Godard, Reg. v, (3 Salk. 171) 788 
Goddard, Com. v. (13 Mass. 455) 14, 

845, 852, 1020 

V. Smith (6 Mod. 262) 234 

©. Town of Jacksonville (15 

Ills. 590) 282 

Godet, State v. (7 Ired. 210) 492 

Godfrey f>. Cnty of Alton (12 Ills. 



^ - -. Bmamom 

Goodall 9. State (1 Oregon, 888) 835, 

382 

Goode, State v, (24 Mo. 861) 46 

Goodhall, Reg. v. (1 Den. C. C, 

187) 752 

— , Rex V. (Ruse & Ry. 461) 598 

Goodhue, Com. v. (2 Met. 193) 642 

Goodin v. State (16 Ohio S. 344) 835 

Goodman, Com. «. (14 Gray, 65) 450 

f). Slate (1 Meigs, 195) 881, 897 

State «. (6 Rich. 387) 



^ 723 

Gooduow V. tappan (i dhio, 60) 734 
Goodrich v. City of Minock (62 

Ills. 125) 990, 1020, 1083, 1084, 1086 
Goods V, State (8 Greene Iowa, 

566) 279 

Goodspeeds v. Puller (46 Me. 141) 240 
Goodwin, Com. v. (3 Cush. 154) 180 
V. Durham (56 Ills. 239) 1034 

, People V. (18 John. 187) 14 

•, People V. (6 Rogers Rec. 9) 167 
, People «. (5 Wen. 251) 901 

V, State (3 Iowa, 410) 800 

, U. S. t>. (12 Wheat. 469) 943 

Gordon v. Crooks (11 Ills. 142) 992 

, Rex V. (1 East P. C. 315, 852) 56, 

374 

, Rex V. (1 Leach, 515) 704, 7a5 

V. Spencer (2 Blackf. 285) 892 

V. State (3 Iowa, 410) 89 

V. State (4 Mo. 375) 418 

, Slater. (1 Rhode Island, 179) 989 

Gore's Case (9 Co. 81a) 339 

Gorley, State v. (2 Iowa, 52) 71 

Gorman, State v. (2 Nott & McC. 

90) 496 

Gorton v. Frizzell (20 Ills. 291) 44 
Gosling V. Morgan (8 Casey, 273) 723 
Gould, State v. (5 Halst 163) 4 

Gough, Rex v. (2 Doug. 797) 988 

, liex V. (1 Moody R. 71) 803 



Gove, State v. (34 N. H. 510) 46, 791 
Governors, etc. v. Art Union (7 

N. Y.239) 619 

Gowan, State v. (7 Ired. 239) 938 

Gowen, v, Nowell (1 Greenl. 293) 240 
, Rex «. (2 East P. C, 1027) 452 



29) 307 

, Reg. V. (8 Car. & P. 563) 499, 

504 

, State «. (Brayt. 170) 909, 923 

, Sute V. (24 Me. 234) 881 

State V. (11 Shep. 232) 810 

Godsey, State v. (16 Ired. 348) 180, aV) 
Godsoe, Com. v. (105 Mass. 464) 630 
Goforth «. State (8 Humph. 37) 11 
Goggin V. O'Donnell (62 Ills. 66) 851 
Goin, State 0. (9 Humph. 175) 4 

Gold 9. Bissell (1 Wen. 215) 57 

Goldsmith v. Bane (3 Halst. 87) 560 

. Rex€. (3 Campb. 76) 382, 752 

Goldstien, People v^m Cal. 432) 877 

Gompertz, Reg u. (9 Q. B. 824) 661 , , _ _. 

Gonglemann v. People (3 Park. Granlleld, Rex v. (12 Mod. 98) 726 

Cr. R.15) 482 Granger v. Hill (4 Ring N. R. 212) 57 
Gooch, Reg. v. (8 Car. & P. 293) 606 , Rex 0. (8 Bur. 1617) 848 



i:Jrable u. State (2 Greene Iowa, 

559) 
Graff V. Simmons (58 Ills. 440) 
Grafton Bank 0. Flanders (4 N. 

H. 239) 

Graham 0. Anderson (42 Ills. 515) 892, 

935 
©. State (4 Ala. 659) 932 

t). State (I Pike, 171) 22^\ 



912 
959 

568 



XXXYl 



INDEX TO CA8£8 CITED. 



SSOTIOV 

Qranger v. Warrington (8 Gilm. 

810) 874, 1033 

Grant, Com. v. (116 Mass. 17) 696 

, Rex V. (3 Nev. & Man. 106) 990 

, State V. (23 Me. 171) 939 

Graubner v. City of Jacksonville 

(50 Ills. 87) 16, 277 

Graves v. American Exchange 
Bank (17 N. Y. 205) 562 

tJ. People (11 Ills. 542) 113 

V. Shoeffelt (60 Ills. 462) 866 

«. State (12 Wis. 591) 505, 509 

Gray's Case (J. Kel. 64, 133) 326, ^30, 

337 

, Com. V. (2 Gray, 502) 784 

V, People (26 Ills. 344) 77, 867, 

909,944 

, People V, (5 Wen. 289) 991 

. Rex V. (3 Harg. St. Tr. 519) 661 

, Itex V. (1 Stra. 481) 463 

, liex V. (2 East. P. C. 708) 550 

V. St John (35 Ills. 222) 495 

, State V. (8 Jones N. C. 170) 433 

, U. 8. V, (2 Cranch C. C. 

675) 212,219 

Grayson v. Com. (7 Grat 618) 992 
Great Western R. R. Co. v. Ba- 
con (30 Ills. 347) 240, 281 

, V. Hawks (25 Ills. 241) 952 

Green, Com. v, (1 Ashm. 289) 325, 

340 342 844 

, Com. V. (17 Mass. 515) ' 14,' 989 

, Com. V. (2 Pick. 880) 

V. Lewis (13 Ills. 642) 

y People V. (1 Denio, 614) 



-, People t. (16 Ills. 234) 
^ lo(21" 



4,752 

950 

887 

982 

V. People (21 Ills. 125) 226, 636, 

639 
— , People V. (58 Ills. 236) 70, 71 
— , People V. (54 Ills. 280) 1033 

— , People V. (1 Park. Cr. R 11) 

980,940 
— , People V. (1 Park-. Cr. R 
302 ; 1 Denio. 614) 880 

— , Rex V, (7 Car. & P. 156) 376, 401 

— V. State (41 Ala. 419) 780 
— , State V. (7 Ired. 39) 828, 425 
--r. State (13 Missis. 382) 344 
— 1>. State (28 Missis. 687) 334, 336, 

847 

— V. State (13 Mo. 382) 345, 941 
— , State V. (37 Mo. 406) 344 

, State V. (7 Wis. 670) 589 



Greenacre, Rex v. (8 Car. & P. 35) 33o 
Greene, Com. v, (111 Mass. 392) 492, 

498 

V. State (19 Ark. 178) 1014 

, State V. (16 Iowa, 239) 14, 180 

^, State u. (20 Iowa, 424) 774,991 



SXCTTOM' 

Greenlow v. State (4 Humph. 26) 805 
Greenough, In re (31 Vt. 279) 593 
Greenup v. Stoker (3 Gilm. 222) 907. 

916 

Greenwood, Reg. v. (7 Eng. L. 
& Eq. 535) 748 

— , State V. (5 Port. 474) 840, 847 
Gregory v. Hill (8 Term. 299) 180 
, Slate V. (2 Murphy, 69) 692 



Grerg v. Bendeno (Ellis B. & B. 

133) 210 

Greschia v. People (53 Ills. 295) 380, 

352, 803, 965 
Grcsser, State tj. (19 Mo. 247) 504 

Grey, Rex v. (3 St. Tr. 519} 661 

Griffin. People v. (2 Barb. 427) 774 

— V. State (15 Ga. 476) 

— , State V, (3 Harriug. Del. 

559) 
-, State f). (18 Vt. 198) 



909 



711 

49 
330 
226 



421 
573 580 
Griffls, Stale v, (8 Ired. 504) ' 192 

Grimes v. Butts (65 Ills. 318) 1034 
Grimwade, Rex v. (1 Car. & K. 

593) • 
Griswold u. Sedgwick (6 Cowen, 

405) 
Grit, Slate v. (13 Minn. 341) 
Grouner v. State (6 Florida, 39) 
Groombridge, Rex v. (7 Car. & P. ' 

582) 4 

Groorae, State x. (10 Iowa, 309) 811, 

857, 916 
Grooms, Stale «. (5 Strob. 158) 591 
Gropp tJ. People (67 Ills. 154) 908, 908 
Gross 0. State (2 Carter Ind. 829) 773, 

890 908 
Grove, Rex v. (5 Mod. 18) * 234 

Grovenvelt, R. v. (1 Ld. Raym. 

213) 400 

Grubb V. Slate (14 Wis. 893) 847 

Grube v. Nichols (36 Ills. 92) 305,306, 

308, 310, 952 
Grumon v. Raymond (1 Conn. 40) 144 
Gi-ush, U. S. V, (5 Mason, 290) 46 

Guedell, People v. (43 Ills. 220) 14, 328 
Guess V. State (1 Engl. Ark. 147) 851 
Guest t». State (19 Ark. 405) 429 

Guild, Com. v. (Thatch. C. C. 329) 732 
, State V. (5 Halst. 163, 185) 938 



Gulick, People v. (Lalor, 229) 180 
Gulliver v. Adams Exp. Co. (38 

Ills. 503) 970, 1034 

Gummer, State o. (22 Wis. 441) 279, 

sOO SOl 
Gurlock, State o. (14 Iowa, 444) ' 817 
Gurnsey V- Lovell (9 Wen. 319) 49 
Gusham, StMle c. (1 Haves, 12) 805 
Gutchens c. People (2f Ills. 042) 85, 

480 



INDEX TO CASES CITED. 



xxxvii 



Szcnox 

Quykowski t?. People (1 Scam. 

476) 817, 831, 834, 907, 916, 994 

Hackett, Com. v, (2 Allen, 186) 325 
Hadden v. People (25 N. Y. 873) 423 
Hagar •. Danforth (20 Barb. 16) 182 
Ha^enbangh v. Crab tree (38 Ills. 

2^) 940 

Halin V. 8t. Clair Savings Bank 

& Ins. Co, (50 Ills. 526) 1084 

Haile v. State (11 Humph. 154) 

r. Stat* (1 Swan Tenn. 248) • 840 

Hailcy, State v. (3 Strob. VS) 707 

Hailsiock, State v. (2Blackf. 257) 388 
Haines, Reg. v. (2 Car. & K. 368) 82(3, 

327 

, Rex V. (2 Car. & K. 868) 825, 

826, 376 

, Rex c. (Russ. & Ry. 451) 463 

. Stale V. (30 Me. 65) 801, 68-^ 

Halford, State v. (6 Rich. 58) 
Hairs Case (3 Car. & P. 409) 
Hairs Case (8 Grat. 588) 
Hall «. Blaisdell (1 Scam. 832) 

, Com. V. (7 Watts, 2^0) 

y Com. r. (97 Mass. 570) 

V. Eaton (25 Vt. 458) 

«. McKechnie (22 Barb. 244) 279 

V. Nees (27 Ills. 413) 988, 1002 

, R r. (1 Cox C. C. 231) 510 

, Reg. c. (2 Car. & K. 947) 493 

, Rex V. (3 Car. & P. 409) 11, 504 



BBonov 
Hamilton 9. State (35 Missis. 214) 499 

, State V. (7 Mo. 800) 696 

V. Stewart (59 Ills. 881) 19 

t>. Williams (1 Tyler. 15) 186 



680 
547 
281 
86 
829 
780 
661 



492) 



, Rex V. (Russ. & Ry. 355) 
, Rex V. (1 Slra. 416) 

V. Sroiife (52 Ills. 421) 

V. State (9 Ala. 827) 

r. State (40 Ala. 698) 
, State t?. (4 Halst. 256) 

Slate V. (5 Ilarriug. Del. 



463 
732 
991 

lOv^ 

933 
14 

50(5 



Hamlin v. Reynolds (22 Ills. 207) 1083 

Hamon, Com. v. (2 Gray, 289) 723 
Hauimill, People v. (2 Park. Cr. 

R.223) . 7 

Hammond's Case (2 Greenl. 83) 560 

V. Haws (Wallace, 1) 895 

, liex V, (1 East. P. C. 411, 

440) 892 

, State V. (2 Strob. 16) 998 



V. State (8 Ind. 439) 509. 510, 817 

F. State (8 Kelly, IS, 22) 4(J 

, Stole p. (39 Me. 107) 952 

V. Washington (2 Greene 

Iowa, 473) 8-29 

Halleck v. State (11 Ohio, 400) 691 

Hallelt, Reg. v, (i) Car. & P. 74S) 434 

435, 43S 

Halliday v. People (4 Gilm. Ill) 377 
Halloway, R. t. (1 Cut. & P. 128) 492 
Hal St ed, 'Com, t. (2 Boston L. R. 

177) e^ri 

Ham, State v. (11 Me. 391) G3l 
Hamden, People v, (1 Park. Cr. 

R.344) 644 

Hamilton, Com. r. (15 Grav, 480) 3f)3 

r. Com. (4 lUrrh Pa.' 129) 93J 

r. C^m. (3 Pa. 142} 431 

, Rex. V. (8 Car. & P. 49) ^."O 

«. Singer M. O). (54 Ills. 370) 92:jI 



Hampton v. State (8 Humph. 69) 802 

©. State (8 Ind. 836) 46, 797 

Han, Rex v. (3 Bur. 1786) 932 

Hance v. Miller (21 Ills. 686) 1034, 

1035 
Hand, State v, (1 Engl. 165) 808 

— , State «. (7 Iowa, 411) 211, 212, 

217 
Handcock v. Baker (2 Bos. & 

Pul. 260) 62, 185 

Handley, Heg, v. (C. & M. 547) 496, 

499 
Handy, State v. (4 Harring. Del. 
566) 4, 752 

— , State V. (20 Me. 81) 558 

Huney v. State (5 Wis. 529) 13 

Hanford v. Obri<rht (49 Ills. 146) 935 
Hanks, Rex v. (3 Car. & P. 419) 692 
Hanover r. Turner (14 Mtiss. 227) 633 



Hansom, Rex v. (1 C. & M. 834)' 565 
Hanson, State v. (3fl Me. 337) 691 

V. Taylor (23 Wis. 547) 3a"> 

Hanwav, U. S. o. (2 Wallace Jr. 

139) " • 317 

Ilarbaugh v. People (40 Ills. 294) 228 
Hardebeck t. State (10 Ind. 459) 738 
Hardie, State v. (3 Murphy, 232) 835, 

999 
Hardin, State v. (1 Bailey, 3) 

V. State (22 Ind. 347) 

Harding u. Clark (15 Ills. 30) 

t. Gveen\nix{^ Taunt. 42) 

, Rex 0. (2 Vent. 315) 

, State V. (2 Bay, 207) 



9«5 

847 
942 
730 
318 
993 



— 0. Town of Hale (01 Ills. 193) 306 
Hardwick, Rex v. (1 Sid. 282) 233 

, State V. (2 Mo. iWo) 691 

Hardy, State v. (Dud. 236) 992 

t\ Stale (4 Ind. 241) 999 

Ilargate, State o. (C. & N. 63) 1012 
Ilanman v. State (2 Greene Iowa, 

272) 812, 813 

Harker v. State (8 Blackf. 540) 15 
Ilarlan v. People (1 Doug. Mich 

207) 574, 582 



INDEX TO OASES OITED. 



Saonov 
Harley, Com. e. (7 Met 506) 660 

, Com. «. (7 Met. 462) 600 

y Hex V. (4 Car. & P. 869) 882 

, State V. (3 Sirob. 73) 703 

Harlow, State v. (21 Mo. 446) 7 

Harman v. Com. (12 Serg. <& K. 

69) 482, 802 

V. Harman (16 Ills. 85) 631 

\ Rex c. (2 East P. C. 786) 549 

, State «. (3 Barring. 567) 939 

, U. S. V. (1 Bald. 292) 943 

Harmon, Com c. (2 Gray, 289) 733 

0. Harmon (16 Ills. 85) 627 

, Reg. V, (6 Mod. 311) 233 

, State p. (27 Mo. 120) 8«3 

Harney, Com. v. (10 Met. 422) 454, 

457 
Harper, Com. v. (38 Ills. 104) 308, 809 
, People V. (I Edm. Sel. Caa. 

180) 840 

Harrbaugh v. People (40 Ills. 

294) 218, 228, 638 

Harriden, People «. (1 Park Cr. 

R. 844) 544, 988 

Harriman v. State (2 Greene 

Iowa, 271) 921 

Harring v. Walrond (2 Cha. Ca. 

110) 207, 801 

Harrington, Com. v. (3 Pick. 26) 216, 

219 

V. Brown (7 Pick. 832) 115 

V. People (6 Barb. 607) 180, 3.)o 

Harris, Com. v. (7 Grat, 600) 279 

V. Miner (28 Ills. 188) 1033, 1034 

V. People (9 Barb. 670) 505 

, Reg. V. (Law R. C. C. 282) 208 

, Rex V. (5 Car. & P. 159) 752 

, Rex V, (1 Dowel. & Ry. 578) 691 

, Rex V. (Foster, 113-115) 452 

, Rex fj. (I Ld. Ray in. 267) 932 

, State V. (3 Harring. 559) 492 

, Slato V. (11 Iowa, 414) 529, 806 

, State V. (38 Iowa, 242) 660, 773 

, State V. (5 Ired 288) 560 

, State V. (1 Jones N. C. 190) 3:J0, 

3.j2 
Harrison «. Hodgeson (10 B. & 

C. 445) laj 

, People V. (8 Barb. 500) 560, 56.i 

, Rex T. (1 Leach, 47) 49T 

-, Hex V. (4 Harg. St. Tr. 487, 



492) 

— , Rex V. (12 Mod. 156) 

— V. State (87 Ala. 154) 

— V. Slate (4 Cold. 195) 
V. State (15 Texas, 239) 



809 
800 
931 
268 



SSOTTOV 

Hart, Rex v. (2 East P. C. 977) 729 
, State V. (29 Iowa, 268) 86, 492, 

774 

1>. State (20 Ohio, 49) 

Hartal 1< Rex c. (7 Car. & P. 475) 
Hailell, Rex v. (7 Car. & P. %73) 
Hartfield, State v (24 Wis. 60) 
Hartford d. Palmer (16 John. 148) 43 
Hartford Ins. Co. v. Van Duzor 

(49 Ills. 489) 986, 1088 

Hartman v. Com. (5 Ban*. 60) 591, 660 
Harvey v. EUithorpe (26 Ills. 448) 981 

946 
, Rex V. (2 B. & Cres. 257) 724, 

733 

, Rex tJ. (2 East P. C. 669) 496 

, Rex ©. (8 Dowel. & RyJ. 464) 733 

Harwood, Com. v, (4 Gray, 41) 233 

V. People (26 N. Y. 192) 211 

, Rex V. (2 Stra. 1088) 932 



Hascall, State o. (6 N. H. 858) 692, 

694, 696, 698, 949, 994 
Haskall, U. S. v. (4 Wash. C. C. 

402) 14 

Haskin v. Haskin (41 Ills. 197) 952 

V. Haskins (67 Ills. 446) 1034 

tJ. People (16 N. Y. 344) 46, 492, 

505, 944 
Hassett v. Johnson (48 Ills. 68) 952 
Hastings t. Bolton (1 Allen, 529) 839 
, Rex V. (7 Car. & P. 152) 944 



881 

93*2 

791 

84)! 

226 

407 



Hatch 0. Potter (2 Gilm. 725) 1033, 

1034 
Hatcher 0. State (18 Ga. 460) 948 

Hatfield, Rex v. (4 Car. & P. 

244) 723, 724 

Hathaway, State c. (2 N. & M. 

118) 
Hattv V. Markel (44 Ills. 225) 
Hat wood f. State (18 Ind. 492) 
Haven v. Foster (9 Pick. 112) 
Hawk, Com. v. (3 Gray, 463) 

V. McCullough (21 Ills. 223) 1033 

«?. Ridgway (33 Ills. 473) 952 

Hawkins, Ct)m. v. (3 Gray, ,163) 335 

, Rex 0. (3 Car. *fc P. 392) 547 

c. State (13 Ga. 322) 79, 196 

, State 0. (8 Port. 401) 409, 504 

Haworth, Rex v. (4 Car. & P. 254) 55.^. 

549, 1)38 
, Rex. V. (2 Root, 93) 549 



696 

952 

857 

11 

7 



Haw.s People c. (:>7 Barb. 455) 






Hay V. People (r>9 Ills. 94) 817, 9!)9 
D. Hay- (oO Ills. 342) ^ 1033 



Hanold, State u. (38 Mo. 490) 

V. State (1 Iowa, 439) 

Hart, Com. «. (6 J. J. Marsh, 119) 413 



Hayden t?. Shed (11 Mass. 500) 
V. Slate (4 Hlackf. 040) 



— , Slate 6\ (15 N. H. 35")) 
Hayues, Com. o. (2 Gray, 72) 



141 
428 
504 
206 



INDEX TO CASES CITED. 



ZXXIX 



SZCTIOV 

Haynes, Com. ^. (107 Mass. 194) 6»3 

V. Crutchfield (7 Ala. 189) 912 

, People «. (14 Wen. 546) 591,592, 

595 

, People «. (11 Wen. 557) 589, 592, 

597, 698 
Hays 9. Borders (1 Gilm. 46) 950 

, Com. r. (14 Gray. 62) 480 

«. People (1 Hill, 851) 166, 435 

«. Smith (8 Scam. 427) 1034 

State V. (24 Missis. 858) 797 

«. State (13 Mo. 246) 279 

«. Hays (23 Mo. 287) 851 

, State u. (24 Mo. 358) 793 

Hay ward. State «. (1 Noit<& Mc 

C. 546) 699, 700, 999 

Haywood's Case (6 Gar. & P. 157) 342 

c. Collins (60 Ills. 328) 308, 309 

Rex V. (6 Car. & P. 157) 886 

Hazel, Rex e. (1 Leach, 383) 336 

Hazen d. Com. (11 Harris Pa. 355) 664 
Hazy, Rex r. (2 Car. & P. 458) 503 
Hazzard, State «. (8 R. 1. 474) 539, 

800 
Headge, Rex v. (2 Leach, 1038) 503 
Heane, Reg. v. (9 Cox. C. C. 433) 832, 

841 
Heard c. Heard (8 Ga. 880) 1 1 

, Reg. t). (C. & M. 109) 450 

Heart, Reg. o. (1 Moody, 486) 563 
Heath v. Com. (1 Robinson, 735) 909 

p. State (36 Ala. 273) 704 

Heaton v. Kemper (2 Scam. 868) 1034 
Hector v. State (2 Mo. 166) 14, 939 
Heed v. State (25 Wis. 421) 509, 510 
Hefleton v. Lister (Cas. Prac. C. 

P. 88) 753 

Hotlio, State v. (8 Humph. 84)195,408 
Hbffren v. Com. (4 Met. Ky. 5) 411 

195 
Helms, State v. (5 Ired. 864) 531 

Helsham, Rex 9. (4 Car. <Sb P. 394) 330 
HelU>n, State v. (26 Mo. 199) 679 

Hemdon, State p. (5 Blackf. 75) 773 
Hempstead, Rex c. (Russ. <& Ry. 

344) 817 

Hench, Rex v. (Russ. & Ry. 163) 496 
Hendershot €. Town of Peters- 

burg (63 Ills. Ill) 16 

Hendei-son, People v. (1 Parker 

C. R561) 448,451 

, R c. (C. & M. 328) 596 

, State «. (15 Mo. 486) 703, 707 

, State f>. (1 Rich. 179) 724 

«. State (12 Texas, 325) 

«. State (14 Texas, 503) 



SsoTioir 
Hendricks, State v. (Conference, 

369) 797, 808 

Hendrickson, People «. (1 Park. 

Cr. R. 406) 988 

, State f). (6 Iowa, 880) 881 

Henley, State «. (30 Mo. 509) 461 

Hennessy, People •. (15 Wen. 147) 938 



Henklev. Smith (21 Ills. 238) 
Henry, Com. v. (10 Harris, 258) 

t>. Lowell (16 Barb. 268) 

0. State (33 Ala. 389) 



942 
592 
188 
855 
835 
495 



Hensey, Rex v. (1 Bur. 642) 
Uenshaw v, Bryant (4 Scam. 97) 
Hensler, Reg. c. (11 Cox C. C. 

570) 594 

Hensley, State «. (7 Blackf. 824) 832, 

833 
Henson, Reg. o. (18 Eng. L. & 

Eq. 107) 301 

Henton, State v. (6 Ala. 864) 625 

Herber «. State (7 Texas, 69) 509, 993 
Herbert, U. S. «. (5 Cranch C. C. 

87) 888, 847 

Hereten, State o. (2Penn. 672) 569 
Hern «. State (1 Ohio, 15) 745 

Herrick v. Gray (65 Ills. 101) 295 

, People fl. (18 Wen. 87) 10, 594, 

597,599 
Hen-ing «. State (1 Iowa, 203) 815 
Herri ott o. State (1 McMulliu, 

126) 408, 418 

Hersey, Com. ©. (2 Allen, 173, 176) 930 
He.sler v. State (17 Ga. 130) 448 

Hess «. State (5 Ham. 5, 7) 569 

«. State (5 Ohio, 5) 558, 565 



993 
562 



Hendrick «. Com. (5 Leigli, 707) 509, 

574, 900,911) 
Hendricks, State o. (C. 6t M. 369) 799 



Hessenkamp, State o. (17 Iowa. 

26) 515, 532, 782 

Hessing v. McCloskey (37 Ills. 

341) 952, 954 

Hewer, State €. (1 Walker, 818) 909 
Hewct, State v. (31 Me. 396) 660 

Hewgill, Reg. «. (24 Eng. L. & 

Eq. 556) 595, 597 

Hewit, Reg. «. (5 Cox C. C. 162) 714 
Hewitt V. State (25 Texas, 722) 780 
Heydon, Rex v. (4 Co. 41a) 323 

Heyward, State v. (2 ll«{ott & 

McC. 312) 999 

Hibbard v. People (4 Mich. 126) 146 
Hickey v. Forrestal (49 Ills. 256) 51 
Hickman, Rex t}. {i Moody, 34) 753 
Hicks, \ie^. V. (2 Moody & Ry, 

502) 396 

Higtlon, State v. (32 Iowa, 262) 885 
Higglns 9. Lee (16 Ills. 495) 86, 469, 

991 992 

, People t?. (15 Ills. 110) ' 46 

, Hex V. (3 Car. & P. 603) 941 

, Rex V. (2 East, 5) 571, 768 



2l 



INDEX TO OASES CITED. 



Sbgtiox 

Higginson, Rex v. (2 Bur. 1283) 216, 

218 
Highland u. People (1 Scam. 892) 507, 

981 
Hildebrand v. State (5 Mo. 548) 799, 

808 
Hilditch, Rex v. (5 Car. & P. 299) 88 
Hildreth «. People (32 Ills. 36) 507, 

981 
, State V. (9 Ired. 429) 344 

Hill's Case (1 East P. C. 439) 433 
Hill, Com. t. (2 Grat. 594) 888 

, Com. V. (11 Mass. 136) 332, 568 

, Reg. V. (8 Car. & P. 582) 567 

, Reg. V. (2 Moody & Cr. 300) 565 

, Rex V. (Russ. & Ry. 190) 580, 698 

D, Rogei*s (2 Iowa, 67) 177 

, State V. (4 Dev. & Bat. 491) 179, 

340 

, State V, (2 Hill 8. C. 607) 881, 

8SS 

u. State (2 Yerg. 248) 840, 852 

V. State (17 Wis. 675) 932 

, State r. (30 Wis. 419) 558 

V. Ward (2 Gilm. 2^5) 1034 

Hiller v. Suite (4 Filackf. 552) 904 
Hillers, Rex v. (2 Cliitty, 163) 663 
Hillhouse v. Dunning (6 Conu. 

139) 724 

Hilliard, Com. v. (1 Mass. 6) 891,892 
Hinch V. State (2 Missis. 158) 696 
Hindmarsh's Case (2 Leach, 571) 324 
Hincr v. People (34 Ills. 297) 309, 979 
Hincs, Com. v. (102 Mass. 33) 818 

t>. Sta'e (8 Humph. 597) 15 

Hinesburgli v. Sumner (9 Vt. 20) 245 
Hinkle, Siato r. (6 Iowa. 380) 773,909 
Hinkman v. Clark (Coxe, 446) 907 
Hinton v. State (24 Texas. 4.")4) 352 
«. United States (1 Pin. 

Wis. 91) 620 

Hiss r>. State (24 Md. 550) 683 

Hissenkamp, StiUe v. (17 Iowa, 

25) 'Vi'S 

Hite V. Branfoixl (45 Ills. 9) 

V. State (9 Yerg. 198) 

HitttJ. Allen (13 Ills. 592) 
Hizcr «. State (12 Ind. 330) 
Hoch T. People (3 Mich. 55.2) 
Hockenlxjrry, State v. (II Iowa, 

269) 

, State V. (30 Iowa, 504) 

Hodtre's Case (Lewin C. C. 227) 331 
Hodgos V. Stale (5 Humph. 112) 730 

, U. S. V. (2 Dall. 87) 318 

Hodgeden, State v. (3 Vt. 481) 46 



Saonoir 



Hodgkins, State «. (42 K. H. 474) 855 
Hodgson, Rex v. (8 Car. & P. 422)284 

, Rex V. (36 Eng. L. & Eq. 

624) 564, 567 

, Rex V. (Russ. & Ry. 211) 486 



Hodson, Rex v. (7 Law R. 58) 
Ilogau, Rex t. (5 Eng. Law. A 
Eq. 553) 
, State «. (R. M. Charlton, 



668 
876 



800 
492 



474) 
Hogard, State v. (12 Minn. 293) 
Hogart V, Bigley (6 Humph. 236) 61 
Hogg V. State (3 Blackf. 826) 492 

Hogshead v. State (6 Humph. 59, 

60) 907 

Hoke V. Henderson (4 Dev. 1) 778 
Hoi brook. People v. (18 John. 90) 492, 

613 
Holcomb f>, Cornish (8 Conn. 875) 61 

— , People u. (3 Park. Cr. R. 

65(J) 137, 138, 139 

Holdane v. Trustees of the vil- 
lage of Cold Springs (23 Barb. 

103) 
Hcdden, Rex v. (Russ. & Ry. C. 

C. 154) 
Holnman v. State (8 Engl. Ark. 

105) 
Hoi ford V. State (2 Blackf. 103) 
Holland, Reg. v. (2 Moody ifc 

Ry. 351) 325, 326 

,Rexc. (5T. R. 607) 816 



306 
668 

992 

538 



Hollenback, State v. (36 Iowa, 

112) 378 

Holley V. Mix (3 Wen. 350) 62, 185 
, State V. (I Brev. 35) 1001 



Hollidav v. Burges.s (84 Ills. 193) 955 

V. f^eople (4 Gilm. 114) 803, 832, 

932 
HoUingherry, Rex v, (6 Dowl. 

& Ry. 344) 938 

Hollingsworth v. Napier (3 Cai. 

182) 9»3 
V. State (5 Snced. 518, 520) 225 



Hollis, Rex v. (1 Trem. P.C. 302) ail 
l)52!H()lloway's Case (W. Jones, 198) 3^53 
lOUHolloway «. Freeman (22 Ills. 
879 202) 831, 8;i2, 848 

232 , Reg. V. (1 Den. C. C. 370) 504 

697 " ~ ' 

806 



Hodgman v. People (4 Denio, 
235) 



, Rex V. (5 Car. «te P. 563) 504 

Holman v. State (8 Engl. Ark. 
105) 993 

492 Holmes, Com. v. (17 Mass. 336) 207, 

301 729 

— V. Parker (1 Scam. 567) lOlS, 

1034 

— V. People (5 Gilm. 478) 808, 925, 

1083, 1034 

278 , R. V. (Cro. Car. 376) 451, 457 



INDEX TO CASES CITED. 






Holmes, Reg. t>. (Dears, 307) 

, Rex V. (20 Eng. Law & Eq. 

597) 

V. State (23 Ala. 17) 

, State tJ (38 Conn. 2a0) 

-, State v. (17 Mo. 379) 



SiCTIOK 

208 
208 



400 
990 
504 
891 
723 



Holt V. Com. (3 Va. Cas. 156) 
Home, Rex p. (Cowp. 672) 
Homer, State p. (40 Me. 438) 210, 850 
Homes, State p. (17 Mo. 379) 1 1 

Honey, Com. v. (10 Met. 4^22, 425) 805 
Honeyman, People tj. (3 Denio, 

121) 909, 911, 914 

Hood, Rex v. (1 M. & M. 281) 49 

V. State (44 Ala. 81) 701 

, SUiie V. (51 Me. 363) 800 

Hooker v. Com. (13 Grat. 763) 179, 

933, 1016 

V. Rogers (6 Cowen, 577) 805 

V. StJite (7 Blrtokf. 272) 999 

V. Sttite (4 Obio, 318; 919 

, State r. (17 Vt. 658) 708, 803 

V. Vanderwater (4 Denio, 

349) 714 

HfMjks c, Paige (1 Tennessee, 260) 

914 
Hooper, Com. v. (5 Pick. 42) 2<J(», 

618 
, Com. V. (Thatch. Cr. Cas. 

400) 41;} 

, State «. (2 Baiiey, 87) 569, 992 

c. State (8 Humph. 93) 558, 565 

, State r. (27 Mo. 599) 222 

Hoover, State v. (4 Dev. & Bat. 

365) a53 

Hope r. Com. (9 Met. 134) 469, 492 

, Com. V. (22 Pick. 1) 461, 800 

, People v. (1 City H. Rec. 

150) 938 

Hopkins, Com. v. (2 Dana, 418) 213 

, Rt'g. t. (8 Car. & P. 591) 324 

V. People (12 Wen. 76) 589 

Hopkinson c. People (18 Ills. 264) 177, 

350, 391, 952, 9.'):} 
Hopper, State r. (27 Mo. 599) 220 
Hopps V. People (31 Ills. 385) 5, 87, 

89, 335, 986 
Hopsou, People v. (1 Denio. 574) 278 

704 
Horan r. State (24 Texas, 161) 686 

State V. (25 Texas Sup. 271) 780 

Horn, StHte c. (19 Ark. 578) 220 

c. Eckert (68 Ills. 522) 1084 

t. >'eu (68 Ills. 589) 1033, 1084 

Home c. State (1 Kansas, 42) 10 

Horton, Com v. (2 Grav, 69) 618 

, People f?. (4 Micir. 67) 341 

, People tJ. (18 Wen. 8) 907, 91 1 

V, Stale (8 Engl. 62) 229 



BXOTIOK 

Horton, State v. (63 N. C. 595) 883 
Hoskins c. State (11 Ga. 92) 569, 802, 

934 
Hotailing, Cary v. (1 Hill, 344) 495 
Hough V. Baldwin (16 Ills. 293) 1033 

, Rex V. (Russ. «fc Ry. 120) 569 

Housrhton.c. Bachman (47 Barb. 

388) 148 
, Com. «. (8 Mass. 107, 110) 558, 

729 
House V. State (3 Greene Iowa, 

513) 277 
t>. State (4 Greene Iowa, 172)782, 

797 
V. Wilder (47 Ills. 510) 



Houseall, State v. (2 Rice's Dig. 

.346) 
Houser, State v. (28 Mo. 233) 
, State V. (26 Mo. 431) 



961 

806 
953 

881 
Houston V. Moore (5 Wheat. 1) 574 

V. People (63 Ills. 185) 804, 305 

V. State (8 Engrl. Rep. 66) 507 

V. State (38 Ga. 165) 461, 466 

V. Stale (4 Greene Iowa, 487) 952, 

959 
Hovey, People «. (5 Barb. 117) 633 
How. Slate c. (1 Rich. 260)* 805, 807, 

843,1000 
Howard F. & M. Ins. Co. ©. Cor- 
nick (24 Ills. 455, 554) 991 

R<?x p. (7 Mod. 307) 684 

, Rex V. (1 M. & Rob. 187) 693 

V. Sexton (4 N. Y. 157) 696 

, Stale V. (2 Brev. 165) a58 

, State V. (10 Iowa, 101) 774 

, State V. (4 McCord, 159) 700 

p. Slate (13 Sm. & M. 261) 1000 

-, Stale V. (82 Vt. 880) 882, 383, 944 

809 
57 
711 
108 
842 
448 
985 
45 
382 
502 
388 
228 

317 

16 
189 
857 
277 
225 
150 



, U. S. 0. (8 Sumner, 12) 
Howarth, Rex v. (1 Moody, 207) 
Howe, Rex r. (7 Car. & P. 268) 
1?. Staled Ala. 118) 

, State c. (1 Rich. 260) 



Howell r. Com. (5 Grat. 664) 

y. Edmonds (47 Ills. 79) 

0. Peopk'(2 Hill, 281) 

, Reg. V. (9 Car. & P. 437) 

, Rex 0. (7 Car. &, P. 325) 

-. Slate r. (I Ga. 158) 



Howlel V. State (5 Ycrg. 145) 
Hoxie, U. S. V. (1 Paine C. C. R. 

265) 
Hoyer v. Town of Mascoutah (59 

Ills. 188) 
Hubbard v. People (4 Mich. 208) 

V. Slate (7 Ind. 160) 

0. Stale (11 Ind. 554) 



Hube, Rex v. (5 T. R. 542) 
Huckle €. Money (2 Wills, 205) 



xiii 



INDEX TO OASES CITED. 



Huddle «. Martin (54 IIU. 258) 
Hudgins ©. State (2 Keller, 173) 
Hudson V, State (1 Blackf. 317) 



V. State (9 Yerg. 408) 



Huflf, Com. fl. (14 Grat. 648) 
HugeVs Case (J. Kel. 59, 61) 
Huggins V. People (39 Ills. 241) 



-, Pe(»ple c. (10 Wen. 471) 
-, State V. (12 Rich. 402) 



Ssonov 
931 
909 
773. 
915 
994 
833 
340 
lOH, 
114 
108 
323 
548 



Hughes' Case (1 Lew. 301) 

Hughes V. Marshall (2 Tvrw. 134) 050 

. Reg. fj. (C. & M. 5U3) 501 



-, Reg. V. (I Car. & K. 519) 

, Reg. V. (9 Car. & P. 7r.2) 

, Rrg. tj, (Dears & B. 248) 

, Rl'X tJ. (4 Car. & P. 272) 

, Rex V. (5 Car. & P. 126) 



619 
433 
327 
73{) 
326. 
32^ 



; Rex V. (1 Leach» 406) 463, 464 



., R. c. (2 East P. C. 1002) 
— , People c. (29 Cal. 257) 
— , State V. (1 Ala. 655) 
— , Slate V. (2 Ala. 102) 
— , Slate V. (2 Harriug. & 
McH. 470) 

— V. State (8 Humph. 75) 

— V. State (4 Iowa, 554) 
— , State V, (24 Mo. 147) 

-, State tj. (1 Swan. :i61) 



560 
453 
773 
932 



847 
510 
833, 932 
281 
847 
596 
278 
46 
626 
944 
301 
435 



Hulburt, C'om. c. (12 Met. 446) 

, People c. (4 Denio, 133) 

Hull V. Blaisdell (1 Scam. 332) 

V. Hull (2 Strob. Eq. 174) 

, State V. (26 Iowa, 292) 

, State V. (31 Me. 84) 

c. State (22 Wis. 5a()) 

Hulse, People p. (3 Hill, 316) 435. 439 
Humes t?. Taybor (1 R. I. 464) 138 
Humphrey v. Caude (2 Co wen, 
509) 892 

. Com. V. (7 Mass. 242) 549 

, People V. (7 Jolin, 314) 631 

1. Phillips (57 Ills. 13.")) 323, 848 

Humphries ». Collier (1 Scam. 47) 952 

, Com. 0. (7 Ma>s. 242) 543 

Huufs Case (I Cox C. C, 177) 196 
Hunt V. Bennett (19 N. Y. 173) 784 

, Com. V. (4 Ciush. 49) (532 

, Com. V. (4 Met. Ill) 660, 661, 

714 

V, Com. (13 Grat. 757) 509, 510 

, Rex. c. (2 (^impb. 583) 730 

Rt'X. V. (4 Bain. ik Aid. 430) 916 



SscTioar 

Hunter v. Fairfax (3 Dall. 805) 895 

«. Middleton (13 Ills. 50) 307 

, Rex V. (3 Car & P. 59) 54i> 

V. State (29 Ind. 80) 461 

, State V. (33 Iowa, 361) 927 

V, United States (1 Pin. 91) 626 



Huntermeister c. State (1 Iowa, 

101) 
Huntington v. Blaisdell (2 N. H. 

318) 

p. Gardiner (1 B. & Cres. 



277 

57 



297) 657 

Hunlly, State o. (3 Ind. 418) 938 

Huper V. Morrison (27 Wis. 365) 180 
Hurd c. Com. (5 Leigh, 715) 891, 892 
r. Shaw (20 Ills. 856) 42 



Hurlbuit, Com. v. (12 Met. 446) 594 

, Slate r. (1 Root, 90) 932 

Hurlev r. State (6 Ohio, 399) 1000 
Hurt c. State (25 Missis. 378) 16 

Hussey, Slate c. (7 Iowa, 409) 432, 857 
Hussy. Com. r. (9 Pick. 496; 907 

Hutchinson, Com. c. (1 Mass. 7) 549 
, Com. r. (2 Parsons R. 453) 857 

~ 501 
867 
46 
388 
180 
180 



, Rex V. (Russ. & R. 412) 

, State V. (27 Iowa, 212) 

Huit<m, Com. v. (5 Gray, 89) 
V. Huxley (C. & M . 596) 



Hyalt V. Wood (3 John. 239) 
V. Wood (4 John, 158) 



Hyde, Com. v. (Thatch. Cr. C. 19) 229, 

637 
Igo, Slate V. (21 Mo. 461) 923 

Ills. Ceu. R. R. Co. v. Garnish 
(39 Ills. 37U) 1033, 1034 

«. Mallet (67 Ills. 431) 991 

c. McClelland (42 Ills. 855) 952 

r. Munn (51 His. 78) 991 

r. Palmer (24 Ills. 45) 1034 

174 
174 



r. Suiton (53 Ills. 397) 

p. Whitiemore (43 Ills. 420) 

Ills. Mu. In. Co. V. Marseilles 

Man. Co. (1 Gilm. 236) 891 

Indianapolis cV: fc^t. Louis. R. R. 

Co. I'. Miller (62 Ills. 46») 1033 
Ingalls t. Biilkhv (15 Ills. 224) 942 

867 



-, State r. (17 Iowa. 8) 



Ingersol v. Skinner (1 Denio, 540) 270 
Inglehari r. Ht)bart (19 Ills. 637) 306 
Ingold, State c. (4 Jones N. C. 

210) 179 

lugraham. Com. v. (7 Grav 
Mass. 46) 4'>0, 943 

i\ Slate (39 Ala. 247) 843 

I*. Walkius (1 Dev, «fc Bat. 

694 
172 



, Rex V. (1 Moodv. 93) 62, IS") 442) 

». Tinkham (21 'ills. 639) mn Inness c. Wylie (1 C. & K. 257) 

Hunter r. Com. (7 Grat. 641) 463. tM:jilon, Reg. r. (16 Jur. 740; 1 
V, Com. (2 Serg. & R. 298) 216^ Lead. C. Cases, 400) 



568 



INDEX TO CASES CITED. 



xliii 



Skctiov 

Ireland v. Elliott (5 Clarke Iowa, 

478) 188 

Irvine «. Kean (14 Berg. & R. 292) 909 
Isaac, Rex t>. (2 East P. 0. 1061) 451 
Isaacks, Com. v. (5 Rand. 634) 625 
Iseley «. State (8 Black. 408) 809 

Isham 9. Smith (21 Wis. 32) 308 

, V. leherwood (2 Kenny, 202) 656 

Israel V. Brooks (23 Ills. 57o) 42 

Ivey V. State (12 Ala. 276) 411, 413 
Jacks 9. Bill (3 Car. & P. 316) 186 

c Stimpson (13 Ills. 702) 42 

Jackson's Case (I Lewin, 270) 699 
Jack.<on, Com. v. (2 Va Cas. 501) 186, 

843 

V. Chase (15 John. 365) 993 

«. Hawks (2 Wen. 619) 986 

V. Humphrey (1 John. 498) 692, 

693 

V. Kniffen (2 John. 35) 888 

V. Malin (15 John. 293) 993 

, People V. (8 Barb. 687) 492 

, People V. (3 Denio, 101) 636 

, People tj. (3 Hill, 92) 381, 392 

, People V, (18 Ills. 269) 323, 461, 

793, 817, 873, 875, 965, 1023 

V, People (40 Ills. 405) 84, 346, 

505 

, People v. (3 Park. Cr. R. 

391) 436, 437 

V. People (2 Scam. 232) 630, 631 

, Rex V. (8 Camp. 370) 591 

, Rex V. (1 Dev. 124) 747 

, Rex V, (1 East. P. C. 711, 

712) 548 

, Rex V. (Russ. & Ry. 487) 434 

, Rex V. (1 T. R. 653) 11 

, State ©. (3 Hill 8. C. 1) 1000 

V. State (1 Ind. 184) 693 

V. State (4 Ind. 560) 809 

fj. State (14 Ind. 327) 930 

, State «. (30 Me. 29) 809 

, Stale V. (39 Me. 291) 793 

, State V. (17 Mo. 544) 89, 351,800 

V. State (11 Ohio 8. 104) 506 

V. Warren C32 Ills. 831) 81 



SSOTTOV 

Jane v. State (3 Mo. 61) 323, 790, 793 
Jarnagin v. State (10 ierg. 529) 791 
Jarrard u. Carper (42 Ills. 457) 955, 

991 
Jarred «. Goodlittle (1 Blackf. 29) 949 
Jarrott, State v. (1 Ired. 76) 333 

Jarvis, Rex v. (1 Moody, 7) 46tf 

D. Shacklock (60 Ills. 378) 892, 

895,898 

Jaurez, People v. (28 Cal*. 380) 499 
Jefferson, State «. (3 Harring. 
571) 889, 390 

, State V. (6 Ired. 305) 436, 938 



Jacobs V. Com (5 Serg. & R. 316) 792 

, Rex V. (Russ. & Ry. 331) 442 

Jacques v. Com. (10 Oral. 690) 907 
James* Case (1 C. & K. 530) 166 

James v, Campbell (5 Car. & P. 
372) 175 

, Com. V. (1 Pick. 375) 502, 504 

tJ. Com. (12 Serg. & R. 220) 301 

, Rex V. (1 C. & K. 530) 166 

, Rex V. (1 Show, 397) 65)3 

Jane's Case (1 Car. & K. 530) 389 
Jane v. Com. (3 Met Ky. 18, 22) 776, 

965 



442 

848 

1014 

939 



Jeffrey, State v. (3 Murphey, 480) 992 
Jeffries v. Com. (12 Allen, 145, 

152) 794, 1016 

Jellard v. Com. (2 Casey, 169) 805 
Jelly man, Reg. v. (8 dar. & P. 

604) 
Jenkins v. Pepoon (2 John. C. 
312) 

— V. State (30 Missis. 480) 
— , State V. (2 Tyler, 879) 
Jenks, Rex «. (2 ijeach, 774; 2 
East P. C. 514) 390, 461, 469 

V. State (17 Wis. 665) 46, 303 

- 805 

278 
224 
388 
Jonour, Rex i. (7 Mod. 400) 315 

Jerome, People v. (1 Mich. 142) 726 
Jerry v. State (1 Blackf. 396) 323, 791 
Jervis, Rex v. (6 Car. & P. 156) 639 
Jesse V. State (20 Qa. 156, 169) 701, 

9(y7 

9. State (28 Missis. 100) 363, 448, 

455 791 
Jester v. State (14 Ark. 552) ' 226 

Jewell V. Com. (10 Harris Penn. 
94) 915, 933 

State V. (33 Me. 583) 908 



Jenner, Rex v. (7 Mod. 400) 
Jenness, People «. (5 Mich. 305) 
Jennings, Com. v. (3 Grat 624) 
V. State (9 Mo. 852) 



Jewett V. Banning (23 Barb. 13) 940 
V. Banning (21 N. Y. 27) 192 

People V. (3 Wen. 314) 

People V, (6 Wen. 386) 



773 

Jilson, People v. (3 Park. (3r. R. 
234) 174 

Jim, State v. (1 Dev. 142) 432 

V. State (15 Ga. 535) 892, 895 
V. Stale (4 Humph. 289) 959 



Jobling, Rex v. (Uuss. & Ry. 525) 466 
Jobson, Rex v. (2 Show, 1) 
John, Rex v. (3 M. & S. 539) 

, State «. (8 Ired. 330) 

, State V. (5 Joues, 103) 

V. State (24 Missis. 569) 

V. State (23 Wis. 504) 



661 
479 
341 
549 
809 
663 



Johns, Com. v. (6 Gray, 274) 691, 698 



xliv 



INDEX TO OASEB CITED. 



SSOTTON 

Johns, U. B. V. (1 Wash. C. C. 372) 824 
Johnson's Case (Foster, 46) 930 

Johnson «. Ackless (Breese, 59, 

2d Ed. 92) 1085 

, Com. V. (Thatch. C. C. 146) 260 

, Com. V. (Thatch. C. C. 284) 618 

V. County of Stark (24 Ills. 

86) . 22 

V. Daverne (19 John. 134) 560 

V. Davis* (7 Texas, 178) 661 

V. Gillett (52 Ills. 858) 1088, 1034 

V. Howe (2 Gilm. 342) 985 

V. Hudson (7 Ad. & El. 233) 729 

v. Jones (3 Bm. & M. 456) 232 

V. Moulton (1 Scam. 533) 992 

1). People (4 Denio, 868) 560 

, People V. (12 John. 292) 592, 594 

V. People (22 Ills. 315) 79, 660, 

661, 835, 927, 999. 1014 

V, People (31 Ills. 472) 108 

, People V. (1 Park Cr. R. 564) 539 

, People ©. (2 Wheeler C. C. 

Sll) 941 

, Reg. V. (C. & M. 218) 503 

. Reg. V. (2 Moody, 356) 593 

, Hex tJ. (2 East P. C. 488) 463 

, R. V. (6 East, 583) 851 

, Rex c. (9 East, 65) 733 

, Rex V. (3 M. & S. 539) 479, 492, 

802 

, State tj. (12 Ala. 840) 180, 181 

V. State (17 Ala., 618; 886 

©. State (29 Ala., 62) 800, 803, 943 

V. State (35 Ala., 370) 570 

, State V. (7 Blackf. 49) 696 

V. State (2 Dutcher. 313) 659 

V. State (14 Ga. 55) 388, 930 

V. State (30 Ga. 426) 991 

17. State (4 Greene Iowa, 65)77, 944 



Sxorriov 
Johnson v. Von Kettler (66 Ills. 



63) 

Joiner, Rex v. (J. Kel. 29) 
, State V. (4 Hawk, 350) 
, State V, (19 Mo. 224) 



-, State V. (16 Vt. 497) 



869, 879 

531 

897 

492 

. . 032 

Joliet & N. R. R Co. v. Jones 

(20 Ills.) 1033 

Jolly, State v. (7 Iowa, 18) 815 

Jones V. Clay (1 Bos. & Pul. 191) 186 
, Com. V. (1 Leigh, 612) 7 

, Com. V. (99 Miiiis. 438) 927 

V. Fletcher (41 Me. 254) 188 

• V, People (2 Scam. 477) 46, 682, 

683, 684, 782 
V. People (12 Ills. 269) 509, 510 
V. People (14 Ills. 196) 279, 282 
V. People (53 Ills. 866) 999, 1000, 

1033, 1034 



-, State V. (3 Hill S. C. 1) 
-D. State (2 Humph. 283) 
-, State V. (6 Humph. 426) 
- V. State (11 Ind. 481) 
-, State V. (2 Iowa, 54y) 
-, State V. (8 Iowa, 525) 
-, State t). (19 Iowa, 230) 
-, State V. (1 Ired , 354) 
-, State V. (3 Jones, 2(50) 



807 
175 
790 
589 
987 
885 
448, 455 
340, 344 
334 
-; State V. (5 Jones N. C. 221) 833 
— , State t. (6 Jones N. C. 485) SOU 
— , State V. (19 Mo. 213) 388 

— , State '0. (Phillips, 186) 403 

— V. Stale (7 Sm. <te M. 58) 226 

— V. State (17 Ohio, 5U3) 430 
— , Stale V. (11 Texas, 23) 388 
— , State V. I'ZS Vt. 512) 435, 430 
— , State 0. (1 Walker Missis, 

392) 793, 909 

— t). Tompkins (1 Bald. 571) 170, 417 



— «. Perry (10 Yerg. 59) 778 
— , Reg. v. (1 C. «& M. 614) 633 
— , Reg. V. (9 Car. & K. 258) 391 
— , Reg. V. (9 Car. & P. 761) 578 

— Reg. V. (1 Den. C. C. 188) 499 
— , Reg. V. (1 Eug. L. & Eq. 

533) 594 

— , Reg. u, (2 Moody, 293) 501 

— , Rex V. (2 Campb. 132) 801, 944 
— , Rex. V. (2 Car. & K, 398) 711 
— , Rex V. (2 Car. & P. 629) 941 
— , Rex V. (6 Car. & P. 343) 148 

— , Rex V. (8 Car. P. 776) 800, 803 
— , Rex V. (2 East P. C. 714) 548 
— , Rex V. (2 East. P. C. 991) 568 
— , Rex V. (8 East, 34) 892 

" "" 694 

684 
245 
778, 
901 
7034 
921 
501 
778, 809 



-, Rex V. (1 Peak Cas., 87) 
-, Rex V. (I Wils. 7) 
■ V. Rice (18 Pick. 440) 
- V. Robbins, (8 Gray, 329) 



- V. Sprague (2 Scam. 55) 
-, State V. (5 Ala. 066) 

- V. State (13 Ala. 153) 

- •D. State (2 Blackf. 475) 
-, State V. (3 Dev. & Bat. 122) 510 

- V. Stale (0 Hunii)h. 435) 833 
-, Slate 0. (10 Iowa, 200) 461 
-, State V. (13 Iowa, 209) 660 
-, State 0. (33 Iowa, 11) 952 
-, State tJ. (51 Me. 125) 79 
-, State 0. (I McMullan, 236) 570 

- V. State (30 Missis. 053) 509 

- V. State (14 Mo. 409) 341, 344 
-, State V. (20 Mo OS) 842 

- V. State (20 Mo. -^47) 
-, Stale 0. (1 M. & M. 236) 
•, Stale tj. (N. C.221) 
■ 0. State (11 N. H. 46) 
. V. State (11 Sm. & M. 815) 



510 
558 
804 
461 
889 



INDEX TO CASES CITED. 



xlv 



SXOTION 

Jones V. State (13 Texas, 168) 952 

, State «. (Walker Missis. 83) 330 

, U. 8. V. (3 Wash. C. C. 209) 550 

V. Stephens (11 Price, 235) 733 

V, Tresilian (1 Mod. 136) 180 

- ~ 4, 

433 

4(i2, 

469 

40 



Jordan, Reg. 9. (9 Car. & P. 118) 
, Rex V. (7 Car. & P. 482) 



-, State 0. (12 Texas, 205) 



, U. S. 17. (4 Cranch C. C. 338) 212 
Josephine v. State (39 Missis. 613) 803 
Joslyn V. Com. (9 Met. 236) 461 

Judd, Com. «. (2 Mass. 387) 660, 664 
Jndges of Genesee, People o. (18 

John. 85) 186 

Jnmprctz v. People (21 Ills. 411) 560, 

9^ 972 
Jnpitz V. People (84 Ills. 516) 89,* 539, 

540, 542. 952, 991 
Justice 0. State (17 Ind. 56) 841 

Kaatz, People v. (8 Park. Cr. R. 

129) 500 

Kane, Com. v. (108 Mass. 473) 705 

, People V. (4 Denio, 531) 108, 113 

«. People (8 Wen. 203) 799, 800 

Katte V. People (4 Park. Cr. R 

691) 984 

Kattleman, State v. (85 Mo. 105) 16 
Keaggy «. Hite (12 Ills. 99) 992 

Kean, State v. (10 N. H. 347) 631 
Keams «. State (3 Blackf. 336) 108 
Keat*s Case (Skin. 666) ' 326 

Keaton «. State (7 Ga. 189) 959 

Kebly v. Rucker (1 A. K. Marsh, 

290) 
Keech o. People (22 Ills. 478) 



SXOTXOV 

Kelley c. Chapman (13 Ills. 580) 1038 

V, City of Chicago (48 Ills. 

389) 806 

— V. Downs (29 Ills. 74) 

— tj. People (39 Ills. 157) 



-, Rex V. (1 Moody, 113) 



866,868 

815, 999, 

1014 



KelU V. Davis (57 Ills. 261) 
Kelly, Reg. v. (2 Car. & K. 814) 
V. Com. (1 Grant Pa. 483) 



Keefe o. State (19 Ark. 190) 
Keeler, State «. (28 Iowa, 557) 
Keely «. State (14 Ind. 36) 
Keen, U. S. 9. (5 Miison, 453) 
Keenan v. State (8 Wis. 132) 



681 
808, 
809 
1U8 
1034 
491) 
704 
62, 907. 
923 
696 
809 
351 



Keene, State v. (26 Me. 33) 

, U. S. «. (IMcLean, 441) 

Keener v. State (18 Ga. 194) 
Keeper of Prison, Com. v, (1 

Ashm. 188) 50, 326 

. Com. «. (2 Ashm. 227) 839, 36(i 

Keeper v. State (4 Ind. 246) 802 

Keigley, Reg. v. (20 £ng. L. &i 

Eq. 546) 589 

Keithler o. State (10 Sm. & M. 

192) 950, 938, 992 

Kelderly, Reg. v. (1 Saund. Wms. 

£d 308) 46 

Kell, Rex v. (1 Crawf. & Dix. C, 

C. 161) 16 



828 
981 
841 
484 
Kelsey t. Parmelee (15 Conn. 260) 60 
Keman v. State (11 Ind. 471) 66 

Kemp, State v. (17 Wis. 669) 15 

Kenarick v. State (10 Humph. 

479) 888, 889 

Keunard, Com. «. (8 Pick. 188) 180, 

181,854 
Kennedy, Com. v, (15 B. Monr. 
581) 46 

V. People (15 Ills. 418) 118 

V. People (40 Ills. 488) 881, 884, 

340, 747, 948, 947, 948, 952, 991 

V, People (44 Ills. 283) 489, 951, 

954 

, People V. (2 Park. Cr. R. 

818) 901 

, State v, (20 Iowa, 669) 052, 874, 

880 

, State V. (86 Vt. 663) 818 

Kennerly, State v. (10 Rich. 162) 691 
Kenney, Com. v. (12 Met. 288) ' 940 
Kennon, State v. (21 Mo. 262) 618 
Kenny v. Greer (13 Ills. 443) 300 
V. People (31 N. Y. 380) 7 



Kenrick, Reg. v. (5 Q. B. 49) 661, 663 
Kent, Com. «. (6 Met. 221) 578 

Keober, People v, (7 Hill, 42) 108 
Kernon, Rex v. (2 Russ. on C. 

251) 538, 589 

Kerr v. People (42 Ills. 307) 691, 692 
Kesslerinff, State v. (12 Mo. 565) 686 
Ketchlngham v. State (6 Wis. 

426) 800, 803 

Kettle, Rex v. (8 Chitty Cr. L. 

947a) 492 

Key «. Vattier (1 Ohio, 182) 242 

Kcyes v. Devlin (8 £. D. Smith, 

518) 169, 188, 191 

, People V. (5 Cal. 24) 907 

, People V. (5 Cal. 347) 910 

, State V. (8 Vt 57) 708, 709 

Kibbv, State v. (7 Mo. 317) 801 

Kiddey, Rex v. (4 Dowl. & Ry. 

784) 883 

Kilbourn v. State (9 Conn. 563) 843 
Kilgore, State v. (6 Humph. 44) 226 
Killan, Com. v. (109 Mbj^s. 843) 515 
Killenbeck v. State (10 Md. 481) 448, 

790 



J 



zlvi 



INDEX TO CASES CITED. 



Eillet, State v. (2 Bailey, 289) 
Kimball, Com. v. (7 Gray, 828) 



V. People (20 Ills. 848) 



SXOTIOX 



- f). People (45 Ills. 297) 
-, Slate V. (29 Iowa, 267) 
-, States. (50 Me. 409) 



48 
212, 
216 
278 
848 
774 
567 
Kincaid v. Turner (2 Gilm. 621) 992 
Kindred «. Stitt (51 Ills. 401) 51, 52, 

56, 61, 62, 185 
King V. Clark (2 Stark. R 241) 436 

, Com. V. (9 Cush. 284) 538, 809 

tj. Com. (2 Va. Cas. 81) 340, 886 

-- — V. Edwards (4 Taunt. 309) 14 

«. Harris (5 Barn. & Aid. 526) 699 

V, Johnson (6 East, 583) 851 

, RVg. V. (Dav. & M. 741) 661 

, R<>g. V. (7 Q. B. 782, 807) 660 

, Rex V. (5 Car. & P. 123) 361 

V. Rhodes (2 Ld. Raym. 887) 696 

, State V. (20 Ark. 166) 904 

, State V. (37 Iowa, 462) 805 

, State V. (3 Ired. 411) 301 

V. State (21 Ga. 220) 391 

V. State (10 Texas, 281) 883 

, U. S. V. (5 McLean 208) 576,677 

Kingsbury, Com. d. (5 Mass. 106) 392 
Kingsley, People v. (2 Cowen, 

522) 549, 729 

Kingston^ People v. (2 Cowen, 

522. 525) 549 

, Rex V. (8 East, 41) 801, 803 

Kinloch's Case (Foster, 16) 839 

Kinnersley, Rex v. (I Stra. 193) 816, 

817 

, Rex V, (1 W. Bl. 294) 724 

Kinney v. Plynn (2 R. I. 319) 500 

V. State (38 Ala. ^24) 224 

Kinsey, Rex v. (7 Car. & P. 447) 148 
Kirby, Com. v. (2 Cush. 577) 179, 704 
, People V, (2 Park. Cr. R. 

28) 334 

, State if. (2 Ired. 201) 56 

9. State (7 Yerg. 259) 943 

Kirk V, Com. (9 Leigh, 627) 575, 803 

V. State (6 Mo. 469) 46 

V, Strickwood (4 B. & Aid. 

421) 245 

Kirkham, Reg. v, (8 Car. & P. 

115) 340, 842 

Kirkpatrick v. Com. (7 Casey 

Pa. 198) 342 

Kirkwood, R. v. (1 Lewin C. C. 

103) 569 

Kit V, State (11 Humph. 167) 543, 550 
Kitchen 9. Burgwin (21 Ills. 40) 1033 
Kite V. Com. (11 Met. 581) 808 

Kitter «. Peimle (25 Ills. 42) 921, 922 
Kittering «. City of Jacksonville 



Saonoir 
(50 Ills. 89) 288 

Kittle, State r. (2 Tyler, 471) 16 

Klein «. People (81 N. Y. 229) 817 
Klock V. People (2 Park. 672) 15 
Klum 9. State (1 Blackf. 877) 408, 912 
Knapp, Com. o. (9 Pick. 496) 818, 892, 

909, 919, 988, 989 

, Com. 9. (10 Pick. 477) 912 

, State 9. (4 N. H. 155) 436 



Kneeland, Com. «. (20 Pick. 206) 698 
Knickerbocker 9. BLnickerbocker 

(58 Ills. 400) 895 

9. People (48 N. Y. 177) 509 

, People 9. (1 Park. Cr. R. 

802) 886, 917 

Knight, Com. 9. (12 Mass. 278) 691, 

698, 694, 696 



-,Rex«. (1 Car. & P. 116) 
-, Rex 9. (2 East P. C. 510) 



8 
469, 
504 
240 
892 
948 



9. Sawin (6 Greenl. 861) 

9. State (5 Humph. 599) 

, Stale 9. (19 Iowa, 94) 

, State 9. (48 Me. 11) 835, 948 

Knightly, Rex 9. (Holt, 898) 854 

Kniil, Rex 9. (5 Barn. & Aid. 526) 323, 

699 
Knouse, State 9. (29 Iowa, 118) 

, State 9. (33 Iowa, 365) 

Knowles, Rex 9. (1 Salk. 47) 
9. State (8 Day, 108) 



335 

855 
839 
301 
203 



Knox, Com. 9. (6 Mass. 76) 
Koch, State 9. (4 Harring. Del. 

570) 501 

Koop 9. People (47 Ills. 327) 46, 84, 

792 937 
Kork, Com. 9. (9 Met. 93) ' 335 

Kosloff, Com. 9. (5 Serg. & R. 545)53 
Kreps, State v. (8 Ala. 951) 15 

Kriel 9. Com. (5 Bush, Ky. 863) 340 
Krisher, State «. (24 Wis. 64) 626 

Kroscher, State r. (24 Wis. 64) 823 
Krouse, Stale 9. (;J3 Iowa, 365) 14 
Krummer, People 0. (4 Park. Cr. 

R. 217) 589 

Kube, State 9, (20 Wis. 217) 828, 589, 

626 
Kunkle 9. State (32 Ind. 220) 7r)2 
Kuns, State 9. (5 Blackf. 314) 806 
Kyle, Stale 9. (10 Mo. 889) 226 

Lahore, State 9. (26 Vt. 765) 630 

La Coste, U. 8. 9. (2 Mason, 140) 785, 

799 
Ladd, Com. 9. (15 Mass. 526) 504 

17. Moore (3 Sand. 591) 496 

, R(»x 9. (1 Leach, 96) 823 

. State 9. (2 Swan Tenn. 226) 448 

Laffer, State 9. (88 Iowa, 422) 280 
Laflin 0. Herrington (17 Ills. 899) 998 



IKBEZ TO GASES CITED. 



xlvii 



SxcTioir 

Lafontaine, U. 8. v. (4 Cranch 

C. C. 173) 58 

Lagrille, People v, (1 Wheeler 

C. C. 412) 569 

Lahy, Com. v. (8 Gray, 459) 847 

Lake t?. People (1 Park. Or. R. 

496) 323 

Lamb's Case (9 Co. 696) 730 

Lamb, Com. v. (1 Gray, 493) 448 

Lambert v. People (9 Cowen» 578) 233, 

234, 589, 660, 601 

, People V. (5 Mich. 349) 630 

, Rex u. (2 Campb. 398) 783 

Lambeth t. State (23 Missis. 828) 885. 

888 950 
Lamberton v. State (11 Ohio, 282)703 
Lamden r. State (5 Humph. 83) 693, 

696, 702 
Lammcrs c. Meyer (59 Ills. 215) 794 
Lamont, State v. (2 Wis. 437) 691, 992 
Lampton, Com. v. (4 Bibb, 461) 636 
Lancake, Com. v. (1 Yeates, 417) 427 
Lancaster v. Lane (19 11 s. 242) 46, 61, 

193 
Lander r. State (12 Texas, 462) 352 
Landes v. People m Ills. 79) 103, 118 
Lane o. Morse (6 How. N. Y. Pr. 

R. 395) 892 

V. People (5 Gilm. 305) 14, 500 

, State V. (4 Ired. 113) 46, 344 

Lanegran v. People (50 Barb. 266) 7 
Lander, State tj. (29 Wis. 69) 808 

Laugford, Reg. v. (Car. & M. 

602, 605) 11 

,"'state 0. (Busbee 436) lOKJ 

V. State (8 Texas, 115) 492, 501 

Lanjjlev, Reg. «. (2 Ld. Raym. 

1029)' 

,"Rex V. (6 Mod. 125) 

Lannan, Cora, v, (1 Allen, 500) 
Lansing c. Smith (8 Cowen 146) 218, 

301 
Lapier's Case (2 East P. C, 557) 493 
Lapier, Rex v. (1 Leach C. C. 

320) 545, 548, 549 
Lapoint, U. S. v. (1 Morris, 146) 415 
Lara, Rex v. (2 East P. C. 819) 591 
Lnrimore, State p. (20 Mo. 425) 993 
L irkin, Reg. v. fDears C. C. 365) 588 
, Reg. V. (2 Eng. L. &Eq. 

572) 539 

Larned v. Com. (12 Met. 240) 401 

, People V. (3 Seld. 445) 467 

Lathrop c. Amherst Bank (9 

Met. 489) 240 

, State V. as Vt. 279) 589 

Lattin r. Smith (Breese. 361) 46 

Laughlin «. State ri8 Ohio, 99) 930 
Larelley, State v. (9 Missis. 884) 696 



SaonoK 
Lavery, Com. v. (101 Mass. 207) 207 
Lavey. Reg. v. (3 Car. & K. 26) 696 
Lawless, Com. v. (108 Mass. 425) 

952 959 
Lawrence u. Past (20 Ills. 338) 1014 

V. Gracy (11 John. 179) 281 

V. Hagerman (56 Ills. 70) 991 

V. Jarvis (82 Ills. 805) 952, 991 



V. People (17 Ills. 172) 108, 113 

, State V. (38 Iowa, 51) 909, 991 
«. State (4 Yerc. 145) 503 

f>. Stearns (11 JPick. 501) 985 



Lawson c. Buzines (3 Harring. 
416) 

0. State (20 Ala. 66) 



727 

727 
589 



57 

948 
Layton v. Harris (8 Harring. 406) 788 
Lazarus, State v. (1 Rep. Const 
Ct. 34) 179, 180 

, State V. (1 Mills, 84) 180, 874 

Lazier v. Com. (10 Grat. 708) 828, 800, 

843 
Lea, State v. (8 Ala. 602) 691 

Leaben, State u. (4 Dev. 305) 774 

Leach, Reg. tJ. (9 Car. & P. 499) 907 

V. People (53 Ills. 311) 909 

V. Simpson (5 Mees. & W. 

309) 888 

Leake v. Brown (48 Ills. 873) 952 

V. State (10 Humph. 144) 993 

Learned, State v. (47 Me. 426) 780 
Leavitt, S^ate v. (32 Me. 188) 392 

Le Blanc, State v. (3 Brev. 839) 433 
Leckie, U. S. «. (Sprague, 227) 835, 

932 
Lediard. Rex tJ. (Say, 242) 684 

Ledley v. State (4 Port. Ind. 580) 992 
Lee V, Bates (1 Scam. 528) 891, 892 

Com. t>. (107 Mass. 207) 668, 703 

. People 0. (1 Wheeler C. C. 

864) 170 

, Quirk (20 Ills. 392) 892, 962 

, Rex V. (2 Russ. on C. 650) 699, 

700 

, State V. (87 Iowa, 402) 755 

V. Woolsey (19 John. 810) 179, 

188, 161 
Leech v. Waugh (24 Ills. 228) 304, 

306 
Leefe, Rex v. (2 Campb. 184) 694 

Leftwich «. Com. (20 Grat. 716) 479, 

492 
Legjf, Rex. v. (J. Kel. 27) 842, 845 
Leicht, State v. (17 Iowa, 29) 907, 909 
Leidig, v. Rawson (1 Scam. 272) 42, 

86 

Leigh V. Hodges (8 Scam. 15) 991, 

1038, 1034 
Leight, State v. (17 Iowa, 28) 638 

Leighton, State d. (8 Foster, 167) 238 



zlviii 



INDEX TO CASES CITED. 



SECTION'! 



Lemmon v. Hayden (13 Wis. 159) 80.);Lodgc, Cora. o. (2 Gral. 579} 

Lemmons, U. 8. v. (Hemp. 62) 833 v. Phipher (11 Berg. & R. 

Lent, People v. (4 City Hall Kec. 330) 

56) 417,Loefrier c. State (10 Ohio S. 598) 

Lcnthall, Rex v. (3 Mod. 143) 678 Logan, P.'oi)le v. (4 Cal. 188) 



Sxcnoir 
691 



Leonard, State v. (22 Mo. 449) 800 
Leozier, State ©. (2 Speers. 211) 1000 



, State p. (1 Nev. 509) 
, Stale V. (1 Mo. 532) 



560 
940 
895 
847 
492 



Lequatu. People (11 Ills. 330) 23S,lLohman v. People (2 Barb. 216; 

630, 682, 781, 810 1 Com. 379) 378, 393 809, 907, 911, 



Lesher, Com. «. (17 Serg. & R. 

155) 908 

Leslie v. Fischer (62 Ills. 118) 1020 

Lester, Com. v. (2 Va. Cas. 198) 425 

V. State (11 Conn. 415) 993 

V, State (9 Mo. 600) 323 

Lever v. Com. (15 Sera:. & R. 93) 495 

Lcvett, Rex t>. (Cro. Car. 538) 12 

Levi V. Levi (6 Car. & P. 2:]9) 661 

Leving tj. State (13 Ga. 518) 993 
Levy, Com. v. (3 AVheeler, C. C. 

245) 413 

u. Edwards (1 Car. & P. 40) 59(5 

Lewis, Com. t. (4 Leigh, (564) 678 

V. Com. (1 Met. 151) 216 

— r V. Com. (2 Sere:. & R. 551) 591 

V. People (44 Ills. 452) 928, 971 

Rex V, (1 Car. & K. 419) 173 

V. State (30 Ala. 54) 434 

V. State (35 Ala. 380) 751 

, State V. (Bay, 1) 891 

V. State (16 Conn. 32) 461, 462 

«. State (1 Head, 329) 849 

V. State (4 Ohio, 397) 949, 952 

V. State (9 Sm. & M. 115) 886 

, State V. (12 Wis. 434) 220 



915 944 

«. People (1 N. Y. 384) 907! 909 

Lohmdn. Slate v. (3 Hill S. C. 67) 999 
LonL^'s Cjwe (5 Co. 120a, 122^>, 

123a) 323 

Long, Com. v. (2 Va. Cas. 318) 840 

, Rex V. (4 Car. & P. 398) 827, 

400 
450 
418 
281 
930 



, Rex D. (6 Car. & P. 179) 

— V. Rosrers (17 Ala. 540) 

— V. State (27 Ala. 82) 
— , State 0. (1 Haywood, 455) 

— V. Slate (12 Ga^ 293) 62, 543, 
547, 548, 549. 805, 950, 952 

— , State r. (1 Havw. 455) 938 

— , State V. (11 Ituniph. 898) 492 

— V. State (1 Swan Tenn. 287) 510 
Longbottoms, State v. (11 Humph. 89) 

492 
Longden, Rex v, (Russ. & Ry. 

228) 874 

Longley, State v, (10 Ind. 484) 799, 



V. U. b. (Morris Iowa, 199) 266 



12 

5 

323 



817 
Loomis V. Edgarton (19 Wen. 

419) 531 

Lord, Rex u. (Gordon Doug. 590) 817 
Lough T. Millard (2 R. I. 436) 48 
Love V. Moynehan (16 Ills. 277) 1038, 

1034 

, State V. (1 Bay, 167) 397 

Lovell, Rex v. (1 Leach, 282) 565 

V. State (12 Ind. 20) 278 



Lid die, U. S. v, (2 Wash. C. C 

206) 
Lilley v. Waggoner (27 Ills. 305) 

Lincoln, Stat« v. (17 Wis. 581) _„ , , 

Lindenberg, State v, (13 Texas, 27) Loveridge, Com. v. (11 Mass. 837) 115 

691, 69S Lovett, Reg. v. (9 Car. & P. 462) 730 

Lindenthall, State «. (5 Rich. 237) 495! , Stale v. (3 Vt. 110) 707 

Lindslev, State v. (14 Ind. 430) 630!Lovey, State v. (2 Brev. 395) 847 

Lines, fteg. v. (1 Car. & K. 393) 433iLow, Com. v. (Thatch. C. C. 477) 495 
Lingo v. Stale (29 Ga. 470) 351 r. People (2 Park. Cr. R. 37) 507 



Lowe v. Moss (12 Ills. 478) 1033, 1034 
V. People (28 Ills. 518) 304 



Little, State tj. (1 N. H. ^■)7) 14, iso 
Littlefield, People t, (5 Cal. 355) 791 

Littlcjohn, Com. v. (15 Mass. 103) 03 P , Re^r. c. (3 Car. & K. 123) 327 

Livermore, Com.©. (4 Gray, 18) 809 1 Lowell, Slate v. (2inowa, 304) 708 
Livingston©. Kinsted (10 John. iLowensteiu v. People (54 Barb. 

362) 48 299) 219 

Locker, Rex v. (5 Esp. lOT) 79, 663 Lowrv r. Barnes (2 Chapman, 11) 676 

Locket, Rex v. (7 Car. ,^' P. :U)()) 332 , l^tate c. (1 Swan Tenn. 34) 14 

Lockhart, State ©^(24 Ga. 420) 401 , U. S. v. (3 Wash. C. C. 169) 704 

037 Loyd. Rex c. (2 East P. C. 1122, 

323 1124) 710 

409 , Rex v. (4 Car. & P. 233) 885 



V. State (10 Texas, -2701 
Lockwood, People r. (6 < il. 20.")) 
Loco6t» Rex V. (J. Eel. 30; 



INDEX TO CASES CITED. 



zlix 



Sbction 

Loyd, People v, (9 Cal. 54) 823 

Lucas V. Fafrington (21 Ills. 82) 1088 

V, State (23 Conn. 18) 76 

Llickey v. State (14 Texas» 400) 677 
Lnddington «. Peck (2 Conn. 700) 141 
Lull, State t. (37 Me. 240) 513 

Luster (11 Humph. 169) 994 

Lntz V. Com. (5 Casey, 441, 444) 999 

V, CJom. (29 Penn. 8. 441) 1000 

Lyman, State v. (5 Harring. 510) 687, 

689 
Lymburn, State v. (1 Brev.897) 170, 

747 
Lynch, People v. (11 John. 649) 815 

817 319 

, Rex V. (5 Car. & P. 824) ' 340 

Lyner, People v. (5 City H. Rec. 

136) 228 

Lynes v. State (5 Porter, 236) 847 
Lyon V. Boilvin (2 Gilm. 629) 890, 

891, 892, 1034 

9. Lyman (9 Conn. 55) 560 

, Rex f». (2 East P. C. 497) 469 

V. Richmond (2 John. Ch. 

51, 60) 10 

, State «. (12 Conn. 487) 448, 452, 

454,992 

, State V. (17 Wis. 237) 799 

Mabel, Reg. o. (9 Car. & P. 474) 179 
Maberry, State v. (8 Strob. 144) 678 
Macgee, State v. (11 Ind. 154) 593 
Mack, People v, (1 Park. Cr. R. 

567) 108 
, People V. (2 Park. Cr. R, 

678) 998 

Mackallav's Case (9 Co. 67) 57, 328 
Maconnebrey «. State (5 Ohio 

8.77) 7 

Madan, Com. v. (102 Mass. 1) 888 
Madden, Rex v. (1 Moody, 277) 802 
Maddocks, Rex v. (2 Russ. on 

C. 499) 563 

Maddox o. State (82 Qa. 581) 909 

, Rex 9. (Russ. & Ry. 92) 502 

Madison's Case (1 Hale P. C. 

693) 683 

Magher v. Howe (12 Ills. 379) 1083 
Maguire, Com. v. (108 Mass. 469) 492, 

509 
V. Town of Xenla (54 Ills. 

299) 70 

Mahan 9. Berry (5 Mo. 21) 692 

, State V. (12 Texas, 283) 774 

Maher v. People (24 Ills. 241) 12, 350, 

852 

V. People (10 Mich. 212) 842 

V. State (3 Minn. 444) 778, 923 

Mahler v. Transportation Co. 

(35N. Y. 352) 759 

4* 



Sxonox 
Mahon, State i;. (3 Harring. 568) 58, 

119. 12U 
Mahony, People v. (18 Cal. 180) 907 
Maile v. Com. (9 Leigh, 661) 823 

Main v. McCartney (15 Ills. 441) 59, 

62,185 
Mainor, Stale v. (6 Ired. 840) 816 
Mains «. State (8 Engl. Ark. 285) 992 
Mairs, State v. (I Coxe N. J. 453) 426 
Major, Rex «. (2 East P. C. 1124) 718 
Malcom, State «. (8 Iowa, 418) 166, 

889 391 
Mailing, State v. (11 Iowa. 289) ' 792 
Malone v, State (8 Ga. 408) 
V. Stewart (15 Ohio, 819) 



Manlov, Com. c. (12 Pick. 173) 

v' People (8 Seld.295) 

t?. St^te(7Md. 185) 



948 
724 
492 
574 
803 
Mann v. Glover (2 Green K. J. 
195) 909, 918 

V. Russell (11 Ills. 586) 1033, 

1084 

, State D. (2 Dev. 263) 186 

, State V. (5 Ired. 45) 144 



Manning, Reg. «. (2 Car. & E. 
887) 
, People t). (8 Cowen, 297) 



747 
115 
Man'sfielrf, R. v, (C. & M. 140) 589 
Manson, Com. v. (2 Ashm. 81) 76, 79, 

668, 800, 801, 998 
Man-zau-man-ne-kah v. U. S. (1 

Pin. Wis. 124) 40 

Marble v. Bonhotel (85 Ills. 241) 866, 

891 
March v. People (7 Barb. 893) 660 

, People V. (6 Cal. 543) 885 

, Rex V. (1 Moody, 182) 451 

, State «. (1 Jones N. C. 526) 801 



Marchant, U. 8. t>. (4 Mason, 160) 919 
Marcy v. Taylor (19 Ills, 634) 805,806, 

952 
Marine Bank of Chicago v. 

Rushmore (28 Ills. 468) 
Mariposa Co., People v, (31 Cal. 

196) 
Mark v. State (86 Missis. 77) 
Marker v. Miller (9 Md. 388) 
Markham v. State (25 Ga. 52) 
Markle v. State (8 Ind. 535) 
Marks, Com. v. (4 Leigh, 658) 
, People V, (4 Park. Cr. R. 



1084 

780 
950 
188 
461 
618 
461 



153) 



469 



Marphew, Rex v. (2 M. & S. 602) 882 
Marriott, Reg. ©. (8 Car. & P. 420)326 
Marsden, Reg. «. (Law R. 1 C. C. 
131)^ 62 

, Rex V. (4 M. & 8. 164) 723 

Marsh, Com. u. (7 Met. 472) 682 
, Com. V. (10 Pick. 57) 79 



1 



INDEX TO CASES OITBD. 



Sxonov 

Marsh v. Shnte (1 Denio, 280) 279 

V. Smith (49 Ills. 396) 62, 162, 185 

, Rex V. (1 Den. 0. C. 505) 751 

Marshall v. American Express 

Co. (7 Wis. 1) 931 

. Reg. V. (C, & M. 147) 888 

, Rex «. (Russ. & Ry. 75) 662 

-, State 9. (14 Ala. 411) 888 



Marston v, Jenness (11 K. H. 166) 14 
Martha v. State (2 Ala. 72) 
Martin v. Com. (2 Leigh, 745) 



V, Ehrenfels (24 Ills. 189) 



448 
669, 
943 
993, 
994 
701 
986 



■ V, Mills (4 Mo. 47) 

- V. Morelock (32 Ills. 485) 

- c. People (13 Ills. 341) 304, 310, 

. 953, 1034 

- V. People (23 Ills. 395) 304 

- V. People (54 Ills. 226) 972 
-, R. V. (1 Lewin C. C. 104) 569 
-, Reg. V, (9 Car. & P. 213) 173 
-, Rex t>. (3 Car. & P. 211) 32« 
•, Rex V. (5 Car. & P. 130) 825 
-, Rex V, (6 Car. & P. 562) 436 
, Rex V. (Russ. & Ry. 324) 752 

■ V. Shoppee (3 Car. & P. 373) 166 

■ f>. State (28 Ala. 71) 448, 455, 999 
17. State (6 Humph. 204) 793 

, State «. (2 Ired. 101) 344, 773, 

774 
, State V. (28 Mo. 530) 
, State V. (16 Ohio, 364) 
, State V. (SO Wis. 216) 



Marvin's Case (3 Dy. 288) 
Marvin, People u. (4 Wen. 229) 

V. State (19 Ind. 181) 

, State V. (12 Iowa, 499) 

Maiy V. State (5 Mo. 71; 81) 
Mash V. State (32 Missis. 406) 

Mason v. Jones (36 Ills. 212) 

, Rex. V. (1 East P. C. 239) 

, Rex V. (1 Leach, 487) 

, Rex V. (Russ. & Ry. 418) 

, Rex V. (2 T. R 581) 

Master v. Miller (4T. R. 320) 
Mather, People t. (4 Wen. 230) 

332, 660, 909, 914, 990 

, Stale V. (N. Chip. 32) 461 

Mathews v. Cowen (59 Ills. 342) 591 

V. Hamilton (23 Ills. 470) 1034 

, State V. (20 Mo. 65) 1016 

V. Terry (10 Conn. 225) 176 

Maton V. People. (15 Ills. 537) 79, 

919 927 
Mattis<ra v. State (S Mo. 421) * 574 
Maurer, State v, (7 Iowa, 407)228, 636, 

8381 



500 

908 

16 

563 

909 

224 

79, 927 

934 

817. 

1000 

952 

340 

636 

549 

589 

240 

326. 



Sscnos 
Mawbey, Rex o. (6 T. R ^19) 661, 714, 

988 
Mawgridge*s Case (17 How. 8t 

Tr. 67) 343 

Mawgridge, Reg. v. (J. Kel. 119) 840 
Maxwell, State v. (5 Blackf. 280) 226 
May V, Milwaukee & M. R. Co. 

(3 Wis. 219) 901 

V, People 60 Ills. 120) 964 

v. State (30 Ala. 34) 800 

, State «. (20 Iowa, 305) 514 

«. State (14 Ohio, 461) 560 

v. Tallman (20 Ills. 443) 952 

Mayberry, State tj. (48 Me. 218) 661, 

, State V. (3 Strob. 144) 670 

Mayer v. Schleichter (29 Wis. 646) 206 
Mayhew, Rex t. (6 Car. & P. 315) 699 
Maynard v. State (14 Ind. 427) 802 
Mayo V, State (30 Ala. 32) 808 

— , U. S. V. (1 Curt. C. C. 433, 

434) 835, 932 

V. Whitson (2 Jones N, C. 

1020 
62 



231) 



u. Wilson (1 N. H. 63) 



Mayor «. Mason (4 E. D. Smith, 

142, 149) 797 

Mazagora, Rex «.(Russ. & Ry. 

291) 665 

Maze, State v. (6 Humph. 17) 16 

Mazeau, Reg. v. (9 Car. & P. 676) 326 
Mazyck, State «. (3 Rich. 291) 498 
McAdams v. State (25 Ai'k. 405) 345 
McAffee, Com. v. (108 Mass. 458) 328 
McAllister v. State (17 Ala. 484) 425, 

826 
State t). (24 Me. 189) 89, 569 



State V. (26 Me. 374) 



817 
5JJ8 
693 



182 



McAloon, State v. (40 Me. 133) 
McArthur, Rex v. (Peake, 155) 
McAuley f>. State (3 Qreene Iowa, 

435) 

McBain v. Enloe(13 Ills. 76) 879, 892, 

893, 897, 898, 1034 
McBean «. Richie (17 Ills. 63) 42 
V. Richie (18 Ills. 114) 42 



McBirnie, Penn. t. (Add. 30) 389, 390, 

427 
MoBride, State v. (8 Humph. 66) 226, 

636 
v. State (10 Humph. 615) 84 

, State V. (4 McCord, 382) 281 
, State 15. (26 Wis. 409) 372, 378 
McCall, State v. (4 Ma. 643) 464 

McCann, People c.(16 N. Y. 58) 6,946 
—, People V. (3 Park. Cr. R. 
291) 847 

V. State (9 Sm. & M. 466) 999, 1000 



McCants, State «. (1 Speers, 884) 840, 

842 



1 



INDEX TO 0A8B8 OITED. 



U 



BXOTIOX 

McCarthy, Rex «. (Pcake, 155) 691 

, State fj. (2 Pin. Wis. 518) 818 

McCartney «. McMullen (88 Ills. 
287) 052 

V. State (8» Port. Ind. 858) 564 

r. State (1 Blackf. 338) 108, 113 

, State c. (2 Chand. 199) 818 

McCaul, Com. v. (1 Va. Ca^. 271) 92:^ 
McClellan, Com. v. (102 Mass. 

84) 529 

McClintock, State v. (1 Qreene 
Iowa, 392) 198, 894, 817 

, State V. (8 Iowa. 203) 812, 817 

McClure, State v. (25 Mo. 29) 889 

McClurken v, Detrick (33 Ills. 

282 

1084 

988 

812, 



349) 
;«.Ewing(42Ill8. 288) 



McComas 9. State (11 Mo. 116) 
McComb, Stale v. (18 Iowa, 48) 

891 897 

c. State (8 Ohio S. 643) 435| 43(3 

, U. S. V. (5 McLean 286) 883 

McConkey, State «. (30 Iowa, 574)552 
3IcC«muct V. Jolmson (2 Scam. 

522) 891 

McConnell v. Kibbie (33 Ills. 177) 991 

V. Stettinius (2 Gilui. 707) 847, 

848 
McCord, Com. v. (2 Dana, 212) 816 
McCorkle v. State (14 Ind. 89) 818 
McConnick v. Gray (ir» Ills. 188) 1034 

, State 0. (27 Iowa, 402) 32;i, 331, 

3»'5 

V. Wheeler (86 Ills. 115) 1018 

McCoy V. State (8 Engl. 451) 180, 374, 

888, 891, 817 

, Slate fj. (SO Iowa, 262) 812 

r. State (15 Ga. 205) 949, 952 

- 492 

923 



Bsonoy 
McDermott, State v. (36 Iowa, 107) 

527, 581, 583 
McDonald v. Arnont (14 Ills. 58)1088, 

1034 

, Com. «?. (5 Cush. 855) 888, 752 

. Com. «. (110 Mass. 406) 486 

V, People (47 Ills. 583) 448, 458, 

455, 847, 996, 1000 
9. Wilkie (18 Ills. 22) 46, 844 



McDougal, State v (20 Wis. 507) 486 
McDowell, State v. (Dudley S. C. 
846, 349) 210, 211, 212 

, Stale V. (6 Blackf. 49) 847 

, State V. (1 Hawks, 449) 550 

McDuffle V. State (17 Ga. 497) 914 



., State 0. (14 N. H. 364) 



McCrearv €. Com. (5 Casey, 827) 
McCroskey, State v. (3 McCord, 

308) 692 

McCrowther, R.«. (Foster, 1) 318 
McCuen u. State (19 Ark. 630) 845 
McCnlloch. Com. v. (15 Mass. 

227) 235, 236 

McCune, State «. (5 R. I. 60) 54 

McDaniel, Rex. v. (Foster, 121, 

128) 543 

Mc Daniels, People v. (1 Park, 

R. Cr. 198) 548 

McDaniel's Case (19 Howell St. 

Tr. 746. 806) 549 

McDaniel v. State (8 Sm. & M. 401) 89, 

384, 835, 355, 499, 548, 549, 886, 892 

McDeed «. McDeed (67 Ills. 546) 952. 

959 
McDermott ». Kennedy (1 Har- 

ring. 143) 180 



McEntree v. State (24 Wis. 48) 492 
McFadden, Com. tj. (1 Harris, 12) 907, 

909 911 

V. Com. (23 Penn. S. 12) ' 912 

V. Foster (20 Ills. 515) 777 

McFall, State v. (Addis. 255) 384 

McFarlan «. People (13 Ills. 9) 108, 

118, 116, 117 
McGahey. Com. v, (11 Gray, 194) 61 
McGarren, People v. (17 Wen. 

460) 496, 500, 504 

McGee, People v. (1 Denio, 19) 435, 

436 
McGhinchey «. Barrows (41 Me. 

74) 188, 144 

McGill, Penn. v. (Addis. 21) 753 

McGinuis v. State (24 Ind. 500) 513 
McGIue, U. S. V, (1 Curt. C. C. 1) 866 
McGoon 17. Little (2 Gilm. 42) 86 1 , 

867 
McGovern, State v. (20 Conn. 245) 450 
McGowan v. Slate (2 Yerff. 184) 917 
McGrath, Com. v. (115 Mass. 150) 392 
McGreger, Rex v. (8 B. & P. 106, 

109) 479 

V, State (1 Carter, 282) 691 

V. Stiite (1 Ind. 232) 692 

, State D. (41 N. H. 407, 418) 211, 

216 
McGregg «. State (4 Blackf. 101) 799, 

800 
McGuffle V. State (17 Ga. 497) 959 
\IcGuire v. People (2 Park. Cr. 

R. 148) ' 847 

V. State (8T Missis. 869) 818, 851, 

912 
tj. Town of Xenis (64 Ills. 

299) 119 

Mcllvoy V. Cockran (2 A. R 

Marsh, 669) 180 

Mclntyre, In re (5 Gilm. 422) 14, 79 
, People V. (88 Ills. 518) 7, 923. 



951, 971, 974, 983, 1000, 1002, 10:53 
McJnnks v. State (10 Ind. 140) 207 



lii 



INDEX TO OASES CITED. 



Skctiok 

McKay «. Mu. Ins. Co. (2 Ca. 884) 895 

, People V. (8 Johns, 218) 1001 

, Reg. t>. (3 Crawf. & Dix. 

0. C. 205) 148 

V. State (12 Missis. 402) 900 

McKean, State v. (86 Iowa, 844) 504 
McKee, Com. v. (1 Gray, 61) 87 

V, Inpalls (4 Scam. 34) 1033, 1034 

V. Ludwig (30 Ills. 88) 900 

, State V. (Addis. 2) 396, 397 

. State V. (1 Bailey, 651) 14 

McEennan, State v, (Harp. 802) 691 
McKenney, People v. (3 Park. 

Cr. R. 510) 691 

V. State (25 Wis. 378) 392, 805 

McKenzie v, Allen (3 Slrob. 546) 189 

V. State (6 Engl. 594) 593 

McKichan t>. McBean (45 Ills. 

228) 892 

McKim V, Somers (1 Pa. 297) 704 
McKindley v. Buck (43 Ills. 490) 1033. 

1034 
McKinley v. State (8 Humph. 72) 8l8 
McKinney «. People (2 Gilm. 

640) 813, 829, 833, 835, 923, 924, 972. 

1014, 1015 
, People V, (3 Park. Or. R. 

510) 698 

V, State (25 Wis. 378) 388 

McKinstry v. Pennoyer (1 Scam. 

819) 851 

McLane v. State (4 Ga. 835) 857 

McLaughlin, Com. v. (12 Cash. 

615) 62, 800, 805 

, Com. f). (105 Mass. 460) 529 

V, Com. (4 Rawle, 464) 492 

V. Walsh (3 Scam. 185) 1033, 1034 

McLean v. State (4 Ga. 835) 857, 992 



V. State (8 Mo. 153} 



723 

834 

59 



McLeod, People v. (1 Hill, 377) 
McMahan «. Green (34 Vt. 69> 
McMakin, Rex v. (Russ. & Ry. 

333) 504 

McNab «. Bennett, (66 Ills. 157) 832 
McNally, State «. (32 Iowa, 580) 835 
McNamara's Case (Arkley, 521) 435 
McNamara v. King (2 Mm. 482) 190 
McNeal v. Woods (3 Blackf. 485) 451 
McNiflf, People v, (1 City H. 

liec. 8) 539 

McO'Blenis, State t>. (24 Mo. 402) 883 
McPherson v. Hall (44 Ills. 265) 1034 

V. Nelson (44 Ills. 124) 1033 

V. State (22 Ga. 478) 886 

, State V, (9 Iowa, 53) 519, 800, 

802 805 
McPike, Com. v. (3 Cush. 181) ' 325 
McQueen v. Stewart (7 Port. Ind. 

264) 993 



Ssonov 

McQuillan v. State (8 Sm. & M. 
^87) 774, 835, 839, 847 

McQuinn v. State (35 Missis. 

366) 849 

McQuoid «. People (3 Gilm. 76) 14, 

703, 705, 855 
McRoberts, State v. (4 Blackf. 

178) 421 

McRue, Reg. v. (8 Car. & P. 641) 433 
Mc Waters t. State (10 Mo. 167) 738 
Mc Williams v. Bragg (3 Wis. 424) 186 
Mead, Cora. u. (12 Gray, 167, 169) 351 

V. Haws, (7 Cowen, 332) 49 

. Rex r. (2 B. & Cres. 605) 885 

V. Young (4 T. R. 28) 562 

Meader v. Stone (7 Met. 147) 166 

Means v. Lawrence (61 His. 139) 95 
Mears v. Com. (2 Grant C. 385) 13, 88, 

482 
Mechanics and Farmers* Bank 

V. Smith (19 John. 115) 915 

Meddouscroft v. Sutton (1 Bos. 

& Pul. 62) 119 

Medlock v. State (18 Ark. 363) 226 
Medlor, Rex v. (2 Show, 36) 637, 689 
Meek v. Pierce (19 Wis. 300) 50, 138 
Megson, Reg. v. (9 Car. & P. 420) 436 
Mehan v. State (7 Wis. 670) 670 

Melviu T. Fisher (8 N. H. 406) 49 
Mendum v. Com. (6 Rand. 704) 883 
Mercer v. State (17 Ga. 146) 986 

Merchant, U. S. v. (12 Wheat. 

480) 927 

Meredith, Reg. v. (8 Car. & P. 

589) 178 

Merrick, State v. (1 App. 398) 510 
, State V. (19 Me. 398) 510 



Men-ill, Com. v. (8 Allen, 545) a52, 

853 

, Com. V. (14 Gray, 415, 418) 962 

. State V. (2 Dev. 269) 989 

, State V. (37 Me. 329) 845 

, State V. (44 N. H. 624) 807, 843, 

1000 
Merriman v. The Hundred (2 

East P. C. 709) 550 

Merritt v, Merritt (20 Ills. 65) 948, 952 
Merry v. Green (7 Mees. & W. 

623) 504 

Messenger, Com. v. (1 Bin. 273) 513 
Messingham, Rex v. (1 Moody, 

257) 539 

Metcalf V. Edmiston (25 Ills. 892) 936, 

1034 
, People t>. (Wheeler C. C. 381) 434 



Metzara, People v, (2 City H. 

Rec. 113) 728 

Metzgar v. People (14 Ills. 101) 238, 

381, 810 



N 



INDEX TO OASES CITED. 



liii 



BSOTTOV 

Metzker «. People (14 Ills. 101) 680, 

1018 
Meyers, Com. v. (1 Va. C. 118) 14 

r. State (1 Conn. 502) 12 

, State V. (19 Iowa, 517) 816 

Hiazza v. State (86 Missis. 618) SHI 
Michael, Com. v. (110 Mass. 405) 485 

, Rex V, (9 Car. & P. 8o6) 832 

Middleton, State t, (11 Iowa, 
248) 886, 782 

, State c. (5 Port. 484) 778 

V. Ames (7 Vt. 160) 907 

Miere v. Bush, (8 Scam. 28) lasS 

Milbnrn, Ex parte (9 Petere, 710) lib 
Milchum v. Slate (11 Ga. 615) 
Miles t;. Danforth (82 Ills. 59) 

, State c. (4 Ind. 577) 

tj. Weston (60 Ills. 862) 

Millar r. Slate (2 Kansas, 174) 
Millard, Com. t, (1 Mass. 6) 

, Rex r. (Russ. & Rv. 245) 

-, Slate V. (18 Vt. 574) 



844 
891 
277 
62 
417 
510 
569 



206, 208 
Miller's Case (8 Wils*. 427) 695 

Miller t. Bryan (8 Iowa, 58) 991 

, Com. r. (2 Ashm. 61) 14, 677 

, Com. c. (8 Cush. 248) 566 

V. Dobson (1 Gilm. 572) 1084 

r. Houcke (1 Scam. 501) 1084 

V. Jenkins (44 Ills. 448) 1084 

t. Larson (19 Wis. 468) 289 

1. Metzger (16 Ills. 89) 1088 

, Per)ple c. (12 Cal. 291) 857 

t. People (6 Barb. 208) 206, 20H 

r. People (89 Ills. 457) 87, 88, 

823, 881, 816, 848, 928, 924, 988 

, People V, (14 John. 871) 49(i 

, People t?. (2 Park. 197) 589, 597 

V, People (2 Scam. 2:38) 46, 558. 

578, 574.582, 780, 782, 789, 790, H17 

, Stale r. (5 Blackf. 502) 6.")3 

, StaK' r. (24 Conn. 5'>2) 807, 810 

, State V. (1 Dev. & Bat. 500) 028 

, State r. (48 Me. 576) 187 

r. State (25 Wis. as4) 8, 799, 800, 

808, 816 
Millican, State c. (15 Lou. An. 557) 999 
Millikc^ f. .Selye (8 Denio. 50) 892 
Milling, Rex c. (5 Mod. 848) 701 

Mills' Case (7 Leiirh. 751) 986 

Mills V, Carpenter (10 Ired. 298) IH^ 

t. Com. (1 Harris, 684) 377, 8(»y 

t. Kennedy (1 Ballev, 17) 2:)^< 

c. McCoy (4 Cowen,* 40(5) llo 

, People r. (5 Barb. 511) 10> 

, Reg. V. (40 Eng. L. <fc Eq. 

562) 597 

, Slate r. (17 M* . 587) 595, 5517 

, U. S. t. (Bur. 188) 75, 70 

Milton, Rex v. (Moody & M. 107) 56 



SioTxoir 

Minton, Rex o. (2 East P. C. 1021) 450 
Miner 9. People (58 Ills. 60) 75, 76, 

626, 627, 681 

«. Phillips (43 IllB. 133) 985, 

1088, 1084 
Mineral Point R. R. Co. v. Keep. 

(22 Ills. 19) 851 

Mingia v. People (54 Ills. 374) 918, 

920, 987, 998, 1088 
Mingo, U. 8. D. (3 Curt. C. C. 1) 844, 

981 
Minna v. Hepburn (7 Cranch, 390) 914 
Minor «. State (1 Blackf. 386) 
Minski, State v. (7 Iowa, 886) 813 
Mississippi and Atlantic R. R. 

Co., People t). (18 Ills. 66) 909 

M. S. «&. N. I. R. R. Co. ©. Shelton 

(66 Ills. 435) 953 

Mitchell 9. State (7 Engl. 50) 59 

— V. State (22 Ga. 211) 898 
— , State «. (5 Ired. 850) 449, 455, 

456 

— f>. State «. (5 Yerg. 840) 884 

— t?. Stale (8 Yerg. 514) 46 

— V, Town of Fon du Lac. (61 
Ills. 174) 953 
— , U. S. t?. (Baldw. C. C. 867) 568 

.U. S.D. (2 Dall. 848) 817 



Mitchinson v. Cmss (58 Ills. 869) 76 
Mitchum v. State (11 Ga. 615) 884, 

845 
Mix 0. Nettleton (39 Ills. 345) 1088 

1085 

D. People (36 Ills. 83) 108, 114. 

115 
, State «. (15 Mo. 158) 566, 924 



Moah, ^g, V. (86 Eng. L. & Eq. 

5U2) 479 

Moffatt, Rex v. (2 Leach, 488) 568 
, Stale V. (7 Humph. 250) 76, 691 



Moffctt V, Brewer (1 Greene 

Iowa, 348) 801 
t. Slate (2 Humph. 99) 76, 99 



Mofflt V. State (6 Engl. 169) 276 

Mohler v. People (24 Ills. 26) 46, 782, 

788. 811, 1083 
Molier, State v. (1 Dev. 263) 698 

Molierc, State v. (1 Dev. 218) 699 

Monoughan tj. People (24 Ills. 

840) 407 

Monquas, State v, (T. U. P. Charlt. 

16) 919 

Monroe d. State (5 Ga. 85) 851, 855 
Montague v. Com. (10 Griit. 767) 909, 

915 

, State V. (3 McCord, 257) 808. 

859, 979, 980 



Uv 



INDEX TO OASES CITED. 



SxoTioir 

Montee v. Com. (8 J. J. MaiiBh, 

132) 636 

Montgomery, Com. «. (11 Met. 

534) 510, 512 

c. State (40 Ala. 684) 981 

V. State (10 Ohio, 220) 692, 696 

V, State (11 Ohio, 424) 886, 889 

Moody V. People (20 Ills. 315) 423, 

434, 435, 892, 1009 

t>. Rowell (17 Pick. 490) 560 

V. State (7 Black, 424) 818 

, State V. (2 Hayw. 81) 886 

, State t>. (24 Mo. 560) 992 

Moonov V. State (33 Ala. 419) 7 

, State «. (10 Iowa, 507) 867, 897 

Moore's Case (1 Leach, 334) ' 548 

(9 Leigh, 6394 631 

Moore ». C<»m. (2 Leigh, 701) 513 

V. Com. (6 Met. 643) 626 

, Com. V. (11 u.Cush. 600) 219 

V. Ellsworth (51 1I1&. 308) 866 

V. Goelitz (27 Ills. 18) 891 

V. Hussey (Hob. 93, 96) 355 

, People «. (4 Denio, 518) 22, 104 

, People V. (2 Doug. Mich. 

1) 59, 121 

, Rex V. (1 Leach, 385) 549 

V. State (12 Ala. 764) 886, 886, 

8H7 

, State V. (1 Ind. 548) 818 

, State V. (15 Iowa, 412) 589 

, State V. (25 Iowa, 138) 339, 944 

, State V. (14 N. H. 451) 281, 847 

fj. State (12 Ohio, 887) 46 

«. Slate (17 Ohio, 521) 4 

, State «. (1 Swan Tenn. 136) 206, 

625 
V. Watts (Brcese 18, 2d Ed. 

42) 44, 45, 46, 492, 790 
, U. S. ©. (J. B. Wallace R. 

23) 73, 880 

Moran's Case (9 Leigh, 651) 909 

Moran, State v. (34 Iowa, 453) 542, 944 
Morea, State o. (2 Ala. 275) 32-1 

Morely v. Dunbar (24 Wis. 183) 1^8 
Morey, Stuto «. (2 Wi.s. 494) 492, 503 
Morgan, Com. v. (108 Mass. 199) 730 

r. Peet (32 Ills. 281) 950, 991 

u. Pettit (3 Scam. 529) 232 

V, Raymond (38 Ills. 449) 891 

V. State (11 Ala, 289) 643, 644, 

93S 

V. Stiite (19 Ala. 550) 847 

, State V. (2 Dev. & Bat. 348) 570 

, State V. (3 Ired. 1^6) 167, 108. 

355, a9;J 

V. Stale (13 Sm. & M. 242) 3S:i 

, U. S. V. (Morris Iowa, 341) 091 

Morley's Case (6 Howell St. Tr. 



Ssonov 

769) 841, 844 

Morly, Rex v. (J. Kel. 55) 881 

Morman t). State (24 Missis. 54) 889, 

390 
Morphy, State v. (33 Iowa, 276) 825, 

946 
Morrell, Com. v. (8 Cush. 571) 589, 601 

V. People (82 Ills. 499) 691, 692, 

696, 698, 896 



V. People (42 Ills. 499) 



Morris's Case (1 City Hall Rec. 

52) 
Morris v. People (82 Ills. 502) 

, R. f). (1 Leach, 109) 

, Reg. V. (9 Cai-. & P. 349) 



., Rex V. (1 B. & Ad. 441) 
-, Rex V. (2 Burr. 1189) 

- V. Scott (21 Wen. 281) 

- V, Slate (7 Blackf. 607) 

- V. State (31 Ind. 189) 

- f>. Slate (8 Sm. & M. 762) 

-, U. S. V. (1 Curtis C. C. 23) 



693 

176 
691 

538 
507, 
544 
801 
693 
141 
919 
203 
803 
14, 
912 

Morrison, People v, (1 Park. Cr. 
R. 644) 434, 435, 439 

V. Stewart (24 Ills. 25) 993 

«. State (5 Ohio, 439) 943 

Morrissey, State o, (22 Iowa, 158) 461 
Morrow v. Moses (8 N. H. 95) 190 

, U. S. «. (4 Wash. C. C. 733) 568, 

578, 748 
Morse, Com. «. (2 Mass. 128) 999 

, Com. V. (14 Mass. 217) 492 

, State «. (1 Greene Iowa, 

503) 091, 782 

Morton V. People (47 Ills. 469)40,586, 

777, 780, 781, 7t<3, 811, 812, 813, 815, 

817 854 

V. Shopee (3 Car. <fc P. 373) ' 170 

, Slate D. (8 Wis. 352) 502, 564. 

508. 509 
Moses, State v. (7 Blackf. 244) 40 

, State V. (2 Dev. 452) 323 

V, St:ile (10 Humph. 456) 909 

0. Stale (11 Humph. 232) 907 

, C. S. c. (4 Wash. C. C. 726) 565, 

567 
Moshcr V. Griffin (51 Ilia. 184) 232 

, People V. (2 Park. Cr. C. 

195) 030, 0.33 

Mosier c. Kniirh (49 Ills. 84) 935 
Mosler, Com. r^ (4 Burr. 264) 341 

Moss V. Flint (13 Ills. 572) 10;3, 1034 

». John-ou (-22 Ills. 833) 8<)0 

Mo.styn v. Fubrijrus (Cowp. 174) 882 
MotlfV, Slaii* V. (7 Rich. 327) 774 

Mi.tt, Hex c. (2 Cur. ii: P. 520) 061 
Mouitou, Com. 0. (108 Mass. 307) 710 



INDEX TO CASES CITED. 



It 



SsonoK 
Mt C. & R. R. Co. V. Andrews 

(53 Ills 177) 844 

Mount V. State (14 Ohio, 295) 14, 15 
Howry o. Chase (10 Mass. 79, 85) 57 

V. Walsh (8 Cowen, 28») 495 

Mnir o. State (8 Blackf. 154) 692, 702, 

704 
MnldooD, People v. (2 Park. Cr. 

R. 13) 184, 192, 705 

Muldown o. I. C. R R Co. (82 

Iowa. 176) 949 

Mnirs Case (8 Grat. 695) 892 

Mnllaney, Reg.«. (Leigh <& C. 593) 606 
Mullen V. People (81 Ills. 444) 22, 965 

, People V. (25 Wen. 698) 104 

, SUte t. (35 Iowa, 199) 759 

, State V. (14 La. An. 570) 352, 

780 
890 
492 
691 



MUtler*8 Case (8 Orat. 695) 
Mullins, State v. (30 Iowa,203) 
Mumford, State v. (1 Dev. 519) 
Monger, State «. (15 Vt 290) 792, 797, 

810 
Munroe, Rex «. (7 Mod. 815) 589 

Munson «. State (4 Greene Iowa, 

483) 492 

Munton, Rex. «. (3 Car. & P. 498) 694, 

701 
Murdock, State v. (9 Mo. 730) 323 
Murphy, Com. v. (11 Cush. 472) 823, 

847, 1000 

o. Com. (1 Met Ky. 865) 902 

, Com. V, (2 Gray, 572) 279 

V. People (2 Cowen, 815) 901 

«. People (37 Ills. 447) 335,340, 

850, 884, 886, 908, 916, 948, 952, 

991 

, Reg. «. (1 Crawf. A Dix C. 

C. 20) 58 
, Reg. V. (8 Car. & P. 297) 664, 

, State V. (6 Ala. 765) . ' 735 

, State V. (6 Ala. 845) 492, 538 

, State V. (8 Blackf. 498) 492 

. State «. (5 Engl. 74) 677 

V State (24 Missis. 590) 780, 781 

Murray ty.The Charming Betsey (2 
Cranch, 64) 

, Com. f). (2 Ashm. 41) 

, People t>.-(8 Cal. 519) 

, People V. (10 Cal. 309) 

. People V. (fi C. H. Rec. 65, 



66) 



, Rex ©. (5 Cox C. C. 852) 

, State*. (63 N. C. 31) 

, Slate V. (3 Ship. 100) 

tJ. Wliittaker (17 Ills. 230) 

Moscott, Recr. v. (10 Mml. 19'>) 
Mosick V. People (40 His. 268) 



316 
993 
461 
351 

503 
376 
436 
677 
898 
701 
13, 



BsoTioir 
847,907 

Mussulman v. People (15 Ills. 51) 116 
Muzingo, State v. (Meigs, 112, 
118) 1014 



Myatt V. Mvatt (44 Ills. 478) 631 

Myers «. Myers (26 Ills. 73) 77 

, People fj. (20 Cal. 761) 448 

, Penn o. (Add is. 320, 321) 509 
V. People (67 Ills. 503) 755 

>, State o. (10 Iowa, 448) 806 

, State ©. (19 Iowa, 517) 887, 889, 

391 
V. Walker (81 Ills. 853) 867, 952 



Nalor, U. S. v. (4 Cranch, 372) 211 
Napper, Rex v. (1 Moody, 44) 448 
Nash V. State (2 Greene Iowa, 

286) 157, 782, 882 

, State 9. (7 Iowa, 847) 79, 332, 

816, 862, 884, 88.5, 892, 927 
Nathan v. City of Bloomington 

(46 Ills. 347) 1034 

Naylor, Reg. v. (Law Rep. 1 C. 

C. 4) 601 

Neal, Com. «. (10 Mass. 152) 8 

, State «. (37 Me. 468) 890, 891 



Neale, Reg. c. (9 Car. & P. 481) 684 
Nealy v. Brown (1 Gihn. 10) 309 
, State V. (20 Iowa, 108) 323 



Ned V. State (7 Porter, 187) 14, 909 
Neece v. Halley (23 Ills. 416) 1034 
Nceley v. People (13 Ills. 685) 909 

, State V. (20 Iowa, 109) 340, 349, 

350,353 

, State «. (20 Iowa, 569) ' 386, 374 



Neff f>. Paddock (26 Wis. 547) 301, 

304 
Neivelle, State v. (1 Mo. 248) • 594 
Nela V. State (2 Texas, 280) 1014 

Nelson «. Musgi-ave (10 Mo. 648) 724 

V. People (23 N. Y. 293) 800 

, State V. (7 Blackf. 610) 817 

V. State (7 Humph. 542) 8a5 

9. State (10 Humph. 518) 340 

, State V. (29 Me. 329) 8, 801, 806 

, State fj. (8 N. H. 163) 805 

, State V. (14 Rich. 169) 803 

V. State (13 Sm. & M. 506) 888 

9. State (2 Swan, 287) 891, 930 



Nesbett, Reg. 9. (6 Cox G. C. 320) 569 
Nettlebush, State 9. (20 Iowa, 

257) 885 

Nevills 9. State (7 Cold. 78) 432 

New Engl. F. & M. Ins. Co. «. 

Wetmore (32 Ills. 221) 952, 991 
Newberry, State u. (26 Iowa, 467) 388 
Newcomb 9. State (37 Missis. 

383' 351 959 



Ivi 



INDEX TO CASES OITED. 



Sbction 
Newell, Com. v. CI Mass. 248) 426, 

469 

V. Com. (2 Wash. C. C. 88) 656 

Newer, State v. (7 Blackf. 807) 774, 

847 
Newkerd v. Sabler (9 Barb. 652) 180 
Newkirk v. Cone (18 Ills. 449) 241, 

242,991 

V. Milk (62 Ills. 172) 295 

Newland v. President and Trus- 
tees of Aurora (14 Ills. 364) 278 

-, State V. (7 Iowa, 242) 562, 664 

Newman v. Bennett (2 Chitty R 
195) 176 

, People V. (5 Hill, 295) 883 

«. Ravcnscroft (67 Ills. 496) 1020. 

iaS3 

V. State (14 Wis. 394) 774, 799, 

847, 848 
Newmans, State v. (2 Car. Law 

R. 74) 

Newton, Beg. v. (1 Car. & K. 469) 692, 

704 

, Reg. T, (2 Moody & R. 503) 14 

, State T. (1 Greene Iowa, 160) 691 

Nibbs, Rex t. (1 Moody. 25) 492 

Niccols, Rex ©. (2 Stra. 1227) 665 
Nicholas, Reg. v. (2 Car. & K. 

248) 891, 895 

Nicholls V. Ingersoll (7 John. 

146) 119, 120 

Nichols' Case (7 Grat. 589) 797 

Nichols, Com.u. (10 Met. 259) 730. 

733, 748 

V. Mercer (44 Ills. 250) 952, 955 

V. Michael (23 N. Y. 264) 495 

V. People (40 Ills. 395) 46, 1033, 

1035 

V. People (17 N. Y. 114) 480, 502 

, Reg. f. (9 Car. & P. 267) 395 

, Rex V. (lluss. & Ry. 130) 173 



847 



O'Callahan, U. 8. v. (6 McLean, 
429) 802, 816 

O'Coonell fj. Reg. (11 CI. &Fin. 
155) 

— V. Com. (7 MeU 460) 
V. State (6 Minn. 279, 285) 



, State V. (8 Conn. 496) 388, 391 

, State t\ (38 Iowa, 110; 558, 800, 

802 

V. StAle (8 Ohio S. 435) 7 

Nicholson's Case (2 Lewin, 151) 934 
Nicholson v. Lothrop (3 John. 

139) 732 

, Rex V. (E»Lst P. C. 346) 323 

V. State (18 Ala. 529) 573 

, State t>. (14 La. 78o) 999 

Nickers v. Hill (1 Scam. 307) 897 
Nickerson, Com. v. (5 Allen, 518)422, 

424 
Nimble v. State (2 Grcone Iowa, 

404) 909 

Nixon V. People (3 Scum. 268) 817 

, Stat4i c. (18 Vt. 70) 210. , , 

Noble V, People (Breese, 29, 2d 'O'Douaghue v. McGovern (28 



SsOTXbV 

Ed. 54) 560, 909, 911 

— V. People (4 GLlm. 438) 113 

-, State V. (15 Me. 476) 809 



Noe 9. People (39 Ills. 96) 46, 205 
Noland v. State (19 Ohio, 181) 
Noles «. State (24 Ala. 672) 
V. State (26 Ala. 31) 



959 
780 
850 
208 



Nolm V. Mayor (4 Yerg. 163) 
Nomaque ©. People (Breese, 109, 
2d Ed. 145) 811, 916, 923, 932, 974, 

985, 1014 
Norfolk V. People (48 Ills. 9) 118 
Norman, State v. (2 Dev. 222) 680 
Norrel, U. S. «. (Whart. St. Tr. 

189) 656 

Norris House v. State (8 Greene 
Iowa, 513) 46. 210, 271, 401, 774, 

832 847 
Norris, State v. (1 Hayw. 429) ^340, 

842, 766 

V. State (38 Missis. 373) 780, 781 

, StHte V. (9 N. H. 96) 691, 693, 

696 
Northampton, Com. v. (2 Mass. 

116) 
Norton, People v. (7 Barb. 477, 
480) 

V. People (8 Cowen, 137) 

, State V. (3 Zab. 33) 



999 

477 
492 
661 



Noves, State t. (25 Vt. 415) 664, 707 
Nugent p. State (4 Stew. & P. 72) 14 

V. State (18 Ala. 521) 430 

r. State (19 Ala. 540) 388, 847 

Nun, Reg. v. (10 Mod. 186) 727 

Nutter V. State (9 Port. Ind. 187) 987 
Nutting, State v. (39 Me. 859) 1020 
O'Briun v. State (12 Ind. 369) 61 

O'Brien, Com. o (107 Mass. 208) 805 

, Cora. V. (8 Gray, 487) 218 

T. Pjilmer (49 Ills. 72) 986 

V. People (41 Ills. 456) 113, 114, 

117 
, People tJ. (41 Ills. 303) 114 



O'Conor v. State (9 Fhr. 215) 
, State V. (31 Mo. 389) 



Oddy, Reg. v. (5 Cox C. C. 210) 
, Rex t?. (20 L. J. 198, n_. m) 



848 
539 
432 
907 
352 
5(J7 
539 
14 



Odell, State v. (4 Blackf. 156) 

, State V. (8 Blackf. 396) 684 

, State V. (3 Brev. 552) 564, 579 

V. 1\'rell (Bulst. R. pt. 20) 911 

Odlin, Com. v. (23 Pick. 275) 280 



INDEX TO CASES CITED. 



lyii 



SKCTTOXf 

Wen. 26) 784 

Offutl, State r. (4 Blackf. 387) 46l 

Ogden V. Claycomb (52 Ills. 866) 169,' 

177, 178, 179, 191, 341, 350 

V. People (62 Ills. 64) 71 

V. State (12 Wis. 582) 749, 750 

Oeletree tJ. Slate (28 Ala. 693) 89, 190 
O^agan, State v. (38 Iowa. 504) 691, 

949 
O'Hara t. King (52 Ills. 304) 951 

O'Hare v. People (40 Ills. 533) 1084 
Ohiran «. State (14 Ind. 420) 7 

O^Kelley, Com. v. (7 Gray, 332) 210 
Okey, Rex v. (8 Mod. 45) 6»4 

Oldham, Com. r. (1 Dana, 466) 48 
Olds t. C«»m. (3 Marsh, 467) 897 

Oliver v. State (17 Ala. 587) 330, 350 

V. State (17 Ark. 508) 705, 707 

Oilcott, People v. (2 John. Cas. 

301) 663 

O'Mallerv, Com. v. (97 Mass. 587) 480 
Omera r.'^Stale (17 Ohio, 515) 4 

Onebv, Reg. v. (2 Stra. 766) 340, U'2 
O'Xeil, Com. v. (6 Gray, 343) 907 
O'Neill u. State (16 Ala. 65) 196 

, State r. (7 Ired. 251) 949 

Onlaghn, Reg. p. (Jebb, 270) lo 

Orbell, Reg. t. (6 Mod. 42) 661 

Orchard, Keg. v. (3 Cox C. C. 248) 208 
Orcutt, People r. (1 Park. Cr, R. 

252) 864 

O'Reiley v. Fitzgerald (40 Ills. 

310) 942 

Organ c. State (26 Missis. 78) 994 
Onie V. Cook (37 Ills. 186) 95-2 

Orr V. State (18 Ark. 450) 220 

Ortega, U. S. v. (4 Wash. C. C.531) 12. 

170 
Orton V. State (4 Greene Iowa, 

140} 177, 392, 395 

Orvell, Rex v. (1 Moo<ly & Ry. 

467) 931 

. State V. (1 Dev. 139) 346 

Orvis, State v. (13 Ind. 569) 589 

Orwig, State v. (24 Iowa, 102) 472, 



Sxamov 
Our House No. 2 v. State (4 

Greene Iowa, 172) 271, 803 

Ousley V. Harden (23 Ills. 404) 816 
Overbuiy, Rex v. (19 Howell St. 

Tr. 804) 747 

Overton, Reg. «. (3 Moody, 263) 696 
Owen V. Owen (22 Iowa, 270) 949 



O&born, State r. (1 Root, 152) 



-V. Haverlv (1 Head, 829) 
-, Rex 1?. (i Car. & P. 286) 
-, State V, (1 Murph. 452) 
-, State V. (3 Murph. 7) 
Stale V. (10 Rich. 160) 



848 
4 
823 
823 
492 
Owens p. Derbv (2 Scam. 26) 952 
Oxford, Rex p."(Rubs. v. Ry. 882) 582 

, Reg. V. (9 Car. & P. 525) 752 

Oxlev c. Stover (54 Ills. 159) 952 

Oystead v. Shed (12 Mass. 511) 59 
Packard, Com. v. (5 Gray, 101) 962 
Packer's Case (2 East P. C. 653) 501 
Paddle, Rex v. (Russ. & Ry. 484) 711 
Page «. De Puy (40 Ills. 506) 46, 59, 

185 

, R. V. (8 Car. & P. 122) 

, Reg. t>. (9 Car. & P. 756) 



Pahlman v. King (49 Ills. 266) 

Paine's Case (5 Mod. 165, 167) 

(Yelv. Ill) 

Paine, Rex r. (7 Car. & P. 136) 
Rex V. (I Salk. 281) 



477 
549, 
575 
Osborne, Rex r. (C. & M. 622) 4:^>6 

, State r. (28 Iowa. 9) 503 

Oscar. Slate v. (7 Jones N. C. 305)965; 

Osmer, Rex r. (5 East, 304, 308) 706 

OMrander, State p. (18 Iowa, 4:i7) 331, 

394, 767, 778, 812, 833, 867, 895, 909.; 

923, 938, 964 
Otis, Com. V. (16 Mass. 198) 115^ 

Ottawa Gas Li^ht and Coke Co. 

t. Graham (28 Ills. 73) 958 
V. Graham {do Ills. 346) 1033, 1034 



578 
673 
780, 
991 
730 
702 
463 
881 
Palmer «. Mulligan (8 Moore, 
307) 998 

, People t. (61 Ills. 265) 476 

V. People (10 Wen! 165) 492, 498 

, Rex V. (2 Leacli, 978) 568 

, Rex V. (1 New R. 96) 332, 568 

, State «. (35 Me. 9) 805, 809 

,State V. (18 Vt. 570) 630, 633 

False V. State (5 Humph. 108) 753 
Pankey v. People (1 Scam. 81) 692, 

696, 698 
Pargeter, Rex v. (3 Cox, 191) 376 

Parish. People r. (4 Denio, 153) 589 

, Rex p. (8 Car. & P. 94) 563 

Park, Com. v. (1 Gray. 553) 281 

, Com. p. (9 Met. 263) 826, 33$), 

366, 377 

V. Fisher (89 Ills. 164) 991 

p. Follensbee (45 Ills. 478) 44 

McWilliams (6 Bing. 683) 930 

~ 46 

449 
660 
591 
. State V. (48 N. H. 83) 660 

Parkin, liex v. (1 Moody C. C. 

45) 605 

Parkinson, Reg. p. (2 Den. C. 0. 
459) 933 



V. Smith (1 Gilm. 414) 




) 



iTiii 



INDEX TO CASES CITED. 



Sbctiok 
Parks V. C, B. & Q. R R. Co. (18 
Ills. 460) 

, Rex V. (2 Leach, 775) 

, Rex V. (2 Leach C. C. 775) 

-, Rex V, (2 East P. C. 992) 



174 
562 
562 
570 
891 



Parmelee, State v. (9 Conn. 259) 
Parmenter, Com. v. (5 Pick. 279) 558. 

570 
Parratt, Rex v. (2 M. & S. 897) 691 
Parrottv. Stale (5 End. 18 Ark. 

195) 
PareoDs V. Brown (15 Barb. 590) 
V. Dunaway (4 Scam. 194) 



t). Evans (17 Ills. 23^) 

, Rex V. (1 W. Bl. 892) 

V. State (21 Ala. 800) 

t). State (2 Carter lud. 499) 

Partridge, Rex. v. (7 Car, & P. 

551) 
Partillo, State v. (4 Hawks, 348) 
Passfleld v. People (3 Gilm. 406) 
Passmore, U. S. «. (4 Dall. 378) 



226 
180 
1034 
1084 
064 
825 
229 

510 
591 
117 
695, 
701 
560, 



Pate V. People (3 Gilm. 644) 

952, 964, 9(«. 991, 108:} 
Patience, Rex v. (7 Car. & P. 775) 59 
Patrick v. Smoke (3 Strob. 147) 695 

, State V. (3 Wis. 812) 8Hv^ 

Patterson v. Slate (2 Ensrl. 59) 921 
--,— , State V. (2 Ired. 346) 2, 106, 682 

, State V. (7 Ired. 70) 211, 212 

c. State (2 Ensrl. Ark. 59) 921 

Patton c. State (6 Ohio N. S. 467) 94:. 
Pauley, State v. (12 Wis. 599) 347, 761 
Paiilin V. Howser (63 Ills. 812) 952 
Pawling V. Bird (13 John. 192) 683 
Payne v. Barnes (5 Barb. 465) 45. 

46, 492 

f). Green (10 Sra. & M. 507) o'j 

, People V. (8 Cal. 841) 

, People V. (3 Denio, 88) 

V. People (6 John. 108) 

, Rex V. (1 Moodv. 878) 

, Slate V. (4 Mo. 875) 

Peabody, People v. (25 Wen. 474) 562. 

564 
Peacock u. Bill (1 Saiind. 74) 

, People V. (6 Cowen. 72) 

R. V. (Rnss. & Ry. 178) 



38(1 

619 

507 

57 

14 



Pcarci*. Rex v. (Peake, 75) 

, State t. (2 Blackf. 318) 

, U. S. F. (2 McLean, 14) 

Pear's Case (2 East P. C. 6^5) 
Pearson's Case (2 Lewin, 144) 

(2 Lewin. 216) 

Pearson, People p. (2 Scam. 189) l(»8o 

, Rex c. (") Car. *.V: P. 121) 492 

Pease, Com. r.. (16 Mns>. 91) 24o, 246 
Peal's Case (1 East P. C. 5. 5§ 15, 



80!! 
562 
566 
788 
62ri 
12 
44(; 

341 



Sbctiok 
129) 397 

Peat, Rex v. (1 Leach, 228) 604, 546 
Peck V. Boggess (1 Scam. 281) 1034 
Peck V. Cheny (4 Wis. 249) 857 

, Com. V, (1 Met. 428) 560, 988 

, Reg. «. (9 Ad. & El. 686) 660, 

661 

V. State (2 Humph. 78) 578, 574, 

579, 580, 989 
Pedlev, Rex r. (1 Leach, 242) 451 

, ilex V. (1 Leach C. C. 325) 695 

, Rex V. (2 East P. C. 1026) 454 

V. Wellesby (3 Car. & P. 558) 76 



Pegram v. Styron (1 Bailey, 693) 692 
Peiffer v. Com. (3 Harris Fa. 468) 924 
Peltry man. Rex v. (2 Leach, 568) 543 
Pemberton. Rex r. (1 W. Bl. 230) 858 
, State V. (30 Mo. 376) 323 



Pendergast v. City of Peru (20 

Ills. 51) 281 

Pendleton v. Com. (4 Leigh, 694) 459 
Pennock, Com. v. (3 Serg. & R. 

199) 461 

Peoria M. & F. Ins. Co. v. Ana- 

pow, 4n Ills. 86) 952 

Peoria R. R. Co. c. Mclntyre (39 

Ills. 2^9) 1033 

P. & O. R. R. Co. V. Neil (16 Ills. 

269) 844 

Pepper, State tJ. (11 Iowa, 347) 542, 

580, 945 
Percival, Rex o. (1 Sid. 248) 907 

Perdue, Com. v. (2 Va. Cas. 227) 197 

c. State (2 Humph. 494) 565, 

567 
Peri V. People (65 Ills. 18) 335, 840, 

774 
Peris V. McKee (Addis. 86) 792 

Perkes, Rex v. (1 Car. & P. 300) 468 
Perkin's Case (1 Lewin C. C. 

44) 
Perkins, People v. (1 Wen. 91) 

, Reg. V. (9 Car. & P. 895) 

, Rex t. (1 Car. & P. 300) 



397 
982 

886 

468, 

464 

, Rex V. (4 Car. & P. 587) 173, 647 

, liix V. (Holt, 408) 14 

, State V. (6 Blackf. 20) 413, 727 

. State V. (3 Hnwks, 877) 940 

Perris. Com. p. (108 Mass. 1 ) 461 

Perrv r. Pe<»ple (14 Ills.496j 46, 198, 

828, 384, 886, 888. 391, 461, 791, 812, 

m)S 

, Stale V. (Busbee, 380) 907 

, State r. (5 Jones N. C. 9) 196 

240 
867 
436 
999 



iPersse o. Persse (7 CI. & F. 279) 
iPerteet r. People (65 Ills. 280) 
Peier. Stale r. (La. An. 521) 
c. Slate (11 Texas, 762) 



INDEX TO CASES CITED. 



lix 



8BOTIOX 

Peters, Reg. v, (1 Cai-. & K. 245) 504 
V. Bute (3 Greene Iowa, 74) 284 

853 
Petri V. People (ft5 Ills. 18) 841, 345, 

850 
Petry, People f>. (2 Hilton, 523) 335, 

932 
Pettaway, State v. (8 Hawks, 62a) 307 
Pettit, People v. (3 John. R. 511) 388 
Petty V. Scott (5 Gilm. 209) 1083, 1034 
Pewterus, Rex v. (2 Stra. 1026) 832 
Pfomer c. People (4 Pat:k. Cr. li. 

558) 851 

PfQDdv.Zimmerman (29 1118.269) 952 
Phclan V. Andrews (52 Ills. 486) 86 
Phelps V. Park (4 Vt. 488) 108 

, People tJ. (17 Ills. 200) 119, 120 

fj. People (55 Ills. 334) 502, 504, 

505 

9. People (55 Ills. 429) 14 

, People V, (5 Wen. 9) 691, 696 

, Rex V. (2 Keny, 570) 684 

, State c. (2 Root, 87) 575 

State «. (1 1 Vt. 116) 939 

Phetheon, Reg. v. (9 Car. & P. 

552) 504 

Philbrick, State v. (31 Me. 404) 589 

Phillips' Case (2 East P. C. 662) 504 

Phillips 9. City of Springfield (39 

Ills. 83) 180 

D. C«»m. (2 Duvall, 328) 352 

c. Jansen (2 Esp. 624) 730 

V. Com. (3 Met 588) 461 

, Jackson v. (9 Cowen, 94, 



Pierce v. State (13 N. H. 586) 

V. State (12 Texas, 210) 

Pierson c. Finney (37 Ills. 29) 
V. State (12 Ala. 149) 
Reg. 0. (1 Salk. 382) 



SBoriov 
910 
1015 
869 
852 
216 
Pigeonary, Rex v. (7 Mod. 149) 823, 

828 
Pigman v. State (14 Ohio, 555) 7 

Pike V. Hanson (9 N. H. 491) 418 

, Rex 0. (3 Car. & P. 598) 886 

Pile, State «. (5 Ala. 72) 817 

Pilkington v. State (19 Texas, 214) 10 
Pillow V. Bushnell (5 Barb. 156) 173 
Pirates, U. S. v. (5 Wheat. 201) 799, 

803 808 
Pitman, State v. (1 Brev. 82) * 574 
, Rex V. (2 Car. & P. 423) 494 



Pittman v. Gaty (5 Gilm. 190) 1034 
iHtts, Reg. c. (C. & M. 284) 326, 327 

, Reg. «. (3 Burr. 1335) 

Pitt9inger,Com. v. (110 Mass. 101)627 
P. M. L. Co. 9. City of Chicago 

(56 Ills. 304) 1014, 1034 

Pleasant 9. State (15 Ark. 624) 436, 

438, 930, 992, 993 
— 9. State (8 Engl. Ark. 860) 434, 



112) 
-, People 9. (1 Wheeler C. C. 



560 



Pledsoe o. Com. (6 Rand. 673) 
Plestow, Rex v. (1 Camp. 494) 
Plumer v. Smith (5 N. H. 558) 
Plumleigh «. Cook (13 Ills. 669) 
Plummcr 9. Dennett (6 Greenl. 
421) 

9. People (16 Ills. 358) 

, Reg. 9. a Car. & K. 600) 

, Rex 9. (J. Kel. 109) 



488 
890 
595 
245 

86 

141 
108 
327 
339 
245 
691 



9. Smith (5 N. H. 553) 

, State 9. (50 Me. 217) 

Plunket 9. Cobbett (5 Esp. 186) 738 
, People 9. (3 C. H. liec. 138) 503 



155) 176 

9. Phillips (7 B. Monr. 268) 170 

, Reg. p. (8 Car. & P. 736) 752 

, Reg, 9. (8 Car. & P. 736) 4 

, Rex 9. (3 Campb. 74) 382, 383 

, Rex 9. (6 East, 464) 558, 727 

, Rex c. (1 Lewin C. C. 105) 569 

, Rex 9, (Russ. & Ry. 369, 

871) 582 

9. State (9 Humph. 246) 436 

9. Trull (11 John. 486) 62, 185 

Philpotts, Reg. 9. (1 Car. & K. 

112) 589, 591 

, Reg. 9. (3 Car. & K. 135) 696 

, Reg. 9. (2 Den. C. C. 302) 6U6 

Phinney, State «. (42 Me. 384) 803 

Phtebe 9. Jay (Breese, 268) 844 

Phipoe, Rex r. (2 Leach 673) 507, 544 Populus, State u. (12 Urn. An. 710) 924 

Pickering, Com. v. (8 Grat. 628) 6U1, Porter, Com. o. (1 Gray, 480) 225 

9. Pulsifer (4 Gilm. 83) 139! , People 9. (2 Park. Cr. R. 14) 381 

Picket, Rex 9. (2 East P. C. 501) 46()| v. Slate (2 Carter, 435) 993 

Pierce, State 9. (8 Iowa, 232) 562, 564,; , Siaie 9. (2 Hill S. C. 611) 693 

8121 9. Slate (15 Ind. 433) 668 



Plympton, Rex 9. (2 Campb. 229) 656 
Polk 9. State (19 Ind. 170) 946 

Poll, State 9. (1 Hawks, 442) 886, 888 
Pollard, Com. 9. (12 Met. 225) 696, 

699 70() 

, Com. 9. (Thatch. C. C. 280) ' 620 

9, Slate (2 Iowa, 567) 435 

462 
656 
881 
354 
560 
413 



Policy, Reg. 9. (1 Car. & K. 77) 
Pollman, Rex 9. (2 Campb. 229) 
Poison, State t>. (29 Iowa, 133) 
Pond 9. People (8 Mich. 150) 
Pope V, Askew (1 Ired. 16) 
, Com. V. (3 Dana, 418) 



' 



u 



KDEX TO CASES CITED 



SSCTIOV 

Porter, State v. (34 Iowa, 131) 946, 964 

.State D. (26 Mo. 201) 802 

,^U. S. V. (1 Baldwin, 78) 895 

, U. S. fj. (2 Crancli C. C. 60) 801 

Portwood tJ. State (29 Texas, 47) 461 
Posey, State «. (7 Richardson, 

484) 80, 979 

Potter V. Deyo (19 Wen. 361) 240, 281 

V. Kingsbury (4 Day, 97) 69 

f>. Potter (41 Ills. 81) 955, 991 

, State «. (18 Conn. 166) 909, 919 

, State v^hS Iowa, 554) 660, 833 

Pottle V. Mc Whorter (18 Ills. 454) 1033. 

1034 
Potts, State V. (4 Halst. 26) 558, 549 
Poulterer*8 Case (9 Co. 55&, 56&, 

676) 664 

Poulton, Rex o. (5 Car. & P. 329) 3^ 
Pound, Rex v. (W. Kel. 58) 413 

Powell, Rex v. (2 Bam. & Aid. 

75) 803 

, Rex f>. (1 Leach, 77) 565 

©.State (19 Ala, 577) 351 

V. U. S. (1 Morris Iowa, 17) 835. 

999 
Powers V. State (4 Humph. 274) 579 

V. Watkins (58 Ills. 380) 310 

Pownell, Rex v. (2 W. Kel. 58) 724, 

730 
Pratley, Rex v. (5 Car. & P. 533) 501 
Pratt V. Hill (16 Barb. 303) 63, 68, 69, 

70 

V. Price (11 Wen. 127) 69« 

, R V. (Moody, 185) 496 

, State V, (20 Iowa, 267; 331, 500, 

507, 940 
Pray, Com. c. (13 Pick. 359) 216, 234, 

301, 636, 797 
Preisker c. People (47 Ills. 382) 952, 

995 
Prescott V. Maxwell (48 Ills. 82) 952 

, State «. (33 N. H. 213) 636 

, State V. (7 N. H. 287) 923 



-, State t?. (33 N. H. 212) 



Prestfm v. State (25 Missis. 383) 

V. Winter (20 Iowa, 264) 

Price, Reg. v. (9 Car. & P. 729) 

, Rox p. (8 Car. & P. 19) 

, State V. (12 Gill & J. 260) 

. State V. (6 Halst. 20.J) 

«. Slate (30 Missis. 531) 

V. State (19 Oliio, 4'23) 

Priddy, State v. (4 Humpli. 429) 
Prill©. Lord (14 John. 341) 
Prindeville v. Peojile (42 Ills. 

217) 392, 480, 800, 949, 

Prine v. Com. (6 Harris Pa. 103, 

.104). 



226 
340 
866 
45() 
8 
636 
448 
932 
14 
19.') 
bOT 

1034 

932 



BSOTIOW 

Prior V. White (12 Ills. 261) 957 

Pritchett v. State (22 Ala. 39) 341, 850, 

351 
Privett, Reg, v. (2 Car. & K. 114) 496, 

499 
Proberts, Rex v. (2 East P. C. 

1030) 451 

Proctor V, Town of Lewiston (25 

Ills. 158) 806 

Pruns, Com. v. (9 Gray, 127) 660 

Pryor, U. S. v. (3 Wash. C. C. 

234) 818, 819 

Puester, State «. (1 Cheves, 108) 803 
Pug V. Com. (16 Pet 630) 574 

Pugh c. Griffith (7 Ad. & El. 

827) 463 

Pulham, Rex v, (9 Car. & P. 280) 538 
Pullc, State V. (12 Minn. 164) 664 

Pullen t>. People (1 Doug. 48) 76 
Pulley, Rex v, (5 Car. & P. 539) 329 
Pulse V. State (5 Humph. 108) 280 
Purchase, Reg. v. (C. & M. 614) 817, 

839, 840 
Purcell tj. Home (3 N. & P. 564) 170 
Purefoy, Rex v. (Peake Ev. 64) 883 
Purley, People v. (2 Cal. 564) 655 
Putnam, Com. v. (1 Pick. 36) 631,633 

, Com. -0. (4 Gray. 16) 279 

, State V. (35 Iowa, 561) 703 

, Stale T. (38 Me. 296) 834, 999 

V. Wadley (40 Ills. 346) 500 



Pyke V. Crouch (1 Ld. Raym. 730) 881 
Quann, Com. v. (2 Va. Cas. 89) 1020 
Quarles v. State (5 Humph. 561) 231 

«. State (1 Sueed Tenn. 407) 840 

Quick, State v. (10 Iowa, 4^1) 492 
Quigley v. People (2 Scam. 301) 46. 
86, 558, 562, 573, 580, 582, 789, 790 
Quimby, State v. (51 Me. 395) 773 
Quin, People v. (1 Park. Cr. R. 
340) 959 

, Com. V. (5 Gray, 478) 46 



Quincy Whig Co. «. Tillson (67 

Ills. 351) 891, 894 

Quinn vA.C. R. R. Co. (51 Ills. 

495) 961 

V. State (14 Ind. 589) 923, 924 

, State v: (2 South Car. 

Const R. 694) 177 

Rabon, State v. (4 Rich. 260) 323, 993 
liadtbrd, Reg v. (1 Den. C. C. 

59; 568 

Rafe p. State (20 Ga. (JO) 907 

liiifterty v. People (5 Chicago, 

L. N. 100) 7 

t?. People (66 Ills. 118) 867, 982 



Raimrez, People v. (13 Cal. 172) 948 
Raiulorth v. People (61 Ills. 365) 589, 

696 



IKDEZ TO OASES CITED. 



bd 



Sxorrov 
Ramey v. P^ple (3 Gilm. 71) 815, 

1014 
Ramsey, State v. (5 Jones N. C. 

195) 878 

Rand v. Davis (7 Car. & P. 785) 841 

, State V. (88 N. H. 216) 774 

Randall, Com. v. (4 Gray, 86) 176 
. People V. (5 City Hall Rec. 

141, 158, 154) 76 

V, People (68 Ills. 202) 992 

Randolph v. Emerick (18 Ills. 

844) 1083 

, People fj. (2 Parker, 218) 4, 752 

Rank v. Sherry (4 Watts, 218) 907 
Rankin v. Curtinius (12 Ills. 834) 061 

V. Taylor (49 Ills. 451) 991 

Rapp o. Com. (14 B. Monr. 614) 177, 

830,841 
Rasnick v. Com. (2 Va. Cas. 856) 574, 

578 
Rathbone, Reg. v. (2 Moody, 242) 503 
Rathbun, People r. (21 Wen. 

509) 540, 568, 571, 909, 912, 914, 959 
Ratliif, State v. (5 Engl. 530) 220 

Rawlins, Rex v. (7 Car. & P. 150) 466 

V. Elli8(16 Mees. & W. 172) 68 

, Rex V. (2 East P. C. 617) 498 

Rawls V, State (8 Sm. & M. 669) 774, 

847 
Rawson v. State (19 Conn. 292) 46 
Ray V. Bell (24 Ills. 444) 942 

, Com. V. (8 Gray, 441) 563 

, Com. c. (1 Va. Cas. 262) 817 

V. State (15 Ga. 228) 841 

V. State (4 Greene Iowa, 816) 77. 

492, 818, 944 

V, Wooters (19 Ills. 82) 950 

Raymond, State a. (20 Iowa, 

583) 691, 699 

Raysor t>. People (27 Ills. 190) 113 
Rea fj. Tucker (51 Ills. 110) 76 

Read v. Mattens (Cas. temp. 



Bsonov 
Redman, State «. (17 Iowa, 829) 507 
Reed. Com. c. (1 Grav, 472) ^ 907 

V, Norman (8 Car. & P. 65jr 632 

9, People (1 Park. Cr. R. 

481) 801, 805, 807, 1000 

Reg. V. (C. & M. 306) 18, 504 
' 597 

178 
59, 
187 
984 
823 



-, V. Car. & P. 848) . 
., Reg. V. (1 Den. C. C. 877) 
- V, llice (2 J. J. Marsh, 44) 



V. 

Uardw. 286) 

— V. State (15 Ohio, 217) 
«. Sutton (2 Cush. 115) 



848 
564 
1020 
Reader, Rex o. (4 Car. & P. 245) 448 
Rean's Case (2 East P. C. 785) 548, 

549 
Reason, Rex «. (1 Stra. 500) 886 

Reaugh o. McConnell (86 Ills. 

873) 882 

Reck man, Rex. v. (2 East. P. C. 

1034) 452 

Rector, People v, (16 Ills. 18) 851 

, People V. (19 Wen. 600) 885, 

340,351 
Reddan v. State (4 Greene Iowa, 

187) 894 

Redfleld «. State (24 Texas, 133) 415 



V. State (23 Ga. 190) 

9. State (8 Ind. 200) 

, State©. (20 Iowa, 417) 448, 461, 

467, 468, 898 

, State V, (35 Me. 489) 46 

V, State (15 Ohio, 217, 224) 564 

V. State (15 Ohio, 717) 564 

, U. S. V, ^2 Blatch. 485) 847 

, U. S. 9. (12 How. U. 8. 861) 994 

Reeder o. Purdy (41 Ills. 279) 463, 952 
Reeves t. Reeves (54 Ills. 832) 1084 

, Rex V. (0 Car. & P. 25) 329 

Reid, State v. (20 Iowa, 421) 468 

Reidel, State «. (26 Iowa. 430) 591, 

881, 882 
Reinish, Com. «. (Thatch. Cr. C. 

684) 989 

Reins 9. People (80 Ills. 256) 12, 849, 

852, 923, 924964, 965 
Remnant, Rex «. (Russ. & Ry« 

136) 601 

Reno V. Wilson (49 Ills. 95) 952 

Reiishaw, Reg. v. (25 Eng. L. & 

Eq. 593) 326 

Ren wick «. Morris (7 Hill, 575) 801 
Reslenblatt, People v. (1 Abbott 

Pr. R. 268) 847 

Respublica v. Burns (1 Yates, 

870) 

— u. Carlisle (1 Dall. 85) 

— V. Chapman (1 Dall. 56) 

— V, Cleaver (1 Murphy, 213) 



— u. Cleaver (4 Yeates, 69) 

— «. De Lonchampes (1 Dal- 
las, 111) 

— V. Dennie (4 Yeates, 267) 

— «. Honeyman (2 Dall. 228) 
— 1>. Maline (1 Dall. 83) 

— «. McCarthy (2 Dall. 86) 



684 
817 
815 

842 
883 



— «. Montgomery (1 Yates, 
419) 
— fj. Newell, (3 Yates, 407) 



53 
915 
328 
820 
818, 
941 



684 

691, 

093, 701 

591 

425 

026 

Restell, People v. (8 Hill, 289) 7 3 

881, 882, 888, 989. 



V. Powell (1 Dall. 47) 
V. Reiker (3 Yates, 282) 
V. Roberts (2 Dall. 124) 



( 



Izii 



INDEX TO CASES OITED. 



Rew, Rcx«. (J. Kel. 26) 



Reynolds, Com. v. (14 Grav» 87) 708 

, People V. (2 Mich. 462) 991 

Khea v. State (10 Yerg. 258) 892 

Rhode laland v. Massachusetts 

(11 Peters, 226) 895 

Rhode's Case (2 Ld. Raym. 886) 698 
Rhodes c. State (23 Tnd. 24) 1016 
Rice, V, People (38 Ills. 435) 84, 226. 

346, 505, 937, 952 

y Reg. t>. (Law Rep. C. C. 21) 215 

, Rex V. (8 East, 581 ) 414 

c. State (16 Ind. 298) 888, 907 

V. State (8 Mo. 561) 400 

V. Slate (10 Texas, 545) 637 

Rich V. City of Ch icago (59 Ills. 

287) 1014 

V. Hathaway (18 Ills. 548) 1033 

V. Newell (3 Yeates, 414) 696 

Richards, Com. «. (18 Pick. 434) 883, 

884 

, People V. (1 Mich. 216) 660, 601 

, Reg. V. (1 Car. & K. 532) 499 

, Rex«. (7 Dowl. & Ry. 663) 691, 

791 

, State V. (83 Iowa, 420) 436 

, Rex «. (Russ. & Ry. 28) 506 

Richardson «. Newcomb (21 

Pick. 315) 560 

tJ. People (81 Ills. 170) 157, 882, 

891, 892 
-, Rex V. (1 Leach, 4th Ed. 



SkctiokI BwTTtoy 

825, 326!Ritchey v. West (23 Ills. 386) 993, 1084 



887) 
-, State V. (38 N. H. 208) 



Richells v. State (1 Sneed, 606) 
Richey «. Bean (17 Ills. 65) 
Richie c. State (7 Blaokf. 168) 
Ricketson, Com. «. (5 Met 412) 
Rickey, State v. (4 Halst. 293) 



87 
707 
167 

42 

448 
881 
832 



Ritchie v. State (7 BlHckf. 168) 448 
Ritson, Reg. v. (Law R. 1. C. C. 

200) 662 

Roane, State v. (2 Dev. 58) 68, 880, 

886 
Robbins «. Butler (24 Ills. 387) 942 

V. King (2 Leigh, 142) 179 

V. State (20 Ala. 36) 176, 189 

V. State (8 Ohio S. N. 8. 131) 884 

Robertas Case (2 East P. C. 487) 464 
Roberts, Com. o. (108 Mass. 296) 832, 

886 

V. Pahs (86 Ills. 268) 

■■ D. O'Conner (33 Me. 496) 

, People V. (6 Cal. 214) 

, Reg. 0. (2 Car. & K. 607) 

, Rex V. (4 Mod. 101) 

, State v. (1 Hawk, 849) 

V. State (14 Ga. 8) 

V. State (3 Kelley, 810) 

, State V. (34 Me. 320) 

f). State (14 Mo. 138) 



1034 
279 
778 
700 
797 
340 
72;^ 
993 
660 
841,855, 
374 

, State «. (15 Mo. 28) • 79 

Robertson's Case (1 Swinton, 93) 433 
Robertson, People v. (2 Park. Cr. 
R. 235) 7 

, Penn v. (Addison, 246) 330 



-, State D. (5 Halsted, 83) 773, 847 
Rickmau, Rex v. (2 East P. C. 

1034) 448, 450, 454 

Ridgley, Rex «. (1 East P. 0. 171) 578, 

582 
Rigg V. Cook (4 Gilm. 336) 985, 986 
Riggs V. Deniston (3 John. C. 

198) 725 

Rigmardon, Rex «. (1 Lewin, 180) 876 
Riley, Com. c. (Thatch. Cr. Cas. 

471) 354 

V. Dickens (19 Ills. 29) 952 

, Reg. V. (17 Jur. 189) 'l2 

f>. State (16 Conn. R. 47) 677 

«. State (9 Humph. 646) 333 

, State V. (28 Iowa, 547) 485, 755 

Rineman v. State (24 Ind. 80) 12 
Ringer, State v. (6 Blackf. 109) 219 
Ripley, State v. (Brev. 300) 492 
» State «. (31 Me. 386) 660 



Robins, R v. (2 Moody & R. 512) 4iJ«, 

• 437 
Robinson, Com. v. (1 Gray, 555) 79 

V. Com. (16 B. Monr. 609) 888, 

833 
, Com. V. (Thatch. Cr. Cas. 

488) 422, 428 
, Rex V. (2 East P. C. 1110, 

1124} 718 

, Rex V, (1 Leach, 37) 663 

, Rex V. (1 Moody, C. C. 827) 463 

V. Richardson ' (18 Gray, 

456) 141, 150 
, People «. (2. Park. Cr. R. 

235) 7, 786, 991 

, State V. (3 Dev. & Bat. 130) 531 



-, State V. (9 Foster, 274) 
u. (r ' 



KK 



, State V. (39 Me. 150) 138, 952 

, State V. (33 Me. 564) 139 

Robtaille, People «. (5 City H. 



Rec. 171) 
Roby, Com. v. (12 Pick. 496) 



893 
392. 
923 

847 



Rocco V. State (37 Missis. 857) 
Rock Island Co. v. Mercer Co. 

(24 Ills. 35) lot, 895 

Rockafellow, State v. (1 Halst. 

332) 773 

Rockwell 0. State (12 Ohio S. 427) 849, 

860 



INDEX TO CASES CITED. 



Ixiii 



Sbctioki BacTiOK 

Rockwood, Rex v. (Holt 684) 83 1 |Roth, State v. (17 Iowa, 886) 48, 625 
r. Poundstone (38 Ills.- 199) 952iRquntree v. Stuart (Breese, 169, 



Bodes, Com. v. (6 B. Monr. 171) 

Rodenbush, U. 8. tj. (Baldw* 514) 

Rodgers, Rex v. (2 Campb. 654) 
Roe V. Taylor (45 Ills. 485) 
Roebuck, Rex v. (36 Eng. L. & 
£q. 640) 



12, 
899 
7, 
569 
508 
952 

597 



Rosrer, Rex o. (7 Met. 500) 5, 919 



2d Ed. 78) 898 

e. United States (1 Pin. 

Wis. 59) 708 

Rouse V. State (4 Ga. 186) 578, 574. 

907 
Rowan v. Dosh (4 Scam. 460) 1038 

V. State (30 Wis. 149) 875, 776, 

778 780 
V. Tavlor (1 Pin. Wis. 285) ' 832 



Rowe V. Yuba County (17 Cal. 61) 829 



, Com. V. (5 Serg. & R. 463) 388 Rowed, Reg. v. (6 Jur. 396) 758 



f. Hall (3 Scam. 6) 
- r. Lamb (3 Blackf. 165) 
-, People p. (18 X. Y. 9) 
-, R. c. (C. & M. 260) 
-, Reg. V. (8 Car. & P. 629) 



1033 
907 



581 

562, 

563 



, Rex t>. (1 B. & C. 272) 218, 216, 218 

linger, Rex v. (1 B. & Cres. 272) 636 
Rollins r. Ames (3 N. H. 350) 914 

, State r. (8 N. H. 3o0) 417, 422 

Romp c. State (3 Greene Iowa, 

276) • 226,810 

Root c. Curtis (38 Ills. 192) 991 

V. King (7 Cowen, 613) 733 

r. Sherwood (6 John. 68) 98o 

, State c. (2 Rep. Const. Ct. 

123) 108 

Roper, State v. (1 Dev. & Bat. 208) 200, 

207, 208 
Rorabacher, State i?. (19 Iowa, 

154) 831, 891, 892 

Rose, People v. (16 John. 203) 449 

, State V. (32 Mo. 560) 207, 301 

V. State (20 Ohio, 31) 932 

r. Stuyresant (8 John. 426) 395 



Rowland, Rex tJ. (2 Den. C. C. 
386) 988 

r. Veale (1 Cowper, 18) 416 



Rowley v. Hughes (40 Ills. 816) 989, 

990 

, Rex r. (Ry. & Moody, N. 

P. CiU. 299) 698, 694 

, Rex V. (Russ. & Ry. 110) 569 

, State V. (12 Conn. 101, 106) 81 



Rosenberg, Heg. v. (1 Car. & K. 

233) 
Rosinski, Rex 9. (1 Moody C. C. 

577) 
Rowley, Rex v. (R. & M., N. P. 

Cas. 302) 
Ro»s «. Com. (2 B. Monr. 417) 

748 753 
• — , Com. V. (6 Serg. & R. 427) ' 69 



497 

173 

694 
326, 



Rowt c. Kyle (1 Leigh R. 216) 560 
Ruddick, Reg. v. ^Car. «fc P. 

237) 501 

Rueck c. McGregor (8 Vroom, 70) 62 
Ruhl. Stale v. (8 Iowa, 449) 885 

Ruloff c. People (18 N. Y. 179) 

324, 331 
, Pedple V. (3 Park. Cr. R. 

401,437) 324,331,938 

Rundle, People v. (6 Hill, 506) 108 
Runnels, Com. v. (10 Mass. 518) 739 
Ruse r. Wyman (9 Ga. 430) 593 

Russel c. Hamilton (2 Scam. 56) 707 

V. Martin (2 Scam. 492) 1034 

V. People (44 Ills. 508) 723, 97a 

, Reg. V. (C. & M. 541) 449 

, Rex V. (1 Moodv, 356) 326 

V. State (10 Texals, 288) . 1015 

Russell, State p. (0 Conn. 446) 631 

, Rex tJ. (1 Moody & Ry. 112) 433, 

449 
Russen v. Lucas (1 Car. & P. 158) 57, 

417, 1034 
-, Rex V, (1 East P. C. 438) 433 



- p. Inn is (26 Ills. 259) 

- V. Innis (35 Ills. 487) 

- r. Irving 14 Ills. 171) 

- r. People ( 5 HilU 294) 
-, State V, (7 Blackf. 322) 
-, State V. (25 Ma. 426) 



42 
42 
901 



Rust V. Froth iiigham (Breese, 
258, 2d Ed. 3^1) 

Rex V. (1 Moody C. C. 



183) 



1034 
464 



495iRutherford v. Com (2 Met. Ky. 

226 387) 959 

888i , U. S. V. (3 Wash. C. C. 515) 330 



, U. 8. V. (1 Gallis C. C. 524) 339 Rutlege, State v. (8 Humph. 32) 845 

V. U. S. (Morris' Iowa, 164) 284,;Rvau u. Brant (42 Ills. 79) 495 

832, 589 -^, Reg. r. (2 Cox C. C. 115) 485 

Rosweirs Case (10 Howell St. ' , Rex «. (7 Car. & P. 854) 791 

Tr. 147, 299) 794' , Slate r. (4 McC:ord, IG) 499 

Both c. Smith (54 Ills. 431) 952 , People c. (2 Wheeler 0. C. 



buT 



INDEX TO CASES CITED. 



SSOTIOX 

54) 374 

Rye, State o. (9 Yerg. 386) 108 

Rvnders, People tJ. (12 Wen. 425) 799, 

800, 802 
Safford t>. People (1 Park. 477) 932, 

1016 

V. Vail (22 Ills. 327) 1018 

Sagarus, State v. (1 Rep. Con. Ct. 8, 

4) 180 

Sailer v. State (1 Harring. 357) 8a5, 

1016 
Sainsburg, Rex tJ. (4 T. R. 451) 17 
St. Clair, Com. v. (1 Grat. 556) 778 

, State c. (17 Iowa, 149) 541 

St. George, Reg. v. (9 Car. & P. 

88) 166, 647 

St. Louis, Alton <fe Chicago R. 

R. Co. V. Dalby (19 Ills. 366) 171 
St. L. & S. E. R. W. Co. V. Lux 

(63 Ills. 524) 917 

Salge, State c. (2 Nev. 321) 855 

Siillie V. SWe (39 Ala. 601) 402 

SaloDstall V. Canal Commission- 
ers (13 Ills. 705) 1035 
Salter©. People (59 Ills. 68) 527, 1018 

, U. S. V. (1 Pin. Wis. 278) 15 

Sam e. State (33 Missis. 847) 450 

tJ. State (18 Sm. & 31. 189; 909 

•, State V. (Winston, 300) 4, 752 



Sbotiov 
Santwood, People v. (9 Co wen, 

655) 857 

Sarah v. State (28 Missis. 268) 823, 

800 
Sargent «. State Bank (11 Ohio, 

472) 14 986 

Sartor ius v. State (24 Missis. 602)\509, 

885 930 999 
Sater, State c. (8 Iowa, 420) '892,' 897, 

909 
Salterwhite c. State (28 Ala. 65) 964 
Sattler v. People (59 Ills. 68) 84, 505, 

815, 987, 999 
Saund, Rex «. (2 Burr. 984) 801 

Saunders v. McCoUins (4 Scara. 
419) 1033, 1034 

, Reg. c. (8 Car. & P. 265) 484 

, Rex V. (7 Car. & P. 277) 326, 328 

V. Stale (2 Iowa, 280) 138 



Sampson o. Com. (5 Watta & S. 

885) 
Samuel, State v, (8 Jones N. C 

78) 841, 374 

Samuels D. Dubuque (18 Iowa, 

536) 829 

Samways, Reg. v. (26 £ng. L. & 

Eq. 576) 496 

Sanchez c. People (24 N. Y. 147) 323 
Sanders, Com. v. (5 Lei^h, 571) 639 

, Rex tJ. (8 Car. & P. 205) 173 

V. SUte (2 Iowa, 230) 14 

, State «. (30 Iowa, 582) 627, 631 

«. Suite r2 Texas, 119) 818 

Sanderson, Com. v. (3 Penn. 

Law. Jour. 269) 733 

Sands, People v. (1 John. 78) :mi 



Savings Bank v. Shakman (30 

Wis. 3:W) 931 

Savory, Com. tJ. (10 Cush. 585) 542. 

944 
Sawtelle, Com. tJ. (11 Cush. 142) 492 
Sawyer v. Merrill (10 Pick! 16) 993 

V. People (3 Gilm. 58) 507, 539, 

981 

f . State (17 Ind. 435) .1014 

T. Stephenson (Breese, 6, 

2d Ed. 24) 994 

Saver.-^, Com. v. (8 Leigh, 722) 848 
I?. State (30 Ala. 15) 



850 
Savle V. Stale (8 Texas. 120) 847 

Scaggs V. State (8 Sm. & M. 722) 10, 

16 
Scaife, Rex v. (1 Moody <& Rob. 

551) 885 

Scannel, Com. v. (11 Cush. 574) 482 
Scates, People v. (3 Scam. 351) 869, 

879 902 
, State c. (5 Jones N. C. 420, ' 

423) 825 

Schaller v. State (14 Mo. 502) 7 

Schantz v. State (17 Wis. 251) 488 
Schaunhurst, State v. (34 Iowa, 

547) 648, 644 



«. Robinson (12 S. & M. 604) 73.") Scheer v. Keown (29 Wis. 586) 46, 49 

Sandy, State v. (8 Ircd. 570) 448, 449 Schill, State ». (27 Iowa, 263) 693, 
Sandys, Reg. v. (2 Moods , 227) 32^{| 782 

Sanford v. Eighth Av. R. R. Co. Schingen, State u. (20 Wis. 74) 7, 486 

(28 N. Y. 843) 174 Schirmer p. People (33 Ills. 279) 903. 

137.1 1014,1010,1017,1019,1020 

144 Schlagel, State ». (19 Iowa, 16^) 542, 

812, 944, 948 

952 Schlencker v. Ri»ley (3 Scam. 

56:^ 483) 993. 1038 



V. Nichols (13 Mass. 286) 



Sangamon Ins. Co. v. McKeen 

(60 Ills. 167) 
Sankev, Com. v. (22 Penn. 390) 

San Martin, People «. (2 Cal. 4b4) 9l»2 Schlisinger, Rex v. (10 Ad. & 
Sans V. People (3 Gilm. 327) 115, 11n' El. N. S. 670) 695 

Santo V. State (2 Iowa, 165) 138, 2^2 Schlump v, Reidersdorf (28 Ills. 



n7D£X TO CASES CITED. 



bCY 



Skctiov 

68) 1088, 1084 

Schmidt «. State (14 Mo. 137) 279, 748 
Schnier v. People (28 Ills. 17) 12, 850, 

854, 921, 945, 965, 978 
Schoefflerv. State (8 Wis. 824)76,909, 

911, 914, 919 
Schoenwald, State v. (81 Mo. 

147) 1014, 1015 

Scholfleld, Kex «. (Cald. 397) 451 
School Trustees u. Wright (12 

Ills. 441) 857 

Schooner Exchange v. McFad- 

den (7 Cranch, 116) 53 

Schoonhoven v. Gott (20 Ills. 46) 882 
Schoonmaker, Kerns v. (4 Ohio, 

331) 108 

Scram c. People (29 Ills. 164) 840,849, 

851 
Schricker «. State (29 Mo. 265) 818 
Schnltz 9. Lepage (21 Ills. 160) 989 
Schumakcr v. State (5 Wis. 824) 907 
Schuyler, People v. (6 Cowen, 

572) 497 

Schwartz, People «. (82 Cal. 160) 458 
Schwarz v. Herrenkind (26 Ills. 

208) 1084 

«. Schwarz (26 Ills. 81) 991 

Scofield V. Settley (81 Ills. 515) 844, 

1018 
Scott fj. Com. (14 Grat. C87) 580, 888 

, Com. «. (l Rob. Va. 696) 582 

«. Com. (6 Serg. & R. 224) 426 

u. Ely (4 Wen. 555) 49 

V. People (68 Ills. 509) 818, 1020 

V, Plumb (2 Gilm. 595) 992 

, Rex V. (8 Bur. 1262) 79, 788 

, Rex V. (2 East P. C. 780) 538 

«. Shepherd (2 Blackf. Rep. 

892) 170 

, State «. (I Hawks, 24) 90 

9. Scott (4 Ired. 409) 840, 852 

, StAto V. (12 La. An. 274) 325 

o. State ^1 Missis. 478) 808 

9, U. S. (Morris Iowa, 142) 788 

, State V. (64 N. C. 586) 504 

V. Wirshiug (64 Ills. 608) 948 

Scribner o. Beach (4 Denio, 448) 177, 

180 18S 

State V, (Gill & J. C. C. 284) 618 

Scroggins, U. S. v. (2 Hemp. 478) 426 
Scudder. Rex v. (1 Moody, 216) 382 
Scull V. Briddle (2 Wash. C. C. 

200) 1000 

Scully, Rex 0. (1 Alcock & Na- 

pier, 262) 988 

, Rex 9. (1 Car. & P. 819) ' 858 

Seamons, State v. (1 Greene 

Iowa, 418) 46, 894, 782 

Searle, Com. «. (2 Bin. 889) 568^ 

6* 



Sxrriov 

Searls v. Crombie (28 Ills. 896) 501 

V Munson (17 Ills. 558) 891 

9. People (18 Ills. 597) 627, 992 

Seaverns 9, Tribby (48 lUs. 195) 952 

Sedgwick 9. Phillips (22 Ills. 

188) 

9, Watkins (Ve8ey,49) 



Seely 9. Pelton (68 Ills. 104) 
Seem e. McLees (24 Ills. 194) 
Segar, Rex v. (Comb, 401) 
, State 9. (7 Porter, 167) 



Selby «. Hutchinson (4 Gilm. 

836) 
Self, Kex t>. (1 Leach, 187) 
, State 9: (1 Bay, 242) 



1084 
76 
990 
998 
462 
778 



Sellers r. People (3 Cai. 414) 

— 9. People (1 Gilm. 183) 

— 9. People (8 Scam. 412) 909, 916, 

994 

ScUis, Rex 9, (7 Car. & P, 850) 
Semayne's Case (5 Co. 91) 
Semm's Case (11 Leigh, 665) 
Senior, Rex 9, (1 Moody, 346) 



1088 

827 

504 

909 

14 



829 

854 

104 

829, 
400 

Sepult, State 9. (17 Iowa, 575) 492 
Sergeant «. Roberts (1 Pick. 837) 968 
Sergent, People 9. (8 Cowen, 139) 218, 

2^,637 
Serpentine 9. State (1 How. 

Missis. 256) 806, 857 

Server 9. State (2 Blackf. 85) 692 

Seven, Bishop^s Case (12 Howell 

St. Tr. 188) 782 

Severin 9. People (37 Ills. 414) 192, 

892, 895 
Seward 9. Basiley (1 Ld. Raym. 

62) 177 

Sewart, Com. «. (1 Serg. & R 

342) 211 

Sewell, State 0. (3 Jones L. R 245) 7 
Seymour 9. Bailey (5 Chicago 

Legal News, 268) 892 

— 9. State (15 Ind. 288) 649 

— , State 9. (36 Me. 225) 461 

Shaack, Com. 9. (16 Mass. 105) 449 
Shadgett 9. Clipson (8 East, 328) 49 
Shafer «. Ohio (20 Ohio, 3) 681, 638 
Shaffer 9. State (26 Ind. 191) 807,. 838 

755 



•, State V, (21 Iowa, 486) 



Shainv. Markham (4 J. J. Marsh, 

578) 
Shall, People 0. (9 Cowen, 778) 
Shannahan 9, ()om. (8 Bush. 
Ky. 468) 
, State 9. (22 Iowa, 482) 



177 
563 

838 

897 

Sharp 9. Peoplle (29 Ills. 464) 895 

9. State (19 Ohio, 379) 354, 391 

V. Wilhite (2 Humph. 434) 698, 

696 



Ixvi 



INDEX TO GASS8 CITED. 



Sxcnov 

, U. 8. «. (1 Peters C. C, 188) 808, 

805 
Sharpless, Com. «. (d Berg. & R 
91) 207, 308, 801 

, R. «. (2 East P. C. 675) 496 

Sharpshire, State v. (7 Engl. 190) 847 
Sharwin, Rex tJ. (1 East P. C. 

841) 828 

Shattuck V. People (4 Beam. 477) 108, 

118, 825 
Shaver, Com. «. (Watts & S. 838) 656 
Shaw, Com. v, (7 Met. 52. 57) 390 

, Com. V. (116 Mass. 8) 27« 

, People V. (1 Park. Cr. R.827) 391 

, Rex c. (6 (^ar. & P. 372) 340 

, State V. (35 Iowa, 575) 210 

, 8tat« V. (3 Ired. 20, 22) 200, 705 

, Stale V. (3 Ired. 532) 907 

-, State «. (4 Jones N. C. 440) 5^10 

281 

54 

507 

660 

11 



-, State tj. (32 Me. 570) 

-, State©. (1 Root, 134) 

V. State (3 Sneed, 86) 



Shedd, Com. v. (7 Cusli. 514) 

, Com. V. (1 Mass. 227) 

Sheers v. Brooks (2 Hen. Black. 

120) 120 

SheffllltJ.Van Deusen (18 Gray, 

• 304) 730 

Shehan v. ColUn (20 Ills. 325) 733 

Shelledy, State v. (8 Iowa, 477) 839. 

369,909 
Shelmire, U. S. v. (1 Baldw. 871) 565 
Shelton, State v. (2 Jones Law, 

N. C. 300) 88o 

Shcphard, State v. (7 Conn. 54) 389, 

892. 434 

, State tJ. (10 Iowa, 126) 106, 89'), 

800, 815, 982 
, Rex V. (1 Leach, 4lh Ed. 

101) 1000 

Shepherd o. People (19 N. Y. 

537) 448,451 

r V. People (25 N. Y. 407) 15 

, Reg. f>. (I Leach, 226) 566 

, Rex V. (2 East P. C. 967) 562 

, Rex V. (Leigh & C. 147) 326 

, Rex V. (Russ. & Ry. 169) 56o, 

569 
Sheriff, Com. v. (1 Grant Pa. 187) 65 
Sherman v. Dutch (16 Ills. 28;3) 952, 

953, 95i) 
, Rex V. (Cas. temp. Hardw. 

303) 79 

Sherrell, State v. (1 Jones N. C. 

508, 509) 220 

Sherwood, Reg. v. (1 Car. & K. 

556) 341 

Shields, Reg. v. (8 Ci*awf. & Dix 

C. C. 880) 842 



Bkotiox 
Shilling, State o. (14 Iowa, 456) 808 
Sh inkle «. Magill (58 Ills. 422) 808 
Shipley «. Todhunter (7 Car. & 

P. 680) 730 

Shoemaker, State v. (7 31o. 177) 573, 

574 

fj. State (12 Ohio 43) 844 

, U. S. T. (2 Mclean, 114) 14, 15 



Shook «. Thomas (21 Ills. 87) 891, 

893 
«. People (39 Ills. 448) 114 



Shooter, State v. (8 Rich. 72) 177, 661 
Short V. State (7 Yerg. 510) a54 

Shorter, People v. (4 Barb. 460) 830 

V. People (2 Com. N. Y. 198) 

826, 330, 840, 362, 353 
Shotwell, People v. (27 Cal. 394) 807, 

833 
Shufeldt D. Backley (45 Ills. 228) 108, 

309 
Shukard, Rex v, (Russ. & Ry. C. 

C. 200) 568 

Shultz V. State (13 Texas, 401) 950 
Shupa, State o. (16 Iowa, 361) 696 
Shupney, Com. v. (105 Mass. 588) 463 
Siorer c. Martin (63 Ills. 290) 1083 
Sikes V. Dyke (17 Ohio, 454) 182 

V. Johnson (16 Mass. 389) 170 



Sill V. Reg. (16 Engl. L. & Eq. 375) 589 
Silver «. State (17 Ohio, 365) 693 

Sim. V. Frank (25 Ills. 125) 633 

Simmons, State v, (8 Ala. 497) 833, 

427 

c. State (4 Ga. 465) 760 

V. State (7 Ham. R. 116) 560 

, State V. (6 Jones N. C. 21) 332 

, State t». (5 Strob. 58) 195 



Simons, Rex v. (2 East P. C, 781) 548 
V. State (25 Ind. 331) 807, 833 



-, State V. (4 Strob. 266) 
-, State V. (30 Vt. 620) 



Simpson, Com. v. (9 Met. 138) 



6(^ 
693 
479, 
492 
417 
545 
932 



— fj. Hill (1 Esp. R. 431) 
— , Reg. «. (6 Cox C. C. 422) 

, Reg. V. (10 Mod. 248, 250) 

— , Reg. V. (29 Eng. L. & Eq. 
530) 493 

— , Rex t). (1 Lewin, 172) 400 

— , State V. (8 Hawks, 520) 592 

— V, State (4 Humph. 456) 509 

— V. State (5 Yerg. 850) 195, 196, 

403 

— V. State (10 Yerg. 525) 801 
Sims, State «. (2 Bailey, 29) 992 

— , State ©. (Dudley Ga. 218) 992 
— , State ©. (3 Strob. 137) 168, 170, 

178 
Sisson, State v. (3 Brev. 58) 826, 884 



INDEX TO CASES CITED. 



Izvii 



SBOTioir 
8izemore, State v. (7 Jones N. C. 

206) 841 

Skein, Reg. v. (8 Cox. C. C. 148) 852 
Skiff fj. People (2 Park. Cr. R. 

139) 689, 592 

Skinner v. State (80 Ala. 524) 991 
Slack, State v. (1 Bailey, 880) 507 
Slaten v. People (21 Ills. 28) 108 

Slater, People o. (5 Hill N. Y. 401) 46, 

454,809 
Slavton, People ©. (Breese, 257, 

2<d £d. 329) 825 

Sledge c, Piipe (Hayw. 402) 190 

Sleeman, Reg. v.( Dears. 249) 450 
Sl<^an, Com. «. (4 Cush. 52) 279, 817 

«. State (9 Ind. 656) 

Slomer v. People (25 Ills. 70) 416, 662 
Small V. Brainard (44 Ills. 355) 952 

, U. S. V. (3 Curtis C. C. 241) 886 

Smart «. Cason (50 Ills. 195) 107, 108 
Smelser, State v. (12 Lou. An. 

886) 949 
Smith's Case (2 Car. & P. 449) 172 
Smith t. Houchier (2 Stra. 993) 696 
V. Brown (6 Chicago Legal 

News, 892) 277 

, Com. V. (6 Cush. 80) 801 

V. Com. (6 Grat. 696) 909 

V. Com. (10 Grat. 734) 988, 939 

, Com. t». (1 Mass. 245) 492 

, Com. f>, (9 Mass. 107) 773 

, Com. V, (102 Mass. 144) 279 

, Com. V. (116 Mass. 40) 479 

V. Com. (6 B. Monr. 21) 218 

, Com. V. (6 Serg. & li. 570) 560, 

562, 564 

, Com. V. (2 Va. Cas. 827) 981 

V. Donolly (66 Ills. 466) 580 

tj. Earns (3 Scam. 81) 994 

fj. Frazer (61 lUs. 164) 1033 

c. Gillett (50 Ills. 293) 961 

tJ. Harris (12 Ills. 466) 861 

V. Hielman (1 Scam. 826) 809 

«. Hoag (46 Ills, 251) 463 

tj. Joyce (12 Barb. 21) 281 

r. Kahili (17 Ills. 67) 1038,1034 

, People V. (1 Car. & P. 411) 

V. People (26 Ills. 23) 660, 661 

c. People (86 Ills. 290) 874 

V. People (39 Ills. 234) 492 

tJ. Smith (1 Park. Cr. R. 

329) 466, 492, 501 

, People ». (4 Park. Cr. R. 255) 492 

V. Powell (50 Ills. 21) 892 

, R V. (4 Car. & P. 411) 569 

, R. V. (1 Cox C. C. 10) 496 

~ " " 340 



Saonov 

Smith, Reg. v, (Leigh & G. 607} 826 

, Reg, tJ. (1 Salk. 842) 658 

, Rex «. (2 Car. & K; 882) 692 

, Rex «. (2 Car. & P. 683) 669 

, Rex t>. (8 B. & Cres. 841) 187 

Rex 0. (83 Eng. L. & Eq. 



567) 

— , Rex V. (1 Moody, 289) 

— , Rex V. (Russ. & Ry. 417) 



891 

79 

462, 

469 

701 



-, Rex V. (2 Show, 165) 

- V. Slocum (62 Ills. 854) 175, 176 
-, State D. (8 Blackf. 489) 689, 800, 

808 

- V. State (19 Conn. 498) 847 
-, State V. (5 Day, 175) 564 
-, State V. (8 Dev. & Bat. 117) 865 

- V. State (6 Gill, 425) 219 

- V. suite (4 Greene Iowa, 189). 812 



State u. ((1 Murphy, 718) 

(1 N. 
u. Slate (7 Ohio, 240) 



State V. 



H. 346) 



V. State (12 Ohio, 466) 

V. State (3 Redding, 48) 

State V. (12 Rich. 430) 
State V. (2 Strob. 77) 



V. State (8 Ham. 294) 573 

— ©. Slate (1 Humph. 896) 801 
— , Stale V. (2 Humph. 467) 166 

— V. State (5 Humph. 163) 228 
— - V. Stiite (7 Humph. 43) 418 

— V. State (10 Ind. 106) 511 
— , State V. (28 Iowa, 565) 454 
— , State c. (2 Ired. 402) 609, 919 
—, State tj. (11 Ired. 33) 187 
— , Stale V. (32 Me. 869) 328, 339 

— V. State (33 Me. 48) 877, 878 

— V. State (28 Missis. 729) 851 

" 838 

54 
847 
752 
366 
851 
333, 336, 
8^9 

u. State (82 Texas, 694) 626,724 

V. State (1 Yerg. 228) 843 

«. Shultz (1 Scam. 491) 608, 504, 

993 

V. Thompson (1 Cowen, 221) 921 

V. Williams (22 Ills. 857) 986 

fj. Wilson (26 Ills. 186) 1034 

Smitherman v. State (27 Ala. 28) 627 
.Smyth, Rex v. (5 Car. & P. 201) 466 

, Rrix V (5 Car. & P. 832) 940 

Snap 9. People (19 Ills. 80) 532 

Sneed v. Slate (5 Pike, 431) 932 

Sncll, Com. v. (8 Mass. 82) 649, 560 

V, Trustees (58 Ills. 290) 1033, 

1034 
Snelling, Com. v. (4 Bin. 879) 645, 

649, 550 

, Com. «. (15 Pick, 821) 234 

. Com. V. (15 Pick. 837) VSi 



-, Reg. V. (8 Car. *te P. 160) 
— , Reg. V. (33 Eng. L. & Eq. 
667) 889 Snow, Com. v. (Ill Mass. 411) 382, .4.^ 



Ixviii 



I»DEX TO OASES OITED. 



SacTiox 
Snow, Rex v. (1 Leach, 151) 840 

tJ. State (14 Wis. 479) 558, 564 

Snydacker v. Brosse (51 Ills. 860) 57 
Snyder v. Lafrainboise (Breese, 

269, 2d Ed. 343) 600, 989, 1034 
, People «. (2 Park. Cr. R. 

28) 469 

9. State Bank (Breese, 161) 844 
_ . ^^ 

224 
809 
738 
115 
618 
816 
501, 



Bmcmow 
Sprague, State v. (4 R I. 257) 398 
Spratt V. State (8 Mo. 247) 847 

Spring, Com. v. (19 Pick. 396) 

f). Robinson (2 Pin. Wis. 97) 892 



«. State (5 Ind. 195) 
State V. (14 Ind. 429) 
?. (S 



, State V, (25 Iowa, 208) 

Soley, Reg. v. (2 Salk. 594) 
Solomon V. People (15 Ills. 291) 

fj. Slate (27 Ala. 26) 

Solyman v. Bill (61 Ills. 167) 
Somenrille, States. (21 Me. 14) 

505 991 
Son V. People (12 Wen. 344) 73,* 932 
Soper, State «. (18 Me. 298) 943 

Sotherlin, State v. (UHrper, 414) 498 
Soules* Case (5 Greenl. 407) 76 

Soule, State v. (20 Me. 19) 817 

Southard v. Rezford (6 Cowen, 

254) 
Southerton, Rex v. (2 East R 

140) 
South worth «. Stephens, (10 John 

448) 
Sowle V. State (11 Ind. 492) 
Spaugler v. Pugh (21 Ills. 85) 
Sparrow, State v. (2 Murphy, 487) 930 
Spauldiog, Rex v. (1 Leach, 218) 451 
Spear v. Spencer (1 Iowa, 534) 907 
Spears v. State (2 Ohio N. S. 588) 461. 

5^,939 



436 

712 

724 
636 

86 



Speer, Com. «. (2 V a. Cas. 66) 
Spence, Rex v. (1 Cox, 352) 

, State «. (2 Earring. 348) 

Spencer v. Com. (2 Leigh, 751) 

V. De France (3 Greene 

Iowa, 216) 

, Rex V. (8 Car. & P. 420) 

, Rex «. (2 East P. C. 712, 



713) 

9. State (8 Blackf. 281) 

, Stat« «. (10 Humph. 481) 



591 
876 
560 
670 

919 
696 

648 
890 
186, 
855 



f>. State (13 Ohio, 401) 461, 589 

, State V. (1 Zab. 196) 889, 909, 

915 
Sperry*s Case (9 Leigh, 623) 835, 1016 
Spicer, R v. (1 Car. & K. 699) 492 
Spiller, Rex «. (5 Car. & P. 338) 400 
Spooner, People o. (1 Denio, 848) 560, 

989 
Spragg, Rex «. (2 Bur. 928) 659, 983 
, Rex fj. (14 East, 276) 549 



Springdale Cemetery Associa- 
tion V. Smith (24 Ills. 480) 948, 991 
Springer o. State (34 Ga. 379) 907 
Spronce v. Com. (2 Va. Cas. 375) 909 
Squire, Com. t. (1 Met. 258) 892, 450 

, Rc'X V. (1 Russ. on Crimes, 

490) 
Squires, State «. (11 N. H. 87) 
Stafford, Com. t. (12 Cash. 619) 
«. Low (20 Ills. 152) 



Stahl, Com. v. (7 Allen, 304) 
Slalcup, StAte v. (1 Ircd. 30) 
, State V. (2 Ired. 50) 



826 
461 
797 

46 
686 

65 
647 
576 
449 



Stalker v. State (9 Conn. 841) 
Stallion, Rex t. (R & M. 397) . 
Standen v. Edwards (1 Ves. Jr. 

183) 
Stanley, Rex v. (6 Car. & P. 213) .^, 
, State «. (33 Iowa, 580) 823, 331, 
838, 840, 344, 849, 812 
-, U. S. V. (6 McLean, 409) 701 



993 
'"33 



Stannard, Reg. v. (Leigh & C. 

849, 354) 
Stanton v. Allen (5 Denio, 434) 
— , Rex 0. (1 Car. & K. 415) 



V. State (13 Ark. 317) 



219 

714 
173, 
435 
550 
Stanvord, People t». (9 Cowcn, 655) 46 
Staples, State v. (37 Me. 228) 138 

Stapp, State u. (29 Iowa, 551) 810 
Starker tJ. Com. (7 Leigh, 752) 496 
Starkey v. People (17 Ills. 18) 884, 

885, 886, 887, 888 
Starr v. State (25 Ala. 49) 897 

State, Com. v. (11 Gray, 60) 538, 803 
, People V. (6 Blackf. 95) 583 
tJ. People (8 Mo. 249) 115 

9. Populus (12 Lou. An. 710) 923, 

924 

State Treas. v. Woodard (7 Vt. 
528) 108 

c. Rolfe (15 Vt. 9) 108, 354 



Sprague v, Hazen winkle (58 Ills. 
419; 



052 



Statten v. State (30 Missis. 619) 854 
Stead, Rex v. (8 T. R. 142) 797 

Steadman, State v. (7 Port. 495) 46 
Steams, Com. v. (10 Met. 250) 669, 

573 580 

— V. Felker (28 Wis. 595) * 239 
— , People V. (21 Wen. 409) 562, 564, 

0&5 

Stebbins, Com. v. (8 Gray, 492) 504, 

507 512 

— u. People (27 Ills. 241) ' 877 

, State V. (29 Conn. 403) 81 

Stedraan's Ca^e (Foster, 292) 841 



DTDEX TO CASES CITBD. 



box 



SZOTTOX 

Steel, Reg. o. (R & M. 887) 060 

V. Southworth (9 John. 214) 724 

Steele v. People (45 Ills. 152) 560, 892 
Steer, People v. (2 City H. Uec. 

Ill) 631 

Btegars «. State (2 Blackf. 104) 123 
Stemburg. v. Eortz (10 John. 107)696 
Steinman v. Mc Williams (0 Bar. 

170) 696, 701 

Stephen t. State (11 Ga. 224) 802, 9;]8 
Stephens v, Mi'ers (4 Car. & P. 

^9) 100, 109, 191 

V. People (19 N. Y. 549) 924, 

1016 

f>. People (4 Park. Cr. R. 396) 89. 

923, 959, 1016 

, People «. (13 Wen. 841) 257 

«. State (11 Ga. 22.)) 435, 430 

t. Suite (1 Swan Tenn. 157) 696 



Saonoir 
Stiles V. Nokes (7 East, 492) 724 

Stillman 9.- Squire (1 Denio, 827) 496 
Stimpson, State v. (45 Me. 606) 802 
Stinson «. People (43 Ills. 897) 87, 
492, 495, 496, 497, 504, 816 

479 
697 
1038 
959 
466 



Stephenson, Com. v. (11 Cush. 
481) 565 

, Com. V. (8 Pick. 354) 403 

Steptoe, Rex v. (4 Car. & P. 397) 941 
Sterling, State v, (34 Iowa, 443) 050. 

665 904 

, State V. (8 Mo. 697) ' 619 

Stetham v. Shoultz (17 Ills. 99) 993 
Stetson, People ». (4 Barb. 151) 589. 

592, 601 

, U. S. «. (3 Woodb. & M. 

164) 800,803 

Stevens, Com. f. (1 Mass. 203) oos 

. V. Hay (61 Ills. 400) 116 

, People c. (5 Hill. 630) 704 

, Rex V. (5 B. & Cres. 246) 791 

t. Sherwood (22 Ills. 240) 891 

, Stale V. (30 Iowa, 393) 000 

V. State (9 Law Reg. N. S. 

530) 940 

V. Talcolt (11 Vt. 25) 959 

, U. S. V. (4 Crauch C. C. 41) 212 

Stevenson, People v. (9 Cal. 273) 323 

, Rex p. (2 East, 362) 661 

c. Stiles (2 Penn. R. 740) 9U7 

Steward, Rex v. (2 East P. C. 702) 549 

r. State (15 Ohio S. 150) 14 

Stewart, c. State (13 Ark. 720) 914. 

917 

, Com. V. (1 Serg. & R. 342) 213. 

216, 21N 

p. Com. (4 Serg. & R. 194) 492 

. Slate V, (6 Conn. 47; 9J)2 

c. State (1 Ohio S. 00, 71) 340. 

344, 353, 374 

«. State (5 Ohio, 242) 392 

r. Stale (15 Ohio, loo) 14, 907 

Sticker v. Slate (13 Ark. 397) 703 
Stickney c. Cassel (1 Gilra. 418) 103:3. 

1034 



, State ». (4 Zab. 9) 

Stiteon, People «. (4 Barb. 141) 
Stitt V. Breudel (66 Ills. 848) 
Stobie V. Dills (62 Ills. 488) 
Stock, Rex. V. (2 Taunt. 889) 
Stockdale*8 Case (2 Lewin 0. 0. 

220) 828 

Stockdale v. Hansard (9 Ad. & 

El. 1) 784 

Siockham, People v. (1 Park. 

Cr. R 424} 79, 878 

Stocking V. State (7 Ired. 826) 828 
Stockley, Reg. v, (2 Gale & D. 

728) 882 

Stoffer V. State (15 Ohio, 47) 179, 840 
Stokes V. People (68 Ills. 489) 116 

f>. State r24 Missis. 621) 847 

Stolberd «. Ohnmacht (50 Ills. 

442) 46 

Stoller, State v, (88 Iowa, 821) 471 
Stoltz 9. People (4 Scam. 168) 15, 

686, 689, 980 
Stone, Com. v. (4 Met. 48) 596 

— , Com. V. (105 Mass. 469) 817 

— V, Dana (5 Met. 98) 138, 144, 509 

— V. Great West. Oil Co. (41 
Ills. 80) 935 

u. People (2 Scam. 826) 14, 823, 

580, 774, 817, 831, 832, 833, 907, 912, 

913, 1000 
— , People V. (9 Wen. 182, 191) 589 
— . Reg. V. (22 Eng. L. & Eq. 
593) 692 

— , Rex. V. (4 Car. & P. 379) 245 

— V. State (4 Humph. 27) 89, 989, 

994 

— V. State (1 Spencer, 404) 803 
, State V. (Rice R. 187) 940 



Stoops V. Com. (7 Serg. & R. 491) 461 

— , Pennsylvania «. (Addis. 

381) 887 

Storkey, State v. (63 N. C. 7) 432 

Story, Rex. v. (Dyer R. 298, 30) 316 

V. Wallace (00 Ills. 51) 724, 730, 

733, 734 
Stoughtou V. State (22 Ohio N. 

S. 502) 504 

Stout V. Com. (11 Serg. & R. 177) 793 

" • • - ' -' 952 

11 
558 



c. Mc Adams (2 Scam. «;7) 
Stover 0, Mitcliell (45 Ills. 213) 
Stow, Com. V. (1 Mass. 54) 
Stoweli, U. S. D. (2 Curt. C. C. 

153) 
Su-ahu, Reg. v. (7 Cox C. C. 85) 



708 
852 



kx 



INDEX TO OASES OITED. 



938 

591 

436 

13 

433 



SSOTIOK 

Strange, Rex v, (8 Car. & F. 172) 803 
Stranger v, Searle (1 £sp. 14) 560 
Strat, State v. (1 Murphy, 124) 696 
Strailon, Rex tJ. (I Doug. 240) 847 

«. State (13 Ark. 688) 224 

, State V. (27 Iowa, 420) 663 

Straw, State v. (33 Me. 554) 738 

, State t^. (42 N. H. 398) 664 

Strawhen v. State (27 Missis. 432) 228 
Streek, Rex «. (2 Car. & P. 413) 932 
Streeter i>. Streeter (43 Ills. 165) 795 
Strieker, State v. (33 Iowa, 136) 279, 

80 
Strickfadden v. Zipprick (49 Ills. 

286) 1084 

Strickland, State v. (2 Nott & 

McC.) 181, 413 

Stringfellow v. State (26 Missis. 

157) 
Stroll, State v, (I Rich, 244) 
Stroner, Rex ©. (1 Car. & K. 650) 
Strong V, State (1 Blackf. 193) 
Stroud t). Com. (11 Serg. & R. 

177) 
Stuart t>. Com. (12 Serg. <& R. 

177) 461, 790 

V. Lovell (3 Stark. C. 93) 733 

Stubblelield, State v. (32 Mo. 503) 220 
Studstill v. State (7 Ga. 2) 847, 892, 

938 
Stukey, Rex v. (12 Mod. 493) 11, 683 
Stultz V. People (4 Scam. 108) 803 
Stumps V, Keliey (22 Ills. 140) 399, 

950, 952 
Sturges 9. Maitland (Anthon, 153) 12. 

399 
Sublett V. State (9 Texas, 53) 220 

Sudbury, Rex v. (12 Mod. 262) 738, 

816,817 
Suggs V. Anderson (12 Ga. 461) 191 
Suhen, State d. (32 Me. 539) 
Sullerant, State o. (ji Yerg. 281) 
SuUins, Rex v. (1 Moody, 129) 
Sulliviin, Com. v. (6 Grav, 477) 
V, City of Oneida (01 Ills. 

243) 22, 44. 277, 282, 778, 781 

, Com. V. (104 Moss. 552) 800 

V. Dollins. (13 111«. 85) 992, 1034 

V. People (15 Ills. 233) 277 

, People V. (3 Seld. 390) 342, 344, 

3-"»2 

, Reg. tJ. (C. & M. 209) 180, 374 

, State©. (Addis. 143) 4:^3 

V. State (5 Stew. & P. 175) 451. 

452 
Sulston v. Norto'n (3 Burr. 1235) <>50 
Sulzer r. Yott (57 Ills. 1<54) 993 

Summt-r, State v. (5 Strob.53) 196, 403 
Summers, Rex v. (3 Salk. 194) 495 



108 
10.S 
490 
432 



SXCTIOV 

Summons, Rex v. (1 Car. & K. 

167) 681 

V, State (5 Ohio, N. S. 325) 881, 

883, 884, 889, 897 
Sunderland, R. v. (1 Lewin C. 

C. 102) 569 

Supervisors of Pulton Co. t>. M. 

& W. R. Co. (21 Ills. 388) 897 

Sutherland, Com. v. (109 Mass. 

342) 855 

, State «. (30 Iowa, 570) 385 



Sutton, State v. (4 Gill, 495) 14, 800 
». State, (9 Ohio. 133) 574, 583 



Swafford v. Dovenor (1 Scam. 

165) 1034 

Swain c. Cawood (2 Scam. 505) 1033, 

1034 

V. People (4 Scam. 178) 46, 558, 

782, 783 
Swails, State v. (8 Ind. 524) 166, 389, 

752 
Swallow, Rex V. (2 Russ. C. & 
M. 10) 464 

, v. State (22 Ala. 20) 950 

Swan V. State (4 Humph. 136) 7 

Swatkins, liex v. (4 Car. A P. 548) 931 
Sweeden v. Slate (19 Ark. 205) 932, 

1010 
Sweeny, Com. a. (10 Serg. & R. 
173) 723 

c. People (28 Ills. 208) 16, 804 

Sweetapple v. Jessee (5 B. & 

Aid. 27) 452 

Sweetman, People v. (3 Park. Cr. 

R. 358) 691 

Swift V. Castle (28 Ills. 209) 1033 

c. Stevens (8 Conn. 431) 959 



Swink, Stat43 v, (2 Dov. & Bat. 

9) 940 

Sydserff c. Reg. (1 1 Q. B. 245) 601 
Sylvester, Com. v. (6 P. L. J. 2S3) 799 

Symonds, Com. v. (2 Mass. 163) 799, 

805, 807, 1000 

, People V. (22 Cal, 348) 909 

, State 0. (30 Me. 128) 774 



Tabart o. Tipper (1 Camp. 350) 723, 

729 
Tackett, State v. (1 Hawks, 210) 340, 

374 

V. State (3 Yerg. 392) 4S 

Taft. Rex r. (I Leacli, 172) 562 

Tai;g!iit, Re.x V. (1 Car. ik P. 201) 817 
Tailors, Etc., Rex v. (8 Mod. 11) 661 
Tanner o. Trustees (5 Hill N. Y. 

121) 218 

Tan net, Rex v. (Russ. & Rv. 351) 752 
Tappan c. Wilxm (7 Ohio," 190) 720 
T.irbox, Com. o. (1 Cash. 0()) 723, 729 
Tiirpley v. People (42 Ills. 340) 395 



INDEX TO OASES OITED. 



]xxi 



Baonovi SxcTXOir 

Tarr, Stete «. (28 Iowa, 897) 433, 435 Thayer, People v. (1 Park. Cr. 



Tate V, State (6 Blackf. 110) 481 

, State f). (6 Humph. 424) 790 

Tatman v, Strader (28 Ills. 498) 282 
Taverner, Rex v. (4 Car. & P. 

411,418, n. a) 569 

Taylor «. Best (14 Ores. & B. 487) 68 

V. Com. (20 Grat. 825) 482 

, Com. V. (105 Masa. 172) 692 

«. Cottrell (16 Ills, 94) 246, 246 

, People f>. (8 Denio, 96) 618, 

781, 844, 982, 999 
ff. Porter (4 Hill, 146) 22, 778 



-, Reg. V. (8 Car. & P. 620) 



888, 
450 
401 

727 
840 
855 



-, Reg. V. (9 Car. & P. 672) 
-, Reg. V, (2 Ld. Raym. 879) 
-. Rex V. (5 Burr, 27, 98) 
-, Rex V. (3 B. & C^es. 502) 
-, Rex V. (5 Dowl. & Ry. 422) 845, 

855 
', Rex V. (1 Show, 190) 691, 791 

- V. Skrine (2 Const. 8. C. 696) 704 

- V. State (22 Ala. 15) 196 
-, State V. (4 Brev. 248) 412, 758 

- V, State (4 Oa. 14) 780 

- V. StAte (6 Humph. 285) 797 
-, State V. (25 Iowa, 274) 500, 509, 

510 
-, State V. (45 Me. 822) 448 

-, State t>. (1 Tread. 107) 418 

- V. Sirong (8 Wen. 884) 62 
U. S. f>. (4 Cranch C. C. 

885 



R.595) " 964 

Thorn, lieg. f>. (C. & M. 206) 691 

Thomas o. Com. (2 Robinson, 795) 701 
, Com. V. (1 Va. Cases, 807) 488 
f>. Croswell (7 John. 264) 87, 724, 

738 
V. Dunway (80 Ills. 878) 480, 788 
fj.Towler (25 Ills. 284) 848 

— V. Newton (1 Moody & M. 
48, n. b) 486 
— , People V. (8 Hill, 169) 599, 991 

— ». People (18 Ills. 696) 48, 113 

— V. People (15 Ills. 413) 118 

— V. People (59 Ills. 160) 619 
— , Reg. V. (9 Car. & P. 741) 496 
— , Rex V. (7 Car. & P. 817) 386,840, 

844 
--, Rex «. (2 East P. C. 781) 588 

— V. State (27 Ga. 287) 907, 980 

— V. State (5 How. Missis. 20) 462 

— ». State (6 Mo. 457) 817 
— , Slate tj. (8 Rich. 295) 881, 1001 

V. Thomas (51 Ills. 162) 497 



888) 
Teal, People v, (1 Wheeler C. C. 

199, 201) 539, 540 

, Rex t>. (11 East, 807) 989 

Teft V. Ashbaugh (18 Ills. 602) 46,416, 

961, 962 

V. Com. (8 Leigh, 721) 46 

Temple, State v. (8 Fairf. 214) 797 

, State V. (88 Vt. 37) 797, 808 

Templeman, lieg. v. (Salk. 56) 932 
Ten Eyek v. Harris (47 Ills. 268) 952 
Tennery, State v. (9 Iowa, 436) 448 
Tennev, Com. v. (97 Mass. 60) 560 
Terre "Haute, A. & St. L. R. R. 

Co. fj. Vanatta (21 Ills. 188) 174 
Terrell v. Stale (9 Ga. 58) 999 

Terry v. Slate (13 Ind. 70) 643 

Thalihimer v. Brinckerhoff (3 

Cowen, 623) 240, 241 

Thallman, Reg. v. (1 Leigh & C. 

326) 208 

Tharp v. State (15 Ala. 749, 756) 579 
Thatcher t?. Goff (11 Lou. An. 94) 560 ' 
Thawley, State v. (4 Harrine. 562) 888 
■Tbaver v. People (2 Doug. Mich. ' 

4l'7) 773 



Thomasson «. State (22 Ga. 499) 88 
Thomp. V, Com. (Met. Kv. 18) 76, 79 
Thompkins, People v. (1 Park. 

Cr. R. 224) 596, 597 

Thompson, Com. v. (8 Dana, 801) 695 
V. Church (1 Root, 312) 89 

V. Com. (8 Grat. 687) 993 

V. Com. (4 Leigh, 652) 461, 774 
, Com. f>. (8 Liu. 284) 



118 
-, Com. V. (6 Mass. 184) 400 

— , Com. V. (108 Mjiss. 461) 882, 927 

— V. Emmet, (15 Ills. 415) 638 

— V. Fellows (I Fost. N. H. 425) 48 

— fj. Lee (21 Ills. 242) 848 
— , People V. (84 Cal. 671) 498 

— V. People (24 Ills. 65) 589, 788, 

909 

— V, People (3 Park. Cr. R 
208) 461 

— V. People (24 Ills. 65) 909 
Reg. «. (2 Crawf. A Dix. C. 

497 
461 
841 
828 



C. 491) 

—, Rex V. (2 East P. C. 515) 
— , Rex V. (1 Moody, 80) 
—, Rex 0.(1 Moody, 139) 
, R. V. (Moody & Ry. C. C. 



78) 



, Rex v. (2 Russ. on C. 110) 
V. Schurier (2 Gilm. 271) 
o. State (25 Ala. 41) 
, State V. (Ciieves, 31) 
V. State (17 Ga. 356) 
V. State (0 Humph. 138) 
, Stato V. (9 Iowa, 188) 



494 
492 

1033 
780 

1000 
801 
281 

:r) 1,352, 

353, 909 



Ixxii 



INDKX TO 0ASB8 OITED. 



SXOTIOV 



Thompson, Sute v. (19 Iowa 29b) 

658, 563, 570, 680, 952 



-, Btate «. (81 Iowa, 398) 
-, Btate «. (2 Strob. 12) 
V. White (64 Ills. 814) 



823 

799 

1084 

724 

938 



Thorley v. King (4 Taunt. 855) 
Thornton, Itex v, (Ry. & M. 27) 

, Slate V. (26 Iowa, 80) 868, 749, 

944 
Thorpe, U. S. v. (5 Cranch C. C. 89) 890 
Thorpie v, Balliet (25 Ills. 839) 42 
Thui-ston «. Blanchard (22 Pick. 

18, 20) 496 

Thurtell d. Beaumont (8 Moore, 

612) 998 

Tibbals v. State (5 Wis. 496) 682, 688, 

684 
Tibbs, Stale «. (1 Dana, 524) 413, 75b 
Tickler's Case (1 East P. C. 230) 366 
Tierman, Com. «. (4 Grat. 545) 226 
Tildon «. Johnson (6 Cush. 354) 1017 
Tilley, Stale v. (8 Ired. 424) 334, 335, 

340 344 
Tilton, Com. v. (8 Met. 232) * 636 

Tipper v. Com. (1 Met. Ky. 6) 999 
Tipsey, Stale v. (3 Dev. 485) 334 

Tisdaie, State v. (2 Dev. & Bat. 

149) 847 

Titford tJ. Kuott (2 John. C. 210) 560 
Titus, Com. tJ. (116 Mass. 42} 500 
Tobin, Com. ©. (108 Mass. 426) 705 
Toledo, Peoria & W. R. R. Co. 

D. Miller (55 Ills. 448) 1034 

V. Parker (49 Ills. 385) 935, 953 

T. W. & W. R. R. Co. ». Mc 

Laughlin (58 Ills. 389) 898 

V. Silz (53 Ills. 452) UU3 

ToUelt, Ryg. v. (C. & M. 112) 497 

Tom, State v. (2 Dev. 509) 663 

, Sute V, (2 Junes, N. C. 414) 388 

Tomlinsou,State v. (11 Iowa, 406) 4^i9 
Tompkins, People v. (9 John. 70) 679 
, People V. (1 Park. Cr. R. 

224) 503 

Tooel V. Com. (11 Leigh, 714) 912 



Swmov 
Town of Lewiston d. Proctor 

(27 Ills. 417) 805, 809, 810 

Town of Parish. People (27 1119.74) 46 
Town of Rutland v. Town of 

Dayton (60 Ills. 59} 959 

Town of Vinegar Hill o. Busson 

42 Ills. 45) 954 

Townsend, People «. (8 Hill, 479) 219 

©. People (3 Scam. 326) 558, 580, 

788, 799, 803, 817, 831, 838, 979 

V. State (2 Blackf. 151) 992 

, State V. (5 Harring. Del. 

487, 488) 66 

Tracy, Ex parte (25 Vt. 98) 885, 982 

f>. Perry (5 N. H. 504) 

, Reg. V. (6 Mod. 178) 



279 

417, 684. 

748 

V, Williams (4 Conn. 107) 44, 61 



Travers, U. 8. «. (2 Wheeler C. 

C. 508) 
Tray v. Wenzel (8 Cush. 815) 
V. Browning (4 Conn. 406) 



889 
1017 
436 
Trexler v. State (19 Ala. 21) 388 

Trickey v, Schlader (52 Ills. 78) 805, 

806, 308 
Trilloe, Rex v. (C. & M. 650) 329 

Trimmer, Com. o. (I Mass. 476) 463, 

492 

Trollop, Rex «. (J. Kel. 39) 492, 501 
Troy «. Riley (3 Scam. 259) 1038, 1035 
Truelock v. Stale (1 Clarke 

Iowa, 515) 897, 898, 99.> 

Truett t?. Griffin (61 Ills. 26) 1014 

Trustees o. Havens (11 Ills. 554) 307 
V. Lefler (23 Ills. 90) 1033 

V. McCormick (41 Ills. 828) 952 
, etc. V. Walsh (57 Ills. 363) 307 
Tubb, .Com. v. (1 Cnsh. 2, 3) 236 

V. Tukey (3 Cush. 438) 49, m 



Tubervillc c. Savage (1 Mod. 3, 

2 Keb. 545) 167 

Tuck, Com. V. (20 Pick. 356) 461, 
802, 805, 807, 833, 999, 1000 



Tucker, Cora. v. (8 Mass. 286) 773 

-, Com. V. (110 Mass. 403) 449 

Tooke's Case (25 How. St. T. 446) 187 , Rex v. (Comb. 2.')7) 315 

Toole, Rex t^. (29 Conn. 342) 452, , liex. v. (Ry. ifc M. 134) 712 

Tooley, Reg. t>. (11 Mod. 24i) 341, 353,! , State v. (20 Iowa, 508) 306 

374 Tuckermsm, Com. «. (ID Gray, 

Torry v. People (17 Ills. 105) 46, 155,1 173, 197) 480 

779, 781|Tuen, State v. (6 Blackf. 344) 703 

Tower v. Bradley (66 Ills. 189) 10331 v. Wink (6 Blackf. 249) 139 

Town, Sute v. (Wright, 75) 334 Tug Boat v. Waldron (62 Ills. 

Town V. Town of Blackberry (29 j 221) 1033 

Ills. 138) 308, 309;Tullei\ State v. (34 Conn. 280) 46 

Town of Havana v. Biggs (58 jTully v. Com. (4 Mel. 357) 461 

Ills. 483) 304, 306, 309l , State v. (18 Iowa, 88) 626 

acks<mville c. Block Turell, People o. (1 Wheeler. C. 

510 



Town of Jacks<mvillc v. Block 
(36 Ills. 507) 



16 



Turell, People v. (1 Wheeler, C. 
C. 34) 



INDEX TO CASES CITED. 



ixxiii 



8SCTT01I 

Turk 9. Stote (7 Ohio pt 2, 240) 847 
Tamer, Com. v. (3 Met. 19, 26) 421 

, R t. (1 Leach, bS6) 548 

, Rex Ik (13 East, 238) 661 

, Rex V, (1 Moody, 239) 448, 943 

, Rex V. (1 Sid. 171) 817 

V, State (40 Ala. 21) 13, 843 

, State r. (19 Iowa, 144) 881, 510, 

988 

, Stote V. (Wright, 20) 10, 838, 384 

Tdtdb v. Com. (6 Met. 224, 235) 508, 

847, 1014 



Turpin o. Stote (4 Blackf. 72) 



79, 
788 
753 
574 
964 
691 



Turvey, Reg. v. (Holt 365) 
TuU, State v. (2 Bailey, 441) 
Tattle, Co». «. (12 Cash. 502) 

V. People (36 N. Y. 431) 

V. Wilson (24 Ills. 559) 44, 46 

Tweedy v. Stote (5 Iowa, 433) 5, 10, 

351, 352, 353, 964 

V, Tweedy (11 Iowa, 350) 991 

Twitchell v. Com. (7 Wal. 321) 776 
Twogood, Stote v. (7 Iowa, 252) 198, 

805 
Twombly, Com v. (10 Pick. 480) 912 
Twyning, Rex. v. (2 B. & Aid. 386) 632 
Tyler, Reg.u. (8 Car. & P. 616) 832 

c. People (Breese, 227, 2d 

£d. 293) 

V. State (2 Humph. 37) 

V, Western Union Tele- 
graph Ck). (60 Ills. 421) 
T>Ta V. Com. (2 Met. Ky. 1) 
TjTe, Rex t. (Russ. & Ry. 345) 
Lhl V. Com. (6 Grat. 706) 
Underwood v, Hossack (40 Ills. 
98) 1035 

V. Riley (19 Wis. 412) 238, 239 

, Stale t. (2 Ala. 744) 14 

, Stote V. (6 Ired. 96) 990 

V. White (45 Ills. 437) 952 

Upham, Stote «. (38 Me. 261) 89 

Upton^ Rex v. (2 Strange, 816) 753 
V. State (5 Iowa, 465) 



500 
589 

952 
902 
328 

8 



Sbotiov 

Van Butchell, Rex v. (7 Car. & 

P. 187) 888 

Vance 9. Fank (2 Scam. 263) 139 
, State V. (17 Iowa, 138) 387, 852, 

858. 854 

Vancel u. People (16 Ills. 120) 108, 

826 
Vanderbilt, State v. (3 Dutcher, 

828) 605 

Vandercomb, Rex 9. (2 East P. 
C. 514) 461, 855 

— , Rex V. (2 Leach, 4th £d. 
708, 712) 852 

Vandermark v. People (47 Ills. 
122) 177,328, 838, 334, 851, 388,891, 

788 

Vandervoort «. Smith (2 Cai. 156) 998 
Yanderwerkcr v. People (5 Won. 

530) 46 
Vanderworker «* State (18 Ark. 

700) 216, 636 

Vandruff v. Craigg (14 Ills. 394) 1018, 

1038,1034 
Van Dusen v, Pomeroy (24 Ills. 

289) 1038 

Van Duzer v. Howe (21 N. Y. 

531) 663 
Van Hart, Stote v. (2 Harrison, 327) 
Vanhook «. State (12 Texas, 252) '378 
Van Horn v. Burroughs (62111s. 

888) 954, 959 

, People V. (8 Barb. 159) 103, 847 

Vanloan, Stote v. (8 Ind. 182) 195 
Van Meter v. People (60 Ills. 168)368, 
738, 744, 749, 779, 890, 897, 898 
Van Pelt v. Dunford (58 Ills. 

145) 1033, 1^034 

Van Steinberg v. Kortz (10 John. 

167) 696 

Vantandillo, Rex v, (4 M. & S. 

73) 301 

Van Wyck v. AspinWall (17 N. 

Y. 191) 

p. Mcintosh (14 N. Y. 439) 




Valfance v. Everts \3 Barb. 553) 27b, 

Vallandingham v. Fellows (1 jVase v. Deane (7 Mass. 280) 

Scam. 233) 1034:Va53, Com. v. (3 Leigh, 786) 

Vananker v. Beemer (1 Southard, | Vattier-c. Stote (4 Blackf. 73) 

364) 914 Vaughan's Cnse (4 Burr, 2494) 
Van Blaricum v. People (16 Ills. ! (Holt, 689) 

364) 452, 461 Vaughn, Reg. c. (8 Car. & P. 276) 507 

, People D. (2 John. 105) 910, , Hex v. (2 Salk. 634) 315, 317 

Van Buskirk v. Day (32 Ills. 26) 991 c. Scade (30 Mo. 600) 901 

Van Butchell, Rex u. (3 Car. & , State c. (Harper, 313) 48 

P. 629) 327, 400 v. Stote (5 Iowa, 269) 805 



734 
560 
933 

340 
578 
80, 
723, 731, 809 
115 
886 
847 
650 
930 



lixir 



INDEX TO CASES CITED. 



Sbctiok 
Vaughn, State v. (29 Iowa, 286) 14 

V. State (8 Srn. & M. 553) 752 

Vawter, State tJ. (7 Blackf. 922) 881 
Veazie's Case (7 Greenl. 181) 508 
Venum v. Harwood (1 Gilm. 659) 909, 

916 
Verelist, Rex v. (3 Campb. 432) 692 
Vermilyea, Bx parte (6 Cowen, 
555) 890, 009 

, People V. (7 Cowen, 869) 891, 

892, 894, 897, 998 
Vt. Cent. R. R., State t^. (1 Wil- 

liams, 103) 791 

Vemon «. Hankey (2 T. R. 113) 993 
Vezain t>. People (40 Ills. 397) 813, 
883, 931, 1000, 1015, 1033 
Vice, People v. (21 Cal. 344) 543, 544 
Vickere «. Hill (1 Scam. 307) 891, 898 
Vigol, U. 8. V. (2 Dall. 246) 317 

ViUatto, U. S. V. (2 Dall. 870) 316 
Vincent «. People (25 Ills. 500) 113, 

115 
501 
824 



.Reg. ©. (2 Den. C. C. 464) 

, State V, (24 Iowa, 570) 

Vinegar, People c. (2 Park. Cr. 

R24) 
Vinton v. Weaver (41 Me. 430) 
Vise i>. Hamilton (19 Ills. 78) 



391 

59 
828, 
829 



Von Kettler v, Johnson (57 Ills. 

109) 46, 309 

Voshall, State v. (4 Ind. 589) 46 

Waddams v. Humphrey (22 Ills. 

661) 76 

Wad(f ington, Rex v. (2 East P. 

C. 513) 461 

Wade, Com. v. (17 Pick. 395) 448, 454. 

916 

, Rex V. (1 Moody, 86) 

V. Halliean (16 Ills. 511) 

Waggoner «. Richmond (Wright, 

Wagstaff, Rex c. (Russ. & Ry. 

398) 
Wuiie, Com. v. (5 Mass. 261) 
, Rex V. (1 Wil 3. 22) 



SiCTTOV 

Walker t. Winn (8 Mass. 248) 724 

, State V, (2 Murphy 229) 797 

Wall V. Goodenough (16 Ills. 415) 95!^, 

959 
Wallace v. Com. (2 Va. Cas. 130) <i84 

, People V. (9 Cal. 30) 823, 999 

c. People (27 Ills. 45) 



- c. People (63 Ills. 451) 

-, State V. (9 N". H. 615) 

V. Wren (82 Ills. 146) 



558 
492 
626 
952 



Wallahan v. People (40 Ills. 103) 1020, 

1036 
Wallis, Reg. v. (3 Cox C. C. 67) 494 
, Rex V. (1 Moody C. C. 344) 452 



Walls, Reg. v. (2 Car. & K. 214) 549, 

550 
Walsh's Case (2 Wallace Jr. 143) 909 
Walsh V, People (65 Ills. 58) 2, 510 

V. Rav (38 Ills. 30) 861, 867 

, Rex V. (1 Moody C. C. 14) 493, 

494 
WalPton V. Com, (16 B. Monr. 

15) 999 

Walters v. State (5 Iowa, 507) 282,801 
Walton, Com. v. (11 Allen, 238) 492 
V. State (14 Texas, 381) 227 

932, 
938 



Wamire, State v. (16 Ind. 357) 



Warburton, Rex v. (Law Rep. 

1 C. C. 274, 276) 661 

Ward, Com. ij. (1 Mass. 473) 661 

, Com. V. (2 Mass. 397) 558 

c. People (3 Hill, 395) 1, 501, 854 

r. People (13 Ills. 6^5) 277 

, Rex V. (2 Ld. Raym. 1461) 564 

, Rex V. (Russ. & Ky. 245) 569 

V. Stale (28 Ala. 53) 189 

V. State (8 Blackf. 101) 323, 889, 

994 

V. State (1 Humph. 253) 

V. Stout (32 Ills. 399) 

3931 Warden, Com r. (2 Met. 406) 
I , Com. t. (11 Mel. 406) 

711 T. State (18 Ga. 264) 



15 
891 



912 
844 
693 
691 
626 
912 



Wakling, Rex v. (Russ. «& Ry. 

504) 
Waldcn, Com. v. (3 Cush. 561) 

f>. Holman (6 Mod. 115) 

Walker v. Collier (37 Ills. 362} 



993lWardle, Reg. v. (C. & M. 647) 
720 Ware v. Notiinger (35 Ills. 375) 901, 

902 
699 Warmau, Reg. ©. (1 Den. C. C. 
532 183) 328 

848 Warner v. Carlton (22 Ills. 422) 



— V. Com. (1 Leigh, 574) 
— , Com. V. (108 Mass. 309) 

— V. Kearney (2 Stra. 1148) 
— , Reg. V. (25 Eng. L. & Eq. 
689) 

— , Reg. V. (2 M. & Rob 212) 

— V. State (28 Ga. 2.54) 



905, 
991 

51 
598 

43 



c. Com. (1 Barr, 154) 
I* Com. ^2 Va. Cas. 95) 
V. Manski (17 Ills. 28.")) 



1033 

492 

631 

1034 

lVoi)le c. (5 Weu. 271) 691, 693, 

694 
State f . (25 Iowa, 202) 390 

621 Warren o. President, etc., of the 
4361 Town of Jacksonville (12 Ills. 
510 236) 809 



INDEX TO CASES CITED. 



Ixxr 



SZOTION 

Warren, Com. v. (6 Mass. 72) 591 

, Com. V. (11 Met. 400) 601 

, People©. (4 Barb. 314) 618 

9. State (18 Ark. 195) 326, 835 

V. State (19 Ark. 214) 982 

V. State (1 Greene Iowa, 

106) 492, 510, 921, 998 

9. Town of Jacksonville 

(15 Ills. 240) 306 

9. Warren (1 M. & R. 250) 780 

Wasdeni). State (18 Ga. 264) 964 

Wa»h. 9. State (14 Sm. & M. 120) 803 
Washburn «. People (10 Mich. 

872) - 835 

Wabhburne 9. Cook (8 Denio, 

112)* 738, 734 

, State t>. (11 Iowa, 245) 580 

Waabington, State 9, (1 Bay, 120) 564 

9. 8tat€ (17 Ills. 147) 919 

, Slate 9. (19 Texas, 128) 195 

Waterman v. Caton (55 Ills. 94) 1033 

r. Tuttlo (18 Ills. 293) 846 

Waters, SUte 9. (3 Const 669) 558 
Watery 9. Fcber (18 Wis. 500) 190 
Watkins, People «. (19 Ills. 117) 108, 

113, 114, 115 

. R 9. (C. & M. 264) 461 

, Stat« 9. (27 Iowa, 415) 323 

, U. S. «. (3 Cranch C. C. 441)857 

Watrous 9, Steel (4 Vt. 629) 180 

Watson 9. Cresap (1 B. Monr. 195) 560 

208 
732 
729 
510 



BSOTIOK 

Weaver, State v. (13 Ired. 491) 558 
Web 9. Baird (6 Ind. 13, 18) 829 

, Rex 9. (2 C. & E. 988) 20^ 



Webb, Keg. 9. (I Den. C. C. 888) 207 



- 9. Reissig (24 Ills. 28) 
-, R. 9. (2 Cox. C. C. 876) 
-, Rex 9, (1 Campb. 216) 
-, Rex 9. (2 T. R. 201) 
-, Rex 9, (2 Stark. R. 137) 
-, State 9. (3 R. I. 114) 588, 539 
-, 9, Woolverlon (41 Ills. 242) 991 
Watters 9, Brown (3 Marsh, 559) 188 
~ ~ 999 

706 
307 
826 



Watts, Com. t>. (4 Leigh, 672) 

, Rex 9. (1 B. & Adol. 106) 

Waugh 9. Leech (28 Ills. 491) 

9. People (17 Ills. 560) 

Wan-kon-chaw-neek-kaw v. U. 

8. (Morris Iowa, 832) 
Wavel, Rex 9. (1 Moody, 224) 
Wear 9. J. & S. R. R. C-o. (24 Ills. 

593) 
Wcatherby, State 9. (43 Me. 258) 
Weatherford 9, People (67 Ills. 

520) 
9. Wilson (2 Scam. 253) 



811 
591 

844 
633 



Weatherstone 9. Hawkins (1 T. 

RllO) 
Weaver 9. Bush (8 T. R. 78) 

9. Com. (20 Penn. S. 455) 

9. Loyd (1 Chitty R. 480) 

«. Ward (Hob. 134) 



755 
1033, 
1034 

734 
180 
1002 
724 
175 



9. Smith (4 Binsr. 873) 
, State 9, (26 Iowa, 262) 
, Com. 9. (6 Rand. 726) 
,R.tj. (2 LewinC. C. 196) 

Rex 9. (1 M. & Rob. 405) 
Webber v. Brown (38 Ills. 87) 

«. Tres. (1 Tyler 441) 



Weber, State 9. (22 Mo. 824) 
W'ebsler, Com. 9. (5 Cush. 296) 



656 
-598 
801 
400 
825 
952 
993 
923 
824. 



827,880,845 

- 9. Enfield (5 Gilm. 298) 1088 

- 9. Ftople (14 Ills. 867) 277 
-, Reg. 9. (Leigh & C. 77) 498 

- 0. State (8 Blackf. 400) 226 
-, State 9. (18 N. H. 491) • 909 

9. Vickers (2 Scam. 295) 992 



Weeks 9. Louerrie (8 Barb. 530) 989 
, State 9. (30 Me. 182) 809 

9. State (31 Missis. 490) 891 



Wegener, Rex v. (2 Stark. 245) 730 
Weighorst 9. State (7 Md. 442) 1020 
Weinberg 9, State (25 Wis. 870) 681 
Weinzorplin r. State (7 Bl%ckf. 

186) 800, 808, asi, 992 

Weld, Com.©. (Thatcher C. C. 

157) 
Welden f . Francis (12 Ills. 460) 
Welker, State 9. (14 Mo. 898) 
Wellman. State «. (8 Ohio, 14) 
Wells 9. Hicks (27 Ills. 345) 
9. Jackson (3 Munf. 458) 
9. Mason (4 Scam. 89) 



504 
992 
84 
108 
808 
48,49 

, 309 

Wellings, Rex 9. (1 Car. & P. 454) 479 
Welsh 9. People (17 Ills. 339) 48, 495, 

496, 497, 504, 934, 990 

9. Scott (5 Ired. 72) 48 

9. Savery (4 Iowa, 241) 867, 898 

, State 9. (7 Port. 463) 940 

9. Sykes (3 Gilm. 199) 683 



Wentworth 9. People (4 Scam. 
554) 181, 707 

, State 9. (37 N. H. 196) 46 

Wentz. Com. 9. (1 Ashm. 269) 626 
Wesley «. State (11 Humph. 512) 924 
West, Reg. 9. (2 Car. & K. 784) 325, 

326 329 

, State V. (6 Jones N. C. 505) ' 336 

9. Slate (1 Wis. 209) 10, 8ii 



v. State (2 Zab. 212) 



Westbeer. Rex 9. (2 Stra. 1133) 
Weslby, Rex 9. (10 East, 85) 
Weston, State 9. (9 Conn. 527) 



564 
531 
848 
500, 
509 



Wcyhrich 9. Foster (48 Ills. 115) 952, 

1084 



Izxri 



INDEX TO OASES CITED. 



Sxcnov 
Weymouth, Com. v. (2 Allen, 

144) 1020 

Whaley, Com. «. (5 Bush, Ky. 

266) 6dO 

Wheatland, Reg. v, (8 Car. & P. 

288) ' 691,699 

Wheatley, Rex «. (3 East P. C. 

819) 591 

Wheeler «. Wheeler (7 Mass. 169) 119 

f>. People (89 Ills. 430) 114, 117 

V. Shields (2 Scam. 50) 1088 

V. State (14 Ind. 578) 988 

Whigham, People «. (1 Wheeler 

C. C. 115) 681 

Whilehurst v, Colem (58 Ills. 247) 22 
Whiley, Rex v. (2 Leach, 988) 579 

, Kex €. (Russ. & Ry. 90) 562 

Whipple, People f>, (9 Cowen, 

707) 944 

Whit., State v. (4 Jones N. C. 849) 462 
Wlutcomb, Com. d. (107 Mass. 

486) 594 

o. Oilman (35 Vt. 297) 203 

While, Com. d. (8 Pick. 453) 692, 702 

«. Delevan (17 Wen. 49) 724 

V. Edmunds (Peake, 89) 59 

V. Res» (8 Paige, 544) 892 

V. Martin (2 Scam. 69) 974, 986 

V. Moses (11 Cal. 68) 909 

V. Nichols (3 How. S. C. R 

286) 733, 734 

V. People (82 N. Y. 365) 392, 817 

, People V. (14 Wen. Ill) 89, 981, 

989 

, People €. (22 Wen. 167) 809 

, Reg. V. g Car. & K. 404) 56:"i 

, Rexc. (Cald. 188) 705 

, Rex V. (I Leach, 262) 461, 466 

«. State (17 Ark. 404) 993 

, State V. (32 Iowa, 17) 847 

, State «. (7 Ired. 180) 724 

D. State (1 8m. & M. 149) 696 

V. Slate (11 Texas, 769) 504 

V. State (13 Texas, 133) 680 

, State «. (17 Texas, 242) 773, 993 

V. Stiite (20 Wis. 246) 471 

, U. S. «. (5 Cranch C. C. 73) 857, 

943 

, U. S. V. (5 Crancli C. C. 457) 773 

Whitehead, Com. v. (2 Boat. L. 

Rep. 148) 753 

, Rex V, (1 Salk. 371) 78S 

, SUte tj. (3 Murjihv, 2:23) 1012 

Whitehurete. Davis (2 Hayw. 113) 9J>y 
Whitepolis' Case (3 C^oke C. 147) 847 
Whitesides v. People (Breese, 4, 

2d Ed. 21) 46, 205, 739, 777,781, 792, 

817, 833 
Whiting V. Fuller, (22 Ills. a3) 1018 



Sbctiov 

Whiting f>. Smitli (13 Pick. 804) 728 
Whitman c. Spencer (2 R. 1. 124) 661 
Whitney v. Allen, (62 Ills. 472) 784, 

735 

, Com. «. (Thatcher C. C. 588) 564 

Whitted, State v. (8 Ala. 102) 806 
Whittingham, Rex e. (2 Leach, 

912) 508 

Wickersham «. People (1 Scam. 

128) . ^ 682, 684, 916, 993 

Wickham v. Conklin (8 John. 

220) 240 

V. State (7 Cold. 525) 780 

Wickwire v. State (19 Conn. 477) 882 
Wight o. Eirkpatrick (^ Scam. 

840) 874, 895 

— ». Wheeler (55 Ills, 528) 1084 
Wilberger, U. 6. v, (8 Wash. C. 

C. 515) 840, 354, 355 

Wilborn v. Odell (29 Ills. 456) 990 
Wilboume o. Blackstone (41 
Ills. 265) 892 

tj. Wilburn (25 Texas, 738) 780 

Wilcox V, Kenzie (8 Scam. 218) 952 
Wilcoxen v. -Roby (3 Gilm. 475) 986 
Wilde, Com. v. (5 Gray, 83) 496, 588, 

855 
Wilder v. Greenlee (49 Ills. 258) 993 
Wild»s Case (2 Lewin, 214) 180, 355, 

374 
Wiley, People v. (3 Hill, 194) 507, 538, 

539, 541 

— «. Platter (17 Ills. 588) 891 
— , Rex c. (1 Lead. C. Cases, 
189) 569 
— , People V, (2 Park. Cr. R. 
19) 702 

— V. Suite (1 Swan. Tenn. 256) 923, 

924 

— V. Town of Brimfield (59 
Ills. 307) 312 

Wilford, Rex v. (Russ. & Ry. 517) 4(m 
Wilgus, Com. V. (4 Pick. 178) 592 



Wilkius, State ij. (17 Vt. 151} 
Wilkinson, R. v. (1 Hale P. C. 
508) 

V, State (10 Ind. 872) 



845 

493 
564 

341 
753 

569 

Willberger, U. S. v. (5 Wheat. 

76,97) 316 

Willburn, State v. (25 Texas, 738) 780 
Williams, Case (I Sulk. 883) 216 

Williams v. Bacon (10 Wen. 636) 60 

0. Baldwin (!> John. 48U) Q93 

V. Carnes (4 Humph. 9) 724 



Will, State v. (1 Dev. & Bat. 121, 

169) 
Willard, Com. v. (22 Pick. 496) 
, Rex V. (Rusd. & Uy. C. C. 



245) 



Iin>£Z TO CASES CITED. 



Ixxvii 



SsonoH 
Wmiazns, Com. i>. (2 Ashm. 69) 993 

, Com. f>. (2 Cush. 582) 461, 467 

V, Ctom. (2 Grat. 567) 14 

, ConL 0. (105 Mass. 63) 560 

, Ck)m. 0. (110 Mass. 402) 582 

, Com. V. (Thatch. C. C. 722) 805 

«. East Ind. Co. (3 East P. 

C. 192) 201 
V.Jones (Cas. Temp. Hardw. 

298, 801) 57 

«. Ogle (2 Stra. 889) 729 

, People t). (6 Cal. 206) 909 

, People V. (18 Cal. 187) 989 

, People V. (4 Hill, 9) 592 

«. People (44 Ills. 478) 507,974, 

981 986 

1>. People (54 lUs. 424) 190,'850, 

851, 1000, 1014, 1015 



Williams, Btate v, (2 Tenn. 168) 

, State V. (27 Vt. 724) 

, State «. (1 Vroom, 102) 

f>. Troop (17 Wis. 463) 

, U. S. V. (2 Cranch, 82a) 

i U. 8. V. (1 Dillon, 485) 



Bscnoir 
301 
569 
636 
281 
816 
851 



V. Vanderbilt (29 Barb. 491) 992 



V, Vnux (4 T. R 44) 
Williamson, Kcz o. (3 Car. & P. 
686) 827, 

— V. Sammons (84 Ala. 691) 

9. State (16 Ala. 431) 



-, People «. (19 Wen. 877) 
-, R. V. (0. ^ M. 259) 
-, Keg. «. (2 Car. & E. 51) 
-, Reg. «. (8 Car. & P. 286) 



79 
581 
588 
173, 
484 
747 



-, Reg. ». (1 Den. C. C. 89) 

-, Reg. V, (10 Mod. 68) 8, 216, 801 

-, Rex V. (1 Car. & £. 195) 495, 

503 
-, Rex «. (2 Campb. 646) ^412, 571, 

780 
-, Rex V. (2 Camp. 506) 414 

-, Rex V, (6 Car. & P. 626) 278 
-, Rex «. (7 Car. & P. 354) 599 
-, Rex V. (2 Show, 471) 734 

- 9. Smith (22 Wis. 594) 807 

- «. State (2 Carter Ind. 439) 642, 

793 
-, State «. (3 Foster N. H. 821) 888, 

791, 817 
- «. State (12 Ga. 444) 909 

- «. State (8 Humph. 586) 328, 790 
-, State «. (8 Ind. 234) 84 

-, State V. (12 Ind. 172) 
«. State (27 Iowa, 402) 



-, State «. (8 Iowa, 533) 
-, State V. (20 Iowa, 98) 



-, State «. (9 Ired. 140) 
-, State V. (2 Jones N. C. 194) 
- 1>. State (3 Kelley, 453) 
-, State V. (2 McCord, 301) 
-, State V. (30 Me. 484) 

- 9. State (9 Mo. 270) 
-, State t. (19 Mo. ^9) 

- V. State (14 Ohio, 222) 4 
-, State «. (5 Port. 180) 
-, State V. (3 Stewart, 454) 
- «. State (12 Sm. & M. 58) 229, 748 

- V. State (3 Sneed, 313) 224 
•, Stale «. (2 Strob. 229) 588 



16 

817 
580 
680,681, 
810 
510 
509 
914 
799 
907 
813 
500 
752 
847 
909 



Willis' Case (15 Howell St. Tr. 

613) 
Willis 9. Forrest (2 Duer, 810) 



14 

400 
240 

217 

907 

179, 

188 

-, State V. (11 Humph. 222) 848 

- f>. People (1 Scam. 399) 46, 492, 
544, 564, 781. 783, 897 

-, Rex V. (1 Moody C . C. 375) 497 

- f>. State (12 Ga. 444) 909 
Wills V. People (3 Park. Cr. R. 

473) 589, 540 

— V. State (4 Blackf. 457) 492 

,SUAe 9. (11 Humph. 222) 848 



Wilshaw, Reg. 9. (C & M. 145) 88? 
Wilson «. McDowell (65 Ills. 
522) 1038, 1084 

— c. Myrick (24 Ills. 33) 844 

— 9. Nations (5 Yerg. 211) 695 

— 9. Nevers (20 Pick. 20) 848 

— 9. Noonan (28 Wis. 105) 780 

— 9. Noonan (27 Wis. 599) 722 

— 9. People (26 Ills. 434) 992, 993 
— , People ©. (8 Park. 199) 824, 892, 

897 
— , Reg. 9. (2 Car. & K. 527) 563, 

567 

— 9. State (81 Ala. 391) 923 
— , State 9. (Coxo, 489) 463, 469, 498 
— , State 0. (30 Conn. 500) 751, 752 
— , State 9. (7 Ind. 516) 388 
— , State t>. (S loM^a, 408) 331, 907, 

938,950 
-, State 9. (22 Iowa, 864) 627. 681 

" " 589,591 

803 

492 

950, 991 

573 

548, 908, 



-, State 9, (2 Mill, 135) 

- 9. State (20 Ohio, 26) 
-fj. State (1 Porter, 118) 
-, State tj. (2 Scam. 225) 

- V. State (1 Wis. 184) 

-, U. S. 9. (1 Baldw. 78) 



909 
tJ. Van Winkle (2 Gilm. 684) 857 
Wiltburger, U. 8. 9. (3 Wash. C. 

C. 515) 177, 374 

Wimberley, State 9. (3 McCord, 

190) 328 

Winchell, People 9. (7 Cowen, 
525) 982 



IzzTiii 



INDBX TO CASES OITED. 



SSOTIOXl 

Windett v. Hamilton (52 Ills. 180) 832 
Wine tj. Hammon (37 Ills. 99) 962 
Winehart «. State (6 Porter, 80) 11 
Winemiller i;. State (11 Ind. 516) 686 
Winfield d. State (3 Greene Iowa, 

889) 46. 169, 191, 894, 895, 782 

Wing, State v. (82 Me. 581) 998 

Wingard 9. State (18 Ga. 896) 226 
Winkworth, Rex v. (4 Car. & P. 

444) 589, 540 

Winneshcik Ins. Co. «, Schnel- 

ler (60 Ills. 466) 911, 918. 917 

Winsfraiid, State t). (37 Iowa, 110) 210. 

277 885 847 
Winship v. People (51 Ills. 296) 'si:], 
881, 833, 834, 999, 1000, 1015, 1033 
Winslow V. Anderson (4 Mass. 

876) 22, 104 

V. Newlan (45 Ills. 150) 935, 951, 

1034 
Winstone v. Linn (1 B. & C. 469) 176 
Winstrand, State v. (37 Iowa, 110) 
Winters, People v. (29 Cal. 6.')8) 467 

; People V. (3 Park. Cr. R. 10) 176 

Wisdom, Suite v, (8 Porl. 511) 501 
Wise V. State (24 Ga. 31) 999 

Wish c. State (14 Sm. & M. 120) 805 
Wishon, State tJ. (15 Mo. 503) 833 

Witchell, R. «. (2 East P. C. 830) 594, 

597 
Withal, Rex v. (2 East P. C. 615) 469 
Witheron, State v. (3 Murphy, 

153) 691 

Witt V. State (9 Mo. 663) 504 

Wolcott, Com. V. (10 Cush. 61, 68) 681, 

697 

, Com. V. (110 Mass. 67) 807 

Wolf V. Boettcher (64 Ills. 817) 59 

, Stale V. (15 Mo. 168) oIq 

Wolverton «. Ohio (16 Ohio, 176) 631 

, State «. (8 Blackf. 452) 697, 701 

Wonson v. Say ward (13 Pick. 

402) 492 
Wood, Com. V. (97 Mass. 225) 210, 216 
«. Commissioners of High- 
ways (62 Ills. 891) 808 

V. Folmer (l Pin. Wis. 509) 

V. Mains (1 Greene Iowa, 

275)" 959 

-, People «. (8 City Hall Rec. 



139) - ' - 413 

— V. People (16 Ills. 171) 825 
— , Rex V. (2 RiiSB. on C. 632) 592 
— , State V. (1 Bay, 351) 169, 191 
— , State ». (17 Iowa, 18) 700, 1016 
— , State V. (1 Mills, 9) 993 

— f). Tucker (66 Ills. 276) 1034 
— , U. 8. V. (14 Pet. 480) 699 
— ', U. 6. V, (8 Wash. C. C. 440) 548 



Ssonoir 

Woodard*8 Case (2 East P. C. 658)500 
Woodard, State e. (26 Iowa, 541) 663, 

564, 565, 567 
, State «. (21 Mo. 266) 808, 883 



Woodcock, Rex «. (I Leach, 4th 

Ed. 561) 881 
, Rex V. (2 Leach Cr. Cas. 

267) 885, 886 

Wooden «. Shotwell (4 Zab. 789) 619 
Woodfairs Case (1 Hawks P. C. 

C. 73, § 10, note) 730 

Woodford v. McClenahan (4 

Gilm. 89) 560 

Wood in V. People (1 Park. C. R. 

464) 4S4, 485, 959 

Woodley, State v. (25 Ga. 235) 492 
Woodman v. Howell (46 Ills. 367) 180 

797 



-, State V. (3 Hawks, 384) 



Woodner, Rex v. ( 1 Moody 884) 56 
Woodruffs. Woodruff (22 Ga. 237) 167 
Woodsides v. State (2 How. 

Missis. 655) 328, 884 

Woodward, Com. «. (102 Mass. 

155) 323, 850, 710 



., Reg. «. (llMod. 137) 



Woody, State v. (2 Jones N. C. 

335) . 
Wooley*. Fry (30 Ills. 158) 
, lleg. «. (1 Eug. L. & Eq. 

537) 

«. State (11 Humph. 172) 



Woolf, Itex V. (18 Engl. Cr. L. 
117) 
, State tJ. (15 Mo. 168) 



712 

195 
1033 

592 

810 

923 
510 



809 

723 
949 
901 
891 
571, 



Woolford, Rex «. (I Moody & R. 

884) 
Woolworth V. Meadows (5 East, 

463, 469) 
Wooters v. King (54 Ills. 348) 
Work V. State (2 Ohio, 296) 
Wormley v. Com. (10 Grat. 658) 
Worrall, U. 8. v. (2 Dall. 384) 

658, 710, 782, 753 
Worth, State v. (R. M. Charl. 5) 217, 

687 
WorUiing, State v. (31 Me. 62) 76, 79 
Wright V. Clements (3 Barn. <& 

Aid. 598) 723 

— , Com. tJ. (I CJush. 46) 723 

— tj. Court (6 D. & Ry. 623) 68 

— V. Lindsley (20 Ala. 428) 602, 504 

— tj. Meek (3 Greene, 472) 242 

— V, People (Breese, 66, 2d Ed. 
102) 691 

— V. People (15 Ills. 417) 817, 999 

— V. People (59 Ills. 94) 883 

— V. People (61 Ills. 382) 475, 479 
— , People c. (9 Wen. 193) 801, 808, 

805, 807, 1000 



INDEX TO CA8E8 CITED. 



Ixxix 



SscnoN 
Wright, Rex v. (Car. Cr. L. 279) 504 

, Rex «. (9 Car. & P. 754) 829, 

898,504 
784 



BXCTIOX 

Yeaton, State v. (58 Me. 125) 225 

Yend, Rex v. (6 Car. & P. 176) 508, 

510 
Yoe V. People (49 Ills. 410) 480, 746, 



-,Rex«. (8T. R.293) 

- «. State (18 Ga. 888) 891, 895| " ' 749, 816, 941, 942, 947 

- 1). State (1 Humph. 194) 799. Yoes v. State (4 Engl. 42) 166, 168, 190 

- V, State (4 Humph. 194) 484,488, York v. Com. (9 Met. 108) 10, 885, 836 

800! , State v. (87 N. H. 175) 939 

State (5 Ind. (290) 15'-^ — . State ». (5 Harring. Del. 498)504 



, State V. tl9 Iowa, 94) 831, 867jYoung v. Buckingham (5 Ohio, 
c. State (9 Yerg. 842) 891' 485) 
V. Woodgate (lyr. & G. 15) 788: v. Deaiborn (2 Post N. H. 



990 



Wrocklege v. State (1 Iowa, 167) 277, 872) 

815, 817, 1014 
WyattReg. c. (2 Ld. Raym. 1189) 788 

t. State (8 Blackf. 507) 919 

, State V. (2 Hay w. 56) 692 

V. State (2 Swan Tenn. 894) 434, 

435 
Wvckoflf, State «. (2 Vroom, 

65) 746 

Wykes, Rex v. (Andr. 288) 684 



p. Foute (48 Ills. 88) 
V. King (8 T. R. laS) 
c. People (18 Ills. 566) 



Wvld 9. Cookman (Cro. Eliz. 492)701 

Wyle, Rex v. (1 New R. 92) 568, 569,Younger, State v. (1 Dev. 357) 



Wvmer, Rex v, (4 Car. & P. 391) 501 Yundt v. Hartruntt (41 Ills. 9) 942, 



WVnehammer v. People (13 N. 

V. 378} 22, 778, 901 

Wynn, Rex v. (2 East. R. 220) 847 

V, State (1 Blackf. 28) 980 

-. Reg. V. (1 Den. C. C. 365) 499 



888,889 

942 

817 

48, 108, 

129 

•, Reg. V. (8 Car. & P. 644) 843 

, Rex T. (1 Russ. 891) 823 

V. Rex. (3 T. R. 98) 592, 593, 594, 

800, 801, 803, 816 

V. State (11 Humph. 200) 830, 340 

, State V. (1 Overt. 280) 574 

661 



952, 991 

V. People (65 Ills. 874) 815, 835, 

1114 



Zarresseller v. People (17 Ills. 

,_.-_..., , „_ 104) 277,777,817,902 

Yancy. State «. (1 Car. L. R. 519) 186 Zellers, State©. (2 Halst. 220) 885. 

Yarborough, State v. (1 Hawks, 355, 892, 930 

78) 374, a47 Zenobio v. Axtell (6 T. R 162) 723 

Yatts tj. Judd (18 Wis. 119) 807 Zor^er v. People (25 Ills. 198) 13 

V. Lansing (5 John. 282) 46, 688'Z8chocke v. People (62 Ills. 127) 471, 

V. People (88 Ills. 528) 989! 486 

V, People (32 N. Y. 509) 12, 56 Zumoflf v. State (4 Greene Iowa, 

Yeates, Rex 0. a C. & M. 182) 6991 526) 46,210,277 



A PRACTICAL TREATISE 



OS 



CRIMINAL LAW 



OHAPTEK I. 
Cbimss in General. 

g 1. Offenses Classified — Treason — Felony Defined. 

2. Misdemeanors Defined. 

3. Infamous Crimes. 

4. When an Infant may Conmiit a Crime. 

5. Insanity — Idiocy. 

6. Connseling Infant, Idiot, or Lunatic to Commit Crime. 

7. Drunkenness. 

8. Married Woman Acting under Coercion of Husband. 

9. Committing Crime under Compulsion. 

10. The Criminal Intent 

11. Effect of a Mistake or Ignorance of the Law. 

12. Effect of a Mistake or Ignorance of the Facts. 

13. Law in Force at the Time the Offense was Committed GoYemE, 

14. Former Jeopardy. 

15. Continued. 

16. Continued — ^Effect of a Verdict of Guilty of a Lesser Offense or upon 

one of Several Counts. 

17. What SUtatory Offenses Indictable. 

§1. Offenses Classified — Treason — Felony Defined. — "Acrim- 
inal offense consists in the violation of a public law, in the 
commission of which there shall be a union or joint operation 
of act and intention, or criminal negligence."^ Crimes at 
common law are divided into three classes: treasons, felonies 



2 0BISO» IN GENEBAL. 

and misdemeanors^ At common law a felony comprised 
every species of crime which occasioned the forfeiture of efth- 
er lands or goods or both.* The chief, if not the only, fel- 
onies at common law were murder, manslaughter,* arson,^ 
burglary,* robbery ,• rape,' sodomy,* mayhem,' and larceny.*® 
Treason at common law was a felony and something more, 
making it a higher crime." In this state a felony is defined 
by statute to be " an ofifense punishable with death or im- 
prisonment in the penitentiary.'"* 

§ 2. Misdemeanors Defined. — Misdemeanors comprise all of- 
fenses lower than felonies which may be the subject of an in- 
dictment. They are of two classes, such as are 'tnala in se or 
punishable at common law, and such as are mala prohihUa 
or penal by statute. Whatever, under the first class, mis-^ 
chievously affects the person or property of another, or openly 
outrages decency, or disturbs public order, or is injurious to 
the public, or is a breach of ofiScial duty, when done corruptly 
is the subject of indictment.** " When the performance of an 
act is prohibited by any statute, and no penalty for the viola- 
tion of such statute is imposed, the doing of such act is amis- 
demeanor, and may be punished by fine not exceeding one 
hundred dollars, or imprisonment in the county jail not exceed- 
ing six months, or both, in the discretion of the court''" 

§ 3. Infiimons Crimes. — " Every person convicted of the 

' 1 Whart Cr. L., § 1. ^ 

' Adams «. Barrett, 5 Ga., 404; 4 Black. Com., 94, 95. 
« 1 Whart. Cr. L., § 2. 

• 8 Chitty Cr. L., 1120; Sampson «. Com., 6 Watts & 8., 885. 

• Rose. Cr. Ev., 388. 

• 2 BUh. Cr. L., § 120. 

• 1 Hale P. C, 627; 8 Inst., 60; 1 East P. C, 434; Mears «. Com., 2 Grant 
Pa., 885. 

• 4 Black. Com., 215; 1 Hawk P. C, 4; 1 Whart Cr. L., § 2. 

• 1 Whart CY L., §2, 11, 71 to 1175; eonira. Com. t>. Newell, 7 Mass., 248; 
Adams d. Barrett, 5 Ga., 403 ; 2 Bish. Cr. L., g 108. 

>• People t>. Adler, 8 Park. Cr. R, 254; Ward t>. People, 8 Hill, 898. 

» 1 Bish. Cr. L., § 612. 

>• R. 8., 894, § 277. 

>• Id., § 278 ; Walsh «. People, 65 Ills., 58. 

"R 8., 394, §278. 



OBIMES IN OENESAL. 3 

crime of murder, rape, kidnapping, willful and corrupt per- 
jury or subornation of perjury, arson, burglary, robbery, sod- 
omy, or other crime against nature, incest, larceny, forgery, 
counterfeiting, or bigamy, shall be deemed infamous, and 
shall forever thereafter be rendered incapable of holding any 
office of honor, trust or profit, of voting at any election, or 
serving as a juror, unless he is again restored to such rights 

^ by the terms of a pardon for the offense, or otherwise accord- 

^ ing to law."* 

§ 4. When an Infant may Commit a Crime. — '^ An infant un- 
der the age of ten years cannot be found guilty of any crime 
or misdemeanor."* Between the ages of ten and fourteen he 
is presumed to be incapable of committing any crime what- 
ever;' but this presumption may be rebutted by evidence of 
circumstances showing clearly that the infant was at the time 
of committing the offense capable of knowing the distinction 
between good and evil/ Malice supplies age, but the evi- 
dence of that malice which is to supply age ought to be strong 
and clear beyond all reasonable doubt.*^ At and above the 
age of fourteen, an infant is presumed, in point of understand- 
ing, capable of committing any crime until the contrary be 
proved.* To these rules there are some exceptions, for an in- 
fant is not liable criminally for mere non-feasance, such as (if 
under the age of eighteen) not apprehending persons commit- 
ting felonies, or the like.^ It has been held that an infant under 
the agOiof fourteen years is physically incapable of committing 
the crime of rape.' Under our statute he cannot commit such 

> R. 8., 394, § 279. 
•Id., §288. 

• State «. Goin, 9 Humph., 175; Rex t). Owen, 4 Car. & P., 286; SGreenl. 
Ev., § 4 ; 1 Arch. C. P. & PI., 8 ; 1 Biah. Cr. L.. 868. 

• Id,; R 8., 894, §282; State «. Gould, 6 Halst., 168; State «. Aaron, 1 
Southard, 281 ; People ©. Garrett, 6 City Hall Rec., 137. 

» 4 Black. Com., 24 ; Rex ». Owen, 4 Car. & P., 236 ; State «. BoBtick, 4 Har- 
ring. Del., 563 ; 3 Chitty Cr. L., 724. 

• 3 Greenl. Ev., §4; 1 Hale, 25; State c. Handy, 4 Harring. Del., 666. 
' 1 Arch. C. P. & PI., 8 ; R S., 400, § 341. 

• Rex «. Eldersham, 8. Car. & P., 396; Reg ». Jordon, 9 Car. & P., 118; 
Peoples. Randolph, 2 Parker, 213; Rex «. Groombridge, 7- Car. & P., 582; 
Reg. «. Phillips, 8 Id., 736; State c. Handy, 4 Harring. Del., 566; State «. 
Sam, Winston, 300. 



• 



4 OKIMSS IN GENERAL. 

crime on a female child under the age of ten years.* But in 
other states it has been held that the presumption of the inca- 
pacity of an infant to commit the crime of rape may be over- 
come by evidence showing that he has arrived at the age of 
puberty.* 

§5. Insanity — Idiocy, — The want of a sufficient mental 
capacity to form a criminal intent, arising from insanity* or 
idiocy,* renders a person incapable of committing a crime. 
Sanity is an ingredient in a crime as essential as the overt 
act,' though it is not necessary for the prosecution to allege 
or prove it in the first instance, for the reason that sanity is 
always presumed;* but when evidence of insanity has been 
introduced by the accused and a reasonable doubt of his san- 
ity is thereby created, the accused cannot be convicted of the 
crime charged.^ It is not necessary that such evidence should 
be established by a preponderance of evidence.* The insan- 
ity, to be a defense, must be such as to deprive the party 
charged with crime of the use of reason in regard to the act 
done. He may be sufficiently sane to distinguish between 
right and wrong as to other matters, or he may be deranged on 
other subjects and be responsible for his acts; yet if he is 
capable of distinguishing betyreen right and wrong in the 
particular act done by him, he is justly liable to be punished 
as a criminal.* Our court has said ^'that a safe and reasonable 
test in all cases would be that whenever it should appear from 
the evidence that at the time of doing the act charged the 

>R 8,888, §287. 

* Williams t). State, 14 Ohio, 222; Omera v. State, 17 Ohio, 515; Moore •. 
State, 17 Ohio, 521 ; Id., 174; Coin.«. Green, 2 Pick., 880. 

• R 8., 894. § 284. 
« Id., 895, §286. 

• Chase v. People, 40 Ills., 858; Hopps v. People, 81 Ills., 885. 

• Fisher «. People, 23 Ills., 283; Lilley «. Waggoner, 27 Ills., 395. 
'Chasev. People, 40 Ills., 858; Hopps «. People. 31 Ills., 8a5; People*, 

McCanii, 16 N. Y., 58; contra, Cim. v. Ragers. 7 Met., 500; Com. v. Eddy, 9 
Law R (N. 8.), 611 ; Tweedy « State. 5 Iowa, 433. 

* Hopps V. People, 81 Ills., 885; Chase v. People, 40 Ills., 358; contra, 
Fisher v. People, 23 Ills., 288; State «. Feller, 82 Iowa, 50. 

* Freeman «. People, 4 Denio, 29; Fonts v. State, 4 Greene Iowa, 500. 



0BIHE8 IN GENSBAL 

prisoner was not of sound mind, but affected with insanity, 
and such affection was the eflSicient cause of the act, and that 
he would not have done the act but for that affection, he 
ought to be acquitted. But this unsoundness of mind or af- 
fection of insanity must be of such a degree as to create an 
incontrollable impulse to do the act chari]jed, by overriding 
the judgment and obliterating the sense of right and wrong 
as to the particular act done, and depriving the accnsed of 
the power of choosing between them. If it is shown that the 
act was in consequence of an insane delusion, and caused by 
it and nothing else, justice and humanity alike demand an 
acquittal."^ 

§6. Counseling Infan);, Idiot or Lunatic, to Commit Crime. — 
"Any person counseling and advising or encouraging an in- 
£Eint under the age of ten years, lunatic or idiot, to commit 
any offense, shall be prosecuted for such offense when com- 
mitted as principal, and if found guilty shall suffer the same 
punishment that would have been inflicted on such person 
counseling, advising or encouraging as aforesaid had he com- 
mitted the offense directly, without the intervention of such 
infant, lunatic or idiot. "^ 

§7. Drunkenness is not an excuse for any crime or misde- 
meanor,* yet there are authorities holding that where a par- 
ticular intent must be joined with the act in order to com- 
plete the oflense, if, without the intent, one by drink makes 
himself incapable of entertaining the intent, and so does the 
act, but neither then nor afterwards yields it the sanction of 
his will, he does not commit the particular crime or misde- 
meanor, one ingredient of which is wanting, whatever other 
criminal responsibility he may incur.* Our Supreme Court, 

» Hopps V. People, 81 Ills., 391-2. 
» R Sm 395, § 2«7. 

• R 8., 395, § 291 ; State v. Cross, 27 Mo., 332; Kenny v. People, 31 N. Y., 
880; 24 Wis., 452. 

* State V. Scliingen, 20 Wis., 79; People v. Eastwood, 14 N. Y., 565; Com. 
V.Jones,! Leigh, 612; Haile v. State, 11 Humph., 154; Swan v. Stale, 4 
Hnmph., 136; Pigman «. State, 14 Ohio, 555; U. S. 9. liondenbush, 1 
Bald., 514; Moooey «. State, 33 Ala., 419; State v. Garvcy, 11 Min.^ 154; 
Mclntyre v. People, 88 Ills., 520. 



6 GRIMES IN GENBBAL. 

however, have adopted the rule that when witliont intoxica- 
tion the law would impute to the act a criminal intent, as in 
the case of a wanton killing without provocation, drunken- 
ness is not available to disprove such intent.^ Evidence of 
intoxication is always admissible in a criminal prosecution as 
tending to show whether and how far the act was done in the 
heat of passion and in general explanation of the defendant's 
declarations and conduct,* but the fact of voluntary intoxica- 
tion will supply the place of malice aforethought, and will 
not reduce an act which in a sober man would be murder to 
the grade of manslaughter.* The loss of one's reason, if not 
caused by the immediate use of intoxicating drinks, but by a 
fixed disease, though such disease is brought on by his own 
intemperance or other vices, renders him incapable of the 
commission of crime.* Such insanity produced by the delir- 
ium tremens or other fixed disease aflects the responsibility 
in the same manner as insanity produced by any other cause.* 
If a party is made drunk by fraud, contrivance, force, strata- 
gem* or the unskillfulness of his physician,^ he is not respon- 
sible. 

§ 8. Married Woman Acting under Coercion of Husband. — . At 
common law if the husband was present at the time his wife 
committed any criminal offense (except possibly treason, 

» Rafferty o. People, 5 Chicago L. N., 100, 06 Ills., 118; Ohiraii t». State, 14 
Ind., 420; People «. liogers, 18 N. Y., 9. 

* Rafferty r. People, 5 Chicago L. N., 100 ; People d. Eastwood, 14 N. Y., 
662 ; People v. Rogers, 18 N. Y., 9; 1 Bish. Cr. L., g§ 406-416. 

■ Mclnlyre u. People, 38 lUs., 514; State r. Harlow, 21 Mo., 446; Schuller 
©.State, 14 Mo., 502; People «. Robinson, 2 Park. C^ R., 235; People c. 
Ilaniinill, 2 Park. Cr. R., 223 ; People «. Garbutt, 17 Mich., 9 ; Com, c. Hawk, 
3 Gray, 463; Nichols v. State, 8 Ohio 8., 435. 

* U. S. V. Drew, 5 Mason, 28; U. 8. «. Clark, 2 Cranch C. C. R., 158; 
Bailey «. State, 22 ind., 422: Lanegran v. People, 50 Barb., 266. 

* Maconncbrcy «. State, 5 Ohio 8., 77; State «. Sewell, 3 Jones L. R., 245; 
Carter u. State, 12 Texas, 500. 

•R. 8., 895, §291. 

' Pearson's case, 2 Lewin, 144; 1 Hale P. C, 82; People v, Robertson, 2 
Park, C. R., 285 ; Choice t>. State, 81 Qa., 424; 1 Bish. Cr. L., 405. 



CBIME8 IN GENEBAL. 7 

murder, robbery,^ and keeping brothels,* &c.), the law pre- 
sumed that the wife acted under the coercion of the husband, 
and excused her and punished the husband only,* although 
such presumption could be rebutted by evidence^ and the 
wife punished.* But this rule seems to be somewhat modi- 
fied by our statute, which provides that " a married woman 
acting under threats, command or coercion of her husband, 
shall not be found guilty of any crime or misdemeanor not 
punishable with death: Provided^ it appears, from all the 
facts and circumstances of the case, that violent threats, com- 
mand or coercion were used; and in such case the husband 
shall be prosecuted as principal, and receive the punishment 
which would otherwise have been inflicted on the wife if she 
had been found guilty."® 

§ 9. Ckmimittiiig Crime under Compulsion. — "A person com- 
mitting a crime or misdemeanor not punishable with death, 
under threats or menaces which sufficiently show that his life 
or member was in danger, or that he had reasonable cause to 
believe, and did believe, that his life or member was in dan- 
ger, shall not be found guilty; and such threats -and menaces 
being proved and established, the person compelling by such 
threats or menaces the commission of the offense, shall be 
considered as principal, and suffer the same punishment as 
if he had perpetrated the offense."^ 

§10. The Criminal Intent. — In order to constitute a crime, 
there must be "a union or joint operation of act and intention 
or a criminal negligence."* Acts committed by misfortune 

' Com. V. Neal, 10 Mass., 152; Rex v. Knight, 1 Car. & P., 116. 

• State V. Bentz, 11 Mo., 27; liex «. Dixon, 10 Mod., 385; Hex v, Will- 
iams, 10 Mod., 63. 

■ Davis ©. State, 15 Ohio, 72; Rex t>. Price, 8 Car. & P., 19; State ©. Nol- 
BCD, 29 Me., 329. 

• Rex. «. Cruse, 2 Moody R., 53; Uhl v. Com., 6 Grat., 706; 1 Bish. Cr. 
L., § 362. 

• 1 Hale P. C, 616 ; 1 Arch. C. P. & PI., 47 ; Barb. Cr. L., 276 ; 1 Whart. Cr. 
L., 8873,78,81. 

• R 8., 895, §288; Miller v. State, 25 Wis., 384. 
' Id., § 289. 

■ R. 8., 394, § 280. 



8 0EIME8 IK GENB&AI.. 

or accident cannot^' be deemed criminal where it satisfactor- 
ily appears that there was no evil design or intention or cul- 
pable negligence."* The "intention is manifested by circum- 
stances connected with the perpetration of the offense, and 
the sound mind and discretion of the person accused."* 
Every person is presumed to be innocent until he is proved 
to be guilty;' yet it is a rule equally sound that every sane 
person is presumed to contemplate the ordinary and natural 
consequences of his own acts.* Therefore when one man is 
found to have killed another, the presumption is that the 
slayer intended to kill the deceased^ unless the circumstances 
connected with the homicide show that such was not the in- 
tention.^ The use of a deadly weapon in making an assault 
will be presumed to be with a felonious and malicious in- 
tent;^ yet that presumption is not conclusive and the intent 
way be shown to be innocent." 
y^ § 11. Effect of a Mistake or Ignorance of the Lavf. — If a crim- 
inal act is done through a mistake or ignorance of the law, it 
is nevertheless punishable as a crime,® for every man is bound 
.to know the law of the country in which he dwells'** or in 
which, if residing abroad, he transacts business," even if the 
law consists of a statute so recently passed that it is impossi- 
ble for him to have any knowledge of its existence.** ^ To this 

> R S., 894, § 290. 

• Id., § 281. 

• West u. State,! Wis., 209; Pilkington t>. State, 19 cxas, A\ Home t>. 
State, 1 Kansas, 42; People i^. DixoD, 4 Park. C. R, 651 ; Tweedy « State, 6 
Iowa, 433. 

• York «. Com., 9 Met, 103 ; Ckmu, u. Drew, 4 Mass., 891 ; People «. Her- 
rick, 13 Wen., 87. 

• State ^?. Turner, Wright, 20; 1 Whart. Cr. L., 712. 

• 3 Greenl., § 14. 

' 1 Whart. Cr. L., § 712. 

■ Armstrong ». People, 38 Ills., 513. 

• 3 Greenl. Ev., § 20; Winehart ». State, 6 Porter, 30. 

^ Lyon «. Richmond, 2 John. Ch., 51, 60; Bilbie o. Lumley, 2 East, 469; 
1 Bish. Cr. L., g§ 294, 300; 1 Arch. C. P. & PI., 55; 1 Whart. Cr. L., § 82; 
Stover V. Mitchell, 45 Ills., 213. 

" Cambisco «. Maffett, 2 Wash. C. C, 98; Rex «. Esop, 7 Car. & P., 456. 

1* The Ann, 1 Gallis, 62; Branch Bank of Mobile o. Murphy, 8 Ala., 119; 
Heard o. Heard, 8 Ga^ 380. 



OSIMES IN GENBBAL. 9 

mle there are some real or apparent exceptions. Thus where 
the accused, knowing all the facts, through a misapprehen- 
sion of the law honestly believes property to be his and takes 
it, he is not guilty of larceny, for one element of such 
crime, that is, a felonious intent, is wanting.^ So under the 
former United States bankrupt act it was held that if a bank- 
rupt submits the facts concerning his property fairly and 
honestly to his counsel, and thereupon receives advice in 
pursuance of which he withholds from his schedule certain 
items which truly, as a matter of law, ought to be put upon 
it, he still in swearing to the schedule does not commit the 
crime of perjury.^ Likewise in proceedings, against magis- 
trates and other qicasi judicidl and sometimes ministerial of- 
ficers, for acting corruptly in their office, their misapprehen- 
sion of the la^ may be set up in answer to the charge of cor- 
ruption;' unless, perhaps, the mistake were induced by gross 
carelessness or ignorance partaking of the criminal quality."* 
A foreignor cannot be excused on the ground that he does not 
know the law;* but ignorance of the laws of a foreign coun- 
try is ignorance of fact, and persons are not required to know 
facts.* 

§ 12. Effect of a Mistake or Ignorance of the Facts. — Ignorance 
or mistake of facts is in all cases of a supposed offense an ex- 
cuse;^ as if a man, intending to kill a thief in his own house, 
by mistake kills one of his own family, he is guilty of no 

* Rex v: HaU, 3 Car. & P., 409; Reg, v. Reed, Car. & M., 306; Com. v. 
Doane, 1 Cnsh., 5 ; State v. Homes, 17 Mo., 379. A mere pretense of a 
claim, set up by one who does not himself believe it to be yalid, does not 
prevent the act of taking from being larceny. State d. Bond, 8 Iowa, 540. 

* U. S. «. Conner, 3 McLean, 573 ; Reg. «. Langford, Car. & M., 602, 605 ; 
(Joforth u. State, 8 Humph., 87; Dye v. Com., 7 Grat, 6C2. 

* Rex V. Jackson, 1 T. R., 653; Com. v. Shedd, 1 Mass., 227. People v. 
Calhoun, 3 Wen., 420. 

* Rex V. Stukey, 12 Mod., 493 ; 1 Bish. Cr. L., gg 298, 299. 

* R'ix V. Esop, 7 Car. & P., 450; Cambisco v. Maftett, 2 Wash. C. C, 98. 

* Haven v. Foster, 9 Pick., 112; 1 Story Eq. Jur., § 140. 

* Broom Leg. Max., 190 ; 4 Black.Com., 27 ; 3 Grecnl. Ev., g21 ; Com.*. Drew, 
19 Pick., 179, 184 ; Meyers v. State, 1 Conn., 502 ; Rex v.' Allday, 8 Car. & P., 
136; U. 8. V. Pearce, 2 McLean, 14. 



10 GRIMES IN GENERAL 

crime ;^ or where, under an erroneous impression that the 
act is necessary in self-defense, he kills the supposed aggres- 
sor, in which the case is manslaughter or excusable homi- 
cide, as the case may be.* So a taking of another's property 
by a person mistaking it for his own is neither legally nor 
morally a crime.' The wrongful intent being the essence of 
every crime,* the doctrine necessarily follows that whenever a 
man is misled, without his own fault or carelessness,* con- 
cerning facts, and while so misled acts as he would be justi- 
fied in doing were the facts what he believes them to be, he 
is legally innocent.* This rule proceeds upon the supposition 
that the original intention was lawful; for if an unforeseen 
consequence ensue from an act which was in itself unlawful, 
and its original nature wrong or mischievous, the actor is 
criminally responsible for whatever consequences may ensue.^ 
Thus it has been held that where an aggressor assaults a 
peace officer in ignorance of his official rank he is responsible 
for the graver offense.* It is no defense to an indictment for 
a crime that it was the custom of the countrv to do the act 
that constituted the crime.* 

§ 13. A Party must be Punished AccoitUng to the Law in Force 
at the Time the Offense was Committed, for a statute does not 
and can not operate upon offenses committed prior to its pas- 
sage.'® And where an original act provides for a punishment 

' 1 Hale P. C, 507; 1 Whart. Cr. L., § 83; Rex v. Levett, Cro. Car., 538; 
Regina v. liiley, 17 Jur., 189. 

•2 Hale, 507; 1 Wharl. Cr. L., §83; Campbell v. People, 16 Ills., 17; 
Coughlin, 18 Ills., 266; Schiner v. People, 23 Ills., 17; Malier v. People, 24 
Ills., 241 ; Reins v. People, 34 Ills., 256. 

■ Rex V. Levett, Cro. Car., 538; 1 Arch. C. P. & PL, 55, n. 1. 

• State V, Berkshire, 2 Ind., 207; 3 Greenl Ev., § 13; R. S., 394; § 280. 

• Sturges V. Maitland, Anlhon, 153 ; Com. v. Rodes, 6 B. Monr., 171; R 
B., 394, g 280; Id., 395, §290. 

• 1 Bish. Cr. L., § 303 ; Yates v. People, 32 N. Y., 509 ; Fairbach «. State, 
24 Ind., 77; Rineman v. State, 24 Ind., 80. 

' 1 Whart Cr. L., § 83; 4 Black. Com., 27. 

• U. S. «.Liddle, 2 Wash. C. C, 205; U. S. v. Ortega, 4 Wash. C. C, 581; 
IT. 8. V. Beuner, Baldwin, 234. 

• Bankers v. State, 4 Ind., 114. 

>• Musick V. People, 40 Ills., 268 ; Haney v. State, 5 Wis., 529. 



CRIMES IN GEKESAL. 11 

for a violation of its provisions by indictment, such punish- 
ment cannot be inflicted for the violation of any of the pro- 
visions of an amendment to such act unless the amendment 
itself authorizes such punishment.^ The constitution of this 
state* and of the United States^ prohibits the passing of an ex- 
fost'fa<ito law. An ex-post-facto law has been said to be: 1. 
Every law that makes an action done before the passing of 
the law, and which was innocent when done, criminal ; and 
punishes such action. 2. Every law that aggravates a crime 
and makes it greater than it wag when committed. 3. Every 
law that changes the punishment and inflicts a greater pun- 
ishment than the law annexed to the crime when committed. 
4. Every law that alters the legal rules of evidence and re- 
ceives less or different testFinony tlian the law required at the 
time of the commission of the offense in order to convict the 
offender.* It has been held the punishment of an offense may 
be lessened after its commission.* 

§ 14. Former Jeopardy. — A person cannot be twice put in 
jeopardy for the same offense,* whether a misdemeanor or a 
felony.' The jeopardy commences when the accused has 
plead to a valid indictment® on which he could be convicted 
for the same offense* before a court having jurisdiction of the 
offense,*® and a jury is impaneled and sworn to try the cause.** 

» Zorger v. People, 25 Ills., 193. 

* R. S., 60, Con., Art. II., § 14. 
■R. S., 12, 13, Con., Art. I., § 9, 10. 

* Calder u. Bull, 3 Dall, 386, 390 ; Strong u. State, 1 Blackf., 193 ; 1 Bish. 
Cr. L., S 2bl. 

* Turner «. State, 40 Ala., 21. 

* R 8., 60, Con., Art II., § 10; Phelps u. People, 55 Ills., 429; Gerard « 
People, 3 Scam., .363. 

' Rex V. Davis, 12 Mod., 9 ; Rex «. Bennett, 1 Stra., 101. 

* Gerard v. People, 3 Scam., 803; Durham v. People, 4 Scam., 172; Price 
«. State, 19 Ohio, 423; Williams v. Vaux, 4 T. R., 44; People «. Barrett, 1 
John., 66. 

•Freeland «. People, 16 Ills., 380. 

"• Com. V. Goddard, 13 Mass., 455; State v. Odcll, 4 Blackf., 156; Com. v. 
Meyers, 1 Va. C, 188 ; State «. Payne, 4 Mo., 876. 

" Mount V. State, 14 Ohio, 295 ; U. S o. Shoemaker, 2 McLean, 114; Peo. 
pie «. Barrett, 2 Cai., 304 ; Brennan o. People, 15 Ills., 512. 



13 OBIMES IN GENEItAL. 

The jeopardy is not perfect until the panel is full.* If, how- 
ever, a man has been arrested and discliarged by a magis- 
trate;^ or a grand jury has refused to find an indictment 
against him;' or he is indicted and has plead to the indict- 
ment, which is still pending;* or, at the instance of the ac- 
cused, a new trial is granted;^ or the judgment is arrested, 
even for an insufficient cause;® or the judgment is reversed;^ 
or if the acquittal is obtained by fraud of the defendant;* or 
the prosecution is controlled by the defendant through his 
agents or friends, and the punishment is inadequate;' or the 
prifiyoner is tried by a jury less in number than the law re- 
quires;'® or the case is put to the jury before an issue has been 
made up;'* or the prisoner is convicted and punished in an- 
other state 'for an offense against? our own laws;*^ or the of- 
fense is not the same ;^^ or the proceedings are interrupted be- 
fore the final verdict is rendered, on account of the sickness of 



> State t>. Burket, 2 Mill, 155; People <?. Damon, 13 Wen., 351; Stone v. 
People, 2 Scam., 326. 

' Marston f>, Jenness, UN. H., 156; Com. v Meyers, 1 Va. C, 118 ; In re 
Mclntyre, 5 Gilm., 422 ; Bulson v. People, 81 Ills., 409. 

• Com. V. Miller, 2 Ashm., 61 ; Reg. v. Newton, 2 Moody & R, 503 ; Com. 
V. Bailey, 14 La. An., 364. 

• Com, V. Dunham, Thatcher Cr. C, 513; Com. «. Drew, 3 Cush., 279; 
People u. Fisher, 14 Wen., 9. 

• Com., u. Green, 17 Mass., 515. 

• Gerard v. People, 3 Scam.,' 362 ; People v. Casborous, 13 John., 351. 

' Sellers v. People, 1 Gilm., 183; Lane d. People, 5 Gilm., 305 ; Brennan 
V. People, 15 Ills., 517; Barrett v. People, 54 Ills., 335; Stale u. Krouse, 33 
Iowa, 365. 

• Rex V. Davis, 12 Mod., 9; State v. Brown, 16 Conn., 54; State tJ. Davis, 4 
Blackf., 345; State v. Little, 1 N. H., 257; Com. v. Alderman, 4 Mass., 477. 

• State V. Atkinson, 9 Humph., 677; State u. Lowery, 1 Swan Tenn., 34; 
Com. V. Alderman, 4 Mass., 477; State v. Green, 16 Iowa, 239; 1 Arch. C. P. 
& PI., 373; 3 Greenl. Ev., §38; 1 Bish. Cr. L., § 1010. 

'• Brown «. State, 8 Blackf, 561. 

»* Ned V. State, 7 Port., 187 ; but see R. S., 138, § 6, Sub. 5. 
" Phelps V, People, 55 Ills., 429; Sanders v. State, 2 Iowa, 230. 
*■ McQuoid r. People, 3 Gilm., 76; Durham v. People, 4 Scam., 172; Quo- 
del «. People, 43 Ills.. 226. 



OBIHES IK GENEBAL. 13 

the jndge* or a juryman* or the prisoner,* or on account of a 
witness refusing to be sworn;* or the jury, after being out a 
reasonable time, are discharged because they cannot agree;* or 
one of the panel escapes;* or the jury is discharged by the pris- 
oner's consent,^ or the verdict is so incomplete that a judgment 
cannot be entered upon it;' or if the prisoner absents himself 
from court at the time when he should be present to receive 
the verdict, — he has not been legally in jeopardy, and cannot 
plead what has been done or the conviction in bar to a sub- 
sequent proceeding before a magistrate for the purpose of 
holding him to bail* or to a subsequent trial or indictment.*® 
If, after the trial has been commenced, a juryman is found not 
to be suflSciently sworn," or to be insane," or is under some 
legal incompetency unknown to either party at the time the 
case is opened,*' — as if he is an alien" or not a voter,** — ^he may 
be discharged or the error may be otherwise corrected with- 
out entitling-the prisoner to go free.'* 



' Nugent t». State, 4 Stew. & P., 72. 

' Hector «. State, 2 Mo., 166; King 9. Edwards, 4 Taunt, 309; Stone «. 
People, 2 Scam., 887. 

* 1 Bish. Gr. L., g 1082 ; People 9. Goodwin, 18 John., 187 ; State v. McKee, 
1 Bailey, 651. 

* U. S. V. Coolidge, 2 Gallis, 864. 

* People «. Goodwin, 18 John., 187; State v. Vaughn, 29 Iowa, 286. 

* State V. HalL 4 Halst, 256; State v. McKee, 1 Bailey, 651. 

' Elijah V. State, 1 Humph., 102 ; Williams v. Com., 2 Grat., 567 ; State «. 
McKee, 1 Bailey, 651. 

* Sargent o. State, 11 Ohio, 472 ; State v. Underwood, 2 Ala., 744 ; State o. 
Sutton, 4 Gill, 494. 

' Bulson 9. People, 81 Ills., 409 ; In re Mclntyre, 5 Gilm., 422. 

»• 1 Bish. Cr. L., g§ 978-1047 ; 8 Qreenl. Ev., § 87 ; 1 Arch. 0. P. & PL, 360 ; 
1 Whart. Cr. L. g§ 573-591. 

" Rex «. Deleany, Jebb, 88. 

»• U. S. V, Haskall, 4 Wash. C. C, 402. 

" Stewart i^. State, 15 Ohio, 155 ; U. S. «• Morris, 1 Curtis, 23 ; People «. 
Damon, 18 Wen., 851 ; Rex v, Crawf. & Diz., C. C, 151 ; eoiUrOt Bex «. Per- 
kins, Holt, 408. 

1* Stone 0. People, 2 Scam., 836. 

■R8.,630,§1. 

**1 Blah. Cr.L.,§1089; 1 Whart. Cr. L., §588. 



14 CRIMES IN 0£N£SAL. 

§ 15. Continned. — If during the trial a nolpros. is entered;* 
or the wrong judgment is entered on the verdict;^ or the 
court discharges the jury against the consent of the defend- 
ant, before they have had a reasonable time to deliberate;' or 
the hearing is stopped on account of the absence of a material 
witness for the prosecution,* or on account of his not being 
acquainted with the nature of an oath, so as to require in- 
struction before testifying,* or on account of the witness be- 
ing taken suddenly too ill to proceed,® or on account of the 
withdrawing of a juryman;^ or the jury separate by permis- 
sion of the oflacer without the consent of the court,® — the legal 
eftect is an acquittal, and no second trial can be had.' A 
verdict is a bar to a subsequent prosecution, though no judg- 
ment has been entered upon \t}^ If the jury convict the de- 
fendant on an insufficient indictment, and judgment is enter- 
ed on the verdict, he will be protected while the judgment 
remains unreversed." Even if an appeal or writ of error 
could be taken by the people, the accused, on the reversal of 
the judgment acquitting him, could not be again tried or put 
in jeopardy for the same offense.^^ 

§ 16. Continued — Effect of a Verdict of Gnilty of Lesser Offense 
or npon One of the Count in any Indictment — A verdict of 
guilty on one count of an indictment," or of guilty of a part of 
the charges in an indictment, has the effect of an acquittal as 



• State V. EjTcps, 8 Ala., 951 ; Mount v. State, 14 Ohio, 295. 

• Shepherd «. People, 25 N. Y., 407. 

• Wright «. State, 5 Ind., 290; Hlnes tJ. State, 8 Humph., 597. 

^ People 9. Barrett., 2 Cai., 304; U. S. v. Shoemaker, 2 McLean, 114; Har- 
ker «. State, 8 Blackf., 540. 

• Rex r. Wade, 1 Moody, 86; Reg. t?. Onlaghn, Jebb, 270. 

• Rex «. Kell, 1 Crawf. & Dix. C. C, 161. 

' Klock V. People, 2 Park., 672 ; U. S. o. Shoemaker, 2 McLean, 114; Peo- 
pie V, Barrett, 2 Cai., 304. 

• State t), Gan-ignes, 1 Hayw., 241 

• 1 Bisb. Or. L.,§§ 1014, 1016. 

" Brennanv. People, 15 Ills., 512. 

" 1 Bish. Cr. L., § 1021. • 

• U. S. tJ. Salter, 1 Pin. Wis., 278; State v. Kemp, 17 Wis., 669. 

" Stoltz D. People, 4 Scam., 168; Chambers «. People, 4 Scam., 851. 



OBIHES IN GENEBAL. 15 

to the other counts or parts of the indictment, even though 
the verdict is silent as to them.* Therefore if on an indict- 
ment for murder the accnsed is found guilty of manslaughter 
and a new trial is granted him, he cannot be put upon his 
trial again for murder, but only for manslaughter, for the 
reason that the former verdict amounted to an acquittal of 
the charge of murder.* But a conviction of a lesser offense 
which is included in a greater cannot be plead in bar of a 
prosecution for the latter.* 

§ 17. What Statatory Offenses Indictable. — If an act which is , 
not limited in its effect to private persons or private matters,* 
but affects the public generally, is prohibited' or required to 
be done* by statute, and no punishment is assigned for doing 
or omitting to do snch act, or if a punishment is assigned and 
no remedy is provided,^ the willfully doing or omitting to do 
the act is an indictable offense and punishable as a common 
law misdemeanor." A subsequent statute assigning a par- 
ticular punishment for the disobedience will not take away 
the right to proceed by indictment,* unless by express negative 
words or by implication.*® But where the statute creating the 
offense provides a particular remedy, that remedy alone can 
be resorted to;" therefore, where a statute creates an offense 
and prescribes a penalty recoverable by action, this excludes 

' Campbell «. State, 9 Yerg., dSS ; State v. Kittle, 2 Tyler, 471 ; Esmon v. 
State, 1 Swan Tenn., 14; State v, Kattleman, 35 Mo., 105; and see State «. 
Dark, 8 Blackf., 526; State u. Martin, 30 Wis., 216; State v. Hill., 30 Wis., 
417. 

• Brennan c. People, 15 Ills., 517; Barrett*. People, 54 Ills., 880; Hurt «. 
State, 25 Miss., 378; State v. Martin, 80 Wis., 216. 

• Severin u. People, 87 Ills., 415; Freeland u. People, 16 Ills., 380; Gard 
ncr v. People, 20 Ills., 434; contra, see 1 Bish. Cr. L., § 1057. 

• 2 Hawk C, 25, § 4. 

» Id. ; R S., 394, § 278. 

• Rex u. Davis, Sayer, 133 ; but see State u. Williams, 12 Ind., 172. 
» R. 8., 394, §278; 1 Whart. Cr. L., § 10. 

■ 1 Arch. C.P. & PI., 3; State «. Fletcher, 5 N. H., 257; Rex. t?. Sainsburg, 
4 T. R., 451. 

• Doug., 441, 446; Rex v. Royal, 2 Burr., 831 ; Rex. v, Balme, CJowp., 648. 
»• 1 Arch. C. P. & PI., 4; Sweeny v. People, 28 Ills., 208. 
"2HawkCh., 25;g4. 



16 CRIMES IN GENERAL. 

punishment by indiatment.* A proceeding to collect a pen- 
alty for a town ordinance is a civil suit. Such penalty can- 
not be recovered in any criminal proceeding.* The fact that 
the offense charged was an assault and battery does not change 
the character of the proceeding: it is still a civil suit. The 
town only acquires jurisdiction because the oflfense is prohib- 
ited by an ordinance.* 

' State «. Maze, 6 Humph., 17; Sweeny «. People, 28 Ills., 208; Carter v. 
State, 16 Wis., 299; Ewbanka «. Town of Ashley^ 86 Ills., 177. 

• Town of Jacksonville u. Block, 36 Ills., 507; Graubner v. City of Jack- 
sonville, 50 Ills., 87; Hoyer v. Town of Mascoutah, 69 Ills., 138; Hender- 
shot, V. Town of Petersburg, 63 Ills., 111. 

' Hoyer v. Town of Mascoutah, 59 Ills., 188. 



TO FBEYEKT THB 0OMHIS8ION OF OHIMB. 17 



CHAPTEE II. 

PSOCEEDINOS IN CbIMIKAL CaSES BEFOBE JUSTICES OF THB 

Peace. 

I. Proceedtkos to Prevent the Commission of Crimes. 
II. Arrest, Examination, Commitment, and Bail. 
I. The Complaint. 
II. The Warrant. 

III. The Arrest. 

1. Under a Warrant. 

2. Without Warrant. 

8. Progbbdinob After the Arbbst. 
4. The Return. 

IV. The Examination. 

V. Procebdingb After Examination. 
III. Search Warrants. 

SECTION I. 

Pbooeedings to Pbbvent the Commission of Crimes. 

8 18. Conservators of the Peace. 

19. Complaint. 

20. Warrant 

21. Examination. 

2d. When Security Rcqnired. 

88. When Complaint not Sustamed — Costs. 

24. Becognizance. 

26. Discharge or Commitment 

26. Costs. 

27. Appeal. 

28. Recognizance of Witnesses. 

29. Proceedings on Appeal, 

80. Failing to Prosecnte Appeal. 

81. Discharge on Recognizance after Commitment. 

82. Recognizance Returned to Circuit Court 
88. Conviction not Necessary. 

84. Breach of Peace in Presence of a Court or Magistrate. 

85. Court may Remit Part of Penalty. 
* 86. Sureties may Surrender PrincipaL 

2 



18 FBOCEEDINaS BEFORE JUSTIOE. 

§87. Principal may again Recognize. 

38. Amendments. 

39. Preventing Prize Fighting. 

§ 18. Conservators of the Peace. — "All judges of courts of rec- 
ord within their respective jurisdictions, and justices of the 
peace in their respective counties, are conservators of the 
peace, and shall cause to be kept all laws made for the preser- 
vation of the peace, and may require persons to give security 
to keep the peace, or for their good behavior, or both, as pro- 
^ vided by this act."* 

§ 19. Complaint. — " When complaint is made to any such 
judge or justice of the peace that a person has threatened or 
is about to commit an offense against the person or property of 
anotheY, he shall examine on oath the complainant and any 
witness who may be produced, and reduce the complaint to 
writing, and cause it to be subscribed and sworn to by the 
complainant."^ 

FORK OP COMPLAINT FOR USINQ THREATS AGAINST A FERSOK. 

State of Illinois^ i 
Adams County. P®* 

A, B., being duly sworn {or ''affirmed'^) and examined on oath {or 
^^ affirmation^^) before Levi Mason, a Justice of the peace in and for said coun- 
ty, complains, and says that on the 10th day of July, A. D. 1874, at the town 
of Mend on in the said county, C. D. did unlawfully threaten to commit an 
offense against the person or property of the said A. fi., to wit : that he 
would beat ("w<n*»d," ''maim,'' ''shoot,'' or "kiW) the said A. B. (or "would 
hwrn and destroy the dwelling of him, the said A. B.") 

And E. F., being duly sworn and examined by n^ on his oath, says that 

on the day of , A. D. 18 — , at the residence of James Smith, in the 

said town of Mendou, he heard the said C. D. threaten to beat the said A. 
B., and that he, this deponent, has at various times and on divers occasions 
within the last three months heai^ the said C. D. swear that he would beat the 
said A. B. {These statements intLst of course be varied according to the facts.") 

A.B. 

E.F. 

Taken, subscribed and sworn 

to before me this day 

, A. D, la— . 

L. M., J. P. 



•m \ 



' R. 8., 398, § 319; Hamilton v. Stewart, 59 Ills., 831. 
•R. S.,898, §320. 



TO PREVENT THE COMMISSION OF CRIME. 19 

§20. Warrant. — " If such judge or justice of the peace is 
satisfied that there is danger that such offense will be com- 
mitted, he shall issue a warrant requiring the proper oflScer 
to whom it is directed forthwith to apprehend the person 
complained of, and bring him before such magistrate, or be- 
fore some Qther court or magistrate having jurisdiction in the 
premises."^ 

FORM OF WARRANT IN A PROCEEDING TO PREVENT THE COMMISSION OF 

CRIM E. 

State of Illinois, ) 

, County. \ ^'■ 

The People of the State of Illinois to any Constable of the said County, 

Greeting : 

Whereas, A. B. has this day made complaint to me the undersigned, a 
justice of the peace in and for the said county, that C. D. has threatened to 
commit an offense against the person of him, the said A. B., to-toit : that he 
threatened to beat him the said A. B. (or insert the facts as stated in the 
complaint) ; and the said A. B. and £. F., having been duly sworn and ex- 
amined on oath by me, which said complaint and examination have been 
reduced to wi'iting, subscribed and sworn to by the said A. B., and the un- 
dersigned from the said complaint and examination being satisfied that theije 
is danger that such offense will be committed ;* 

We therefore command you forthwith to apprehend the said C. D. and 
bring him before the undersigned at his office in the town of Mendon, in 
said county, or before some other court or magistrate haying Jurisdiction 
in the premises, to be dealt with according to law. 

Given under my hand and seal this day of , A. D. 18 — . 

Levi Mason, J. P. [Seal.] 

§21. ExaoMiiation. — "When the person complained of is 
brought before the court or magistrate, if the charge is con- 
troverted, the testimony produced on both sides shall be 
heard*"' 

§ 22. When Security Required. — All persons whatsoever, be- 
ing of sane memory, whether natural-born citizens or aliens, 
have a right to demand surety of the peace. Wives may de- 
mand it against their husbands, and husbands against their 

'R 8^ 89a. §321. 

*The warrant need not contain a formal adjudication that the magistrate 
is satisfied that there is danger that such offense will be committed. Brad- 
atreet «. Ferguson, 17 Wen., 181 ; 23 Wen., 688. 

• R. 8., 899, § 822. 



20 PROOEEDINOS BEFORE JUSTICE. 

wives.* Formerly married women and infants were supposed 
to be incapable of binding themselves by a recognizance to 
keep the peace, for the reason that they were incapable of 
binding themselves by a contract;^ but according to the more 
recent decisions, and by virtue of a recent statute,' tfiey may 
bind themselves by all acts they are obliged by statute or law 
to do.^ Threats by a tenant to kill his landlord if he interfered 
with the tenant's possession, are no cause for an arrest of the 
tenant.^ Tlie statute does not seem to contemplate having a 
trial by jury, either before the magistrate or on appeal. 
Whether this statute, which, in case the accused cannot obtain 
bail, deprives him of his liberty, is void for the reason that it 
violates any of the provisions of the Constitution relating to a 
right to a trial by a jury,* does not seem to have been raised 
or decided.^ 

§ 23. When Complaint not Sustained — Cktsts. — '^ If it appear 
that there is no just reason to fear the commission of the of- 
fense, the defendant shall be discharged ; and if the j udge or 
justice of the peace is of the opinion that the prosecution was 
commenced maliciously, without probable cause, he may give 
judgment against the complainant for the costs of the prose- 
cution."* 

§24. Recognizance. — "If, however, there is just reason to 
fear the commission of such offense, the defendant shall be 
required to give a recognizance, with a sufficient security, in 
such sum as the court or magistrate may direct^ to keep tUe 

* 4 Black. Ck)m., 254 ; Barb. Cr. L., 518. ^ 
•4 Id. • « 

• R. a, 676, § 6. - • • • . 
•People V. Mullen, 25 Wen., 698; People o. Moores, 4 Itenio, 518. U. 8. 

V. Bambridge, 1 Mason, 88 ; Winslow v, Anderson, 4 Mass., 876 ; Baker v, 
Lovett, 6 Mass., 80. • • 

* Chapman v. Oawry, 50 Ills., 512. 

• R 8., 59, 60 ; Con., Art. II., §§ 2, 5, 9. 

* The right to a trial by jury is Ailly discussed in the following cases 
Wynehamer v. People, 18 N. Y., 890, 416; People v. Haws, 87 Barb., 455-6; 
Taylor v. Porter, 4 Hill, 145-7; Johnson v. County of 8tark, 24 Ills., 86; 
Whilehurst v, Colein, 53 Ills., 247; Sullivan o. City of Oneida, 61 Ills., 248; 
and see 2 Kent Com., 12, 18; Sedg. on Const L., 584. 

• H. S., 899, § 828. 



TO PBEYSKT THE 0OMMI8SIOK OF ORIMR. 21 

peace towards all the people of this state, and especially to- 
wards the person against whom or whose property there is 
reason to fear the oflFense may be committed, for such time, 
not exceeding twelve months, as the court or magistrate may 
order. But he shall not be bound over to the next court un- 
less he is also charged with some other offense for which he 
ought to be held to answer ^t such court."* 

FOBM OF BECOOKIZANCB TO KEEP THE PEACE. 

State of Illinois, ) 

BS. 



"1 



— — , County 

Be it remembered that on the day of , A. D. 18 — , 0. D. of the 

town of in the ssdd comity, and E. F. and J. F. of the same place, per- 
sonally came before L. M., a justice of the peace of the said county, and sever- 
ally and respectively acknowledged themselves to owe and be indebted to 

the people of the state of Illinois, in the sum of dollars each, to be 

levied of their respective goods and chattels, lands and tenements, to the 
use of the said people, if default shall be made in the condition following: 

The condition of this recognizance is such that if the above-bounden C. 
D. shall keep the peace towards all of the people of this state, and especially 

towards the said A- B., for months from the day of , A. D. 

18 — t then this recognizance to be void And of no effect— otherwise to re- 
main in full force and virtue. 

C. D. [Seat..] 

E. F. [Seal.] 

Taken, subscribed and acknowledged] J. F. [Seal.] 

the day and year first above written, be- V 

fore J 

L. M., J. P. 

*§ 25. Discharge or Commitment. — "If the person so ordered to 
recognize complies with the order, he shall be discharged; 
but if he refuses ^or neglects, the court or magistrate shall 
commit him to jail during the period for which he was re- 
quired to gi?^e security, or until he so recognizes, stating in 
the warrant the cause of the commitment, with the sum and 
time for which the security was required."* 

» R 8., 399, § 324. 
•Id^§325. 



22 rBOCEEDINGS BEFORE JUSTICE. 

FORI! OF COMMITMENT ON NEaLECTING TO GIVE RECOGNIZANCE. 

State of Illinois, 

' ss. 



County. 



[ 



The People of the State of Illinois to the Sheriff, Coroner or any Constable 

of the said County, Greeting: 

Whereas, A. B. lately made complaint to me tlie undersigned, a justice of 
fhe peace in and for the said county, that C. D. had threatened to commit 
an offense against the person of him the said A. B., to wit : that he had 
threatened to beat him the said A. B., and the said A. B. and £. F. were 
duly sworn and examined on oath by me in relation thereto, which said 
complaint and examination were reduced to wi'iting, subscribed and sworn 
toby the said A. B., and the undersigned, from the said complaint and exam- 
ination being satisfied that there was danger that such offense would be com- 
mitted, caused tlie said C. D. to be brought before him, and required him, the 

said C. D.J to give a recognizance with sufficient security, in the sum of 

dollars, to keep the peace towards all the people of this state, and especially 
towards the said A. B., for months from the day of , A. D. 18 — 

And whereas, the said C. D. has refiised and neglected, and no w refuses 
and neglects, to give such a recognizance, — 

We therefore command you, the said constable, forthwith to convoy the 
said C. D. to the common Jail of the said county and deliver him to the keeper 
thereof; and you the said keeper are hereby required to receive the said C. 

D. into your custody in the said jail and him there safely keep for ■ 

months ftom the day of , A. D. 18 — , or until he so recoo^izes. ("ZVi 

ease the defendant is required to pay cofts^ add "a?u2 until the sum of costs 

of prosecution shaU be paid, or he is otherwise legally discharged.'') 

Given under my hand and seal, Qiis day of , A. D. 18 — . 

L. M., J. P. [Seal.] 

§ 26. Costs. — " "Wlien a person is required to give security to 
keep the peace, or for his good behavior, tlie court or magis- 
trate may further order that the costs of the prosecution, or 
any part thereof, shall be paid by such person, who shall stand 
committed until the costs are 2)aid, or he is otherwise legally 
discharged."^ 

§ 27. Appeal. — "Whoever is aggrieved, by the order of the 
magistrate requiring him to recognize as aforesaid, may, on 
giving the security required, appeal to the next term of the cir- 
cuit court to be held in the same county (except that in the 

'A commitment for an unlimited time, or for more than twelve months, 
is void. Barb. Cr. L., 511. 
• K. 8., 399, § 826. 



TO PREVENT THE COMMISSION OF CRIME. 23 

conntj of Cook the appeal shall be taken to the criminal 
court of Cook county). Such recognizance shall, in case of 
an appeal, contain a condition that the appellant will pay the 
costs of the appeal in case the order is affirmed or the appeal 
dismissed."* 

FORM OF RECOGNIZANCE ON APPEAL IN A PROCEEDING TO PREVENT THE 

COMMISSION OF CRIME. 

State of Illinois, } ^ 



County 



• 



Be it remembered that on the day of , A. D. 18 — , C. D. of the 

town of in the said county, and E. F. and I. J., of the same place, per* 

sonally came before L. M., a justice of the peace in and for tlie said county, 
and severally and respectively acknowledged themselves to owe and be in- 
debted to the people of the state of Illinois, in the sum of dollars each to 

be levied of their respective goods and chattels, lands and tenements, to the 
use of the said people if default shall be made in the condition following: 

Whereas, L. M., a justice of the peace in and for the county of and 

state of Illinois, in pursuance of the statutes in such case made and provid- 
ed, did on the day of , A, D. 18 — , order and require the above- 

bounden 0. D. to give a recognizance with a sufflcient security in the sum 

of dollars, to keep the peace towards all the people of this state, and 

especially towards A. B,, for months from the day of , A. D. 

18 — , from which order the said C. D. has taken an appeal to the circuit 
court of the said county, — 

Now therefore the condition of this recognizance is such tliat if the said 
appellant C. D. shall pay the costs of the appeal in case the said order is 
affirmed or the appeal dismissed, and shall also keep the peace towards all 

the people of this state, and especially towards the said A. B., for 

months from the day of , A. D. 18 — , then this recognizance to be 

void and of no effects-otherwise to remain in full force and virtue. 

CD. [Seal.] 
E. F. [Seal.] 

Taken, subscribed and acknowledged ^ I. J. [8eal.] 

before and approved by me on the day V 

and y ear first above written. J 

L. M., J. P. 

§28. Recognizance of Witnesses. — ^' The court or magistrate 
shall, when necessary, require the witnesses to support the 
complaint to recognize for their appearance at the court ap- 
pealed to."* 

» R. B., 899, § 327. 
' Id., § 828. 



24 PROCEEDINGS BEFOBB JUSTIOE. 

FOBM OF BECOGKIZANCB OF WITNESS IN A PBOCEEDINO TO FBEYENT THE 

GOMMIBSION OF CBIME& 

State of Illinois, ) „ 



County 



:i 



Be it remembered that on the day of , A. D. 1&— » E. P., of the 

town of , in the said county, personally came before L. M., a justice of 

the peace in and for the said county, and acknowledged himself to owe 

and be indebted to the people of the state of Illinois in the sum of 

dollars, to be made and levied of his goods and chattels, lands and tene- 
ments, to the use of the said people, if default shall be made in condition 
following: 

The condition of this recognizance is such that if the said E. F. shall 

personally be and appear at the next term of the circuit court to be lield in 

and for the said county of and state of Illinois, on the day of , 

A. D. 18 — , at , in said county, on the first day thereof, and from day to 

day, and from term to term, and from day to day of each term, until the 

final sentence or order of the court to give evidence in behalf of the said 

people against C. D. for threatening to commit an ofifense against the person 

of A. B., and not depart the court without leave, then this recognizance to 

be void— otherwise to remain in full force and effect. 

A. B. 
Taken, subscribed and acknowledged ^ 

before and approved by me on the day > 

and year first above written. J 

L. M., J. P. 

§ 29. Proceedings on Appeal. — " The court before which the 
appeal is prosecuted may affirm the order or discharge the ap- 
pellant, or may require him to enter into a new recognizance, 
with sufficient sureties, in such sum and for such time as the 
court deems proper, and may make such order in relation to 
the costs or prosecution as may be deemed just and reason- 
able."^ 

§ 30. Failing to Prosecute Appeal. — " If the appellant fails to 
prosecute his appeal, his recognizance shall remain in full 
force and effect as to any breach of the conditions, without an 
affirmance of the judgment or order of the magistrate, and 
shall also stand as his security for any costs wliich the court 
appealed to orders to be paid by the appellant."^ 

§ 81. Discharge on Recognizance after Commitment. — ^^ A per- 
son committed for not finding sureties, or refusing to recog- 
nize as required by the court or magistrate, may be dis- 

* R B., 899, § 829. 
■Id., §330. 



TO FBfiVENT THE OOMMISSION OF GBIME. 25 

charged by any judge Or justice of the peace of the county, on 
giving such security as was required."* 

FORH OF DISCHARGE AFTER COMICITMENT. 

8tate of Illinois, ) 

99« 



County 



:1 



The People of the State of Illinois to the Keeper of the Common Jail of the 

said County : 

Whereas, C. D., who is now in the common jail of your county in your 
custody for not giving a recognizance with sufficient security in the sum 

of dollars, to keep the peace towai*ds all the people of this state, and 

especially towards A. B., for months from the day of , A. D. 

IB—, has given before me the undersigned, a justice of the peace in and for 
said county, such a recognizance; 

We therefore command you that if the said C. D. now remains in the 
said Jail for the said cause, and none other, then you forbear to detain him 
any longer, and that you deliver him thence and suffer him to go at large. 

Given under my hand and seal this day of , A. D. 18 — . 

L. M., J. P. [Seal.] 

§ 32. Recognizance Returned to Circnit Court — How Prosecuted. 

— " Every recognizance taken in pursuance of the foregoing 
provisions shall be transmitted by the magistrate to the cir- 
cuit court of the county (except that in the county of Cook it 
shall be transmitted Ho the criminal court of Cook county) by 
the first day^of the next term, and shall be filed of record by 
tlie clerk, and upon a breach of the condition the same shall 
1x5 prosecuted by the state's attorney."^ 

§ 33. Conviction not Necessary. — " In proceeding upon a 
recognizance it shall not be necessary to show a conviction of 
the defendant of an offense against the person or property of 
another.'" 

§ 34. Breach of the Peace in Presence of a Court or Ma^i^istrate. 

— " A person who in the presence of a court or magistrate 
commits or threatens to commit an offense against the person 
or property of another, may be ordered without process to en- 
ter into a recognizance to keep the peace for a term not exceed- 

« R. 8., 899, § 331. 
• Id., % 832. 
s Id., 400, §333. 



26 . FBOOEEDINQS BEFORE JUSTICE. 

ing twelve months, and in case of refusal be committed as in 
other cases."^ 

§ 35. Court may Remit Part of Penalty. — " When upon a suit 
brought upon a recognizance the penalty thereof is adjudged 
forfeited, the court may, on the petition of the defendant, re- 
mit such portion of it as the circumstances of the case render 
]ust and reasonable."* 

§36. Sureties may Surrender Principal. — "The sureties of 
any person bound to keep the peace may at any time surren- 
der their principal to the sheriff of the county in which the 
principal was bound, under the same rules and regulations 
governing the surrender of the principal in other criminal 
cases.'" 

§ 37. Principal may again Recognize. — " The person so sur- 
rendered may recognize anew, with sufficient sureties, be- 
fore any judge or justice of the peace of the county, for the 
residue of the time, and shall thereupon be discharged."* 

§ 38. Amendments. — " No proceeding to prevent a breach 
of the peace shall be dismissed on account of any informality 
or insufficiency of the complaint, or any writ or proceeding; 
but the same may be amended by order of the court or mag- 
istrate to conform to the truth in the case.'-* 

§ 39. Preventing Prize Fighting. — " Any person who shall 
upon complaint made before any judge or justice of the peace 
appear to be about to engage in such fight or sparring or box- 
ing exhibition, may be compelled to enter into bond with se- 
curity to keep the peace, as in other cases of threatening 
breaches of the peace."® 

> R. S., 400, § 384. 
« Id., § 335. 
' Id., 8 336. 

* Id., § 337. 
» Id., § 338. 

• Id., 388, § 230. 



▲RBEST, BXAMINATIOK, COMMITMENT AND BAIL. 27 



SECTION II. 

Abbest, Examination, Commitment and Bail. 

§40. What Magistrates may Examine Offenders. 

41. Complaint 

41a. Who should make the Complaint 

42. When a Person is Liable for Making a Complaint. 

43. Who Qualified to be a Complainant 

44. Kequisites of the Complaint 

45. What must be Stated in the Complaint 

46. Effect of Issuing a Warrant without a Sufficient Complaint 

47. Provisions of the Statute Relating to the Warrant 

48. Requisites of the Warrant 

49. Name of the Accused, how Designated. 
60. Special Offlofirs. 

51. Who may Make the Arrest 

52. Duty of the Officer on Receiving the Warrant 

63. Persons Privileged from Arrest. 

64. When Made. 
66. Breaking Doors. 

66. Showing or Stating the Substance of the Warrant 

67. Arrest, how Made. 

58. What Force may be Used. 

69. Assistance. 

60. Where Accused is Already in Custody. 

61. Arrest when Offense is Committed in the Presence of the Magistrate 

Complaint 

62. Arrests without Warrant. 

68. Duty of the Person Making the Arrest 

64. Passing through Other Counties. 

65. Prisoner, how Treated. 

66. Return, how Made. 

67. Provisions of the Statute Relating to the Examination. 

68. Time of Examination. 

09. Continued — ^What a Reasonable Time. 

70. Adjournment 

71. Default for not Appearing as Required by the Recognizance. 

72. Failing to Recognize on A<youmment. 
78. The Witnesses. 

74 Separation of the Witnesses. 



S8 PS0CEEDIN08 BBFOBB JUSTTOB. 

§76. Competency of Witnesses. 
76. Husband and Wife. 
T7. Approvers and Accomplices 

78. Infamous Persons. 

79. Joint and Separate Examinations. 

80. Amendments. 

81. Continued. 

82. Cliange of Venue. 

83. Examination, how Conducted. 

84. Evidence. 

85. Variance. 

86. Variance in the Description of a Written Instrument. 

87. Burden of Proof. 

88. Alibi. 

89. Character. 

90. Statute of Limitations. 

91. For Murder or Manslaughter. 

92. For Arson or Forgery. 

93. For Other Felonies. 
94 For Other Oflfenses. 

95. Time of Absence not Counted. 

96. Time of Pendency of Proceedings not Counted. , 

97. Former Acquittal. 

98. Discharge. 

99. Bail or Commitment 

100. Bail— Definition. 

101. Provisions of the Statute as to the Sufficiency of tlie Bail. 

102. Proof of Sufficiency of Bail 

103. What Ball Sufficient 

104. Who may be Taken as Bail. 

105. Recognizance — Form. 

106. Condition. 

107. Money cannot be Taken instead of a Recognizance. 

108. Form and Requisites of the Recognizance. 

109. No Recognizance Voidable for Want of Form. 

110. Recognizance Delivered to Clerk. 

111. Recognizance Forfeited. 

112. Neglect to Record or Formal Defect no Bar. 
118. Procedure on the Forfeiture of the Recognizance. 

114. What not a Defense to a Recognizance— Sc/r^ Faeicu. 

115. What a Defense to a Eiecognizance. 

116. Objections not Available as a Defense to a Recognizance. 

117. Service of the Scire Facias. 

118. Judgment and Execution. 

119. Sureties may Surren ler their Principal. 

120. Doors may be Broken Opem to Arrest Principal — ^Assistance. 

121. Authority to Take Principal. 



ASBE8T, HXAJflNATION, OOMHITHEKT AND BAIL. 29 

§ 122. Surrender, to whom Made. 

123. Proceedings on Surrender. 

124. Second Admittance to Bail. 

125. When Bail to be Exonerated on Default Mado. 

126. Witnesses to Recognize. 

127. Married Wt>men and Minors. 

128. Commitment of Witness. 

129. Mittimus. 

130. Amount of Bail to be Indorsed on Mittimus. 

131. Names of Witnesses to be Indorsed on Mittimus. 
182. Mittimus to be Delivered to Jailer. 

133. Names of Witnesses to be Indorsed on Copy of Mittimus. 
194 Kecognizance of Prisoner in Vacation. 

I. The Complaint. 

§40. What Magistrates may Examine Offenders. — The statute 
provides that " for the apprehension of persons charged with 
oifensGs, except such as are cognizable exclusively by justices 
of the peace, any judge of a court of record, in vacation as 
well as in term time, or any justice of the peace, is authorized 
to issue process to carry into effect the following provisions 
of tliis act."* 

§41. Complaint. — " Upon complaint made to any such 
judge or justice of the peace that any such criminal offense 
has been committed, he shall examine on oath the complain- 
ant and any witness produced by him, shall reduce the com- 
plaint to writing and cause it to be subscribed and sworn to 
by the complainant; which complaint shall contain a concise 
statement of the offense charged to have b^en committed, 
and the name of the person accused, and that the complain- 
ant has just and reasonable grounds to believe that such per- 
son committed the offense.''^ 

§41a. Who should make the Complaint. — Offenses ordinarily 
affect some more than otliers, and it is therefore usual for 
such as are immediately injured to complain.' It is, however, 

' R 8., 401, 8847. 

■ Id., g 348. 

• 1 Chltty Cr. L., 1, 8 



80 PBOOEEDINOS BEFORE JUSTIOE. 

not only the right/ but the duty,' of every man competent to 
enter a complaint, knowing that another has committed au 
offense, to prefer a complaint against him. And our statute 
makes every person not standing in the relation of husband 
or wife, parent or child, who knows that a crime has been 
committed and conceals it from the magistrate,' an accessory 
after the fact, and punishes him accordingly.' But at com- 
mon law a person who merely neglected to arrest a felon, or 
to make known that a felony had been committed, was not an 
accessory after the fact/ 

■ §42. When a Person is Liable for Making a Complaint — The 
law encourages the performance of the duty of making a com- 
plaint by insuring to the complainant all due protection in 
the discharge of such duty.* There can be no recovery in an 
action against a person for complaining of or indicting a party, 
even though the complainant is mistaken as to the guilt of 
the accused,* unless his proceedings were actuated by malice 
and were entirely destitute of any probable cause.^ Even if 
the complainant is actuated by malice, he will not be liable to an 
action if there was a probable cause for a prosecution.' The 
rule is quite as strict, if not more so, in shielding him from an 
action of slander for the charges made in the form of a com- 
plaint.' Probable cause is defined to be a reasonable ground 
of suspicion supported by circumstances sufficiently strong in 



» 1 Chitty Cr, L., 1, 2. 

• Barb. Cr. L., 515. 

• R. S., 893, § 378. 

• 1 Bish. Cr. L., §694; 1 Hale, 871, 618; contra, Barb. Cr. L., 515. 

• Barb. Cr. L., 515. 

*McBean o. Richie, 18 Ills., 114; Israel v. Brooks, 28 Ills., 575; Thoipie 
V. Balliet, 25 Ills., 889. 

' Leidg 0. Rawson, 1 Scam., 278 ; Jacks v. Stimpson, 18 Ills., 702 ; McBean 
«. Richie, 17 His., 68, 18 Ills., 114; Israel o. Brooks, 28 Ills., 575; Ross v. 
Innis, 26 Ills., 259; 85 Ills., 487; Chapman v, Cawre^, 60 Ills., 512; Collins 
«. Hayte, 50 Ills., 887 ; Bourne v. Stout, 62 Ills., 261 ; Comstock v. Wood, 50 
Ills., 352 ; Collins «. Fisher, 50 Ills., 859. 

• McBean v. Richie, 18 Ills., 114; Ross v. Innis, 85 Ills., 487; Chapman v. 
Cawrey, 50 Ills., 512. 

• Barb. Cr. L., 515. 



ARBEST, EXAMINATION, COMMITMENT AND BAIL. 31 

themselves to warrant a caiitioas maa in the belief that the 
person accused is guilty of the offense charged.^ The mere 
belief of the prosecutor that he had good cause for commenc- 
ing criminal proceedings, is not a sufficient defense to such an 
action, if all the facts and circumstances under which he act- 
ed clearly show that there was no probable cause for his acts, 
and that his belief was groundless and could not have been 
formed without the grossest ignorance and negligence.* If 
he has folly and fairly stated all the facts known to himself 
to one learned in the law, and acts under his advice, this will 
go far to negative malice,' The law does not presume malice 
or want of probable cause merely because a party has been 
prosecuted and acquitted,^ although no action fbr a malicious 
prosecution can be sustained until the party is acquitted or 
the suit is otherwise disposed of.* 

§ 43. Who Qaalifled to be a Complainant. — Formerly it was 
questionable whether an infamous person, or one disqualified 
to take an oath, could act as complainant, for the reason that 
he was incompetent to swear to the complaint, as required 
by the statute.* But under our present statute an infamous 
person, of sound mind and of sufficient age and capacity, is 
qualified to be a witness,' and, therefore, may be a complain- 
ant. A justice, however, should in no case receive a com- 
plaint sworn to by a person disqualified from being a witness 
by insanity, idiocy, drunkenness or want of age;* though as 
to infants, if they understand the nature and obligations of 
an oath, they may be sworn, no matter how young, and their 

> Ross V. Innis, 26 Ills., d59; 85 Ills., 487; Chapman v. Cawrey, 50 Ills., 
512; Bourne «. Stout, 62 Ills., 262. 

* Jacks V. Stimpson, 13 Ills., 702; Hurd «. Shaw, 20 Ills., 354; Richey v. 
Bean, 17 Ills., 65. 

' Ross V. Innis, 26 lUs., 259 ; Collins v. Hate, 50 Ills., 837. 

* McBean o. Richie, 18 Ills., 114; Israel a. Brooks, 28 Ills., 575 ; Thorpie 
V. Balliety 25 Ills., 339. 

* Hurd V. Shaw, 20 Ills., 356; Qilbert «. Emmons, 42 Ills., 142. 

* Chitty Cr. L.. 2, 3 ; Barb. Cr. L., 516 ; 1 Bish. Cr. L., § 282 ; State t>. Killet 
2 Bailey, 289; Walker o. Kearny, 2 Stra., 1148. 

' R. S., 410, § 426. 

' Livingston v. Kinsted, 10 John., 362; Hartford v. Palmer, 16 John., 148. 



83 



PBOCBEDIKOS BEFORE JIT6TI0E. 



V 



credit is to be determined by the magistrate.* The justice 
should not act in a case if he sees no credit should be given 
to either the complainant or his witnesses,^ except it may be 
necessary to give protection, which the law affords to every 
man, whether entitled to be believed on oath or not.* 

§44. Requisites of the Complaint. — The Constitution pro- 
vides that " no warrant shall issue without probable cause 
supported by affidavit particularly describing the place to be 
searched and the person or thing to be seized."* The word 
" affidavit " means a sworn statement in writing of one or 
more matters of fact sworn to before some authorized officer, 
usually signed by the person making it.* It seems, then, 
that the Conslitution, as well as the statute, requires the com- 
plaint to be in writing and to be sworn to, and the statute 
requires it to be subscribed by the complainant and to " con- 
tain a concise statement of the offense charged to have been 
committed and the name of the person accused, and that the 
complainant has just and reasonable grounds to believe that 
such person committed tho offense."* And unless the com- 
plaint shows the facts required by the Constitution and the 
statute, the magistrate will not acquire jurisdiction to issue 
the warrant.^ It has been held necessary that a written com- 
plaint be made setting out the offense, eveA when the accused 
is brought before the magistrate without a warrant.® The 
same precision proper to be observed in an indictment is not 



» Barb. Cr. L., 518. 
«Id. 

• Id. ; State v. Killet, 3 Bailey, 289; Com. v. Oldham, 1 Dana, 466; see also 
State t>. Roth, 17 Iowa, 336. 

• R. S., 59, Con., Art. II., §6; Sullivan v. City of Oneida, 61 Ills., 248 

• Burrill Law Die, 66. 

• R. S., 401, § 348. 

» Flach V, Harrington, Breese, 165, 2d Ed., 213; Moore c. Watts, Breese, 
42; Gorton «. Frizzell, 20 Ills., 291 ; Tuttle ©. Wilson, 24 Ills., 559 ; Parker v. 
Follensbee, 45 Ills., 478; Myers v. People, 67 Ills., 504. 

• 1 Biah. Cr. L., § 179 ; Tracy o. Williams, 4 Conn., 107. 



ABBEST, EXAMINATION, COMMITMENT AND BAIL. 33 

required in the complaint* if all the facts which constitute 
the offense are substantially stated.^ 

§ 4r5.. What Must be Stated in the Complaint. — In a complaint 
for feloniously taking property, the value of the property and 
the place where the offense arose should be stated, or the com- 
plaint will be insufficient;* but stating the offense to have 
been committed in the town of S., without adding the county 
in which the same was situated, was held in New York suffi- 
cient to give the magistrate jurisdiction, for the courts will 
take judicial notice of towns created by law.* A warrant issued 
upon an affidavit stating tliatC. D. entered the enclosure of A. 
B. and carried off her grain, was held to be no justification to 
the officer who issued it, for the reason that tlie affidavit con- 
tained no words importing a felony.^ It has been held that 
a magistrate has no jurisdiction to issue a warrant in a crimi- 
nal case upon a complaint, the facts of which are stated en- 
tirely oil information and belief, if tlie person from whom 
the inforn^ation comes can be procured; and if the magistrate 
issues a warrant in such case, the magistrate and the com- 
plainant are jointly liable to an action for false imprisonment.* 
A warrant cannot issue against one if his guilt appears to the 
magistrate only from heart^ay and mere rumor, even if it be 
alleged that the accused will escaj)e before the nec<issary affi- 
davit showing his guilt can be obtained.^ 

§40. Effect of Issuing a Wan*ant Without a Sufficient Com- 
plaint. — It is important that the complaint should state suffi- 
cient facts to give the magistrate jurisdiction, for while the 
statute provides that the accused shall not be discharged on 



* 2 Hilliard on T., 188; Alexander v. Card,. 3 R. I., 145; Ford v. State 4 
Chand., 148. 

» 1 Cliitty Cr. L., 33 ; 1 Arch. C. P. & PI., 122 ; 1 Bish. Cr. P., § 720 ; Galla- 
ghar c. State, 2^ Wis., 423. 
•Howell V. People, 2 Hill, 281 ; contra, Payne u. Barnes, 5 Barb., 4d5. 

* Vanderwerker v. People, 5 Wen, 580; Dickinson v, Breeden, 30 Ills^ 
279 ; County of Rock Island o. Steele, 31 Ills., 543. 

•Moore «. Watts, Breese, 18, 2d Ed.. 42. 

* Comfort V, Pulton, 18 Abbott N. Y. R., 276. 

'1 ArciL C. P. & Pl^ 120, note ; Conner v. Conu, 8 Binn., 88. 

3 



1 

34 proop:edings befobe justicb. 



account of any insufficiency or informality in the complaint 
or warrant,* it does not prevent the magistrate from bein^ lia- 
ble for issuing a warrant without first acquiring jurisdiction. 
If he issues a warrant not supported by a compkiint or affida- 
vit, showing probable cause,^ and containing a concise state- 
ment of the offense,' or without any complaint or affidavit 
whatever,^ such warrant is void for want of jurisdiction, and 
the magistrate, the prosecutor and all others will be liable for 
all acts done und-er or by virtue of such process.* If, however, 
such void process is regular on its face and the magistrate is- 
suing it had jurisdiction of the subject matter, it will protect 
the officer executing it,® and those acting under him,^ without 
notice that it was issued without jurisdiction.® But where 
the complaint shows facts sufficient to give the magistrate a 
right to adjudicate upon the question as to the propriety of 
issuing the warrant, and he has observed the preliminaries 
required to obtain jurisdiction, no mere error of opinion or 
judgment will render him liable.® He is bound to decide in 
such case, and unless he acts corruptly it would be against 
both policy and justice if the law should allow him to be 
punished because he did not decide rightly.*^ Wliere the magis- 
trate acts in bad faith and grants a warrant against an innocent 
man upon an oath of facts and circumstances affording no 

' R. S., 407, § 359 ; but see Tony u. People, 17 lUs., 105. 

•R. 8., 69, Con., Art. II., §6; Baldwin v. Hamilton, 3 Wis., 747; but 
see Payne v, Barnes, 5 Barb., 405. 

»R,8.,401, §348; Fink©. City of Milwaukee, 17 Wis., 27; Carter «. Dow, 
16 Wis., 299. 

*Barb. Cr. L., 522; Flack v. Harrington, Breese, 165, 2d Ed., 213. 

» Moore v. Watts, Breese, 18, 2(1 Ed., 42; Comfort v. Fulton, 18 Abbott, 
N. Y. Pr. R., 276; Hull v. Blaisdell, 1 Scam., 332; St<flberg v. Ohnmacht, 
60 Ills., 442; Yon Kettler v. Johnson, 67 Ills., 109. 

*Lattin v. Smith, Breese, 361 ; Barnes r. Barber, 1 Gilm., 401 ; Parker •«. 
Smith, 1 Gilm., 414 ; Tett u. Ashbaugh, 13 Ills., 602; TutUe v. Wilson, 24 
Ills., 561 ; Stafford v. Low, 20 Ills., 152. 

' 2 Hiiliard on T., 232, 2a5, 323 ; Page v, De Puy, 40 Ills., 506. 

'Barnes o. Barber, 1 Gilm., 401; McDonald v. Wilkie, 13 Ills., 25. 

• Barb. Cr. L., 522 ; Carter t>. Dow, 16 Wis., 299. 

>* Id.; Tates v. Lansing, 5 John., 282 ; Butler t. Porter, 17 John., 145 ; Flack 
V. Ankeny, Breese, 144, 2d Ed., 147 ; Lancaster v. Lane, 19 Ills., 242. 



ABREST, EXAMINATION, COMMITMENT AND BAIL. 35 

rational ground of suspicion whatever, he will doubtless sub- 
ject himself to an action.' 



GENERAL FORM OP COMPIJLINT. 



State of Illinois/ 
Crounty.' 



Us.* 



A. B., of the town of — ^« in the said county, complains to L. M., a jus- 
tice of the pe^ce in and for the said county, and being duly SAvorn and ex- 
amined on his oath by and before Uie said Justice, states that he lias just 
and reasonable grounds to believe* that C. D." did, on the^ day of , 

» 1 Chitty Cr. L., 84. 

* It is customary, if not nece8sar>% to insert the name of the state and 
county in the margin. R S^ 408, § 408. But it has been held there is no 
need of inserting the name of the state in the margin or in any other part 
of an indictment. State «. Jordon, 12 Texas, 205 ; State v. Lane, 4 Ircd., 113 ; 
Mitchell v. State, 8 Yerg., 514; Eirk v. SUte, 6 Mo., 469; Com. v. Quin, 5 
Gray, 478; State v. Wentworth, 37 N. II., 196; Tcft o Com., 8 Leigh, 721. 

' If the name of the county is stated in the body of an indictment, it may 
be omitted in the margin. 1 Bish. Or. P., 377; Teft v. Ci»m., 8 Leigh, 721 ; 
Com. V. Quin, 5 Gray, 478. If the name of the county is stated in the mar* 
gin, but omitted in the body of the indictment, the defect ia cured by a 
verdict. Nichols u. People, 40 Ills., 895. 

* The letters '*ss** mean to wit,^ and are unnecessary. U. S. v. Grush, 5 
Mason, 290. 

'The words "he has just and reasonable grounds to l»elieve" are neces. 
sary in a Complaint; R. S., 401, § 348 ; State v. Dale, 3 Wis., 795 ; but should 
not be inserted in an indictment. R. S., 408, g 408. 

* The statute requires that the name of tlie accused should be stated if 
known ; if not, the fact must be so stated. Willis o. People, 1 Scam^^ 399 ; 
Scheerv. Eeown, 29 Wis., 580; and then he may be designated by any 
name, description or circumstances by which he can be identified with 
reasonable, certainty. R S., 401, §§ 848, 350. 

' The day, month and year must be stated. 1 Bish. Cr. P., g 387 ; State «. 
Baker, 84 Me., 52; State v. Offutt, 4 Blackf., 887; Erwin v. State, 18 Mo., 
806 ; Whitesides v. People, Breese, 4, 2d Ed., 21 ; though it is not necessary 
to prove the precise day oryeiu'as alleged. 1 Chitty, Cr. L., 223; Gibhart v. 
Adams, 28 Ills., 899; Koop v. People, 47 Ills., 827; People «. Stanvord, 9 
Cowen, 655. Where tlie time is set down as on or about the day mentioned 
the allegation is insufficient in an indictment. 1 Bish. Cr. P., § 390 ; Man- 
zau-man-ne-kah v. United States, 1 Pin. Wis., 124; Hampton v. State, 8 Ind., 
830; U. S. 9. Crittenden, Hemp., 61, contra^ Cokely o. State, 4 Iowa, 477; 
although this is sufficient in a complaint before a justice. Rawson v. State, 
19 Conn., 292 ; but see Com. v. Hutton, 5 Gray, 89 ; Com. o. Blake, 12 Allen, 
188. The words ** at divers other days " may be rejected as surplusage and 
do not invalidate the complaint. Gallagher v. State, 26 Wis., 423. 



36 PROCEEDINGS BEFOBE JUSTICE. 

A. D.* 18—', at the town* (or ''city'') of , in the county aforesaid.* 

(Here insert statement of the offense* as in the forms given. If the offense did not 

* An indictment is bad which does not aver tlie year to be tlic year of our 
Lord. Wliitesides «. Pe >ple, Breese, 4, 2d EJ., 21 ; bat the letters *• A. I)." 
sufficiently designate the year of our Lord. State o. U jJgjdea, 3 Vt., 481 ; 
Stale V. Gilbert, 13 Vt., 647. So the words " Anno Di)mini," written in full, 
are sufficiently English. State d. Gilbert, 13 Vt., 617; also th3 words '' in 
the year," without adding ** of our Lord ** have l)een held to refer to the 
Christian era, and therefore to be adequate. Hall o. Slate, 3 Ki^lley, Ic), 22; 
Engleman «. Stale, 2 Ind., 91 ; Com. v. Doran, 14 Gray, 37. 

* Figures may be used in an indictment. 1 Bl-^h. C. P., § 345 ; State «. 
Reed, 35 Me., 489; Stale «. Seamons, I Greene, 418; Win field v. State, 3 
Greene, 339; State ©.TuUer, 34 Conn., 280; contra, BerriantJ. S:ate,2Zab.,9; 
State fl. Voshall, 4 Ind., 589 ; Finch v. State, G Blackf., 533 , 2 Hale P. C, 170. 

* As a general rule it is not necessary to allege die particular town or 
other locality. It is sufficient to allege that it was within the county. 
Peoples. Higgins, 15 Ills., 110; Haskins «. Peop e, 16 N. Y., 344; Dillon 
c. State, 9 Ind., 408; State ©. Goode, 24 Mo., 301. There are some excep- 
tions to this rule, extending to cases which are of a local nature. 1 Bish. 
Cr. P., 372; Norris House «. State, 3 Greene Iowa, 513; but see Jenks a. Stale, 
17 Wis., 665; Zumoff t7. State, 4 Greene Iowa, 526; as arson, Peojde c. Slater, 
5 Hill, 401; burglai-y, etc., 2 Arch., C. P. & PI., 205; and where the juris- 
diction of the court extends over a space less than the county. 1 Bish. Cr. 
P., § 375. An allegation tliat tlie offense was committed in one town is sup- 
ported by proof that the offense was committed in ani)ther town or village 
in the same county exce]>t in cases of a local nature. 1 Bish. Cr. P., § 371 ; 
contra, State v. Crogan, 8 Iowa, 523; Moore v. Siaie, 12 Ohio, 387. 

* The words " in the county aforesaid** are sufficient with<mt repeating 
the name of the county. 1 Bish. Cr. P., gg378, 379; Slate p. Ames, 10, 
Mo., 743 ; Rex v. Kelderly, 1 Saund. (VVms. Eel.), „(}S ; Barnes o. State, 5 Yerg., 
186; State c. Wentworth, 37 N. H., 196; Noe r. People, ;J9 Ills., 90. If the 
allegation is that the defendant committed the crime *^at" in^)tead of *in'* 
the county, it is sufficient Augustine v. S:ate, 20 Texas, 450. 

* It is sufficient to state the offense in the terms and language of the 
statutes creating it; Miller «. People, 2 S:ja;u., 2J;; Q ii^ley p. People, 2 
Scam., 201 ; Jones u. People, 2 Scam., 477 ; Chambers o. Pi.-ople, 4 Scain., 351 ; 
Eells t?. People, 4 Scam., 498; People v. Baughman, 18 Ills., 153 ; Mohler v. 
People, 24 Ills., 26; Cannady «. People, 17 Ills., 159; Morton o. People, 47 
Ills., 467; State c. Delue, 2 Pin. Wis., 204; or so plainly that the nature of 
the offense may be easily understood by the jury. K. S., 408, § 408; Connolly 
V. People, 3 Scam., 474; Eells «. People, 4 Scam., 498; Swain v. People, 4 
Scam., 178; Chambers v. People, 4 Scam., 361 ; Cross «. People, 47 Ills., 152. 
[f a statute creates an offense, or changes a common law offense, or alters 
the punishment, to inflict the sUitutory punishment, its language must be 
pursued in describing the offense. Clark o. People, 1 Scam., 119; Curtis v. 
People, 1 Scam., 285; Perry v. People, 14 Ills., 499. 



ABBESTy EXAMINATION, COMMITMENT AND BAIL. 87 

exist at common law^ biU is created by statute^ or changed by statute, ad4} — 
if noty omii^the folluwing words : " contrary to tli£ form^ of the statute* in 
such case made and provided.) 

And the said A. B., being further examined by the said justice, on his 
oatli, says^ that the said offense has been comuiittcd, and tliat the following 
are the grounds of this deponent's belief that the said C. D. committed the 
same. (Here insert statement of such fads as are known to the complainant^ 
shoaing prob-ible cause aai the grounds of his belief.) 

And £. F.,* a witness produced by the said complainant, being sworn and 
examined by the said Justice on his oath, says (here insert sucJi facts as the 
witness knows in relation to the offense). 



* If the offense is created or changed from a lower to a higher grade by 
statute, an indictment must conclude against or contrary to the form 
of the statute or statutes, etc. 1 Stark. O. PI., 2d Ed., 229; People v. 
Enoch, 13 Wen., 159; Chapman t». Com., 5 Whart., 427; State «. Gove, 34 
N. H., 510; Rex v. Dickenson, 1 Saund. R., 135/7, note. Where the offense 
existed at common law, and an additional punishment is inflicted by statute, 
the offender, if the conclusion against the statute is omitted, is, according to 
some authorilie.s, liable to the common law punishment, but not to the new 
penalty under the statute. 1 Stark. Cr. PL, 229; 1 Chitty Cr. L., 290. But tlie 
weight of authority in such case seems to be in favor of inflicting the statute 
penalty. R. S., 395, 21)2 ; State v. Steadman, 7 Port, 495 ; State tj. Burt, 25 Vt., 
373; Bennett «. State, 3 Ind., 167. If a statute be merely declaratory of an 
offense at common law, an indictment for tlie offense may conclude against 
the statute or as at common law. 1 Arch. C. P. & PI., 306; 1 Bish. Cr. P., 
§590; Fuller v. State, 1 Blackf., 63. If the conclusion is against tlie form of 
the statute, the accused cannot be convicted of any but a statutory offense. 
Town of Paris v. People, 27 Ills., 74; contra, 1 Bish. Cr. P., § 601, 607, and 
nomen)US authorities there cited. Com. v. Kennedy, 15 B. Monr., 531. 

• The omissicm of the word ** form" has been held not to be a fatal de- 
fect Com. V. Caldwell, 14 Mass., 330; 1 Bish. Or. P., 603. 

• Where tlie offense is created by several statutes, it is proper, if not neces- 
sary, to conclude against the statutes in the plural. State t). Moses, 7 
Blackf., 244 ; State v. Dayton, 3 Zab., 49 ; 1 Bish,, Cr. P., §§ 805, 606. 

* The statute does not seem to require that the examination of the com- 
plainant and of the witnesses produced by him should be reduced to writ- 
ing. R. S. 401, §318. But the Constitution provides tliat "no warrant shall 
issue without im)l)able cause, supported by affidavit." R S., 59, Con., 
Art. II., ^ 6. Therefore it would seem to be necessary to reduce enough of 
the evidence to writing, either in tlie form of an affidavit or in the com- 
plaint, to show probable cause. 

* If the complainant can swear to facts enough of his own knowledge to 
show probable cause for issuing the warrant, it is not necessary to produce 
any additional witnesses. 



I 



88 PR00EBDING6 BEFOfiE JU8TIOB. 

Wherefore the said A. B. prays a warrant may issue against the said C. 
D. according to law. ' A. B. 

E. F. 

Taken, subscribed and sworn (" or affirmed*^) to ) 

before me this day of , A. D. 18 — . f 

L. M., J. P. 

FORM OF COMPLAINT WHERB THE NAME OP THE ACCUSED IS UNKNOWN. 



State of Illinois, 
County 



IS, 1 
[88. 



A. B., of tlie town of , in said county, complains to L. M., a justice 

of the peace in and for said county, and being duly sworn }md examined on 
his oath by and before the said justice, stales that he has just and reasonable 
grounds to believe that a certain man, whose name is unknown, but wliose 
person is well known, and who is employed as a driver of cattle, wears a 
white liat and has lost liis eyesight {or insert »uch other description as cor- 
responds toith the facts^) did on, etc., at, etc. 

(Conclude as in precious form,) 

II. The Warrant. 

§47. Proyisions of the Statute Relating to the Warrant — Wit- 
nesses. — The statute provides that " if it appears that such 
offense has been committed, the judge or justice of the peace 
shall issue a warrant, directed to all sheriffs, coroners and con- 
stables within this state, stating the offense by name, or so 
that it can be clearly inferred, the name of the person accused, 
and requiring the officer to whom it is directed forthwith to 
take the person of the accused and bring him before such 
judge or justice; or, in case of his absence or inability to act, 
before any other judge or justice of the county, and in the 
same warrant may require the officer to summon such wit- 
nesses as shall be therein named to appear and give evidence 
on the examination."* 

§48. Requisites of the Warrant — The warrant must be inj 
writiiig,be in the name of the people of the state of Illinois' and 

* It is not sufficient to give him a name, adding the word " alias." Scheer 
f>. Keown, 29 Wis.i 58G. 

• R. S., 401, § 349. 

■ R. S., 73, Con. of Ills., Art VI., §33. 



ASBEST, EXAMINATION, COMMITMENT AND BAIL. 39 

be under the hand and seal* of the magistrate.* If, however, 
it is not under seal, the statute provides that the accused shall 
not be- discharged on that account, but the warrant maybe 
amended by the judge or justice of the peace at any time 
pending the proceedings.' It ought to set forth the day and \ 
year when it is issued, but the place where issued need not 
be expressed in the warrant, except in the margin, if not set 
forth in the body of the warrant.* It must state the offense 
by name, or so that it can be clearly inferred;® but the same 
particularity and technical accuracy is not required in a war- 
rant, mittimus, or recognizance as in an indictment;" and it 
need not be returnable at any particular time or place, and 
continues in force until it is fully executed and obeyed.^ It 
must not be left in blank to be filled up by the officer or 
party, and if the name of the officer or party be inserted with- 
out authority after the issuing of the warrant, the arrest will 
be illegal and the person executing it will not be protected 
in proceeding under it.' But it may be filled up by the mag- 
istrate himself after he has signed it before he delivers it over 
to the officer.^ And it should not be general to apprehend 
all persons suspected, but should direct the officer to appre- 
hend some particular individual ; otherwise it will be void.*" 



• Under a former statute a seal was not necessary. T. S., &c., Stat., 415, 
§210. But this statute is now repealed, so that the statute is now silent on 
the point in which case the authorities as to wliethcr a seal is necessary or 
not, are conflicting. 1 Bish. C. P., §227. The weight of authority seems 
to be in favor of requiring a seal. Welsh v. Scott, 5 Ired., 72; Lough v. 
Millard. 2 R. I., 436; State v, Drake, 30 Me., 366; Tackert v. State, 3 Yerg., 
392; centra^ State v. Vaughn Harper, 813; Thompson v. Fellows, 1 Fost. N. 
H., 425 ; Fofis 9. Isett, 4 Greene Iowa, 76, 425 ; Davis v, Clements, 2 N. H., 390. 

M Chitty Ci.L., 38. 
« R S., 402, § 359. 
« 1 Chitty Cr. L., 38. 
•R. 8., 401, §349. 

• Young a. People, 18 Ills., 566 ; Besmeir n. People. 15 Ills,, 440 ; People 
fj. Blankman, 17 Wen., 2o5 ; Thomas v. People, 13 Ills., 696. 

^ 1 Chitty Cr. L., 39 ; Barb. Cr. L., 527. 
■ 1 Nun. & Walsh, 188 ; Barb. Cr. L., 528. 

• Barb. Cr. L., 528. 

*• Id., 524; 1 Arch. C. P. & PL, 126; Wells t. Jackson, 3 Munf., 458. 



40 PB0CEKDING8 BEFORE JUSTICE. 

§ 49. Name of the Accnsed, how Designated. — The name of 
the person to be apprehended should be accurately stated if 
known.^ If the name inserted be not the right one, or be 
fictitious merely, the arrest cannot be justified, even though 
the person arrested be the one intended, unless he is known 
as well by the name in the warrant as by his true name.* 
And if the officer makes an arrest under such circnmstances 
he will be liable to an action for false imprisonment.^ But 
the statute provides that " if the name of the defendant is un- 
known to the complainant or judge or justice of the peace, 
he may be designated by any name, description or circum- 
stances by which he can be identified with reasonable cer- 
tainty, and if upon arrest he refuses to disclose his true name 
he may be tried and convicted by the name used in the war- 
rant."* Prior to the statute a warrant to apprehend " 

Hood," omitting his Christian name, "of B. in the parish of F., 
by whatsoever name he may be called or known, the son of 
Samuel Hood, to answer," etc., was held defective as omitting 
the Christian name and assigning no reason for the omission 
nor giving any distinguishing particulars of the individual.* 
So a description of A. and his associate was held void as to 
the latter.** 

GENERAL FOUM OF A WARRANT AND SUBPOENA. 

State of Illinois, ) 



County. f 



S8. 



The People of the State of Illinois to all Sheriffs, Coroners and Constables of 

the said State, Greeting: 

Whereas, A. B. has this day made complaint to L. M., a justice of the 
peace in and for the said county, and the said justice, having examined on 
oath the said complainant, and E. F., a witness produced hy him, and re- 

» 1 Chitty Cr. L., 89; Scheer v. Keown, 29 Wis., 586. 

• 1 Arch. C. P. & PI., 126; Griswold v. Sedgwick, 6 Cowen, 465; Scott «. 
Ely, 4 Wen., 555; Mead t?. Haws, 7 Cowen, 3:J2; Shadgett v. Clipson, 8 
East, 328; Gurnscy v. Lovell, 9 Wen., 319; Scheer v. Keown, 29 Wis., 586. 

■ Id. ; Melvin v. Fisher, 8 N. II., 406; Scheer v. Keown, 29 Wis., 586. 
•R S., 401, §350. 

• Rex V. Hood, 1 M. & M., 281 ; 1 Arch. C. P. & PI., 127. 
•1 Arch. C. P. & PI., 126; Wells v. Jackson, 3 Munf., 458. 



ABREST, EXAMINATION, COMMITMENT AND BAIL. 41 

dnced the complaint to writing and caused it to be subscribed and sworn 
to by the said complainant, whereby it appears that the offense of {insert the 
name of the offense^ or so that it can be clearly inferred) lias been committed, 
and tliat C. D. is charged with having c:)mmitted tlie same; 

We tlierefore command you forthwith to take ihe person of the said C. 
D. and bring liim i)efore L. M., or, in case of Iiis Hb--<enceor inability to act, 
before any other judge or justice of tlie said couaty, to answer to the said 
charge and be dealt with according to law/ 

Aud >'ou are also hereby required to summf)n {insert names of wilneases) 
to appear forthwith and give evidence on the exumination of the said 0. 
D. on tlie said charge, at my oflflce in the town of in said county. 

Given under my hand and seal at in the county of and state of 

Illinois, this day of , A. D. 18 — . 

L. M., J. P. [Seal.] 

§50. Special Officer. — "The judge or justice of the peace 
issuing the warrant may make an order thereon authorizing 
a person to be named in the order to execute the same, and 
the person so named may execute such warrant in tlte same 
manner and have the like powers as if he* were the officer 
named in the warrant, and all sheriffs, coroners, constables and 
others, when required in their respective counties, shall aid 
in the execution of such warrant."* 

FORM OP A WARRANT DIRECTED TO A PRIVATE PKRSON. 

State of Illinois, 



County 



us,) 

[88. 



The People of the Sfate of Illinois to all SherifTi, C.)roners and Cimstables 
of the said State, and to John Doe (conclaie as in the next previous form). 



FORM OF ORDER THEREON. 



State of Illinois, 



County 



[88. 



Ordered that John Doe, named in the within warrant, be hereby author- 
iied to execute the same. 
Dated Uiis day of , A. D. 18—. L. M., J, P. [Seal.] 

* The warrant is sufficient although it does not command the officer to 
make a return of the same and his dt)in{^ thereon. C m\. v. Boon, 2 Gray, 
74; Tubbs v. Turhey, 3 Cush., 4I>8. And it lias been held that it is not void 
thougli returnable on the next day after its date. State o. Freeman, S 
Iowa, 429. 

• R. S., 401, §J>51. At common law a justice of the peace had a right to 
direct this warrant to any particular private person by name. Com. v. 
Keeper of Prison, 1 Ashm:, 183; Kelsey o. Parmelee, 15 Ctmn., 2G0; Meek v. 
Pierc5e, 19 Wis., 300. 



42 PROCEEDINGS BEFORE JUSTICE. 

III. The Arrest. 
1. Under a Warrant. 

§ 51. Who may Make the Arrest. — In this state the statute 
requires the warrant to be directed to all sheriffs, coroners 
and constables in the state/ and by statute the magistrate 
issuing the warrant may authorize any person to execute the 
same,^ and the statute authorizes any of these persons to ar- 
rest the person against whom the warrant is issued in any 
county in the state, whether in or out of his own county.' A 
deputy sheriff who is duly appointed by an instrument in 
writing signed b)' the sheriff and qualified, may execute the 
warrant in the name of the sheriff.^ If the warrant is di- 
rected to a constable and not to a marshal, the acts of a mar- 
shal under it are void.* Though the warrant is directed to 
several, it may be.executed by one.* 

§ 52. Duty of the Offieer on Receiving a Warrant. — It is the 
duty of every officer to whom a warrant is lawfully directed 
and delivered, to serve and execute the same without delay ,^ 
though he may do so at any time afterwards until the object 
of the w^arrant has beensatisfied,® and if he refuses or neglects 
to do so, he will be punishable for his disobedience and neg- 
lect.' The officer should proceed with secrecy in all cases,*® 
and where the offense is not a felony at common law*^ he 
should be careful not to arrest a person not named or describ- 



> R. 8., 401, § 349. 

•Id., §351. 

» Id., gg 351, a>2. 

• Id., 990, §§ 7-12. As to rule under former statutes, see Kindred v. Stitt, 
51 Ills., 401. 

» Hickey v. Forrcstal, 49 Ills., 256. 

• 1 Bish. Cr. P., g 206. 
' R. 8., 400, § 340. 

' 1 Bish. Cr. P., § 200 ; Penk, 234. 

• R. 8., 383, § 208 ; 1 Chilty Cr. L., 47. 
>• 1 Bish. C^-. P., § 206. 

" People tj. Adler, 3 Park., 254; Marsh v. Smith, 49 Ills., 396 ; Kindred «. 
Btitt, 51 Ills., 401. 



ASRE8T, EXAMINATION, COMMITMENT AND BAIL. 43 

ed in the warrant, for if he does so he will be a trespasser, 
though he actually arrests the proper person.* . If the oflScer 
does riot know the party, he should be informed, so as to be 
acquainted with his personal .appearance, or have some one 
on whom he can rely point him out, as he is bound at his 
peril to arrest the proper person.* 

§ 53. Persons Privileged ftom Arrest. — State senators and 
representatives are privileged from arrest in all cases except 
treason, felony, or a breach of the peace, during the session of 
tlie general assembly, and in going to and returning from the 
same.' So are United States senators and representatives 
privileged from arrest in all cases except treason, felony and 
breach of the peace during their attendance at the session of 
their respective- houses, and in going to and returning from 
the same.* Foreign sovereigns, their attendants,* ambassadors, 
diplomatic agents, their secretaries, attendants, families and 
domestic servants," public ministers, including secretaries of 
legation,^ while personally upon our territory, are privileged 
from arrest.* But a consul is not privileged from arrest,® 
though he cannot be proceeded against in a state court.*® Elec- 
tors are privileged from arrest in all cases except for treason, 
felony or a breach of the peace during their attendance at 



> Crock, on S. and C, §§ 55, 01 ; ante § 49. 

• Id. ; Barb. Cr. L., 532. 

' R. S., 03, Con. of lUs., Art. IV., § 14; 1 Pin. Wis., 115. 

• R. 8., 11, Con. of U. S., Art I., § 6, Sub. 1 ; 1 Pin. Wis., 84. 
•Phillim. International Law, 364; Poison Law of Nations, 25; Wlioat. 

International Law, 6tb £d., 143. 

• U. S.«. Lafontaine, 4 Crancb C. C, 173; Vattel Law of Nations, ft. 4, §§ 
8(MJ2; 1 Kent Com., 38, 39 ; Wheat. International Law, 6th Ed., 143,284; 
State «. De La Forest, 2 Nott «fc McCord, 217; Respublica v. De Lonchampes, 
1 Dallas, 111 ; Schooner Exchange f). McPadden, 7 Cranch, 116; U. S. Stat 
at Large, 117, Act of April 30, 1789, Chap. 9, § 25. 

' Vattel Law of Nations, b. 4,§ 112; ex parte Cabrera, 1 Wash. C. C, 232; 
Taylor «. Best, 14 C. & B., 487; S. C, 25 Eng. L. & Eq., 383. 

■ 1 Bish. Cr. L., §§ 124-128. 

■ U. S. V. Bavaria, 2 Dallas, 297 ; State v. De Laret, 2 Nott & McCord, 217 ; 
Com. V. Kosloff, 5 Serg. & R., 545. 

» Judiciaiy Act of U. S., 1789; 1 Bish. Cr. L., § 181. 



44 PKOCEEDINGS BEFORE JUSTICE. 

elections and in going to and returning from the same.* So 
tlie militia in all cases except treason, felony or breach of the 
peace are privileged from arrest during tlieir attendance at 
musters, and elections, and in going to and returning from the 
same.^ Judges, counselors, attorneys, clerks, sheriffs, and 
other officers of the court, shall be privileged from arrest 
while attending court and while going to and returning from 
court.* It has been held in England that under the exception 
" treason, felony or the breach of the peace" all indictable of- 
fenses are comprehended.'* 

§ 54. When Made. — The arrest may be made at any time of 
the day or night, or on any day,* including Sunday.* But if 
made in the night more special notification of the officer's 
authority is necessary.^ 

§55. Breaking Doors. — The outer doors or windows of the 
dwelling-house of the offender may bo broken open in the 
dav or night time to make an arrest on a criminal warrant in 
all cases, for though in regard to civil process a man's house 
is his castle, it is not to be made a sanctuary for criminals of 
any grade.® But in all cases of a misdemeanor," and possibly 
of a felony ,*° where the party does not know the object of the 
officer, there should be first a demand for admittance and a 
statement of the object of it before breaking open the doors or 
windows." So an officer acting in good faith under a regular 



> R S., 74, Con. of lUs., Art. VI I., § 3. 
•Con. of Ills., Art. XI !.,§ 4. 

• R. 8., 170, § 9. 

• Rawlins v. Ellis, 10 Mees. & W., 172 ; 1 Bish. Cr. P., § 207. 

• R a, 401, §:J52; Stole v. Smith, 1 N. II., 340; BjU v, Clapp, 10 John., 
263; State©. Shaw, 1 Root, 134; State c. Brenan's Liquors, 25 Conn., 278. 

• 1 Arch, C. P. & PI., Ill; 1 Bish. Cr. P., §207; Main v. McCarty, 15 
Ills., 441. 

M Arch. C. P. ifcPl., Ill, 112. 

■ Id.. 116; Barb. Cr. L., 545; 1 Bish. Cr. P., §200; Bell v. Clapp, 10 John., 
263; State tj. Smith, 1 N. H., 340; Snydacker v. Brosse, 51 Ills., 360. 

• 1 Bish. Cr. P., §g 1U7, 202. 
»• Crock, on S. «& C, § 03 
"1 Chilly Cr.L., 52. 



▲BREST, EXAMINATION, COMMITMENT AND BAIL. 45 

criminal warrant may break into the house of a third person 
to arrest the supposed offender, and if he does not find him 
there, or it turns out that the supposed offender is innocent, 
the officer will be protected.* When an officer has entered 
the door of a dwelling-house and the doors are locked upon 
him, he or his assistants may break them open to obtain his 
or their liberty.* 

§ 56. Showing or Stating Substance of Warrant. — A regular 
and known officer, acting within liis proper district, is not 
bound to exhibit his authority when he arrests an offender, 
though it be demanded.^ But a special deputy must do so, 
and if he refuses, the party may resist,* and the warrant un- 
der such circumstances will be no protection against. an ac- 
tion for an assault and battery and false imprisonment.* A 
regular officer should, however, either before or at the mo- 
ment of the arrest, make known in some form that he comes 
in his official capacity to make the arrest on the warrant or 
other process, and not in that of a mere wrong-doer, or other- 
wise he may be lawfully resisted.® But the wearing the ac- 
customed badge of office is a sufficient notice of the official 
capacity, even in the case of a fresh incumbent,^ and possibly, 
if he was elected by the people, that may be deemed a suffi- 
cient notice.® If an officer is acting out of his own district, 
he must show his warrant on demand made.^ In all cases 
after the party has submitted to the arrest, the officer, if re- 
quired, is bound to inform him of the substance of the war- 



'Crock. on 8. & C , §63; 1 Bish. Cr. P., §§200, 204. 

• Crock, nn 8. «fc C, §64; 1 Bish. Cr. P., §205. 

•1 Bish. Cr., P., §§190-192; Rex v. Woolner, 1 Moody, 834; Rex v. 
Gordon, 1 East. P. C, 815, 352; Arnold v, Stevens, 10 Wen., 514; Com. «. 
Cooley, 6 Gray, 350. 

« Barb. Cr. L., 634; Frost ©. Thomas, 24 Wen., 418. 

• Crock, on S. & C, §65; Frost «. Tliomas, 24 Wen., 418. 

* Bellows V. Shanntm, 2 Hill, 91 ; Kindred v. Stitt, 51 Ills., 406. 
» Yates V. People, 82 N. Y., 509. 

■ 1 Bish. Cr. P., § 190. 

* State V. Elrby, 2 Ired., 201 ; State v. Curtis, Hayw., 471 ; Com. o. Field» 
ISliaas., 821. 



46 PROCEEDINGS BEFORE JUSTICE. 

rant.* But in no case is the officer bound to part with the 
possession of the warrant, for that is his justification. If the 
party arrested should get possession of the warrant and refuse 
to return it, the officer may use just so much force as is neces- 
sary to retake it, and no more.^ 

§ 57. AiTest, how Made. — In order to constitute an arrest 
the party arresting must either touch the other,' or actually 
and physically restrain and control him,* or the party arrest- 
ed must submit himself by words or actions to be in custody ,* 
and the intent to apprehend the person arrested must be 
made known or be obvious from the circumstances.* It is 
sufficient that the party arresting " touch the other with the 
end of his finger."^ So if a bailifi^ comes into a room and 
tells the defendant he arrests him, and locks the door, that is 
an arrest, for he is in custody of the officer.® .But mere worSs 
will not constitute an arrest.^ As if an officer notifies or re- 
quests the defendant to appear before a magistrate and he ac- 
cordingly appears, without being taken into custody, this 
does not constitute an arrest." The arrest is usually made by 

' State V, Townsend, 5 Hairing. Del., 487, 488; Keman c. State, 11 Ind., 471 ; 
Drennan v. People, 10 Mich., 169 ; Com. v. Field, 13 Mass., 321 ; Bellows v, 
Sbannon, 2 Hill, 92; see State v. Garrett, 1 Winston, No. 1, 144; Kindred o. 
Stitt, 51 Ills., 405. 

• Barb. Cr. L., 524; 1 Bish. Cr. P., § 193; Rex «. Milton, Moody & M., 107; 
8 Car. & P., 31. 

■ Genner «. Sparks, 6 Mod., 173. 

• Williams 9. Jones, Cas. temp. Hardw., 298, 301 ; Granger v. Hill, 4 Bing. 
N.R., 212; 5 Scott, 561. 

• 1 Chitty Cr. L., 48; 1 Arch. C. P. & PI,, 112; Emery v. Chelsey, 18 N. 
H., 198; Mowry v. Chase, 10 Mass., 79, 85 ; Russen «. Lucas, 1 Car. & P., 153; 
QcoTge 9. Bradford, 3 Car. A P., 464 ; Berry v. Adamson, 6 B. & Cres., 528. 

• 1 Bish. Cr. P., {? 158; Mackalley's case, 9 Co., 65a ; Rex v. Davis, 7 Car. 
& P., 785 ; Rex «. Howarth, 1 Moody, 207 ; Rex v. Payne, 1 Moody, 378. 

' 1 Bish. Cr. P., § 157. 

• 1 Arch. C. P. & PL, 112; 1 Bish. Cr. P., § 157 ; Williams v. Jones, Cas. 
temp. Hardw., 298, 301. 

• 1 Chitty Cr. L., 48: 1 Bish. Cr. P., § 157. 

«> Barb. Or. L., 530; 1 Arch. C. P. & PI., 112; Huntington v. Blaisdell, 2 
N. H., 318. 



ABRE8T, EXAMINATION, COMMrfMENT AND BAIL. 47 

laying hands on the party and detaining him,* and according 
to some authorities the officer must corporally seize or touch 
the defendant's body before the arrest is complete;^ but the 
better opinion seems to be that no manual touching of the 
body is necessary in order to constitute an arrest or an im- 
prisonment. It is sufficient if the party is in the power of 
the officer and submits to tlie arrest.' 

§ 58. What Force may be Used. — The person making the ar- 
rest should use no more force or constraint than is actually 
necessary to secure the arrest and safe custody of the accus- 
ed.* The degree will depend upon the circumstances of each 
case, as the character of the party charged and the magni- 
tude of the crime.* If an officer, in the execution of his office, 
in a criminal case, having legal process, be resisted and as- 
saulted, he is justified if he kills the assailant; or if an offi- 
cer or private person, while attempting to arrest a person 
charged with treason, murder, rape, burglary, robbery, arson, 
perjury, forgery, counterfeiting^, or other felony, is resisted 
in the endeavor to take the person accused, he may kill him 
if necessary to prevent injury from such resistance and the 
consequent escape of the accused.* According to the com- 
mon law (and we think it is not changed by our statute,' 
though it may be), if a person charge^d with a felony does not 
resist the officer attempting to arrest him, but runs, and the 
officer calls on him to stop, then, if he does not stop, the offi- 
cer is justified in killing him, provided it is necessary to pre- 
vent his escape; but if the offense is a misdemeanor, the offi; 



. » 1 Arch. C. P. & PI., 112. 

* 1 Nun. & Walsh, 203; Snydaker «. Brosse, 51 Ills., 859; Lawson «. Bu- 
zines, 3 Hairing., 41 6. 

< Russen v. Lucas, 1 Car. & P., 158, Moody & Ry ., 26 ; George v. Brad- 
ford, 3 Car. & P., 464; Moody & M., 244 ; Berry «. Adamson, 6 B. & Ores., 
528; 2 Car. & P., 503; Collins v. Bungs, 6 Moore, 111; Gold v. Bissell, 1 
Wen., 215 ; 18 N. H., 198. 

* State V. Malion, 8 Hairing., 568 ; 1 Nun. & Walsh, 203. 

* Barb. Cr. L., 681 ; Crock, on S. & C, § 67. 
•R a, 875, §150. 

'Id. 



48 PKOOEEDINOS BEFORE JUSTICE. 

cer has no right in such case to take this extreme measure.* 
An officer should not kill an offender instead of arresting 
Lim, even though lie is in the act of committing a felony.^ 

§59. Assistance. — The statute provides that " every male 
person above the age of eighteen, when commanded by an 
officer to assist in arresting or securing an offender, shall 
obev such command. '" Where an officer commands the as- 
sistance of others, it has been held that he must be present, 
or at least so near as to appear to be acting in the arrest.* 
But where the sheriff commanded A and certain other per- 
sons, at the house where the offenders then were, to watch 
them and prevent their escape while he went about four miles 
to procure sufficient force to complete the arrest, it was held 
that the sheriff was constructively present so as to justify A 
and others in arresting the offenders during his temporary 
absence.* Where an officer at the commission of an offense 
is not able to make the arrest, and calls in other officers or the 
posse, those who aid have a justification as broad as his own.* 
There is authority for saying that one who is called upon to 
assist an officer in making an arrest under a warrant, and who 
acts in good faith, is justified though the process is not valid 
to the extent of justifying the officer himself.^ But the bet- 
ter opinion is that if the officer does not act under lawful au- 
thority, any person assisting him by his command will not 

» 1 Bish. Cr. P., § 159; t Arch. C. P. & PL, 117, 118; Reg. v. Dodson, 2 
Den. C. C, 35: State v. Roane, 2 Dev., 68; Dill «. Btate, 25 Ala., 15; Brady 
f>. Price, 19 Texas, 285. 

* Reg. V. Murphy, 1 Crawf. & Dix. C. C, 20; Gardiner «. Tliibodeau, 14 
La. An., 732. 

» R 8., 400, § 8 ; see post § 62. 

* 1 Chitty Cr. L., 49 ; Rex v. Patience, 7 Car. & P., 775; People v. Moore, 
2 Doug. Mich., 1. 

* Coyles D. Hurtin, 10 John., 85; Com. v. Field, 13 Mass,, 321; Fenton's 
case, Loft, 27. 

* Main v. McCarty, 15 Ills., 441 ; Paige «. De Puy, 40 Ills., 506; Payne •. 
Green, 10 S. & M., 607. 

' 1 Bish. Cr. P., 187 ; Reed t>. Rice, 2 J. J. Mar., 44. 



AKEE8T, EXAMINATION, COMMITMENT AND BAIL. 49 

be protected.* A person obstructing* or encouraging others 
to resist the execution of process may be arrested.* 

§60. Where Accused is Already in Custody. — It sometimes 
happens that the party against whom the warrant is issued on 
a criminal charge is already in jail on process issued in a civil 
or criminal suit. While the prisoner is in the custody of the 
law he cannot be re-arrested and taken out of the custody of 
the oflScer making the arrest^ or of the jailor having him in 
charge upon other proce ss^ wh ether civil or criminal, except 
upon a habeas co rpus duly granted.^ In England where the 
party is in custody on a civil prosecution, the criminal war- 
rant is lodged with the keeper of the place of confinement in 
which the defendant is imprisoned. This oflScer, on the ter- 
mination of the civil imprisonment, sends for the oflScer, who 
takes the party before the justice, and then the same proceed- 
ings are had as in ordinary cases. When a party is already 
in jail on a criminal charge, and fully committed for trial, 
the justice hears the complaint, etc., as in other cases, and a 
warrant of detainer is sent to the jail in whose custody he re- 
mains.'^ It would seem, however, to be most consistent with 
car statute when the accused is confined on criminal process, 
to lodge the warrant with the jailer and let him see to the ser- 
vice of it in the same way as is above provided with respect 
to a party in custody on a civil process.® 

"Elder t>. MorrisoD, 10 Wen., 128; Oystead «. Shed, 12 Mass., 511; 13 
Mass., 821; Vinton tj. Weaver, 41 Me., 480; MitcheU.c. State, 7 EngL, 50; 
Wolf «. Boettcher, 64 Ills., 817. 

• Levy «. Edwards, 1 Car. & P., 40 ; Anonymous, 1 East P. C, 805 ; Coyles 
«. Hurtin, 10 John., 85; McMalian v. Green, 84 Yt., 69. 

• White 9. Edmunds, Peake, 89. 

• Williams «. Bacon, 10 Wen., 686; Brown «. Tracy, 9 How. N. T. Pr. R., 
93. 

• 1 Chitty Or. L., 63, 64; Crock, on S. & C, § 68. 

• Barb. Cr. L., 686. 

4 



60 pboceedin68 before justice. 

2. Without Warrant. 

§ 61. Arrest when Offense is Committed in the Presence of the 
Magistrate — Complaint. — The statute provides that "a magis- 
trate may orally order an officer or a private person to arrest 
any one committing or attempting to commit a criminal of- 
fense in the presence of such magistrate."^ IS a. breach of 
the peace is committed in the presence of the magistrate,* or 
if an offense is cxjmmitted in the court of a magistrate in his 
presence, he may verbally authorize the attending officer to 
take the offender into custody, no warrant being necessary in 
the first instance;' and in such case the magistrate may pro- 
ceed to the trial of the offender, and enter judgment against 
him without issuing a warrant of arrest.* But a written com- 
plaint or information against the part}', setting out his offense, 
is as necessary in such case as in any other.^ If the offense is 
committed in the absence of the magistrate he must issue a 
warrant indue course of law to apprehend the offender.® 

§ 62. Arrest* withoat Warrant. — An arrest may be made by 
an officer or by a private person, without warrant, for a crim- 
inal offense committed or attempted in his presence, whether 
a felony or misdemeanor,^ and by an officer when a criminal 
offense which was a felony at common law Jias in fact been 
committedj'and he has reasonable grounds for believing the 
person to be arrested committed it.® Formerly in such case 

* R. S., 400, § 5 ; Kindred v. SUtt, 51 Ills., 406. 

* Com. f), McGahey, 11 Gray, 194. 

* Lancaster «. Lane, 19 lUs., 242; O'Brian e. State, 12 Ind., 369; Holcomb 
f». Cornish, 8 Conn., 375. 

* Tracy «. Winiams, 4 Conn., 107; Hogart v. Bigley, 6 Humph , 236. 

» 1 BUh. Cr. P., § 179; Tracy o. Williams, 4 Conn., 107; R. 8., 400, § 840; 
Id., 401, § 348. 

* 1 Kindred v. Stitt, 51 Ills., 406. 

* R. 8., 400, « 4 ; PliiUips «. Trull, 11 John., 486; Keenan r. 8tate, 8 Wis., 
132; Long v. State, 12 Ga., 208; Rex v. Hunt, 1 Moody, 93; Hancocks. 
Baker. 2 B. & P., 260; Riieck v. McGregor, 3 Vroom, 70 ; Keen»m «. Slate, 18 
Wia^ 133 ; People c. Adler, 3 Park., C. K, 254 ; Miles v. Weston, 60 Ills., 362. 

* R. 8.. 400, ^342; 1 Arcli. C. P. & PL, 101 ; Dodd v. Board, 43 Ills., 95; 
Kindred v. Stitt 51 Ills., 40.'l ; Miiyo v. Wilson, 1 N. H., 53; Holly «. Mix, 
8 Wen., 350; Marsh v. Smith, 49 Ills., 396. 



ASRE8T, EXAMINATION, COMMITMENT AND BAIL. 61 

a private person could also make the arrest;' but under the 
present statute it seems to be the intention to change the law 
so as to prohibit private persons from making arrests unless 
commanded by a sheriff, coroner or constable,* except in the 
cases where the offense is committed in their presence. At 
common law an arrest for a misdemeanor could only be made 
upon a warrant,* unless the offense was committed in the 
presence of the officer or private person making the arrest,* 
and then such officer or private person could not arrest the 
offender if he did not make the arrest at the time the offense 
was committed, or attempt to make it then and continue the 
attempt until the arrest was completed;* but according to a 
recent statute, when an offense has been committed, whether 
a felony or misdemeanor, an officer may, if he has reasonable 
grounds for believing that a particular person committed such 
offense, arrest him without a warrant;* yet, so far as the stat- 
ute relates to misdemeanors and authorizes an arrest without 
a warrant, where an arrest was not allowed without a warrant 
at common law, the courts may hold it to be unconstitutional 
and void, as conflicting with the spirit and intent of the constitu- 
tion of this state, which provides in substance that " the right 
of the people to be secure in their persons," etc., " shall not 
be violated; and no warrant shall issue without probable 
cause, supported by affidavit,"^ etc. ; for this provision will 
not afford much protection or security to the people in their 
persons if the legislature can authorize a constable to make 
arrests, when a magistrate is prohibited by it from issuing 
his warrant for that purpose unless supported by the proper 

1 People V, Adier, 3 Park., 254; Kindred v. Stitt, 51 Ills., 401; Dodds v. 
Board, 43 Ills., 95. 
« R S., 400, § 339. 

• People «. Adler, 3 Park.. 254; Fox c. Gaunt, 8 B. & Aid., 798 ; Com. «. 
Carey, 12 Cush., 246; Cdda. v, McLauglin, 13 Cash., 615. 

• 1 Bish. Cr. P., §i^ 169, 170, 183, 184 ; PhiUips v. Tnill, 11 John., 486. 

» Phillips «. Trull, 11 John., 486 ; Main t>. McCartney, 15 lUs., 441 ; Taylor 
«. Strong, 3 Wen., 384; Reg. o. Walker, 25 Eng. L. & Eq., 589; Reg. «. 
Marsden, Law R., 1 C. C, 131. 

• R. 8., 400, § 342. 

' R. 8., 59, Con. of Ills., Art II., § 6. 



52 FBOOEBDIKGS BEFOBE JUSTICE. 

affidavit If an attempt is made to arrest an offender at the 
time the offense is committed, the officer or person attempting 
to make the arrest may pursue the offender and make the ar- 
rest without a warrant in a reasonable time after the commis- 
sion of the offense.' Therefore it has been held that a police- 
man of a city had authority to arrest without a warrant for 
breaches of certain city ordinances committed in his pres- 
ence.' And that the arrest was not unlawful if not made im- 
mediately, especially if not made on account of the resistance 
of the offender making assistance necessary, or the arrest 
was evaded by other arts and means for gaining time.* Under 
[the statute the officer cannot justify the arrest of a supposed 
' offender on suspicion of his guilt unless he can show that a 
criminal offense has been committed by some person as well 
as that he had reasonable grounds for believing that the per- 
son arrested committed such offense; for the officer acts at 
his peril if he acts without a warrant, and if it turns out that 
no offense was committed, he will be liable.* 

4. PROCKKniNos After tub Arrest. 

§ 63. Duty of the Person Making the Arrest. — When an 
arrest is made, either with* or without* a warrant, by an offi- 
cer or a private person, it is the duty of the person making 
the arrest to take the person arrested "before the jndge 
or justice who issued the warrant, or in his absence before 
some other judge or justice of the peace of the countj' in 
which the warrant was issued," according to the import of the 
warrant, if the arrest was made by warrant;'^ if the arrest was 

' HoHy V. Mix, 3 Wen., 350; 1 Arch. 0. P. & PI.. 101. 

* Bryant «. Bates, 15 Ills., 87 ; Main v. McCartney, 15 Ills., 441. 

* Main v. McCtirtney, 15 Ills., 441. 

* 1 Arch. C. P. & PI., 102, n. 1 ; R 8., 400, § 342 ; Dodds v. Board, 43 Dls., 
95; Kindred v, Stitt, 51 Ills., 401. The rule was formerly supposed to be 
otherwise. 1 Bish. Cr. P., g 181. 

» R a, 402, §§ 853, 355 ; 1 Chitty Cr. L., 50. 

* R 8., 400, § 342; Bish. Cr. P., § 218. 

' R 8., 402, §8 a>3. 855 ; People v. Puller, 17 Wen., 211 ; Batchelder v. Cur- 
rier, 45 N. H., 400. 



ABBEST, EXAMINATION, COSEMITHENT AND BAIL. 53 

without warrant, then "before the nearest magistrate in, the 
county,"* — and he will be liable if he be guilty of unnecessary 
delay.* But if the tirae be unseasonable, as in or near the 
night, whereby he cannot attend the magistrate, or the party 
be ill and unable at present to be brought, he may, as the case 
shall require, secure him in a house or some other safe place 
till the next day, or until it may be reasonable to bring him.* 
It has been held under the New York statute that a person 
may be detained twelve hours to find a magistrate before 
whom he may be examined;* but it has also been held that a 
delay of three days in taking a prisoner before a magistrate was 
not justifiable.* 

§ 64. Passing through other Counties. — " The officer, or any 
person so authorized, having the custody of a prisoner, may 
pass through any counties which may be in his route, between 
the place of arrest and the place to which he is taking the 
prisoner, and may lodge the prisoner in any jail on the route 
for safe custody for one night or more, as circumstances may 
require."' 

§ 65. Prisoner, bow Treated — Re-arrest. — One having the 
custody of a prisoner should treat him kindly; but in all cases 
if the prisoner uses violence to efifect his escape, he may use 
so mach force as is necessary to prevent it, even if he is 
obliged to kill the prisoner to prevent his escape;^ yet where 
a party charged only with a misdemeanor effects his escape 
without violence, and merely flies to avoid being re-taken, if 
the person having him in custody kill him in the pursuit, he 
will be guilty of murder, or, if death was not intended, man- 
slaughter." An officer having a prisoner in custody may tie 



> T?. S., 402, § 353. 

» Foster, 14:J; 2 Hale P. C, 119; 1 Arch. C. P. & PI., 133, n. o\ Pratt v. 
Hill, 16 Biirb., 30:1. 
■ 2 Hale P. C, 95, 96, 110, 130; 1 CUitty Cr. L., 69; 1 Bish. Cr. P., § 216. 

* Arnold «. Steives, 10 Wen., 515. 

* Wright V. Court, G D, & Ry., 623, 4 B. & Ores., 596. 

• R. 8.. 402 ; § 354. 

» 1 Bish. Cr. P., § 163 ; 1 Chitty Cr. L.. 62. 

• 1 Chitty Cr. L., 02 ; Barb. Cr. L., 539. 



54 PB0CEEDIN08 BEFCBE JUSTICE. 

him* or put hand-cuffs* on him if it is necessary to prevent 
his escape; and it is laid down that where the officer acts 
honestly and from pure motives he is to be himself the sole 
judge of the necessity of such a measure as this.' If the 
prisoner escapes/ or the officer allows him to go at large,* he 
may be arrested again on the same warrant. 

5. The Return. 

§ 66. Return, how Made. — The statute requires the warrant, 
with a proper return thereon signed by the person making 
the arrest, to be delivered to the magistrate before wliom the 
prisoner is brought.* It has been held in Massachusetts that 
where an officer justified under a warrant he must show that 
he returned it, otherwise he was a trespasser;^ and, in New 
York, that when the magistrate issuing the warrant was ab- 
sent, and the accused was taken before another, the officer 
making the arrest should in his return state such absence or 
it must be proved by a witness.' 



FORM OF A RETURN TO A WARRANT. 



State of Illinois, 



County. 



[ss. 



In obcdionce to the within writ I have arrested C. D., the defendant 
tliercin mimed, and have him now in custody here in court to answer as I 
am within commanded (jr, ^^I ham arrested C. !>., one of the defend^mts 
therein named, and have him now in custody here in court to ansuoer, as 1 am, 
within commanded, E. F. and O. H,, tlie other defendants^ notfound'^). 

Dated this day of , A. D. 18—. 

J. S., Const, of Co., Ills. 



» 1 Bish. Cr. P., § 163. 

« Id., S 214. 

» Id., §103; State©. Stalcup, 2 Ired., 50. 

• Cooper t>. Adams, 3 Bhickf, 294; Com. v. Sheriff, 1 Grant Pa., 187. 

• Com. tj. Slieriff, I Grant Pa., 187; Clark v. Cleveland, 6 Hill, 344. 

• li. S., 402, § 355. 

• Tubbs V. Tukey, 3 Cush., 438. 

• People V. Fuller, 17 Wen., 211. 



ABRB8T, EXAMINATION, COMMITMENT AND BAIL. 55 

IV. The Examination. 

§ 67. Provisions of the Statnte Relating to the Examination. — 

The statute provides that " the judge or justice before whom 
any person charged with a criminal offense is brought, with or 
without a warrant, shall, as soon as may be, examine the wit- 
nesses in support of the prosecution, as well as those who 
may be produced on behalf of the accused, on oath in the 
presence of the party charged, in relation to any matters con- 
nected with such charge which he may deem pertinent.'*' 

§68. Time of Examination. — It is the duty of the magis- 
trate to take and complete the examination of the accused as 
soon as the nature of the case will admit; but he is allowed a 
reasonable time for this before he makes his final decision. 
A commitment for further examination must not be made 
use of as a commitment for trial; and the examination nmst 
take place in a reasonable time, otherwise an action will lie 
against the magistrate, ^ even though he acts without any im- 
proper motive.'* And it appears that a warrant for a commit- 
ment for an unreasonable time is whollv void.** 

§ 69. Continued — What a Reasonable Time. — As to what is a 
reasonable time for the full investi<jation of the case in such 
cases, is a question wh<ch depends upon the circumstances of 
each case.* Fifteen daj-s were held to be an unrtiasonable 
time unless there were circumstances to account for it, and 
those circumstances it was incumbent on the .maofjstrate 
to show.* Where the plaintiff got drunk on Sunday night, 
and was locked up until Monday noon by a constable, and 
then brought out by him, and, on meeting a magistrate in 
the street, he said to him, "Take him back: I will see him 
to morrow," and he was taken back and brought out the next 

' R. S., 402, § 360. 

• Id ; 1 CUitly Or. L., 73, 73, 74; Pratt i?. HiU, 16 Barb., 303. 

• Davis V. Capper, 10 B. <& Ores., 28; S. C, 5 M. & Ry., 53. 
*Id. 

• 1 Cliitty Cr. L., 74. • 

• Davis V. Capper, 4 Car. & P., 134; see Potter «. Kingsbury, 4 Day, 97; 
Com. c. Ro.As, 6 Serg. & R., 427. 



56 PBOOEEDINGS BEFORE JUSTICE. 

day, the magistrate was held to be liable for false imprison- 
ment.' Where the plaintiff was in the presence of the justice 
when the latter ordered the defendant, a constable, to take 
him into custody until the next day, which he did, the con- 
stable was held liable.^ Where a justice of the peace issued 
a warrant for the arrest of an individual upon a criminal 
charge, late on Saturday night, with an indorsement thereon 
directing the accused should be committed until the follow- 
ing Monday for examination, and the constable arrested the 
accused on the same evening, and committed him to jail with- 
out first bringing him before the justice, it was held that the 
justice had exceeded his authority, and that he, together with 
the constable and his assistants, were liable in trespass.^ 

§ 70. Acljoiimment. — The statute, however, provides that 
" a judge or a justice of the peace may, for good cause ap- 
pearing, adjourn an examination or trial pending before him- 
self, from time to time, as occasion requires, not exceeding 
ten days at one time, without the consent of the defendant or 
person charged. In the mean time, if the party is charged 
with an offense not bailable, he shall be committed; other- 
wise he may be i-ecognized in a sum and with sureties to the 
satisfaction of such judge or justice ot^the peace for his ap- 
pearance for such further examination, and for want of such 
recognizance he shall be committed to jail."* 

' Edwards t?. Ferris, 7 Car. & P., 542; Pratt v. Hill, 16 Barb., 808. 

• Boughton v. Mulshoe, Moor, 408, 8. C, Vin,, 482. 

• Pratt V, Hill, 16 Barb., 803. 

• R. 8., 402, § 356. This statute has been held lo apply to cases of bas- 
tardy. People V. Green, 58 Ills., 236. Where a party is arrested for an al- 
leged violation of a town ordinance, tlie police magistrate before whom the 
proceeding is pending has no power to exact a bond from the defendant 
for his appearance on granting him a continuance, and a bond given in 
such case is void. Maguire v. Town of Xenia, 54 Ills., 209. A magistrate 
has no authority to order a person accused of a criminal offense to be com- 
mitted until a subsequent day for examination without the accused being 
brought before him, Pratt v. Hill, 16 Barb., 303. 



ARREST, EXAMINATION, COMMITMENT AND BAIL. 57 

FORM OF RECOONIZANOE ON ADJOURNMENT.^ 

State of Illinois, > 
County. P^- 

Be it remembered that on the day of , A. D. 18 — , C. D., of the 

town of in the said county, and E. P. and Q. H., of the town of 

in the county aforesaid, personally came before L. M., a justice of the peace 
of said county, and severally and respectively acknowledged themselves to 
owe and be indebted unto the People of the State of Illinois, — that is to 
say, the said 0. D., in the sum of five hundred dollars, and the said E. F. 
and G. H. each the sura of five hundred dollars, to be made and levied of 
their respective goods and chattels, lands and tenements, to the use of the 
^aid people if doiault shall be made in the following condition: 

Whereas, A. B. lately made a complaint to L. M., a justice of the peace 
of the said county, and the said justice examined on oath the said com- 
plainant and E. F., a witness produced by him, and reduced the complaint 
to writing and caused it to be subscribed and sworn to by tlie said com- 
plainant, whereby it was charged that the said C. D. did (insert statement 
cf the offense as in the complaint)^ and tlie said C. D. has been arrested and 
brought before tlie said justice to answer to the said charge ; and whereas the 
(further) examination of the said C. D. on the said charge is adjourned 

until the day of , A. D. 18 — , at 10 o'clock A. M., before the said 

Justice, at his office in the town of in said ctmnty, — 

Now tlierefore the condition of this recognizance is such that if the said 
C. D. shall be anl parjoriilly app3dr b3r)rj tho said justice at his said of- 
fice on the said day and hour last above mentioned, and not depart without 
leave, but abide the order of the court, then this recognizance shall be 

void — otherwise to remain in full force and virtue. 

C. D. [Seal.] 

E. F. [Seal.] 

. G. H. [Seal.] 
Taken, subBcribed and acknowledged ) 

before, and approved by, me on the day r 

and year first above written. ^ 

L. M., J. P. 

§ 71. Default for not Appearing as Required by the Recogni- 
zance. — *'If the person so recognized does not appear before 
the judge or justice of the peace according to tlie condition of 
such recognizance, the jtidge or justice of the peace shall re- 
cord the default, but such default may be set aside by the 
judge or justice for good cause sliown, on the appear- 
ance of the accused at any time to which the matter may- 
be continued by such judge or justice of the peace. And 
in case such default is not set aside as aforesaid, the judge or 

> For another form, see Ogden v. People, 62 Ills., 64. 



58 P&OCKBDINGS BEFORE JUSTICE. 

justice shall certify the recognizance with a record of tlie 
default to the court having cognizance of the offense, and like 
proceedings may be had thereupon as upon the breach of 
the condition of a recognizance for appearance before such 
court, or an action of debt may be maintained thereon."^ 

FORM OF BECORD OF DEFAULT AND CERTIFICATE. 

State of Illinois, ) 

BS. 



-, County. 



( 



Be it remembered that on this the day of ^ A. D. 18 — , at -— 

o'clock A. M., C. D. on being called ,* failed to appear at my office in the 

town of , according to the condition of the recognizance made and exe- 

cutcd by him,E. F. and G. H., taken and acknowledged before and approved 
by me, on the day of , A. D. 18 — . 

It is therefore considered and adjudged that the said C. D. is in default, 

and the said recognizance is hereby declared forfeited. 

L. M., J. P. 

State of Illinois, 

' S8. 



County. 



I 



I the undersigned, a justice of the peace of said county, do hereby certify 

that the annexed {or *foregoing*^) recognizance was taken, subscribed and 

acknowledged before and approved by me on the day of ^ A. D. 

18 — ; and that the foregoing is a record of the default of C. D. on the said 

recognizance. 

Given under my hand this day of , A. D. 18 — . 

L. M., J. P. 

§ 72. Failing to Recognizfl on Acljonmment. — "When a person 
fails to recognize, he may be committed to jail by an order of 
the judge or justice of the peace, which order shall be in writ- 
ing, and contain a concise statement of the reason of such 
commitment and the day and place appointed for his examina- 
tion, and on the day appointed he may be brought before the 
judge or justice, by his verbal order to the officer who made 

» R. 8., 403 ; § 357 ; People v. Green, 58 Ills., 236. If the defendant appears 
at tlie time and place fixed in the recognizance, and tlie examination is con- 
tinued without anew recognizance being given, tlie justice has no right to 
enter his default for not appearing on the day to which the examination is 
continued, for by appearing on the day fixed in the recognizance the de- 
fendant fully complies with its condition. Ogden v. People, 62 Ills., 64. 

* A default cannot properly be entered against the defendant until he is 
called. State v. Gorley, 2 Iowa, 52. 



ABBESTy EXAMINATION, COMMITMENT AND BAIL. 59 

the commitment, or by an order in writing to a different 
person."^ 

FORM OF COMMITICENT ON ADJOURNMENT. 

State of Illinois, ) 
, County. J^- 



The People of the State of Illinois to the Sheriff, Coroner or Constable of 

said County, Greeting: 

Whereas, A. B. lately made complaint to L. M., a justice of the peace of 
said county, and the said justice examined on oath the said complainant 
and E. F., a witness produced by him, and reduced the complaint to Mriting, > 
and caused it to be subscribed and sworn to by the said complainant, 
whereby it was charged that C. D did (iruert the statement of the offense (xe 
in the complaint), and it appearing from the said complaint and exam in a. 
tion that the said offense had been committed, and that the said C. D., was 
charged with having committed tlie same, the said justice tliereupon issued 
a warrant for tlie arrest of the said C. D., and the said C. D., has since 
been arrested thereon, and brought before the said justice to answer to said 
charge; and whereas the (furthej') examination of the said C. D. on said 

charge is adjourned until the day of , A. D. 18 — , at 10 o'clock 

A. M., before the said justice, at his office in the town of in said county, 

and the said C. D. having failed to enter into a recognizance with good and 
sufficient surety or sureties for his personal appearance before me at that 
time and place, — 

We therefore command you the said constable to convey the said C. D. to 
the common jail of said county and deliver him to the keeper thereof 
together with this warrant; and you tlie said keeper arc hereby required to 
receive and safely keep the said C. D. in your custody in said jail until the 
time last above mentioned, when you are hereby required to deliver him to 
ftuch person as the said justice shall order. 

Given under my hand and seal this day of — r— , A. D. 18—. 

L. M., J. P. [Seajl], 

FORM OF ORDER TO BRINO ACCUSED BEFORE THE MAGISTRATE AT THE 
TIME TO WHICH THE EXAMINATION WAS ADJOURNED. 

State of Illinois, i 

County. J **• 

The People of the State of Illinois to I. J., a Constable of said County, and 
the Keeper of the Common Jail of said County, Greeting: 
Whereas, C. D. is now in the common jail of the said county, charged 

with {insert the name of the offense, as in the warrant) for failing to give a 

recognizance to appear before L. M., a justice of the peace of said county, 

at his office in the town of in said county, on the day of , A. 

D. 18 — , at 10 o'clock A. M., to answer to said charge, — 

You, the said keeper, arc herebj*^ commanded to deliver the said C. D. ' 

> R 8^ 402, § 858. 



60 PBO0EEDINO8 BEFOBE JUBIICB. 

iDto the cnstody of the said I. J., and you the Bald I. J. are commanded to 
bring him before the said Justice at the time and place last above mentioned. 

Given under my hand and seal tliis day of , A. D. 18 — 

L. M., J. P. [Skal.] 

§73. The Witnesses. — The magistrate, having authority to 
examine as to the probability of the guilt or innocence of the 
accused,^ as an incident to his authority has power to bring 
before him all persons who appear to be material for the 
prosecution or the defense; and for this purpose he may ifesue 
his subpoena, which may be in the usual form. But the jus- 
tice can only compel the attendance of witnesses wi thin the lim- 
its of his own jurisdiction.* If the witness, upon the service of 
the subpcBna, refuses or neglects to attend in pursuance of it, 
the magistrate may, upon proof of the service of it, issue an 
attachment against him.* Yet the attachment must be con- 
fined to the simple purpose of directing the constable to bring 
the refractory witness before the justice in order to give testi- 
mony; and, therefore, where it commanded that the witness 
should be brought up to find sufficient bail to appear and 
give evidence, it was held that the justice had exceeded 
his powers and that the warrant was bad.'' In a criminal 
case a witness cannot decline to be sworn though he has not 
been subpoenaed at all.* When a witness refuses to be sworn 
and to testify in answer to lawful questions, the magistrate 
may commit him to jail. He is committed " until he con- 
sentls to testify," or " until he shall submit to be examined 
touching the said offense."' Since the statute requires the 
examination of the witnesses to be in the presence of the ac- 
cused and by the justice before whom the accused is brought,^ 



> R. S., 403, §§ 860, 361 ; Id., 403, § 363. 

• 1 Cliitty Cr. L., 76; 1 Arch. C. P. & PI., 155; Roscoe Cr. Ev., 128; SoD 
€. People, 13 Wen., 344; U. S., v. Moore, J. B. Wallace R., 23. 

■Id. 

• 1 Arch. C. P. & PI., 157 ; 12 Al. & EL, 55. 4 Perry & D., 32. 

• 1 Arch. C. P. & PI, 157 ; 4 Car. & P., 218. 

• 1 Arch. C. P. & PI., 158. 
» R S., 402, §360. 



ABBEST, EXAMINATION, COMMITMENT AND BAIL. 61 

the deposition of witnesses cannot be taken thongli they are 
out of the county or state.^ 

§74. Separation of Witnesses. — "While a witness is being 
examined, the judge or justice of the peace may, if he sees 
cause, exclude from the place of examination all other witness- 
es, or direct the witnesses to be kept separate, so they cannot 
converse with each other, until they have been examined."* 

§75. Competency of Witnesses. — The statute provides that 
"no person shall be disqualified as a witness in any criminal 
case or proceeding by reason of his interest in the event of 
the same, as a party or otherwise, or by reason of his having 
been convicted of any crime; but such interest or conviction 
may be shown for the purpose of aifecting his credibility: 
Provided^ however, that a defendant in any criminal case or 
proceeding shall only at his own request be deemed a com- 
petent witness, and his neglect to testify shall not create any 
presumption against him, nor shall the court permit any ref- 
erence or comment to be made to or upon such neglect."' 

§ 76. Husband and Wife. — Neither the husband nor wife can 
be a witness in a criminal case in which the other is a party,^ 
(except in the case of a personal injury committed by one 
npon the other, in which case from necessity the one may be 
a witness against the other**). The wife in such case is not 
permitted to testify, even with the husband's consent.® Ac- 
cording to some authorities the husband or wife cannot be a 
witness for a party joined with the other, even if they are 
tried separately/ while according to others the husband or wife 

» People *. Kestil, 8 Hill, 289. 

• R 8., 403, § 861. 
■Id., 410, §438. 

• Miner n. People, 58 Ills., 60 ; 1 Gree^I. Ev., § 334 ; U. 8. «. Mills, Burr, 
183. 

• 1 Arch. C. P. A PI., 496 ; State «. Dudley, 7 Wis., 664. 

• People c. Randall, 5 City Hall Rec, 141, 153, 154; People c. Colburn, 1 
Wlieeler Cr. C, 479; Baxter n, Dixie, Gas. temp. Hardw., 264; Sedgwick «. 
Watkins, Vesey, 49. 

^ People o. Bill, 10 John., 95; People «• Colbarzi« 1 Wlieeler Gr. 0., 479; 
Pollen V. People, 1 Doug., 48. 



62 PROCEKDINGS BEFORE JUSTIOE. 

can be a witness in snch case,^ tliongli all tlie anthorities 
agree that the husband or wife cannot be a witness for a party 
joined and tried jointly with tlte other.* The reason for the 
exclusion of the husband or wife in these cases was formerly 
founded upon the interest of the parties being the same, as 
well as on pnblic policy.' By recent statute permitting a 
person interested and a party to testify at his own request,* 
the objection on the ground of interest is removed, but 
the objection on the ground of public policy remains un- 
touched, and therefore the law remains unchanged by stat- 
ute.' In case of a criminal proceeding against the husband 
or wife the other is not permitted after a divorce to testify 
as to any transaction which took place prior to the divorce.* 
On an indictment against the wife for adultery,' or for living 
in an open state of adultery, the husband cannot be a witness 
to prove the marriage between them, though that fact is es- 
sential to be proved in order to convict her.' In one case it 
was held tliat the wife could not be a witness though she 
married the defendant after she was subpoenaed in the cause.* 
But the rule does not prohibit a kept mistress who has passed 
as the party's wife from testifying for him.*" Where several 
persons were jointly indicted, the wife of one of them was held 
to be a competent witness for the others after her husband 
had been acquitted." So the wife is a competent witness 
against the husband on an indictment for a rape committed 

' Bish. Cr P. (^ 1019; Com. v. Hanson, 2 Ashm., 81; Com. «. Easland, 1 
Mass., 15: Moffett f>. State, 2 Humph., 99; State «. Worthing, 81 Me., 63; 
Thomp.«. Com., Met Ky., 18; State «. Drawdy, 14 Rich., 87. 

• 1 Bish. Cr. P., § 1019; 1 Arch. C. P. & PI., 497; Schoeffler c. SUte, 8 Wis., 
828. 

• 1 Greenl. Ev., §254; Schoefflerc. State, 8 Wis., 824. 
*R.S., 410 §3(50; aniens. 

• Mitchlnson v. Cross, 58 Ills., 369; contra, Lucas v. State, 23 Conn., 18 

• Barnes t). Comaclt, 1 Barb., 392; Coolc t>. Grange, 18 Ohio, 526; Wad- 
dams V. Humphrey, 22 Ills., 661 ; Beat?. Tucker, 51 Ills., 110. 

• U. 8. t?. Mills, Bur., 183. 

• Miner «. People. 58 Ills., 60; U. S. c. Mills, Bur., 188. 

• Pedley v. Wellesby, 8 Car. & P., 558, 
•• Bathews p. Gallindo, 4 Bing., 610. 

'» State e. Anthony, 1 McCord, 285; Stale v, Bradley, 9 Richardson, 168; 
Moffett V. State, 2 Humph., 99; State «. Worthing, 31 Me., 62. 



iLBBEST, EXAMINATION, COMMITMENT AND BAIL. 68 

on her own. person,* or for an assault and battery upon lier,* 
or for maliciously shooting her.* 

§77. Approvers and Accomplices. — Under a former statute 
an approver was not allowed to give testimony,* but the stat- 
ute is now repealed. An approver, as well as an accomplice, 
not jointly charged or made defendant, may be a witness, and 
it has been held that a legal conviction may be had upon the 
uncorroborated testimony of an accomplice.^ 

§ 78. Infamons Persons. — Formerly infamous persons were 
disqualified to be witnesses;' but under the present statute no 
person is disqualified from being a witness in a criminal case 
by reason of his having been convicted of any crime; but 
such conviction may be shown for the purpose of aiFecting 
his credibility.^ 

§ 79. Joint and Separate Examinations. — Where several per*- 
sons are jointly charged with an offense they cannot insist 
upon a separate examination as a matter of right, but the 
magistrate may in his discretion allow them to be examined 
separately, and should do so if upon considering all of the 
circumstances of the case it is his opinion that the ends of 
justice will be promoted thereby.* If one of the defendants 
wishes to .avail himself of the testimony of the wife of another 
one, he should apply for a separate examination; and as a 
general rule it will be granted him f for the better opinion 
seems to be that the wife in such case may be allowed to tes- 
tify for or against any of the defendants examined separately 

> People V. Audley, 3 HoweU St. Tr., 402, 413. 

* Rex V. Lawley, Bun. N. P., 287 ; Rex v. Azire, 1 Stra,, 633 ; Soule's Case, 
5 Greenl., 407 ; State v. Davis, 3 Brevard, 3. 

* 1 Greenl. Ev., § 343. 

* Myers v. People, 26 Ills., 173; Gray v. People, 26 Ills., 346-7. 

* Gray v. People, 26 Ills., 344; Cross o. People, 47 Ills., 153; contra^ Ray ©. 
State, 1 Greene Iowa, 316 ; Johnson v. State, 4 Greene Iowa, 65. 

* 1 Greenl. Ev., § 372. 
' R. S., 410, § 426. 

* 1 Arch. C. P. & PL, 319 ; Maton «. People, 15 Ills., 530 ; People t). Williams, 
19 Wen., 377; State v. Conley, 39 Me., 78; People v. Stockham, 1 Park., 424; 
Johnson o. People, 22 Ills., 317; Slate e. Nash, 7 Iowa, 348; State o. Marvin 
12 Iowa, 499. 

* Com. V. Manson, 2 Ashm., 81 ; Com. v. Easland, 1 Mass., 15. 



64 FBOCEEDIKGB BEFORE JUSflCE. 

from her husband/ unless the acquittal of such defendant 
would work the acquittal of her husband ;'* while if lier hus- 
band is examined jointly with the other defendants slie can- 
not be a witness for them.' Even if separate examinations 
are granted, no one of the persons jointly charged can be a 
witness for any other one without being first acquitted or con- 
victed/ except on his own motion.* But where there is not 
sufficient evidence, or there is no evidence, to criminate the 
accused, or if he is made defendant by mistake, or for the pur- 
pose of doing away with his testimony, it is the duty of the 
magistrate to discharge him, that he may be a witness for or 
against the othei* defendant or defendants jointly charged with 
him.® If one defendant has been discharged,^ or has plead 
guilty and no sentence has been pronounced against him,* he 
jnay be a witness for the rest. In case of a conspiracy,* af- 
fray'® or riot," no separate trials should be allowed unless there 
is a special reason for it.*^ 

§ 80. Amendments. — The statute provides that "the prisoner 
shall not in any case be discharged on account of any insuffi- 

> Thomp. V. Com., 1 Met. Ky., 18; State v. Drawdy, 14 Rich., 67; State v. 
Anthony, 1 McCord, 285 ; Sbite v, Bradley, 9 Rich., 108 ; Moflfett t>. State, 3 
Humph., 99; State o. Worthing, 81 Me., 62. 

» 1 Bish. Cr. P., § 1019. 

' Com. V. Robinson, 1 Qray, 55«? ; liex v. Smith, 1 Moody, 289 ; Rex e. 
Locker, 5 Esp., 107 ; Com. v. Marsh, 10 Pick., 57 ; Bobbins v. King, 2 Leigh 
Com. R., 142. 

. ♦ 1 Arch. C. P. & PI., 501 ; People v. Bill, 10 John., 95 ; People d. Williams, 
19 Wen., 877; State c. Nash, 7 Iowa, 347; People v. Mclntyre, 1 Park. C. C, 
871 : State v. Roberts, 15 Mo., 28; Wood v, Polmer, 1 Pin. Wis., 509; contra, 
in cases of a riot^ Sloan v. State, 9 Ind., 650 ; Eeerett v. State, 6 Ind., 495. 

•R.S.,410,§426. 

* Cochran v. Ammon, 16 Ills., 817; Bounty Case Cited, 1 East, 313; State 
9. Roberts, 15 Mo., 28; State v. Bean, 8 N. H., 122; Com. o. Eastman, 1 Cush., 
189; Fitz «. State, 14 Mo., 413. 

* Rex V, Sherman. Cas. temp. Hardw., 808. 

' Reg. V. Q«orge, Car. & M., Ill ; Slate v. Jones, 51 Me., 125; Wood «. 
Polmer, 1 Pin. Wis., 509. 

* Com. «. Manson, 2 Ashra., 31. 
>* Hawkins v. State, 18 Ga., 822. 

" Rex V Scott, 3 Burr., 1362 ; Turpln v. State, 4 Blackf, 72. 
» 1 Blah. Cr. P., §§ 1022, 1023. 



ARREST, EXAMINATION, COMMITMENT AND BAIL. 65 

ciency or informality in the complaint, or on account of any in- 
fonnality in the warrant, or because it is not under the seal of 
tlie judge ^r justice, but the warrant may be amended by the 
judge or justice of the peace at any time pending the pro- 
ceedings."* 

§ 81. Continued. — The statute does not authorize the amend- 
ment of the complaint, yet it has been held in other states that 
the complaint in respect to being amended stands on the same 
foundation with a criminal information, and that the magistrate 
may or may not, in his discretion, allow it to be amended.* 

§82. Change of Venue. — The statute provides that*' any 
person arrested on any criminal charge, and taken before any 
justice of the pejice for examination, may, previous to the 
commencement of any such examination, make oath that it 
is his belief that said justice is so prejudiced against him that 
be cannot have a fair and impartial investigation before said 
justice, whereupon it shall be the duty of the justice immedi- 
ately to transmit all the papers connected with or belonging 
to such examination to the nearest justice of the peace in the 
same county, who is not of kin to the defendant, sick, absent 
from town, or interested in the event of the investigation, as 
counsel or otherwise, who shall proceed as if the suit had been 
instituted before him: Provided^ that the officer having the 
defendant in charge shall hold him in his custody until the 
complaint shall be heard and disposed of by the justice to 
vlioin the papers shall be sent as aforesaid; and providedy 
further, that distance, as contemplated in this section, shall 
mean to be by the nearest traveled route.'" 

FORM OF OATH FOR A CHANGE OF YENUB. 

Ton dofiwear by tlie ever-living God that it is your belief that L. M., the 

>R. 8., 402, §859. 

• 1 Biah. Or. P., § 731; State v. Batchclder, 6 Vt., 479, 488; Anonymous, 
Comb, 45; Rex «. Coffe, 1 Lev., 189; State t. Stebblns, 29 Conn., 463; States. 
Bowley, 12 Conn., 101, 106; and see Ballance 9. Curtenius, 8 Gilm., 449; 
Jackson «. Warren, 82 Ills., 881. 

' Laws, 1878, 75, § 1. In Iowa, under a somewhat similar statute, it was 
held that the accused was entitled to a second change of venue on the 
ground of prejudice of the second Justice. State «. Minski, 7 Iowa, 886. 

6 



66 PBOOEEDINGS BEFOBE JUSTIOE. 

Justice before whom you are taken for examination, is so prejudiced 
against you that you cannot have a fair and impartial investigation before 
him. 

§83. Examination, how Conducted. — According to the strict 
construction of the statute, the magistrate should examine the 
witnesses for the prosecution as well as for the defense;^ but 
no magistrate should insist upon doing so to the exclusion of 
the complainant or the accused or their respective counsel. 
So far as the accused is concerned in all criminal prosecutions, 
the Constitution gives him the right to appear and defend in 
person and by counsel to demand the nature and cause of the 
accusation and to have a copy thereof; to meet the witnesses 
face to face, and to have process to compel the attendance of 
witnesses in his behalf.^ The statute requires the witnesses 
to be examined on oath in the presence of the party charged.* 
The prosecution begins to give evidence and must prove the 
defendant to b^ gi^il^J of the offense charged against him 
before the latter can be called on for his defense.^ The stat- 
utes, of 1 & 2 Phil. & Mary C, 13, §§ 4, 5; 2 & 3 Phil. & 
Mary C, 10, passed in 1554 and 1555, wliich are now in force 
in this state, except so far as they are modified by our statute,* 
require the evidence to be reduced to writing aud certified to 
the circuit court. Although it has not been customary, or 
heretofore been deemed necessary, for the magistrate so to do, 
yet there are very many good reasons why it should be done. 
It is important that the evidence should be reduced to writ- 
ing, in order that the witness may be tied down to the first 
narrative, and not left open to the influence of those impres- 
sions, either of pity or of revenge, which may affect him dur- 
ing the interval,^ and in case of the decease of the witness his 
testimony would be admissible on the trial of the accused for 
the offense.^ 

» R. 8., 402, § 360. 

» R. 8., 60, Con. of Ills., Art. II., § 9. 

• R 8., 402, § 360. 

• 1 Arch. C. P. & PI., 885. 

• li. 8., 269. § 1 ; 1 Bish. Cr. P., §§ 1091, 1092, 1093. 

• 1 Chitty Cr. L., 79. 

' 1 GreenL £v., g§ 163, 164; 1 Bish. Cr. P., §§ 1093-1099. 



AEBE8T, EXAMINATION, COMMITMENT AND BAIL. 67 

FORM OF OATH OR AFFIRMATION TO WITNESSES ON THE EXAMINATION. 

You do Bwear by the ever-living God* {or ^*^Tou do solemnly^ nncerdy and 
truly declare and afflrm'^^ that the evidence you shall give between the Peo- 
ple of the State of Illinois and C. D., in relation to any matter connected 
with the charge made against him, now in hearing, shall be the truth, the 
whole truth, and nothing but the truth. 

§ 84. Evidence — Place and Time. — In all cases it must be 
proved that the offense was committed within the county .• 
Wliere the jurisdiction of the officer does not extend all over 
tlie county, it must be shown to be within the jurisdiction of 
such officer before whom the accused is brought.^ This proof 
is necessary to give the magistrate jurisdiction, and if it ap- 
pears that the offense was committed out of the county the 
accused has a right to be discharged.* The time need not be 
proved as alleged unless it is the essence of the offense.' 

§85. Variance. — The statute provides that the witnesses 
shall be examined in relation to any matter connected with 
such charge which he may deem pertinent.^ This clearly 
implies that they shall not be examined in relation to any 
other charge. Therefore it seems that if a party is charged 
in a complaint with stealing a horse, evidence in relation to 
matters connected with the offense of stealing a cow or of 
murder, should be excluded, for these are different offenses.* 



' It is provided by statute that the person sweating shall with his hand 
nplifted swear by the ever-living God, and shall uut be compelled to lay 
the hand on or kiss the Gospels. R S., 725, § 3. 

' Where the witness has conscientious scruples against taking an oath, 
he may make his solemn aflirmatiou in this form. R. S., 725, g 4. 

• Rice V. People, 88 Ills., 435 ; Jackson v. People, 40 Ills., 405 ; Sattler «, 
People, 50 Ills., 68. 

• 1 Bish. Or. P., §§ 372-375 ; State v. Cotton, 4Fost, 143 ; McBride v. State, 
10 Humph., 615 ; State t;. Williams, 4 Ind., 234; State v. Welker, 14 Mo., 
398. 

• 1 Bish. Cr.P. §384; 1 Barb. Cr. L., 397; Sattler t». People, 59 Ills., 68. 

• 1 Arch. C. P. & PL, 389 ; Gebhart v. Adams, 23 Ills., 399 ; Koop v, Peo- 
pie, 47 Ills., 327. 

' R 8., 402, 8 360. 

• 1 Bish. Or. P., §§485, 486; 1 Greenl. Ev., § 65; Gutchins «. People, 21 
Ills.,642. 



68 . PROCEEDINGS BEFORE JUSTICE. 

And this seems reasonable, for the accused may come pre- 
pared with witnesses to prove his innocence of the ofifense 
with which he is charged in the complaint while he could not 
be expected to be prepared to prove his innocence of every 
offense o{ which j}rifna facie evidence of his guilt could be 
produced. The safer and better course to pursue in case the 
accused is really guilty of a different offense from the one 
charged in the complaint, is to have another complaint made, 
charging him with such offense, on which he can be examined 
and held to bail. 

§ 86. Variance in the Description of a Written Instniment, etc. 
— If a written instrument or record is set out as the founda- 
tion of the charge in the complaint, and the date and place is 
stated as a part of the description of the instrument or rec- 
ord, any — the slightest — variance between the time* or place* 
as stated, or in any other matter ofdescription appearing from 
the written instrument' or record when produced, will make 
it inadmissible in evidence.'' But the omission of the letter 

in the place for marking bank bills with letters in the de- 
scription of the bill was held to be immaterial.* 

§87. Bnrden of Proof. — Every material fact necessary to 
constitute the crime must be proved by the prosecution,* for 
the prisoner is presumed to be innocent of the offense charg- 
ed.'^ If the proof shows positively that one of two or more per- 
sons have committed a crime, but leaves it uncertain which 

' 1 Arch. C. P. & PI., 889. 

* Id., 390. 

* Higgins V. Lee, 16 Ills., 495; Crittenden «. French, 21 Ills., 599; Spang- 
ler c. Pugh, 21 Ills., 85. 

* Com. ©. Varney, 10 Cash., 402; Hart v. State, 20 Ohio, 49; Leidig©. 
Rawson, 1 Scam., 272; Hall «. Blaisdell, 1 Scam.. 382; Plumleigh v. Cook, 
18 Ills., 669 ; Phelan v, Andrews, 52 Ills., 486; Higgins v. Lee, 16 Ills., 495 ; 
Crittenden v, French, 21 Ills., 599 ; Spanglerv. Pugh, b5 ; Streeter €.Streeter, 
48 Ills., 155. 

* Quigley «. People, 2 Scam., 801. 

* 1 Bish. Cr. P., § 1057 ; Hopps «. People, 81 Ills., 894; Com. v. McKee, 

1 Gray, 61 ; Chase v. People, 40 Ills., 858. 

* 1 Bish. Or. P. § 1057 ; Thomas «. Dunaway, 80 Ills., 878 ; Peoples. Bo. 
dine, 1 Denio, 281 ; Crilley v. State, 20 Wis., 244. 



ASBEST, EXAAIINATIOK, COHMITHEKT AND BAIL. 69 

is flie guilty party, all must be acquitted.^ Where several 
are jointly indicted for robbery or other crime, and the evi- 
dence shows that they all acted together, each aiding in his 
own way, all are guilty though they did not actually meet to- 
gether and agree to commit the crime.^ 

Defenses. 

§ 88. Alibi. — The accused may show in answer to the charge 
against him that at the time the alleged crime was commit- 
ted he was in a place other than the one in which he must 
have been in order to commit it. This is called " proving an 
alibi."* Evidence of an alibi, whether suflScient to render the 
guilt of the accused impossible or only improbable, is for 
the consideration of the magistrate, and the accused is enti- 
tled to the benefit of any reasonable doubt the magistrate may 
entertain upon this point."* Where the defendant attempts 
to prove an alibi and fails to do so, it should have no greater 
weight to convince the magistrate of his guilt than the failure 
to prove any other important item of defense, and should no^t, 
generally speaking, operate to his prejudice.* It is for the 
prosecution to prove in the first instance that the defendant 
was present at the time the oflense was committed, for if he 
was not there, he could not have committed the offense, and 
the presumption of innocence which attaches to the accused 
at each step of the case* until rebutted raises the presump- 
tion that the defendant was not present at that time, which 
the prosecution must overcome by a preponderance of evi- 
dence or the accused should be acquitted.^ 

» Campbell v. People, 16 Ills., 17; Prazee v. Milk, 56 Ills., 485; Rex c. 
Kichardson, 1 Leach, 4th Ed., 387. 

• Miller v. People, 89 Ills., 458 ; Stinsou v. People, 43 Ills., 397 ; Bell f>. 
Malloiy, 61 Ills., 167. 

•2Bish.Cr.P.,§29.. 

• Miller «. People, 39 Ills., 458. 

» Id.; Poller «. State, 16 Ohio S., 583; Fife v. Com., 5 Casey Pa., 429. 

• West «. State, 1 Wis., 209 ; People v. Dixoa, 4 Park. C. C, 651. 

' Rex V, Hilditch, 5 Car. & P., 299; French v. State, 12 Ind., 870; but 
Rex f>. Findon, 6 Oar. & P., 132 ; Reg. v. Briggs, 2 Moody & Ry , 199. 



70 PKOCEEDINGS BEFOBE JUSTICE. 

§ 89. Character. — In all criminal cases, whether the case is 
doubtful or not, the accused may give in evidence his general 
or uniform good character as a man and a citizen.* The rea- 
son of the rule is that a man of good character is less likely 
to commit a crime than one whose character is bad,* and this 
fact is a circumstance which should be taken into considera- 
tion by the magistrate or jury in determining the guilt or 
innocence of the accused.* Such evidence is not restricted to 
the trait of character in issue, nor is it required to bear any 
analogy to the nature of the charge.^ But the prosecution is 
not allowed to call witnesses to the general bad character of 
the accused unless to rebut the evidence of his good character 
already adduced by him;* and even then the prosecution can 
only give evidence of the general bad character of the accused,* 
and cannot give evidence of other specific acts or oflfenses 
done or committed by him tending to impeach his character,' 
unless such evidence has a direct tendency to prove the par- 
ticular crime for which the prisoner stands charged.® It is 
not even permissible, as a general rule, to show that the ac 
cAsed has committed other crimes of the same kind as the one 
for which he is being examined; as, for instance, if he is be- 
ing examined for larceny, to show that he has committed at 
other times and places other and disconnected larcenies;® or, 



1 3 Greenl. Ev., } 25 ; 1 Bisli. Cr. P., ?§ 1082-1063 ; Hopps u. Pw)ple, 31 Ills., 
885; Jupitz v. People, 34 Ills., 521 ; Conkwrio^ht c People, 3o Ills., 207. 

• Hopps V. People, 31 Ills., 387. 

• Jupitz tj. People, 34 Ills., 621; Hopps tj. People, 31111s., .387; Conk^ 
wright f>. People, 35 Ills., 207. 

• Hopps V. People, 31 Ills., 888; Jupitz v. People, 34 111., 521 ; Stephens «. 
People, 4 Park., C. C, 396 ; People v. Bodlne, 1 Denio, 28 ; but see 3 Greenl. 
Ev., 8 25 ; 1 Bish. Cr. P.. § 1063. 

» People V. White, 14 Wen., Ill ; State v. Jackson, 17 Mo., 544; Thompson 
©.Church, 1 Root, 312. 

• 1 Arch. C. P. & PL, 400, 401 ; McDaniel v. State, 8 Sin. & M., 401. 

• Gordon v. Siat«, 3 Iowa, 410 ; Stone v. Stale, 4 Humph., 27. 

• 1 Bish. Cr. P., §§ 1065, 1006, 1067. 

• Barton v. 8iat«, 18 Ohio, 221 ; Cole v. Com., 5 Grat., 696; tleg, v, Butler, 
2 K. & K., 221 ; State «. Martin, 34 Mo., 85 ; Albright v. State, 6 Wis., 73. 



ABBE8T, EXAMINATION, COMMITMENT AND BAIL. 71 

if for riot, to show that he has been engaged in other riots;* 
or, if for murder of a particular person by poison, to show 
the poisoning of another person at another time and 
place.* Much less is it permissible so show a diflferent 
sort of a crime committed by the accused.' But where the 
defense is insanity, and the coolness and unconcern of the 
prisoner at the time he committed the homicide are relied 
upon as justifying inferences favorable to the plea, it is com- 
petent to show that the prisoner had been in early years 
engaged in the perilous calling of smuggling, as tending to 
xebut the inference that his deportment on the fatal occasion 
was attributable to a want of sanity.^ If the accused chooses 
to give no evidence in relation to his character, the magis- 
trate or jury is or are not at liberty to indulge in con- 
jecture that his character is bad in order to infer that he • 
is guilty of the particular crime charged;* for in })oint 
of law every defendant on trial for a particular crime is pre- 
sumed to be innocent of both it and of every other crime, 
until the c(5iitrary is duly shown in evidence.* It has, how- 
ever, been held in Maine that the omission of the accused to 
furnish evidence of his previous good character may be called 
to the consideration of the jury in support of the prosecution.^ 
§ 90. Statute of Limitations. — If the offense is barred by the 
statute of limitations, the prisoner should be discharged. If 
the accused is charged with an offense requiring an indict- 
ment, and there will be no court at which an indictment may 
be found before the offense will be barred, it will be useless 
for the magistrate to proceed with the examination. The fol- 
lowing are the provisions of the statute in relation to the 
time of commencing prosecutions: 

> State, 0. Benton, 15 K. H., 169; Com. o. Campbell, 7 Allen, 541. 

* Farrar v. State, 2 Ohio S., 54; Ogletree o. State, 28 Ala., 603; and see 
Albright t>. State, 6 Wis., 73. 

» 1 Bish. Cr. P., J 1064; Hopps v. People, 31 Ills., 385. 

* Hopps ©.People, 31 Ills., 385. 

* Ackley o. People, 9 Barb., 609 ; Peoole o. Bodine, 1 Denio, 281 ; State «. 
Upham, 38 Me., 261. 

* 1 Bish. Or. P., § 1061. 

' State V. McAllister, 24 Me., 189. 



72 PROCEEDINGS BEFORE JUSTICE. 

§ 91. Fop Murder or Manslaughter. — " An indictment for tlie 
crime of murder or manslaughter may be found at any period 
after the death of the person alleged to have been killed."* 

§ 92. For Arson or Forgery. — " An indictment for arson or 
forgery may be found at any time after the commission of 
the crime."* 

§ 93. Fop Other Felonies. — " All indictments for other felon- 
ies must be found within three years next after the commis- 
sion of the crime, except as otherwise provided by law."* 

§94:. For Other Offenses, Etc. — "All prosecutions by indict- 
ment or otherwise, for misdemeanors, or for any fine or forfeit- 
ure under any penal statute, shall be commenced within one 
year and six months from the time of committing the offense 
or incurring the fine or forfeiture except as otherwise pro- 
vided by law."* 

§95. Time of Absence not Counted. — "No period during 
which the party charged was not usually and publicly resi- 
dent within this state shall be included in the time of limi- 
tation."* 

§ 96. Time of Pendency of Proceedings not Counted. — "When 
an indictment, information or suit is quashed, or the proceed- 
ings on the same are set aside, or reversed on writ of er- 
ror, the time during the pendency of such indictment, infor- 
mation or suit, so quashed, set aside or reversed, shall not bo 
reckoned within the time limited by this act, so as to bar 
any new indictment, information or suit for the same of- 
fense."* 

§ 97. Former Acquittal. — Where a person who is accused of 
having committed a criminal ofifense has by collusion and 
contrivance of the witnesses, the complainant and the justice of 
the peace been arrested and discharged on bail, he may be 
again arrested by a warrant issued by another justice of the 

>K.S., 398, §818. 

• Id., § 814. 

• Id., § 815. 

• Id., § 316. 

• Id., § 317. 

• Id., § 318. 



ARBEST, EXAMmATION, COMMITMENT AND BAIL. 73 

peace, and required to give bail in a larger amount for the 
same offense.* So where a person accused of the crime of 
murder was duly examined before a justice of the peace and 
admitted to bail to answer to a charge of manslaughter — 
was again arrested on the same charge before another justice, 
when the justice before whom he was brought, on being ad- 
vised of the prior proceedings, discharged him — was again ar- 
rested for the third time on the same charge before still an- 
other magistrate, and on examination was committed to jail 
to answer to the charge of murder, on a writ of habeas cmyvs 
being sued out, it was held that the last magistrate had juris- 
diction of the case.* 

§ 98. Discharge. — The statute provides that " if it appears 
to the judge or justice of the peace, upon the whole examina- 
tion, that no oifense has been committed, or that there is no 
probable cause for charging the prisoner with the offense, he 
shall be discharged.'" 

§ 99. Bail or Commitment. — " If it appears that an offense 
has been committed, and that there is probable cause to be- 
lieve the prisoner guilty, and if the offense is bailable by the 
judge or justice of the peace, and the prisoner offers sufficient 
bail, it shall be taken and the prisoner discharged; but if no 
sufficient bail is offered, or the offense is not bailable by the 
judge or justice, the prisoner shall be committed to jail for 
trial."* 

V .Pbooeedinos after Examination. 

§ 100. Ball — Definition. — As we have seen from the pro- 
vision of the statute, " if the offense is bailable by the judge 
or justice of the peace, and the prisoner offers sufficient bail, 
it shall be taken and the prisoner discharged."* All offenses 
except capital offenses, where the proof is evident or the pre- 

* Bulson V. People, 31 Ills., 409. 

• Ta re Mt'Intyre, 5 Gilm., 423. 
» R 8., 403, § 362. 

* Id., §863. 

• R. 8., 403, § 368. 



74 PROCEEDINGS BEFORE JUSTICE. 

sumption great,* are oa such examination bailable by a judge 
or justice of the peace before the accused has been committed 
to jail for want of good and sufficient bail.* Capital offenses 
are such as arc punishable with death.* 

§ 101. Provisions of the Statute as to the Snfficiency of Bail. — The 
statute provides tliat " each of the bail shall be worth the 
amount of bail expressed in the recognizance over and above 
the amount exempt from execution, but the court, judge or 
justice of the peace or officer, in taking bail, may allow more 
than two bail to justify severally in amounts less than that 
expressed in the recognizance, if the whole qualification be 
equivalent to two sufficient bail."* 

§ 102. Proof of Sufficiency of Bail. — " The court, judge, jus- 
tice of the peace or officer may examine the bail, on oath 
touching their sufficiency, and may receive other evidence 
for or against the same, in such manner as he may deem 
proper."* 

§ 103. What Bail Sufficient — Time may be Given to Procure. — 
The officer is not required to examine the bail on oath touch- 
ing their saffi:5iency, but in all cases where the circumstances 
and responsibility of the bail are not personally known to 
him, it is the safer and better way to require them to justify; 
and then, if he is satisfied that they are not responsible, 
he should refuse to receive them. One rule, it is said, should be 
uniformly adopted, and that is, to require such sureties as 
are possessed in their own right of real estate within the 
county to such an amount as that upon a sale of it at public 
auction the full amount of the sum for which the bail is 
bound may be realized. Bail not possessed of this amount 
may doubtless in some instances be safely taken; but in all cases 
bail possessing under a clear title real estate in the county 
should be preferred.* The bail should be sufficient in amount 

' R. 8., 396, § 294; R S., 59, Con. Ilia., Art II., § 7 
■ R. S., H96, § 299 ; Id., 403, § 17, 

• Burrill Law Die, 246. 

• R 8 , 396, § 300. 

• Id., § 301. 

• Barb. Cr. L., 57a 



ABRE8T, EXAMINATION, COMMITMENT AND BAIL. 75 

and the sureties such as to procure the appearance of the pris- 
oner for trial. The magistrate has no right to require more, 
for it would be excessive, nor less, for it would be insuffi- 
cient, and the magistrate will be liable therefor if the prisoner 
does not appear;' but if he acts according to his best discre- 
tion, and without partiality or malice, he will be fully justi- 
fied.* The magistrate may permit the prisoner to remain a 
short time in the custody of an officer, to affi)rd him an op- 
portunity to procure bail, if there is a prospect of his being 
able to do so; but this privilege the prisoner cannot claim 
as a matter of right.' 

§ 104:. Who may be Taken as Ball. — An attorney may become 
surety for his client.* But a person convicted of an infamous 
crime, as perjury, cannot be received as bail.* Formerly a 
married woman could not become surety for another, and it 
was supposed that she could not enter into a recognizance as 
principal, for the reason that she could not contract ;• but un- 
der a recent statute she is authorized to contract,^ and now 
may become surety for another or enter into a recognizance 
in her own behalf the same as any other person. The disa- 
bility of an infant to make a contract, except in certain cases, 
still continues, and he cannot become surety for another; and 
it has been supposed that he lacks capacity to enter into a 
recognizance as principal in his own behalf and must procure 
some one to be bound for him;* but the better opinion seems 
to be that he may be bound by all acts which he is obliged 



' Barb. Cr. L., 576 ; People v. Dixon, 4 Park., 651 ; People v. Van Horn, 
8 Barb, 159. 

• Davis J., 88 ; Barb. Cr. L., 579. 
» B*irb. Cr. L., 580. 

• Id., 578 ; Doug., 466 ; 1 Burn^ 820. 

• Rex o. Edwards, 4 T. R., 440. 

• 4 Black. Com., 254 ; Barb. Cr. L., 513 ; 8 M. & Sel., 1 ; 1 Arch. C, P. & PI., 
176. 

'RS.,576,86. 

'4 Black. Com., 254; Barb., Cr. L., 518; 2 Hawk C, 15, § 89; 1 Chitty Cr. 
L., 104.; Semm'8 Case, 11 Leigh, 665. 



76 PROOEfiDINOS BEFOSE JUSTICE. 

by statute or law to do.* Therefore if an infant, when re- 
quired by statute or law so t4:> do, enters into a recognizance, 
he will be bound. If sureties who are pecuniarily sufficient 
present themaelves, the migistrate who sits to receive bail 
has no right to reject them because he does not like their 
politics or their personal character.* 

§ 105. Recognizance — Form. — By statute " all recognizances 
in criminal cases shall be taken to the People of the State of 
Illinois, and when not taken in a court of record in open 
court shall be signed by the persons entering into the same 
and approved and certified by the judge, justice of the peace 
or other officer taking the same."^ 

§ 106. Condition. — " The recognizance, except when other- 
wise provided, shall be so conditioned as to bind the accused or 
witness personally to appear at the court having jurisdiction 
of the offense on the first day of the next term thereof, to be 
holden in the county (specifying the time arid place of hold- 
ing the same), or, if the court is then sitting, on some day of 
the term, to be designated therein, and from day to day, and 
from term to term, and from day to day of each term, until 
the final sentence or order of the court, to answer for the of- 
fense charged (or, if an indictment has been found or infor- 
mation filed, to answer such indictment or information; or, if 
the person bound is a witness, to testify in the case), and 
to abide such final sentence or order, and not depart without 
leave. "^ 

§ 107. Money cannot be Taken Instead of a Recogiyzance. — The 
court* or officer has no right to receive money in lieu of, or 
as a substitute for, a recognizance, for the statute requires a 
recognizance, and nothing else will do.* If an officer takes 

' People «. Mullen, 25 Wen., 698; People ». Moore, 4 Danio, 518; U. S. v. 
Bainbridge, 1 Mason, 83; Winslow o. Anderson, 4 Mass., 376; Baker v. 
Lovett, 6 Mass., 8. 

• Bisli. Cr. P., §260 ; Rex «. Badger, 4 Q. B., 468 ; Dav. & M., 875. 
» R, S., 396, § 295. 

* Id., § 297. 

• Butler «, Poster, 14 Ala., 323. 

* Smart v. Cason, 50 Ills., 195. 



ARREST, EXAMINATION, COMMITMENT AND BAIL. 77 

money instead of a recognizance, as required by statute, and 
allows the prisoner to go at large, he will be liable criminally 
for tlie esciipe and may be fined therefor, not exceeding one 
tliousand dollars, and confined in the county jail not exceed- 
ing six months.^ Yet in such case the money so received 
must be paid into the county treasury the same as if it had 
been collected on a recognizance.* 

§ 108. Form and Requisites of the Recognizance. — 'No particu- 
lar form of wordb is required to render a recognizance valid, 
provided it contains the essential requisites of such an instru- 
ment." A penalty containing an acknowledgment of indebt- 
edness to the people, and a condition, are indispensable 
requisites of a recognizance.^ If it is not exactlj' in accordance 
witli the statute, it may be good at common law;* and when 
the condition contains superadded words beyond what are au- 
thorized by statute, they will not affect its validity, but may 
be disregarded as surplusage.* A recognizance taken by a 
justice of the peac>e and entered on- his docket in these words: 
"Jacob Kerns v, John Stewart, Recognizance — bail 25; Si- 
mon Elliot acknowledges himself bail in the* above case," is 
informal and void.^ So an entry on the docket of the justice 
as foll<»ws: "The People v. Ambrose F. Woolsey, Milton 
l^Mles, Solomon Rundle, &c. {narniriff seventeen others) are 
recognized in the sum of $100 each, conditioned for their ap- 
pearance at the next court of general sessions of the peace to 
testify on the part of the people in the above cause,'' was held 
not to amount .to a recognizance.* 

> R 8., 364, § 89 ; Smart v. Cason. 50 Ills., 195. - 

* Smart jd. Cason, 50 Ills., 195 ; Rock Island Co. o. Mercer Co., 24'Ill8., 85. 

* Deao V. State, 2 Sm. & M., 20U; Shattuck v. People, 4 Scam., 477 ; Mc- 
Farlan v. People, 13 Ills., 9. 

* People 0. Rundle, 6 Hill, 506; Caldwell «. Rundell, 1 Jones, 293. 

* Phelps ©. Park, 4 Vt., 488. 

* People f>. Mills, 5 Barb., 511 ; Howe c. State, 1 Ala., IIB; State v. Well- ' 
man, 3 Ohio, 14. 

' Kerns v. Schoonmaker, 4 Oliio, 331 ; see State Treas. «. Woodard, 7 yt» 
628; Same v, Rolfe, 15 Vt., 9. 

* People «. Kundle, 6 HiU, 506. 



78 PBOCEEDINGS BEFOBE JUSTIOE. 

FOIUC OF BBCOGNIZANCE ON ADMITTING A PBISONBB TO BAIL. 

State of Illinois, ) „„ 

' BS. 



CJounty 



:\ 



Be it remembered that on the' day* of , A. D. 18—, C. D.,* of the 

town of , in the county aforesaid, and B. P. and G. H., of the town of 

, in the said county, personally came before L. M., a Justice of the peace 

of the county aforesaid (or, if taken before tao* Justices, where the prisoner 
has been committed^ eay^ ** before iis^ L. M. and A. E.y two of the justices of the 
peace in and for said county)^ and severally and respectively acknowledged 
themselves to owe and be indebted* to the People of the State of Illinois in 
the sum of five hundred dollars, to be made and levied of their respective 
goods and chattels," lands and tenements,' to the use of the said people if 
default shall be made in the following condition :' 

Whereas,* A. B. lately made complaint to L. M , a Justice of the peace of 

* The recognizance must be signed by the accused at the time of his dis- 
charge. Smart «. Cason, 50 Ills., 195 ; Shattuck v. People, 4 Scam., 477. 

'The recognizance is not void because entered into on Sunday. Johnson 
9. People, 81 Ills., 472; but see State v. Suhen, 33 Me., 539. 

' Wliere the name of the cognizor is signed to the recognizance it need 
not be mentioned in the body of it Cunningham «. State, 14 Mo., 403; 
Badger & Clayton v. State, 5 Ala., 21 ; Hall v. State, 9 Ala., 827 ; though it 
should be inserted. 

* A recognizance taken beforq two Justices, when by law but one was 
needed, is not thereby invalid. Shattuck o. People, 4 Scam., 477; McFar- 
lan V. People, 13 Ills., 9. 

* There is no difference in their legal effect between the words ** are held 
and firmly bound,** and the words *'t>we and are indebted.*' Shattuck v. Peo- 
ple, 4 Scam., 478; Mix v. People, 26 Ills., 32. 

* The words ** to be leviedof your goods and chattels, lands and tenements,'* 
were necessary in a recognizance at common law, but under our statute they 
are a mere matter of form and may be omitted without impairing the legal 
effect of the instrument. Shattuck v. People, 4 Scam., 478. 

' The recognizance does not become a lien upon the property of the per- 
son entering into it. Shattuck e. People, 4 Scam., 477. 

B A bond with the proper condition has been held to be a sufScient re> 
cognizance. Shattuck v. People, 4 Scam., 477; McFarlan «. People, 13 
Ills., 9. 

' It is not necessary that the recognizance should show that there has been 
a complaint, made, subscribed or sworn to, or an arrest of the accused, or an 
examination of witnesses or probable cause shown, nor that there has been 
a decision of the magistrate that bail be given or the accused stand commit- 
ted, for when the recognizance is filed it becomes a matter of record, and 
these facts will be presumed. Shattuck o. People, 4 Scam., 481 ; McCarty 
o. State, 1 Blackf., 338 ; People e. Blankman, 17 Wen., 258 ; People v. Kane, 
4 I>enio,531; People «. Watkins, 19 Ills., 117; but see Shufeldtv. Buckley, 
45 Ills., 228. 



ABBEST, EXAMINATION, COMMITMENT AND BAIL. 79 

the said county, and the said justice examined on oath the said complain- 
ant and E. F., a witness produced by him, and reduced tlio complaint to 
writing and caused it to be subscribed and swori to by the said complain- 
ant, whereby it was cliarged tliat the said C. D. did (ia»ert statejnent of the 
offense,^ as in the eomplairU)^ a,nd from tlie said complaint and examination 
it appeared that such offense had been committed, and tliat there were just 
and reasonable grounds for bslieving that thd said C. D. had committed the 
same, whereupon the said justice issued a warrant for his arrest, and the 
said C. D. has since been arrested thereon and brouglit before the said jus- 
tice, and the said justice then and there examined the witnesses in support 
of the prosecution, as well as those produced on behalf of the accused on 
oath in the presence of the said C. D. in relation to tlie said charge, and the 
matters connected therewith, and from the said examination in the presence 
of the said C. D., it appeared to the said justice that the said offense had 
been committed and that there was probable cause to believe the said C. D. 
guilty thereof, and the said justice thereupon ordered the said C. D. to enter 
into a recognizance with two good and sufficient sureties in the sum of 
tve hundred dollars* conditioned according to law. 
Now, therefore, the condition of this recognizance is such that if the said 

' The recognizance need not set out the offense charged witb the technical 
accuracy i*equired in an indictment It will be sufficient if the offjnse be sub- 
stantially described. 1 Arch. C. P. & PI., 196 ; Shattuck v. People, 4 Scam.. 
481; People©. Baughman, 18 Ills., 152 ; Young v. People, 18 Ills., 506; Mc- 
Farlan v. People, 13 Ills., 9 ; Besimer v. People, 15 Ills., 439 ; Mix v. People, 
26 Ills., 32. It is sufficient to set out tlie ofiense in the language of the statr 
ute. People v. Baughman, 18 Ills., 152; or simply to insert the name of the 
offense, Shattuck o. People, 4 Scam.^ 481. The words " to answer to an in- 
dictment," Gildersleevev. People, 10 Barb., 85,*'to answer to the charge of a 
felony," Cotton v. State, 7 Texas, 547; Fowler c. Com., 4 Monr., 128 ; "to answer 
to an indictment for adultery," Besemer v. People, 15 Ills., 439; "of being 
guilty of the accessory of manslaughter,'* McFarlan «. People, 13 Ills., 9; 
**to answer to a charge of larceny," Minor tJ. State, 1 Blackf., 230; "with 
stealing from the store" of certain parties. Young v. People, 18 Ills., 566; "for 
tbe crime of passing counterfeit money," Mix v. People, 26 Ills., 32 ; '' ot 
passing counterfeit money,'* Shattuck v. People, 4 Scam., 481, have re- 
spectively been held to be a sufficient statement of the offense in a recog- 
nizance. It has been held that if the recognizance undertake to recite a 
specific charge, a charge must be recited for which an indictment will lie; 
otlierwise the recognizance would be void, Bailey t). State, 4 Texas, 417; 
but under our statute, R. S., 396, 2 302, the recognizance in such case would 
probably be valid. 

* The recognizance need not state that the amount of the bail was fixed 
by the court or magistrate. Vancel «. People, 16 Ills., 120. 



80 FBOOEEDINOS BEFORE JUSTICS. 

0. D. shall personally be and appear at the circuit court* on the first day of 
the next term thereof to be held at the court-house in the town {or '* viU 

lage^* or ^eity'*) of , in the said county of , on the* day of , 

A. D. 18 — , at the opening of the court on that day, and from day to day, 
and from term to term, and from day today of each term, until the final sen- 
tence or order of the court to answer for the said ofiense/ and abide such 
final sentence or order, and not depart without leave, then this recogniz- 
ance to be void, otherwise to remain in full force and virtue. 

C. D.* [Seal.*] 
E. F. [Seal.] 

G. H. [Seal.] 
Taken,* subscribed and acknowledged \ 

before and approved by me on the day > 

and year first above written.' ) 

li. M., J. P. 



* The recognizance must show upon its face the court to which the de- 
fendant is bound to appear. State v. Rye, 9 Yerg., 886. If made return- 
able before a judge at chambers the prisoner is not boimd to appear there. 
Corlies v. Waddeli, 1 Barb., 355. 

' If it bind the accused to appear on a day when the court does not sit, it 
is void. State «. Sullerant, 8 Yerg., 281; People v. Mack, 1 Park Or. R, 
667 ; Butler «. State, 12 Sm. & M., 470. 

' Probably a recognizance to appear and answer what shall be objected 
against the party would be good. People v. Keober, 7 Hill, 42. Where 
the condition of the recognizance omitted the words " to answer to said of- 
fense," the recognizance was held not to be void for that reason. State «. 
Davidson, 20 Mo., 212. 

* The recognizance must be signed. R. S., 896, § 296 ; Shattuck «. Peo- 
ple, 4 Scam., 477 ; Smart v, Cason, 50 Ills., 195 ; People «. Huggins, 10 
Wen., 471. 

* The recognizance need not be under seal. Slaton «. People, 21 Ills., 
28; State 0. Root, 2 Rep. Const. Ot., 128; Reams v. State, 8 Blackf., 886. 

'The words '* Taken and acknowledged before me the 12th day of March, 
A. D. 1855, — John A. Maxet, J. P., [Seal,]" were held to be a sufficient 
certificate, and that they implied that the recognizance was approved by the 
magistrate. Lawrence v. People, 17 Ills., 172; People v. Watkins, 19 Ills., 
118. 

' A certificate of the magistrate, is essential to the validity of the recog- 
nizance; but it will not be adjudged insufficient for want of form, R. S^ 
896, §802; Lawrence©. People, 17111s., 172; Bacon v. People, 14 Ills., 812 ; 
State «. Carr, 4 Iowa, 290, and need not be under seal nor certified under the 
seal of the Justice; Slaten v. People, 21 Ills., 28. 

* The letters '* J. P." mean Justice of the peace. Shattuck o. People, 4 
8cam^478. 



AB&B8T, EXAMIKATIOK, COMHITMENT AND BAIL. 81 

8H0BT FORIC OF RBCOONIZAITCIB. 

State .of Illinois, i 
County. ) 

Be it remembered that on the day of ^ A. D. 18—, C. D., E. P^ 

0. U.« personally came before L. M., a Justice of the peace of said county, 
and severally and respectively acknowleflged themselves to owe and be ia- 
debted to the people of the State of Illinois* in the sum of five hundred dol- 
lars* if default shall be made in the following condition 

The condition of this recognizance is such that if the said C. D., shall 
perosnally be and appear at the circuit court on the first day of the next term 
tliereof, to be held at the court-house, in the town (or village or "city") of 

, in said county of ,on the day of , A. D. 18 — ,at the o))en. 

ingof the court on that da^ , and from day to day, and from term to term, 
and from day today of each term, until tlie final sentence or order of the 
court to answer for the offense of passing counterfeit money (or innert the 
name of the offense as in thewarranty or a short statement of the offense as in 
the complaint) and to abide such final sentence or order ^md not depart with- 
out leave, then this recognizance to be void, otherwise to remain in full 
force and virtue. C. D. 

E. F. 

Taken, subscribed and acknowledged ^ 0. H. 

before and approved by me, on the day \ 

and year first above written. J 

^ L. M., J. P. 

§109. No Reoog^nizance Voidable for Want of Form. — Tlie 
Btatate proWdes that "every recognizance taken or attempted 
to be taken in pursuance of this act, shall by all courts in this 
state be held and adjudged to have been entered into volun- 
tarily,' and shall not be set aside or adjudged insufficient 

1 Where instead of the words ** in the sum of five hundred dollars** the 
words used were in substance, ^'the said C. D. in the sum of two thousand 
dollars, and the said E. F. and G. H. each the sum of two thousand dollars 
respectively,'' the recognizance was held to be in effect a Joint and several 
obligation to pay the sum of two thousand dollars, and not an obligation 
Hiat would require the payment of six thousand dollars to satisfy the recog- 
nizance. Banta «. People, 58 Ills., 434. 

' A recognizance is not vitiated because taken for a less sum than is in- 
dorsed on the writ Chumaaero v. People, 18 Ills., 405. If taken by a 
sheriff for a larger amount it is a nullity. Lawrence o. People, 17 Ills., 172. 

' Sureties upon a recognizance cannot plead the duress of their principal 
in the discharge of their liability. Plummer v. People, 16 Ills., 858 ; Hug- 
gins «. People, 89 Ills., 241. The imprisonment of the principal is not such a 
duress as releases him unless the imprisonment was unlawful. Hugginsv. 
People, 89 Ills., 241 ; Plummer v. People, 16 Ills., 858. 
6 



83 FBOCEEDINGS BEFORE JUSTICE. 

for want of form, either in the recognizance or in the certifi- 
cate of the officer taking the Bame."^ 

§110. Recognizance Delivered to Clerk. — "All recognizances 
taken in criminal cases shall be delivered to the clerk of the 
conrt before which the accused or witness is bound to aj^pear, 
on or before the day mentibned in such recognizance for his 
appearance."* 

§111. Recognizance Forfeited. — "When any person who is 
accused of any criminal offense shall give bail for his appear- 
ance, and such person does not appear in accordance with the 
terms of the recognizance, the court shall declare such recog- 
nizance forfeited, and the clerk of the court shall thereupon 
issue a scire facias against such person and his sureties, re- 
turnable on the first day of the next term of tire court, to 
show cause why such judgment should not be rendered 
against such person and his sureties for the amount of the 
recognizance, which scire facias shall be served by the sheriflT 
of the county where the court is held, upon such person and 
his sureties by reading the same to the defendants named in 
such scire facias^ at least five days before the first day of the 
term to which the same is returnable; and in case the person 
aforesaid cannot be found by the sheriff", he shall make return 
of that fact to the court. The court sliall thereupon enter 
judgment by default against the defendants for the amount of 
the recognizance, unless the defendants shall appear and 
defend such cause, and if the defendants shall appear and in- 
terpose a defense, then the cause shall be tried in the same 
manner as other causes of like nature, after any such recog- 
nizance shall be declared forfeited as aforesaid. Before judg- 
ment, the court may in its discretion set aside such forfeiture 
upon the accused being brought or coming into open court, 
and showing to the court, by affidavit, that he was unable to 
appear in court according to the terms of the recognizance, 
by reason of sickness, or some other cause which shall satisfy 
the court that the accused had not been guilty of any laches 

>H. 8., 896,. §302. 
' Id., {d08. 



ASBE8T, EXAMINATION, COMMITMENT AND BAIL.' 83 

or negligence: Provided.^ that no sucli forfeiture or recogni- 
zance shall be set aside until the accused shall pay the costs of 
such recognizance."* 

§112. Neglect to Record or Formal Defects no Bar. — "Such 
action shall not be barred or defeated, nor shall judgment 
be arrested by reason of neglect or omission to note or record 
the default of any principal or surety at the term when it 
happens, nor by reason of a defect in the form of the recogni- 
zance, if it sufficiently appears, from the tenor thereof, at what 
court the party or witness was bound to appear, and that the 
court or magistrate before whom it was taken was authorized 
by law to req^uire and take such recognizance."^ 

§113. Procedure on the Forfeitare of the Recognizance — Scire 
Facias. — A recognizance when signed, approved and certified 
by the magistrate and delivered to the clerk of the circuit 
court, becomes a record,' and imports absolute ^verity, and no 
averment can be taken against it.* Then and not before,' at the 
first term to which the principal was bound to appear or at 
any succeeding term of the court,* upon default in perform- 
ing its condition, a judgment of forfeiture may be taken 
against the principal and his sureties, although^ the objection 
that it does not appear to have been filed or made a matter 
of record previous to the judgment of forfeiture cannot be 
availing unless the specific objection is made on the trial.' 
Such judgment is not in this state for a sum of money, but 
is followed by a %cire fdoias calling upon the principal and 
sureties to know why judgment should not be awarded against 
them for the amount of the recognizance, to be followed by 

'R 8., 397, §310. 

* Id., §311. 

' Shattuck f>. People, 4 Scam., 478 ; Raysor «. People, 27 Ills., 190 ; People 
tJ. Watkins, 19 Ills., 117. 

* People «. Watkins, 19 Ills., 117. 

* Bacon v. People, 14 Ills., 312 ; O'Brien «. People, 41 Ills., 456 ; Balson «. 
People, 31 Ills., 409. 

* Landes v. People, 89 Ills., 79.; Norfolk «. People, 43 Ills., 9; State e. 
Brown, 16 Iowa, 814. 

^ Thomas o. People, 18 Ills., 696; Bacon o. People, 14 Ills., 812. 

* O'Brien v. People, 41 Ills., 456. 



84 FBOOEEDINOS BEFORE JUSTICE. 

execution,' and must be entered before the Bci/re facias can 
is^iie.* The scire facias stands in the place of a summons 
and declaration, fills the same office^ and should contain every 
averment necessary to show a right of recovery.* It should 
clearly show before what court the recognizance was entered 
into, if before a court;' if before a justice, that he was a jus- 
tice of the peace of the county in which the recognizance was 
taken;* that the recognizance was taken and approved by 
him;^ that the recognizance was delivered to the clerk of the 
proper court before judgment of forfeiture;' that a judgment 
of forfeiture had been entered,* and should contain sufficient 
averments to show the jurisdiction of the officer taking the 
same.*'' It is sufficient to set forth the recognizance according to 
its operation and legal effect, or it may be set out verbation, 
and the court will decide upon its effect." It is not necessary to 
aver the special facts by which the officer became authorized to 
proceed in the particular case,'* for on filing the recognizance 
these will be presumed.*' So where it does not appear upon 
the face of the recognizance where it was taken, nor of what 
county the justice was an officer, it will be presumed that it 

' Bacon «. People, 14 Ills., 313 ; People «. Watklns, 19 Ills., 118. 

• Bacon «. People, 14 IIU., 812; Oimbs v. People, 89 Ills., 183 ; Farris«. 
People, 58 Ills., 27; Kennedy «. People, 15 Ills., 418; Connor «. People, 20 
Ills., 381 ; Thomas v. People, 15 Ills., 418. 

■ Thomas «. People, 13 Ills., 696; Lawrence v. People, 17 Ills., 173; Farris 
tJ. People, 58 Ills., 28; Connor t>. People, 20 Ills., 883. 

• Farris «• People, 58 Ills., 28; Thomas o. People, 18 Ills., 696 ; Lawrence 
«. People, 17 Ills., 173 ; Connor v. People, 30 Ills., 882. 

• Thomas c. People, 13 Ills., 696. 

• McFarlan v. People, 13 Ills., 9. 

^ Bacon «. People, 14 Ills., 313 ; Lawrence v. People, 17 Ills., 173 ; State ih 
Carr, 4 Iowa, 390. 

• Bacon «. People, 14 Ills., 313; Connor v. People, 20 Ills., 383. 

• Thomas «. People, 13 Ills., 696; Kennedy «. People, 15 Ills., 418; Con- 
nor v. People, 30 Ills., 381 ; Farris «. People, 58 Ills., 39 ; Eubank «. People, 
50 Ills., 496 ; 

>* Noble v. People, 4 Qilm., 438 ; Raysor f>. People, 27 Ills., 190. 
" Lawrence «. People, 17 Ills., 173. 
** People «. E[ane, 4 Denio, 531. 

» Bhattuck «. People, 4 Scam., 477 ; McCarty «. State, 1 Blackf., 838 ; Peo- 
pie «. Blankman, 17 Wen., 253. 



ABBE8T, BZAHINATIOK, COHMITMBNT AND BAIL. 85 

was taken in the proper county, and that the justice was an 
officer of such county, until the contrary is shown/ The 
omissions of the record may be supplied by the proper aver- 
ments;' as where it does not appear upon the face of the re- 
cognizance that it was taken and approved by the justice and 
by him certified into the circuit court, it may be alleged and 
proved that the recognizance was taken, approved and certified 
by the justice in accordance with the statute.' Where the 
name of the principal is erroneously stated in the body of the 
recognizance, but the instrument is signed correctly, the de- 
fect may be cured by alleging and proving that the person 
who signed the instrument was actually the person required 
to appear and answer.^ 

§ 114. What not a Defense to a Recognizance. — It is no defense 
to 9i scire facias that the justice before whom the recognizance 
was taken had not properly qualified, for if he was an acting jus- 
tice, that was sufficient;* or that the justice did not conduct 
the examination properly by refusing to grant a change of 
venue, or otherwise;' or that no indictment was found against 
the principal, for there must be an appearance in order to 
avoid default;^ or that the principal was examined and com- 
mitted for burglary and the recognizance was given for lar- 
ceny; or that tlio principal, after entering into the recogni- 
zance, enlisted as a soldier in the army and was prevented by 
military authority from appearing or from being surrendered 
by his sureties;' or that the prisoner was confined in anoth- 
er county for a different charge, for the law provides a way 
for producing a prisoner so situated.* 

' Shattnck v. People, 4 Scam., 478. 

* People V. Baughman, 18 Ills., 152; McFarlan v. People, 18 Ills., 9. 
» McFarlan «. People, 18 lUs., 9. 

* O'Brien v. People, 41 Ills., 456; but see Graves «. People, 11 Ills., 542; 
Vincent «. People, 25 Ills., 500. 

» People t>. Watkins, 19 Ills., 118. 

* Id. 

» Wheeler «. People, 89 Ills., 480; People «. O'Brien, 41 Ills., 808; O'Brien 
«. People, 41 Ills., 456. 

* Ginrich «. People, 84 Ills., 449 ; Haggins v. People, 89 IIIb., 212; Shook 
«. People, 89 Ills., 443. 

' Mix D. People, 26 Ills., 82 ; Brown «. People, 26 Ills., 28. 



86 PBOOEEDINGS BEFOBE JUSTIOB. 

§ 115. What a Defense to a Recognizance. — It is a defense to 
a scire fcLciaa that the performance of the condition of the 
recognizance became impossible by the act of God;* as if the 
principal dies.* But the court may require the sureties to 
pay such costs as it deems equitable.' And a plea which 
avers the death of the principal 'in the recognizance must, in 
order to make it good, state the time of the death.* The sick- 
ness of the principal in a recognizance is a ground for a con- 
tinuance, but not a defense to the scire facias} It is also a 
defense to the scire facias that the recognizance has been al- 
tered in a material respect by the justice,* and after it has 
been rendered void by such alteration it cannot subsequently 
be made valid by the parol assent of the surety;^ that the ac- 
cused had been tried and acquitted;* that the recognizance 
was taken for a purpose not authorized by law;' or that it was 
taken by a court or oflScer not having authority to act.^* But 
no matter in what way a prisoner appears before a judge of 
tlie circuit court, his oiFense may be inquired into, and a re- 
cognizance given by himself and his sureties will be obliga- 
tory." 

§ 116. Olvfections not Available as a Defense to a Recognizance. — 
Wlicrc the clerk fails to indorse upon the recognizance the 
time of filing the same, he may make the indorsement at a 

> R. 8., 398, § 312; 1 Arch. C. P. & PI., 204; People c. Manning, 8 Cowen, 
297 ; Com. «. Craig, 6 Randolph, 731 ; People «. Bartlett, 3 Hill, 570 ; Canby 
«. Griffin, 3 Barring., 333. 

* People V. Watkins, 19 Ills., 117; People v. Manning, 8 Cowen., 297. 
» li. S., 398, § 312. 

* People V. Watkins, 19 Ills., 117. 

* Ginrich o. People, 34 Ills., 449 ; contra^ People «. Manning, 8 Cowen, 
297. 

* Vincent «. People, 25 Ills., 500. 

* Sans «. People, 3 Gilm., 827. 

■ Mills V. McCoy, 4 Cowen, 400. 

* 1 Arch. C. P. & PI., 195; Harrington v. Brown, 7 Pick., 332; Estes «. 
State, 2 Humph., 496. 

*• Solomon «. People, 15 Ills.,291 ; Com. «. Loveridge, 11 Mass., 337; Vase 
«. Deane, 7 Mass.;^4(^; Dow v. Prescolt, 12 Mass., 419; Com. 9. Otis, 16 
Masis., 198. 

i> Mix «. People, 26 Ills., 82. 



ASBEST, EXAMINATION, COMMITMENT AND BAIL. 87 

Biibsequent term nunc pro iunc^ and where the entry of two 
forfeitures are made at two different terms of the same court, 
the last entry may be treated as surplusage.* One of several 
cognizors cannot raise the objection that a joint cognizor is 
not liable.' "Where the principal fails to appear according to 
the condition of his recognizance and a forfeiture is taken, 
the liability of the bail is fixed, and he can only, show that 
there was no power to take the recognizance, that it is invalid, 
or that he has in some mode been discharged, to escape lia- 
bility.* The forfeiture of a recognizance may be taken at a 
term of the court subsequent to the term at which the pris- 
oner was recognized to appear.* 

§ 117. Service of the Scire Facias. — Upon a joint and several 
recognizance where service is had on one or more of the cog- 
nizors and a return of nihil as to the rest, it is not erroneous 
to enter judgment against those served with the process, with- 
out having two nihils returned as to those not served* 
although it was formally held to be necessary.^ "When the 
scire faciaa is served upon the sureties and not upon the prin- 
cipal, the objection that the judgment was taken against the 
principal as well as the sureties cannot be made by the latter, 
for only the principal has any reason to complain of the error.' 
Cognizors, unless personally served, cannot be condemned 
unless there have been returns of nihil upon two writs of scire 
fSlbias} 

§118. Jadgment and Execatioiu — Where the recognizance 
is several, the order for execution must be several,'® the judg- 

* 

' McFarlan «. People, 13 Ills., 9. 

■ State c. People, 8 Mo., 249. 

' Mussulman n. People, 15 Ills., 51. 

* Stevens v. Hay, 61 Ills.. 400. 

* Stokes V. People, 63 Ills., 489. 

*Pa8sfleld 9. People, 3 Glim., 406; McFarlan v. People, 18 Ills., 9; 
Wheeler 9. People, 39 Ills., 430 ; Crisinan «. People, 8 Gilm., 851 ; McFarlan 
«. People, 13 Ills., 9. 

» Alley «. People, 1 Gilm., 112. 

* O'Brien ©. People, 41 Ills., 456. k 

* Bc^simcr o. l*oople, 15 Ills., 440. 
»• Farrls «. People, 58 Ills., 27. 



88 PB00REDING8 BEFOBB JUSTICE. 

ment, or more properly the order' for execution, must follow 
the recognizance,^ and the fact that several are made defen- 
dants to the proceeding by scire facias does not make the sdr^ 
facias joint,* as the people can only have execution according to 
the form, force and effect of the recognizance.* A judgment on 
a recognizance for failing to appear is no bar to another prose- 
cution for the same offense* — ^not even if the judgment has 
been paid.* 

§ 119. Sureties may Surrender their Principal. — In all cases 
of bail for the appearance of any person charged with a crimin- 
al offense, such person is still in supposition of the law. in 
custody of his sureties, who are considered as his keepers,^ and 
are said to have him always upon the string and may pull it 
when they please to render him in their own discharge.* 
Such sureties, or any of them, or their or his executors or ad- 
ministrators,* may on Sunday,'* or at any other time before 
judgment upon the boad or recognizance, or at any place 
either in or out of the state," re-seize him'* and surrender him 
in their exoneration, or the principal may surrender himself 
to the proper officer." For the purpose of surrendering the 
principal "the sureties, or any of them, may require the sher- 
iff, coroner or constable of the county where the principal 
may be found, to make the arrest within his county by pro- 
ducing a certified copy of the recognizance, and in person or 

> Landis «. People, 89 Ills., 79. 

• Clmmasero v. People, 18 Ills., 405. 
» Id. ; Farris «. People, 68 Ills., 29, 

• diumasero «. People, 18 Ills., 405 ; Parris «. People, 58 Ills., 27; Sans •. 
People, 8 Gilm., 827. 

» Com. D. Thompson, 3 Litt, 284. 

• Expftrte Milburn, 9 Peters, 710. 

' 2 Haw. P. C. a, 15, §§2, 3; 1 Bish. Cr. P., §248; Barb. Cr. L., 588; 
Com. V. Bronson, 14 B. Hour., 861; 6 Mod., 281. 

• Barb. Cr. L., 583; Anonymous, 6 Mod., 231. 

• Meddouscroft v. Button, 1 Bos. <& Pul., 62; Wheeler «. Wheeler, 7 Mass., 
169. 

• Barb. Cr. L., 588; 6 Mod.. 281 ; Brown «. People, 26 Ills., 31. 

" Nicholls tlngersoU, 7 John., 146; but see Brown «. People, 26 Ills., 81. 

>* State «. Mahon, 8 Hairing., 568. 

1' B. 8., 897, §§ 805, 806 ; McGuire «. Town of Xenia, 54 Ills., 299. 



ASREBT, KXAMINATION, COMMITMENT AND BAIL. 89 

by agent accompanying the officer to receive the person ar- 
rested, and upon tender to such officer of like fees as are al- 
lowed for executing capias in criminal eases;"* or they, or any 
of them, may authorize or depute any other person to make 
the arrest;* but the person so authorized or deputed cannot 
substitute another person in his place, for the arrest must be 
made by such deputy personally, or by him in connection 
with others who are actually or constructively in his pres- 
ence.' After an indictment has been found, the bail may 
procure a capias to be issued upon it and have their principal 
arrested thereon, so as to surrender him to the sheriff in dis- 
charge of the recognizance.* 

§120. I>oors Broken Open to Arrest Principal — Assistance. — 
The sureties, their agent or officer, may break open the outer 
door of the dwelling of the principal, if not opened on demand, 
at midnight or at any other time, and take the principal from 
his bed, if that measure is necessary to make the arrest,* and 
may if necessary call in the aid of others to assist tliem or 
him the same as an officer can do in other cases.' 

§121. Anthority to take Principal. — The statute does not 
require that the authority of the person deputed to make the 
arrest should be in writing, and probably it is not necessary, 
although in another state it has been held to be necessary,^ 
and probably it would be advisable that the authority should 
be in writing, so that the principal may know that the deputy 
is authorized to take him. 



» R 8., 897, § 806; People «. Phelps, 17 Ills.,- 200. 

* R. 8., 897, §803; Kicholls 9. lugersoU, 7 John., 146; Boardman «. Fow- 
ler, 1 John. C, 413. 

* State «. Mahon, 3 Harring., 568. 

* People ». Phelps, 17 Ills., 201. 

* Nichollsfl.Ingersoll, 7 John., 156; Com. v. Brickett, 8 Pick., 138; Brown 
«. People, 26 Ills., 81. 

* Barb. Cr. L., 583 ; Arch. C. P. & PI., 203 ; State v. Mahon, 8 Harring., 668 ; 
Sheers «. Brooks, 2 Hen. Black., 120; Nicholls o. Ingersoll, 7 John., 156. 

* People «. Moore, 2 Doug., 1. 



90 PK00EEDING8 BEFORE JUSIICE. 

FORI! OP DEPUTATION TO TAKE PRINCIPAL. 

Know all men by these presents, that we, E. F. and G. H.» of the town of 

y in the county of and State of Illinois, being the same E. P. and 

G. H., in the within (or *\annexed^*) copy of recognizance 9amed and men- 
tioned, have deputed, authorized and empowered, and by these presents do 
depute, authorize and empower in our place and stead, and in our behalf, 

I. J. of the town of in said county, to take, arrest, seize and surrender 

to the sheriff of the said county of ^ C. D. in the within (or ^^annezed'^) 

copy of recognizance named in exoneration of our liability upon said re- 
cognizance as sureties for the appearance of the said C D. at the court 
therein mentioned, to answer for the offense therein specified and to employ 
such assistants as may be necessary to effect such purpose. 

In witness whereof we have hereunto set our hands this day of , 

A. D. 1&-. 

E. P. 
G.H. 

§ 122. Surrender, to whom Made. — The statute provides that 
" the surrender shall be made to the sheriflF of the county 
where the principal is required to appear or to the warden of 
the penitentiary when so required."* 

§ 123. Proceedings on Surrender. — " On such surrender and 
delivery to him of a certified copy of the recognizance the 
sheriff or warden shall take such person into custody and by 
writing acknowledge such surrender, and thereupon the sure- 
ties shall be discharged^ from such recognizance upon pay- 
ment of all the costs occasioned by any proceeding upon the 
recognizance."* 

§ 124. Second Admittance to Bail. — When any person charg- 
ed with a criminal offense is surrendered by his sureties, he 
may be again admitted to bail in the same manner as if com- 
mitted for not finding sureties to recognize for him.* 

§ 125. When Bail to be Exonerated on Default made. — '^ If by 
the act of God, bail are unable without their fault to surrea 

> R 8, 397, § 307. 

* A surrender to' the magistrate before whom the examination was had t 
will not discharge the sureties, for the statute requires the surrender to be 
made to the sheriff. Stegars v. State, 2 Blackf., 104. Payment of the costs 
is an indispensable prerepuisite to the discharge. Cleveland v. Skinner, 
66 Ills., 501. 

•Rtt.,8»7, §308. 

* Id., § 809. 



ABBE8T, EXAlflNATION, COMMITMENT AND BAIL. 91 

der their principal, they shall, on motion, before final judg- 
ment on the scire foinasj be exonerated and be discharged by 
the conrt, with or without costs, as the court deem equitable."' 

§126. Witnesses to Recognize. — ""When the prisoner is ad- 
mitted to bail or committed, the judge or justice of the peaco 
shall bind, by recognizance, such witnesses against the pris- 
oner as he deems material, to appear and testify at the next 
court having cognizance of the offense, and in which the pris- 
oner shall be held to answer: Provided^ no such witness shall 
be required to give other security than his own recognizance 
for such appearance."* 

§ 127. Married Women and Minors. — " When a married wo- 
man or a minor is a material witness, any other person may 
be allowed to recognize for the appearance of such witness; or 
the judge or justice of the peace may, in his discretion, take 
recognizance of such married woman or minor, in a sum 
not exceeding fifty dollars, which shall be valid and binding 
in law, notwithstanding the coverture or minority: Providedy 
that no such minor or married woman shall be required to 
give other security than his or her own recognizance for such 
appearance."* 



State of Illinois, ^ ^ 



County 



FORM OF RBCOQNIZANCB OF WITNESS. 

:( 



Be it remembered that on the day of , A. D. 18—, E. F., of 

in the said coun^, personally came before L. M., a justice of the peace in 
and for said county, and acknowledged himself to owe and be indebted to 

the People of the State of Illinois in the sum of dollars, to be made 

and IcYied of his goods and chattels, lands and tenements, if default shall be 
made in the condition following: 

The condition of this recognizance is such that if the said £. F. shall 
personally be and appear at the circuit court on the first day of the next 
term thereof, to be held at the court-house in the town of {or ^^village^* or 

••e^^y'*) in said county of , on the day of ^ A. D. 18 — , at the 

opening of tlie court on that day, and from day to day and from term to term* 
and from day to day of each term, to testify in the case of the People against 
C. D^ charged with the offense of {interi name oj t/ie offenw or statemeni 

> R 8., 898, § 812. 
' K 8., 403, g 864. 
' Id, § 865. 



92 PBOCEEDINOS BEFORE JU8TI0B. 

€f the offense as in tJiS complaint) as well to the grand Jury as to the petil 
Juiy, and not depart without leave, then this recognizance to be void— other- 
wise to remain in full force and effect. 

E.F. 
Taken, subscribed and acknowledged 1 
before and approved by me, on the day j- 
ond year first above written. j 

li. M., J. P. 



State of Illinois, ^ «« 

Bo. 



FORM OF BECOOKIZANCE OF 8EYEBAL WITNESSES. 



County 



Be it remembered that on the day of , A. D. 18 — , E. P., G. H.t 

and I. J., all of the county aforesaid, personally came before L. M., a justice 
of the peace of the said county, and each of them respectively and sepa- 
rately acknowledged himself severally and individually to owe the People 

of the State of Illinois the sum of dollars, to be made and levied of his 

goods and chattels, lands and tenements, if default shall be made in the 
condition following: 

The condition of this recognizance is such that if the said E. F., G. H., 
and I. J. shall severally and personally appear at the circuit court on the 
first day of the next term thereof, to be held at the court-house in the town 

(or ^'village^^ or " city^') in said county of on the day of , A, D. 

18—, at the opening of the court on that day, and from day to day and from 
term to term, and from day to day of each term, to testify in the case of the 
People against C. D.,cliarged with the offense of (inseri name of the offense 
or a statement of the offense as in the eompla%nt\ a? well to the grand jury as 
tiie petit Jury, and not depart without leave, tlien this recognizance to be 
Yoid^otherwise to remain in full force and effect. 

E. P. 
G. H. 
I. J. 

Taken, subscribed and acknowledged 1 
before^ and approved by me, on the day |- 
and year first above written. J 

li. M., J. P. 

§ 128. Commitment of Witness. — "Witnesses required to re- 
cognize shall, if they refuse, be committed to jail by the 
judge or justice, there to remain until tliey comply with such 
order, or are otherwise discharged according to law."* 

§ 129. Mittimns. — "When an offender or witness is commit- 
ted because he fails to enter into recognizance as required by 

' R. 8., 403, § 806. 



ABBE8T, BXAMIKATION, COMMITMENT AND BAIL. 93 

law, or because the offense is not bailable, the judge or justice 
of the peace shall make out a warrant of commitment, 
directed to the sheriff, coroner or any constable, and con- 
taining a short recital of the cause of the commitment, and 
commanding the officer to commit the prisoner to the county 
jail, and deliver him to the keeper thereof, and the jailer to 
receive him into his custody, and safely keep him until he is 
discharged by process of law. No mittimus sliall be con- 
sidered defective for the want of the seal of the judge or 
justice, or other legal or technical form, if sufficient appear 
OD its face to ascertain for what crime or offense the prisoner is 
committed."* 

TOniC OF COMMITMENT OF PRTBONBR. 

Btate of Illinois, 



•IS,) 



88. 

Countv. ' 



The People of the State of Illinois to the Sheriff, Coroner, or any Con- 
stable of the said County,' Greeting: 

Whereas, A. B. lately made complaint to L. H., a Justice of the peace of 
^c said coonty, and the said Jostice examined on oath the said complainant 
and £. F^ a witness produced by him, and reduced the complaint to writ 
ing and caused It to be subscribed and sworn to by the said complainant, 
whereby it was charged that tlie said C. D. did (insert statement of the 
effens^ as in the complaint) and from the said complaint it appeared tliat 
such ofiensehad been committed, and that there was probable cause for be- 
lieving that the said C. D. had committed the same, whereupon the said 
Justice issued a warrant for his arrest, and the said C. D. has since been 
arrested theieon and brought before the said Justice, and the said justice 
then and there examined tlie witnesses on the part of the prosecution, as 
well as those produced on behalf of the said C. D., on oath in the presence 
of the said C. D., in relation to each and every matter connected with such J 
charge which the said Justice deemed pertinent, and from the said exam- / 
ination in the presence of the said C. D. it appeared Ujihe said Justice that/ 
the »aid offense had l)cen committed, and tliat thero was probaole cause to\ 
believe the said C. D. guilty thereof ; and the said C. D. not having offered ^ 
sufficient bail for his appearance at the circuit court to answer for the said 
offense, — 

> R S., 403, § 367. 

* The statute does not require the mittimus to be directed to the keeper 
of the Jail, and it is unnecessary, for the reason that it is directed to the 
sheriff who is ex^iffleio keeper of the Jail. R. 8., 616, g 3. 

* The same technical accuracy in stating the offense is not required in a 
mittimiu as in an indictments Young «. People, Itf Ills., 66u 



94 F&00EEDIN08 BEFORE JUSTICE. 

We therefore command you to commit the said C. D. to the county Jail 
of the said county, and deliver him to the keeper thereof, and the jailor to 
receive the said C. D. into his custody and safely keep him until he is dis- 
charged by process of law. 

Given under my hand this day of , A. D. 18 — . 

L. M., J. P. 

FORM OV nnX>B8BMENT ON COMMITMENT. 

The crime was proved before me, E. F., residing in the town of , 

county oi , and State of Illinois, and G. H., residing in, &c. Bail ought 

to be taken in tlie sum of $ . 

' FORM OF COMMITMENT OF WITNESS. 

State of Illinois, ) 

County. J^' 

The People of the State of Illinois to the Sheriff^ Coroner or any Constable 

of the said County, Greeting: 

Whereas, on the examination of E. F., this day taken on oath before L. 
M., a Justice of the peace of said county, it appears that he is a material 
witness for the People against C. D. on a charge made against him in acom« 
plaint to the said Justice, subscribed and sworn to by A. B., stating that C. 
D. did {insert statement of tke offense as in tlie complaint)^ on which the said 
C. D. has been arrested and brought before the said Justice and by him ad- 
mitted to oail {or ^^eammitted to the jail of the said county") ; and, whereas, 
the said E. F., on being ordered by the said Justice to enter into a recogni- 
zance, conditioned according to law, for his appearance at the circuit court, 
to testify in the case of the People against the said C. D. for the said offense, 
did refuse, and doth still refuse, to enter into the said recognizance, — 

We therefore command you to commit the said C. D. to the county Jail 
of the said county, and the Jailer to receive the said C. D. into his custody 
and safely keep him, there to remain until he complies with such order or 
Is otherwise discharged according to law. 

Given under my hand this day of , A. D. 18—. 

li. M., «r. p. 

§ 180. Amoant of Bail to be Indorsed on Mittimus. — << If the 

offense is bailable, or the person committed is a witness, the 
judge or justice of the peace shall indorse on the warrant of 
commitment the amount of bail required.'" 

§ 131. Names of Witnesses to be Indorsed on Mittimus. — ^^The 

> R. 8., 408, § 368. It is not essential to the validity of the mittimus is- 
sued by a committing magistrate in a bailable case that he should indorso 
upon it the sum in which bail ought to be taken if such sum appears in 
the body of the mittimus. Bulson v. People, 81 IIR^ 409. 



ABBEOT, EXAMINATION, COMMITMENT AND BAIL. 95 

judge or justice of the peace committiDg any person upon a 
criminal charge sliall indorse upon the warrant of commit- 
ment the names and residences of the principal witnesses by 
whom the crime was proved before him."* 

§ 132. Mittimus to be Dellvei-ed to the Jailer. — ^< The officer 
delivering the prisoner to the custody of the jailer shall also 
deliver to him such warrant of commitment, to be by him 
duly preserved."* 

§ 133. Names of Witnesses Indorsed on Copy of Mittimus. — 
"Whenever any prisoner, in the custody of the sheriff of any 
county, on any warrant of commitment as aforesaid, shall, by 
himself or his attorney demand of such sheriff a copy of said 
warrant of commitment, said sheriff shall indorse on the said 
copy the names of the witnesses written thereon as aforesaid, 
and deliver the same to the prisoner or his counsel; and any jus- 
tice or judge who shall neglect to write the name or names of 
the witnesses aforesaid on the warrant of commitment, or any 
sheriff who, on such demand, shall neglect to indorse the 
name of the said witness or witnesses on any copy of said 
commitment, or deliver the same to the prisoner or liis coun- 
sel, each justice, judge or sheriff offending in the premises 
shall be fined in the sum of twenty dollars, to be recovered 
by action of debt, in the name of and for the use of any per- 
son who shall sue for the same in any court of record."* 

§ 134. Recognizance of a Prisoner in Vacation. — " Where any 
person shall be committed to jail on a criminal charge for 
want of good and sufficient bail (except for treason, murder, 
or other offense punishable with death) or for not entering 
into a recognizance to appear and testify, any judge or any 
two justices of the peace may take such bail or recognizance 
in vacation, and may discharge such prisoner from his impris- 
onment."^ 



>RS.,403, §369. 
Md., §870. 
» R B., 403, § 871. 
* Id., 896, § 999. 



96 PB0CEEDINQ8 BEFOBE JUSTIOB. 

WARRANT TO DISCHARaK PRISONER AFTER COMIC ITKEIIT. 

State Of Illinois, 

B8. 



County. 



\ 



The People otthe State of Illinois to the Keeper of the Common Jail of 

said County: 

You are hereby commanded to discharge from imprisonment C. D. if de- 
tained in your custody for no other cause than what is mentioned in the 
warrant for his commitment under the hand of L. M., a justice of the peace 
of said county, dated the day of , A. D. 18—. 

Given under the hands of L. M. and A. E., two Justices of the peace of 
said county, this day of , A. D. 18 

Ij. m., j. p. 

(or •' Q, H^ CawUy [or *' Oirmir] Judge:') A. E., J. P. 



SECTION III. 

Seabch Wabbant. 

% 185. Complaint — Search Warrant for Stolen Goods. 

136. For other Property. 

137. Provisions of the Constitution — Requisites of the Complaint and 

Warrant. 

138. The Place to be Searched, how Described in the Warrant. 
189. Warrant to Search in the Day-time. 

140. Warrant to Search in the Night-time. 

141. In What Cases a Search Warrant may Issue. 

143. How Executed. 
148. Forcible Entrance. 

144. Officer, when Protected in Executing the Warrant 

145. Return. 

146. Disposal of Property. 

147. Costs against Complainant 

148. Searching Prisoners. 

149. Searching for Dangerous Weapons. 

150. Evidence. 

151. Search Warrant may Issue for Records. 

152. Execution of the Process. 
158. Defense. 

§ 185. Complaint — Search Warrant for Stolen Goods. — The 
Btatate provides that " when complaint is made in writing, 



6EASCH WARRANT. 97 

Terified by affidavit, to any judge or justice of the peace, that 
personal property (particularly describing the same) has been 
stolen, embezzled, or fraudulently obtained by false tokens or 
pretenses, and that the complainant believes it is concealed in 
any house or place (particularly describing the same), the 
judge or justice of the peace, if he is satisfied that there is 
reasonable cause for such belief, shall issue a warrant to search 
such house or place for such property."* 

§ 136. For Other Property. — " Any such judge or justice of 
the peace may, on the like complaint, made on oath, issue 
search warrants when satisfied that there is reasonable cause, 
in tlie following cases, to wit.: 

1. To search for and seize counterfeit or spurious coin, 
forged bank notes and other forged instruments, or tools, 
machinery or materials prepared or provided for making 
either of them. 

2. To search for and seize books, pamphlets, ballads, print- . 
ed papers, or other things containing obscene language, or ob- 
scene prints, pictures, figures or other descriptions, mani- 
festly tending to corrupt the morals of youth, and intruded 
to be sold, loaned, circulated or distributed, or to be intro- 
duced into any family, school or place of education. 

3. To search for and seize lottery tickets, or materials for a 
lottery, unlawfully made, provided or procured, for the pur- 
pose of drawing a lottery. 

4. To search for and seize gaming apparatus, or imple- 
ments used, or kept and provided to be used, in unlawful gam- 
ing, in any gaming-house or in any building, apartment or 
place restored to for the purpose of unlawful gaming."* 

§ 137. Provisions of tlie Constitution — Requisites of the Com- 
phiint and Warrant — The Constitution provides that the right 
of tlie people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures shall not be 
violated, and no warrant shall issue without probable cause 
supported by affidavit, particularly describing tixo place to be 

'R.S.,404,8872. 
•Id^88TO. 

7 



98 PitOCEEDINGS BEFORE JUSTICE. 

searched and tlie persons or things to be seized.* An amend- 
ment of the Constitution of the United States contains sub- 
stantially the same provision.* It has been held that a 
provision of the statute allowing search for and seizure of 
lottery tickets and materials for a lottery was not unconstitu- 
tional, because an unreasonable search or seizure.* The place 
must be particularly designated, and the property particularly 
described in both the complaint* and warrant.* If the search 
warrant and the complaint are on the same paper, and the 
things to be searched for are properly designated and described 
in the complaint, and the warrant directs the officer to search 
for the things mentioned in the above complaint, the process 
is legal without any further description of the things in the 
warrant* If the goods are described in general terms as 
goods, wares and merchandise, without any specification of 
their character, quality, number or weight, or any other cir- 
cumstances tending to distinguish them, it is not such a 
particular description as the statute and Constitution require.^ 
The description "three cases of misses' and women's boots of 
the value of one hundred dollars, a lot of oak-tanned soles of 
the value of fifty dollars, and ten sides of sole leather of the 
value of forty dollars" was held to be sufficient.' 

§ 138. The Place to be Searched, how Described in the Warrant 
— A general warrant to search all suspected places is illegal 
and void,' and even the officer acting undercolor of its author- 

» R. 8., 59, Con. of Ills., Art II., § 6 ; Ashley v. Peterson, 25 Wis., 621. 

• R. B., 16, Amend. Con. of U. 8., Art. IV. 

' Com. V. Dana, 2 Met., 829; see also Allen v. Staples, 6 Gray, 491 ; State 
«. Miller, 48 Me., 576. 

* R. S., Con. Ills., Art. II., § 6. 

• R. 8., 16, Amend, of Con. of U. S., Art. IV ; R. 8., 404, § 875 ; People «. 
Holcomb, 8 Park. Cr. R., 656; Reed v. Rice, 2 J. J. Marsh, 44; Ashley «. 
Peterson, 25 Wis., 621. 

* Com. V. Dana, 2 Met., 829; Dwinnells «. fioynton, 8 Allen, 810. 

* Sanfonl v. Nichols, 18 Mass., 286. 

"Dwinnells v. Boynton, 3 Allen, 810; see also State v, Robinson, 88. 
Me., 564. 

• 4 Black. C.)m., 238 ; 1 Bish. Or. P., § 203 ; 10 State Tr., 426; Ashley «. 
Peterson, 25 Wis., 621. 



SEARCH WARKANT. 99 

ity will not be justified in executing it* If a building is to 
be searched, the name of the o^vner or occupant must be giv- 
en,* or if not occupied it should be particularly described, so 
that the officer will be left to no discretion in respect to the 
place, and a misdescription in regard to the ownership* or de- 
scription so general that it applies equally to several bnlld- 
ings or places, would render a warrant void in law;* therefore 
a warrant to search ^^ the houses and buildings of Hiram Ide 
and Henry Ide,"* or " the suspected place," is too general, 
and vQid.* A warrant to search the dwelling-house of a per- 
son authorizes the officer to search only the house which he 
occapies,^ and does not authorize him to seirch his barn^ nor 
a dwelling-house occupied by another owned by him.' If 
the house be described as the house of a company, such de- 
scription will not authorize the searching of the house of an 
individual member of the company.'® But a search warrant 
may properly direct the officer to search not only the princi- 
pal dwelling, but also other buildings and places of conceal- 
ment, such as a granary, out-buildings and straw-stacks on the 
same premises.'* It is sufficient if the warrant describes the 
place as near as may be." But the description of the jilace to 
be searched should be as certain in a warrant as would be 
necessary in a deed to convey such place.'* 

« Barb. Cr. L., 500; 1 Arch. C. P. & PI., 144. 

* Stone 9, Dana, 5 Met, 98. 

* Banford v. Nichols, 13 Mass., 286; Allen v. Staples, 6 Qra/, 491. 

* Cooley Const. L., 804. 

» Hnmes v. Taybor, 1 R. I., 464. 

* People o. Holcomb, 3 Park. Cr. R., 656. 
M Bish. Cr. P.,§209. 

* Jones V. Fletcher, 41 Me., 254. 

* HcGhinchy v. Barrous, 41 Me., 74. 

* Banford o. Nichols, 13 Mass., 286. 

" Meek «. Pierce, 19 Wis., 800; see Dwinnells o. Boynton, 8 Allen^ 810; 
State «. Robinson, 88 Me., 564. 
>* Banto o. State, 2 Iowa, 165. 
>* Jones «. Fletcher, 41 Me., 254. 



100 PROCEEDINGS BEFOBE JUSTICE. 

FORM OF eOMFLAINT FOR ▲ SEARCH WARRANT FOB BTOLSN OOODB. 

State of Illinois, ^ 



County. 



[ 



A. B. makes complaint to L. M., a justice of the peac^ of tiie said county, 

and says that on the day of -^ A. D. 18 — , at the town of in (he 

said county, tliree pairs of shoes (or particularly describe the thiags to be 
eeieed) of the Talue of ten dollars, of the goods and chattels of the said A. B., 
were feloniously stolen, taken and carried away by some person or per- 
sons unknown (or ^^and there is probable eattse* to believe that O. D. felo- 
niously stole, took, and eaiTied away the same^*) and tliis complainant verily 
believes' that the said stolen goods and cliattels are concealed in the dwel- 
ling-house of (the said) C. D. (or describe particularly the place to be sear ek- 
ed) in the town of in said county, and that the following are the reas- 
ons for the said belief (inset t the reasons for the belief according to the cir- 
cumstances). 

Wherefore he prays that a search warrant may issue according to law. 

A.B. 

State of Illinois, } ^ 

County. ) * 

A. B., being duly sworn' on his oath, says that the above complaint is 
true in substance and matter of fact A. B. 

Subscribed and sworn to before me, ) 

this day of , A. D. 18—. » 

L. M., J. P. 

FORM OF OOMPLAIKT FOB A WARRANT TO SEARCH FOB COONTBBFEIT COIK. 

State of Illinois, ) ^ 

County. ) 

A. B. complains to L. M., a Justice of the peace of the said county, and 

being duly sworn on his oath, says that on the day of , A. D. 18—, 

at the town of in the county aforesaid, three pieces of silver coin (or 

' The statute relating to search warrants does not require the person to be 
seized to be named or described. R. S., ^g 872, 374. But the Constitution 
and another statute prohibits the issuing of a warrant for his arrest with- 
out such description and an affidavit showing probable cause. li. S., 59, 
Con. Ills., Art II., §6; R. S., 401, §§348, 349. 

" Where the words used were ** has cause to suspect and does suspect" 
instead of the words ** verily believes,^* the complaint was held to be insuffi- 
cient Humes v. Taybor, 1 R. I., 404. 

' The complaint must be verified by affidavit or the warrant will be void. 
R S.* 404, g 372; State «. Carter, 89 Me., 282; Jones «. Fletcher, 41 Me., 254: 
State 0. Staples, 37 Me., 228; Saunders o. State, 2 Iowa, 230. According to 
the statute, a complaint under the 873d section must be on oath. R. S., 404, 
§ 873. But in order to comply with the Constitution it must also be reduced 
to writing, and put in the form of an affidavit R S., 59, Con. Ills., Art 
II., 1 6. 



8EABCH WARRANT. 101 

particularly describe the thing to be seized) then current by usage in this state 
of Illinois, called Bptvnisli milled dollars, were unlawfully and fraudulently 
counterfeited with intent to defraud some person, body politic or corporate, 
by some person or persons unknown, or, and there is probable cause to be- 
lieve, the said C. D. did unlawfully and fraudulently counterfeit the same 
with intent to defraud some person, body politic or corporate ; and this 
complainant verily believes that the said counterfeit coin is concealed in 
the dw^elling'house of {the said) C. D. (or describe particularly the place to be 

searched), in the town of in the said county, and that the following are 

the reasons for the said belief {insert the reasons fqr the belitf according to 
the eircumstanees). 

Wherefore he prays that a search warrant may issue according to law. 

A.B. 

Subecribed and sworn to before me, ) 

this day of — -, A. D. 18—. ) 

li. M.y J. P. 

« 

§ 139. Warrant to Search in Day-time. — " All such warrants 
shall be directed to the sheriflF or any constable of the county, 
commanding such officer to search in the day-time the house or 
place where the stolen property or other things for which he 
iB required to search are believed to be concealed, (which 
place and property, or things to be seaiched for, shall be par- 
ticularly designated and described in the warrant), and to 
bring such stolen property or things, when found, and the 
person in whose possession they are found, to the judge or 
justice of the peace who issued the warrant, or to some other 
judge or justice of the peace or court having cognizance of 
the case.'" 

FOBU 09 SEARCH WABBANT. 

State of Illinois, i 

County. J ^' 

The People of the State of Illinois to the Sheriff or any Constable of the 

said county, Qrecting: 

Where^ a complaint was this day made in writing, verified by the affi- 
davit of A. B. to the undersigned, a justice of the peace of the said county, 
stating {insert statement of the offenae as in the complaint), and from Uie said 
complaint the undersigned, being satisfied that there is reasonable cause for 
such belief, — 

We therefore command you to search in the day-time the said dwelling. 

> R. 8., 404, § 874 



103 FR00BEDING8 BEFORE JUSTICE. 

house of the said C. D.^ {or particularly describe the place to he searched^y 
situate in tlie said town of —^^ in the county aforesaid, and to bring the 
said three pairs of shoes,' the pn)perty of the said A. B. descril)ed herein, 
when found, and {the said (7. D., \f the said property shaU be found in his 
possession or) the person or persons in whose possesiion they are found* to 
the undersigned, or to some other Judge or justice of the peace or court 
havins: cognizance of the case. 

Given under my hand and seal this day of , A. D. 18 — . 

L. M., J. P. [Seal.*] 

§ 140. Warrant to Search in the Night-time. — <' If there ia sat- 
iefactory evidence that any property stolen, embezzled, or 
obtained by false tokens or pretenses, or that any of the 
other things for which a search warrant may be issued by the 
provisions of this act are kept concealed, prepared or used in 
a particular house or place, a warrant may be issued by two 
judges or justices of the peace, to authorize the search of such 
house or place in the night-time, and to bring the property 
or things described in the warrant or summons, and the per- 
son in whose possession they are found, before either of the 
judges or justices who issued the warrant, or some other 
judge or justice of the peace of the county."* 

' In the State of Indiana a warrant to search the premises of B. P. Tuell, 
was held not to authorize the officer to search the dwelling of Benjamin P. 
Tuell. Tuell o.Wrink, 6 Blackf., 249. But in ttiis state the court would prob- 
ably hold otherwise. Vance «. Funk, 2 Scam., 363 ; Pickering v. Pulsifer, 
4 Gilm., 83; Dwinnells o. Boynton, 3 Allen, 310; State v, Robinson, 3d 
Me., 561. 

• The omission of the command to bring the property to the magistrate is 
a fatal objection to th» warrant. Cooley Coast. L., 305 ; Fisher v. McGuire, 
1 Gray, 1; Hubbard v. People, 4 Mich., 203; People v, Uolcomb 8 Park. 
Cr. K., 6.">6. 

• Words equivalent to the words ** person or persons in whose possession 
they are found," in New York, were held to be a sufficient description of 
the person to ba seized. Bell v. Clapp, 10 John., 265. But whether they are 
sufbcient under our constitution does not seem clear. R. S., ^9, Con. 
Art. II.,S6;R.S.,401, §848. 

• 8ear(Ui warrants must be under seal. 1 Bish. Cr. P., § 243 ; People v. 
Holcomb, 3 Park. Cr. R., 656. 

• R. 8., 404, § 375. 



8EABGH WABRANT. 103 



FOIUf OT A WARBANT TO SEARCH IN THE NIODT-TIMB. 



State of Illinois, 

8S. 



County. 



\ 



The People of the State of Illinois to the Sheriff or any Constable of the 

said County, Greeting: 

Whereas, a complaint was this day made in writing, verified by the affi- 
davit of A. B., to the undersigned Justices of the peace of the said county, 
stating (insert statemant of the offense <u in the complaint)^ and from the evi- 
dence in the said complaint and the exainination of A. B. and £. F., on 
oath before us the undersigned, being satisfied tliat the said property is con- 
cealed in the said dwelling-house of the said C. D., situate in the said town 
of— in the county aforesaid, — 

"We therefore command you to search in the night-time the said dwclling- 
house of the said C. D. {or particularly describe the place to he searcJied), and 
to bring the said three pairs of shoes, the property of the said A. B., de- 
scribed herein, when found, and {tlie said 0. D.^ if iJu said property shnU he 
found in his possession or) the person or persons in whose possession they 
are found, before either of the undersigned or some otlier judge or justice 
of the peace of the county. 

Given under our hands and seals this day of , A. D. 18 — . 

L. M., J. P. [Seal.] 
A. E., J. P. [Seal.] 

§ 141. In what Cases, a Search Warrant may Issue. — A search 
warrant cannot be issued except in the cases specified by stat- 
ute,^ and can never be availed of by an iudividnal in the 
course of a civil proceeding or for the maintenance of a pri- 
vate right; but its use is confined to public prosecutions in- 
stituted and pursued for the suppression of crime and the de- 
tection and punishment of criminals.^ A search warrant for 
libels or other papers of a suspected party is illegal.' If a 
magistrate grants a search warrant groundlessly and mali- 
ciously, without such probable cause as might induce a candid 
and impartial man to suspect the party to be guilty, he 
will be liable to an action at the suit of the party aggrieved.* 
It seems that case will lie if the party has no grounds for his 

' 1 Nun. & Walsh, 250 ; Cooloy Const. L.. 804, 307. 

* Robinson 9. Richardson, 18 Qray, 456; Entick o. Carrington, 19 SL Tr., 
1029, 1067. 

* 1 Chitty Cr. L., 65 ; 11 St. Tr., 813, 321. 

* Barb. Cr. L., 500; 1 Bish. Cr. P., § 203. 



104 PROCEEDINGS BEFORE JUSTICE. 

proceedings and is actuated by malicious motives;* but tres- 
pass will not lie against a person who has procured,* or an 
oflScer" who has executed, a search warrant for stolen goods 
if the warrant be duly issued and regularly executed. 

§ 142. How Executed. — Every such warrant must be exe- 
cuted by a public ojfficer, and not by a private citizen,* though 
it is proper that the complainant should be present and assist, 
because he knows and may identify the goods.* A constable 
may serve a warrant which was issued upon the complaint of 
himself and another person.* If the warrant does not ex- 
pressly authorize a search in the night, it must be done in 
the day-time, between sunrise and sunset.^ 

§ 143. Forcible Entrance. — " The officer may break open any 
outer or inner door® or window of a liQuse, or anything there- 
in, if, after notice of his authority and purpose, he is refused 
admittance, using no more force than is necessary. "• No pre- 
cise form of words is required to be used in giving the notice. 
It is sufficient if the party is informed by the officer of his 
business and apprized that he does not come as a trespasser, 
but claims to act under proper authority.*® The notice of 
authority and demand of admittance is only necessary when 
there is some person present to whom it may be given or of 
whom it can be made." The officer may break into boxes 
after the keys have been demanded and refused." 

» 1 Arch. C. P. & P]., 146; Beatty v. Perkins, 6 Wen., 882; Plummer «. 
Dennett, 6 Greenl., 421 ; Luddington v. Peck, 2 CJonn., 700 ; Bill «. Clapp, 10 
John., 263; Hayden v. Shed, 11 Mass., 500 ; Morris v. Scott, 21 Wen., 281. 

» Beatty v, Perkins, 6 Wen., 382. 

« Barnard v. Bartlett, 10 Gush., 501. 

• R 8., 404, § 374; 1 Chilty Cr. L., 65; Cooley Const. L.. 805. 

• 1 Arcli. C. P. & PI., 145 ; Smythe, 235 ; Barb. Cr. L., 500 ; Entick v, Car- 
rington, 11 St. Tr„ 813, 321 ; 2 Wills, 275. 

• 1 Bish. Cr. P., §242; Com. v. Certain Intoxicating Liquors, 6 Allen, 596. 

• Crock, on S. & C, § 80. 

• 2 Hale P. C, 151 ; 1 Bish. Cr. P., § 203, 208 ; Barb. Cr. L., 500 ; 3 Bos. & 
Pul., 258; 6 B. & Cres., 332; Banks v. Parwell, 21 Pick., 156. 

• R. B., 404, § 376. 

»• Barb. Cr. L., 501, 502. 

" Androscoggin Railroad v. Richards, 41 Me., 233. 
" 1 Bish. Cr. P., 208 ; 2 Hale P. C, 157 ; 3 Bos. & Pul., 258 ; Banks c. Far- 
well, 21 Pick., 156. 



SEARCH WABRANT. 105 

§ 144. Officer, when Protected in Executing the Warrant. — In 
executing the warrant, if the officer searches any other place/ 
or seizes any other goods,* than sach as are described in the 
warrant, he will be a trespasser unless the goods not specified 
in the warrant are likely to furnish evidence of the identity 
of the articles stolen or of the guilt of the prisoner.* Where, 
tlierefore, a warrant was granted to seize stolen sugar, and 
the officer seized tea, he was held to have exceeded his au- 
thority and to be liable to the party aggrieved for a tres- 
pass.* But if he seizes goods which correspond with and 
come within the description of those stolen, he will be justi- 
fied in taking them, though they do not prove to be the goods 
lost by the complainant.* If the officer pursues strictly the 
directions of the warrant, he will be justified though the goods 
are not found in the place directed to be searched,* nor will 
it make any diflference if the warrant was improperly granted 
if it be regularly granted and regular in form.^ 

§ 145. Return. — "The return of the officer shall particularly 
specify the property taken, and the place where and the per- 
son from whom the property is taken."* 

FORM OF A RETUBN TO A SEARCH WARRANT. • 

State of Illinois, 



County. 



SB. 



In obedience to the within writ I did on the day of , A. D. 18—, 

enter the premises therein described^ and make search for the goods and 
chattels therein set foith, and there found of the said goods and chattels the 

> Nun. & Walsh, 258; 1 Bish. Or. P., 209; McGhinchey ©. Barrows, 41 
Me., 74. 

' Barb. Cr. L., 500; Ck)oley Const Lim., 304; Sanfordv. Nichols, 13 Mass., 
286. 

• Crozier «. Cundy, 9 D. & Ry., 224 ; 6 B. & Cres., 333. 

• Crozier «. Cundy, 9 D. & Ry., 224; 6 B. & Cres., 332; State ©. Brennan's 
Liquors, 25 Conn., 278. 

• Crock, on 8. & C, 80; Stone v. Dana, 5 Met, 98. 

• Cooley Const L., 307; 1 Bish. Cr. P., §§ 203, 208; Barnard «. Bartlett, 10 
Gush., 501. 

• Bell «. Clapp, 10 John., 273; Sanford ©. Nichols, 13 Mass., 236; Grumon 
•• Raymond, I Conn., 40; Slate v. Mann, 5 Ired., 45, anU §46. 

• R S., 405, § 377. 



106 PKOCEEDINGS BEFORE JUSTICE. 

followiDg-named articles : three pairs of slioes {or insert a list cf the articles 
found)t and took the same from the dwelling-house of C. D., situate in the 

town of in said county, from the said C. D., and have them now in 

court (and did also arrest the said O, D. in whose possession the said prop- 
erty toasfoundt and have him now %n custody here in court), as commanded, 

this day of , A. D. 18—, 

J. B., Const, of Co., Ills. 

^ 146. Disposal of Property. — *'When an officer, in the exe- 
eation of a search warrant, finds stolen or embezzled property, 
or seizes any of the other things for which a search is allowed 
by this act, all the property and things so seized shall be safely 
kept by the direction of the judge, justice or court, so long 
as necessary for the purpose of being produced or used as 
evidence on any trial. As soon as may be afterwards all such 
stolen and embezzled property shall be restored to the owner 
thereof, and all the other things seized by virtue of such war- 
rants shall be burnt, or otherwise destroyed, under the direc- 
tion of the judge, justice or court."* 

§147. Costs Against Complainant. — ''If, on the hearing, it ap- 
pears that there was no probable cause for suing out the 
warrant, the whole cost may be taxed against the complain- 
ant, and execution awarded."* 

§ 148. Searching Prisoners. — An officer has no right to 
search a prisoner unless he has a warrant authorizing him to 
make the search.' The practice of taking from those arrested 
every thing they have, ought not to be continued.* Yet, on 
the proper complaint being made, the prisoner may be searched 
in the cases specified by statute.* Every thing taken from 

* R 8., 405, § 878. A statute authorizing a condemoation or other final dis 
position of property, witliout notice to the owner and an opportunity for a 
hearing afforded him, has been held to conflict witli the Constitution, and 
therefore to be void. Cooley Const. Lim., 305 ; Fisher v. McGirr, 1 Gray, 1 ; 
Hibbard o. People, 4 Mich., 126 ; and see Gear v, BuUerdick, 34 Ills., 75. 

« R S., 405, § 879. 

■ R 8 , 59, Con. of Ills., Art II., § 6. 

♦1 Bish. Cr. P., §§210-212; 1 Hays Dig., 70; Reg. «. McKay, 3 CrawC 
Sp Dix. C. C, 205; Rex v. Jones, 6 Car. & P., 343; Rex v. Donnell, 7 Car. & 
P.. 138. 

* B. 8., 404, 8372-380; Houghton v, Bachman, 47 Barb.. 88a 



SEABCn WAEitAKT. lOT 

the prisoner not furnishing any evidence of Jiis guilt, the 
magistrate or court, on motion founded upon affidavit showing 
the facts, should order restored to Iiim.^ 

§ 149. Searching for Dangerous Weapous. — The statute pro- 
vides that "when a person charged with a felony is suspected 
by the judge or justice of the peace before whom he is brought 
to have upon his person a dangerous weapon, or anything 
which may be used as evidence of the commission of the 
offense, the judge or justice may direct him to be searched in 
his presence, and such weapon or other thing to be retained, 
subject to the order of the court in which the defendant may 
be tried.* 

§ 150. Evidence. — The constitution of this state and of the 
United States provide that " the right of the people to be se- 
cure in their persons, houses, papers and effects, against un- 
reasonable searches and seizures shall not be violated."' It 
has been believed that under this provision the seizure of 
one's papers on a search warrant, in order to obtain evidence 
against him, is clearly forbidden.* Lord Camden said, " To 
enter a man's house by virtue of a nameless warrant, in order 
to procure evidence, is worse than the Spanish Inquisition — ^a 
law under which no Englishman would wish to live an hour."' 
But it has been held that evidence obtained by means of a 
search warrant is not inadmissible, either upon the ground that 
it is in the nature of admissions made under duress, or that 
it is evidence which the defendant has been compelled to 
famish against himself, or on the ground that the evidence 
has been unfairly or illegally obtained, even if the search 
warrant was illegally issued.* 

§ 151. Search Warrant may Issae for Records. -— ^^ If any per- 

> 1 Arch. C. P. & PI., 134, 146, 573; 1 Bish. Cr. P., §213; Rex v. Kinsey, 
7 Car. & P., 447; Rex c. Bamett,3 Car. & P., 600; 4 Wash. C. C. Rep., 710. 

• R. 8., 405, § 880. 

•Con. IHs., Alt II., § 6; Amend. Con. of U. 8., Art. IV. 

♦ Cooley Const. Lim., 305, 306, n. 5. 

•Entick «. Carrington, 19 St. Tr., 1029; 8. C, 2 WUls, 275; Hackle* 
Money, 2 Wills, 205; Robin8o^ v. Richardson, 13 Gray, 456. 

* 1 Bish. Cr. P., § 246 ; State v. Flynn, 86 N. H., 64 



108 PROCEEDINGS BEFOBB JUSTICE. 

feon whose office shall be abolished by law, vacated or deter- 
mined by removal from office, resignation, death, expiration 
of the time for which he was elected or appointed, or other 
cause; or his executors, administrators, or other persons, 
neglect or refuse to deliver over any records, papers, docu- 
ments or other writing, or other articles of property pertain- 
ing to such office, when thereto lawfully required by the 
successor to such office, or other person entitled to the cus- 
tody thereof, — the judge of any court of record in the proper 
county may, upon the affidavit of any competent person, set- 
ting forth proper facts, issue his warrant, directed to the 
sheriflFor coroner of the proper county, commanding him to 
seize all the records, books, papers, documents and other pub- 
lic property belonging or appertaining to the said office, and 
deliver the same to the person entitled to the custody there- 
of, to be named in such warrant."* 

§ 152. Execution of the Process. — " The officer executing any 
warrant issued as aforesaid may break open any doors, 
trunks or places in which any of the records, books, papers, 
documents or other public property in such warrant com- 
manded to be seized and secured, may be concealed, or in 
which he may suspect them to be; and, in case of resistance, 
may arrest any person who may resist tlie execution of such 
warrant, and carry him before some judge or justice of the 
peace, to be dealt with as other persons obstructing the exe- 
cution of such process; and the officer executing such warrant 
may call to his assistance the power of the county in the same 
manner as in the execution of such process. Any officer to 
whom any such warrant may be directed and delivered, who 
shall neglect or refuse to execute and return the same accord- 
ing to law, or otherwise fail to perform any of the duties 
herein required of him, shall forfeit and pay a sum not ex- 
ceeding one thousand dollars, nor less than one hundred dol- 
lars, to be recovered by indictment, to the use of the county 
in any court of competent jurisdiction."* 

> R S., 884, § 217. 
• Id., 385, § 218. 



SEARCH WABRAl^T. 109 

§ 153. Defense. — " TV^oever is aggrieved by the issuing of 
snch warrant may apply to such judge, or, if he is absent, to 
any other judge of a court of record, who, if he is satisfied, 
upon the affidavit of the applicant, that there is good reason 
to believe injustice has been, or is about to be, done by the 
execution of such warrant, shall issue a citation to all per- 
sons interested therein, commanding them to appear before 
such judge at a place and time to be in such citation named, 
which shall be executed by the sheriff or coroner. And the 
judge shall have the power to enforce obedience to such cita- 
tion by attachment to be issued by him, and to proceed in a 
summary way and determine according to right and justice, 
and may issue his warrant for the restoration of any book, 
record, paper, document, or other article of property, which 
sliall appear to him to have been improperly seized or deliv- 
ered over; which warrant shall be executed in the same man- 
ner, and the ofiicer to whom it is directed shall have the same 
powers, and be liable to the same penalties for neglect of duty, 
as in case of other warrants. Any proceeding under this and 
the two preceding sections shall not be held to determine the 
right of any person to such office, but such right may be con- 
tested in the manner provided by law."* 

> R 8., 885, § 219. 



110 TSIAL BEFORE JUSTICE. 



CHAP. III. 

PsOOEEDINGS IN CaSES WhICH MAY BE TbIED BeFOBE JuSTIOES 

OF THE Peace. 

I. General PROTrsiONB RsLATma to the Jubisdictiok Abbbbt, 
Trial, Execution and Appeal. 

II. ASftAULT AND BaTTERT. 
III. MlBCBLLANEOUS OpFENSES WHICH MAY BE TrIBD BEFORE A JUS- 
TICE OF THE Peace. 

1. Affrays. 

2. Unlawful Assembly. 

8. Reining to Join Posse. 

4. Keeping open Tippling Houses on Sunday. 

5. Disturbing the Peace of Society on Sunday. 

6. Disturbing a Family on Sunday. 

7. Disturbing the Peace. 

8. Lewdness, Exposure of Person and other Acts of 

Indecency. 

9. Disorderly House, 

10. Disturbing Meetings. 

11. Gaming. 

12. Barratry. 

18. Maintenance. 

14. Compounding Crime. 

15. Assuming a Corporate Name. 

16. Reflising to Allow Prisoner to See Counsel. 

17. Omitting to Label or Keep Record of Poisonous 

Drugs Sold or Given Away. 

18. Drunkenness. 

19. Officer not Trying to Prevent Duel. 

20. Officer Keglecting to Suppress an Unlawful Assem- 

bly of Twelve or more Persons. 

21. Illegal Fees. 

22. Intimidation of Workmen. 

23. Advertising Lotteries. 

24. Vagabonds. 

25. Selling Liquor without License. 

rV. Offenses aqainbt Propbrtt which mat be Tried befobb a Jus- 
tice OF THE Peace. 

1. Canada Thistles. 

2. Falling to E^otect Castor Beans. 



V. Nuisances. 



GEKEBAL PBOYISIOK8. Ill 

8. Cruelty to Animals. 

4. Unnecessarily Frightening Team by Kngineer. 

5. Injuring or Destroying Baggage. 

6. Defacing, Tearing down, etc., of Advertisements, 

Legal Notices, etc. 

7. Failing to Protect Saltpeter Oaves. 

8. Bringing Animals into tlie State, Infected, etc 

9. Trespass. 

0. Setting Fire to Woods, Prairies and other Grounds. 

11. Counterfeiting Trade-Marks. 

12. Simulating Trade-Marks. 

1. General Provisions. 

2. ObstFucting and Encroaching upon Roads. 



SECTION I. 

Q-ENBBAL FbOVISIONS EbLATING TO THE JURISDICTION, AbBBST, 

Trial, Execution and Appeal. 
« 

§ 154. Jurisdiction. 

155. Arrest and Trial. 

156. Special Constable. 

157. Witness — Change of Venue — Continuances — Oathfr— Depositions. 

158. Jury Trial. 

159. Jury to Determine the Penalty. 

160. Judgment on Verdict Rendered. 

161. Execution to Issue. 

162. Capias Issued. 

163. Appeals. 

164. Duty of Justices on Appeal. 

165. Defendant Guilty — Judgment Rendered. 

§ 154. Jarisdiction. — " Justices of the peace shall have 
original jarisdiction in all cases of misdemeanor, when the 
punishment is bj fine only, and the fine does not exceed two 
hnndred dollars, and also in all cases of assault and assault 
and battery sljiA affrays, in which the people are plaintiffs, and 
in cases arising under sections two hundred and seventy and 
two hundred and seventy-one of Division L of this act."* 

> R. S., 405, g 381 ; see Ex parts Boiling, 81 Ills., 89, State v. Dawson, 17 
Iowa, 584. 



V. 



112 TRIA.L BEFORE JUSTICE. 

§ 155. Arrest and Trial. — " In all cases of offense, of which 
a justice of the peace has jurisdiction, he may, upon the affi- 
davit of any competent person, issue his warrant to any con- 
stable of his county for the arrest of any person charged with 
either of the said offenses, and upon the arrest of such person 
shall proceed to hear and determine the cause according to 
law.'" 



GENERAL FORK OF AN AFFIDAVIT. 

• 

State of lUinois, i 
County. ) ^' 

A- B., being duly sworn on his oath, says that on* the — day of , A, 

D. 18 — y at the town of — «- in the said county, C. D. did (insert slalenuut' of 
the offense in the langnage of the statute). 

And the said A. B. therefore prays that a warrant may issue for the arrest 

of the said C. D., that he may be dealt with according to law. 

A.B. 
Subscribed .and sworn to before i 

me this day of , A. D. 18—. J 

L. Jl., J. P» 

GENERAL FORK OF A WARRANT IN GASES WHERE THE JUSTICE HAS JURIS- 
DICTION. 



State of Illinois, 



County 



IS, ) 



The People of the State of Illinois to any Ccmstablc of said County, Greet- 
ing: 

• Whereas, A. B. has this day made an afTlilnvil before L. M., a justice of 

the peace of the said county, charging C D. with the oSensQ o^ (insert the 

name of the offense), — 
You are therefore hereby omiiandel forthwith to arrest tlie said C. D. 

and bring him before me the said justice to be dealt with according to law. 

Given under my hand and seal this day of , A. D. 18— 

L. M., J. P. [Seal.] 

>R.S.,405,§882. 

' The words *' on or about the day named'* are sufficiently definite. 2 Arch. 
('. P. & PL, 53; Cokely v. State, 4 Clark Iowa, .477. 

' The affidavit must allege facts sufficient to constitute an offense; for the 
(onstiuition of this state gives the accused the right to demand the nature 
t;nd caune of the accusation and to have a copy thereof. R. S., 60, Con. 
cf Ills., Art II. §9; and if this does not show an offense against the law, he 
should be discharged. Torry v. People, 17 Ills., 105. It is otherwise where 
the complaint is insufilcient (»r informal, R. S. 402, § 859; ante § 80, unless 
the complaint is amended, <uUe §§ 80, 81. 



0£N£RAL PROVISIONS. 113 

§156. Speda] Constable. — *' Any justice of the peace may 
appoint a suitable person to act as constable in a criminal 
jase where there is a probability that a person charged with 
my oifense will escape, or that goods and chattels will be re- 
noved before application can be made to a qualified const^- 
»*le; and the person so appointed shall act as constable in tbat 
particular case and no other; and any temporary appoint- 
ment so made as aforesaid, shall be made by a written indorse- 
ment, under the seal of the justice deputing, on the back of 
the process which the person receiving the same shall be de- 
puted to execute."* 

FORM OF A WARRANT TO BE DIRBOTSD TO A PRIVATE PERSON. 

State of Illinois, 



Connty 



)13, 1 



The People of the State of Illinois to any Constable of the said County, and 
John Doe, Greeting: (Gondude €u in the next previous form,) 

! 

FORM OF APPOINTMBirr OF PRIVATE PERSON TO ACT AS CONSTABLE, TO BE 

INDORSED ON WARRANT. 

State of Illinois, i 
County. ) ^' 

I do hereby appoint and depute John Doe, named in the within warrant, 
to execute the same. 

Given under my hand and seal this day of ^ A. D. 18 — . 

L. M.. J. P. [Seal.] 

§ 167. Witnesses — Change of Venue — Continuance — Oaths — 
Depositions. — The attendance of witnesses is procured,* a 
change of venue and continuance,' and the oath administered 
to witnesses^ in the same manner as in civil cases. When 
the cause is adjourned the prisoner must be committed 
or bailed in the same manner as in proceedings for the 
examination of persons charged with criminal offenses not 
triable before the justice.^ Depositions cannot be taken in 

' R 8., 405, 8383. 

• Id., 1 384. 
I Md. 

• Id. 

• Id.; Id., 402, §356. 

8 . 



114 TBIAL BSFOBE JUSTICE. 

criminal cases withoat the consent of the accnsod, for the 
constitution gives him the right to meet the witnesses face to 
face.^ The accused may testify in his own behalf at his own 
request, but cannot be required to testify in behalf of the 
people.* 

§ 158. Jury Trial. — " The person accused may have the 
cause tried by a jury upon the same conditions, and the jury 
shall be summoned and impaneled in the same manner, as 
in civil cases before justices of the peace: Provided^ it shall 
not be necessary for the defendant to advance the jury fees."' 

§ 159. Jury to Determine the Penalty. — "If the jury find the 
accused guilty, they shall assess the fine, or fix the punishment, 
as aforesaid."* 

§ 160. Judgment on Verdict Rendered. — "Upon the jury re- 
turning their verdict the justice shall record the same in his 
docket or record book, and proceed to render judgment there- 
on accordingly, with costs. If the jury return a verdict of 
not guilty, the justice shall discharge the defendant without 
costs."* 

§ 161. Execution to Issue. — " Upon the rendition of a judg- 
ment imposing a fine, the justice shall, except as otherwise 
provided, issue execution against the goods and chattels of 
the defendant for the fine and costs, which may be levied 
upon any personal property of the defendant not exempt 
from execution, and proceedings may be had thereon as upon 
other executions."* 

§ 162. Capias Issued. — " If the constable shall return upon 
such execution that the defendant has no goods and chattels 
whereof to make the money, the justice shall issue a capias 
against the body of the defendant, and the constable shall ar- 
rest such person and commit him to the jail of the county, 

> K. 6., SO, Cod. of Ills , Art II., }9; Richardson o. People, 81 Ills., 178; 
Nash «. State, 2 Greene Iowa, 287. 
•R.S.,410,§426. 

* Id., 405, {884. 

* Id., g 885. 

• Id., 8886. 

• Id., 406, 2 887. 



OEKEBAI. PBOVISIONS. 116 - 

there to remain forty-eight hours; and if the fine exceed ten 
dollars, then to remain in the said jail twentj-four hours for 
every five dollars over and above the said ten dollars, and so 
on, in proportion to the amount of the said fine."^ 

§163. Appeals. — "The defendant may appeal from the 
judgment of the justice of the peace in criminal cases to the 
circuit court of the county, the appeal to be taken in the same 
time and manner, and upon the same conditions, and with 
like effect; and like proceedings Qiay be had thereon, as in 
civil cases, except that no damages shall be allowed, and ex- 
cept that in the county of Cook the appeal shall be to the 
criminal court of Cook county."^ 

§ 164. Duty of Justices on Appeal. — " When any defendant 
convicted of either of the said offenses appeals, it shall be the 
duty of the justice to return to the clerk of the court to which 
the appeal is taken, when he returns the papers in the case, 
the names of all material witnesses."' 

§ 165. IXefendant Guilty — Judgment Rendered. — "If upon such 
appeal the defendant shall be found guilty, judgment shall 
be rendered against both principal and surety in the appeal 
bond, for the amount of the fine assessed by the jury in said 
court, and all costs that may have accrued."* ' 

'R.S.,40e,§388. 
• Id., § 889. 
Id., §390. 
«RS., 406,^891. 



116 TBIAL BEFOBB JUSTICE. 



SECTION II. 

Assault and Batteby. 

% 166. Definitions— What Constitutes an Assault 
107. An Intent to do Hnrm an Essential Element of an Assault. 

168. An Attempt Essential to Constitute an Ajssault 

169. Effect of Words. 

170. Definitions — What Constitutes an Assault and Battery. 

171. Who may Commit 
173. What not a Battery. 

173. C<msent 

174. When a Conductor may Eject a Passenger from a Car. 

175. Accident 

176. Correction. 

177. Defense of Self, etc. 

178. When both Parties Guilty. 

179. When Self- Defense, etc., is not a Justification. 

180. Defense of Possession. 

181. Resistance to Prevent a Levy, when Justified. 

182. Defense of Possession no Justification, if Battery was Excessive or 

the Other Party had a Right of Entry. 

183. Battery Justified by Authority of Law. 

184. Process no Justification unless Produced — Jurisdiction. 

185. Enumerated Cases where Battery is Justified by Authority of Law. 

186. Former Acquittal or Conviction. 

187. Former Acquittal or Conviction, how Proved. 

189. Proof of iJsing Offensive Words, when Admissible in Mitigation of 

tJie Fine. 

190. When Evidence Admissible to Increase the Punishment 

192. Jurisdiction — Indictment — Compromise — Evidence— Mittimus. 

193. Reception of the Verdict— Procedure where the Offense is Commit- 

ted in View of the Justice. 

194. Punishment 

§ 166. Definitions — What Constitutes an Assault. — An as- 
sault is defined by statute to be '*an unlawful attempt coupled 
with a present ability to commit a violent injury upon the 
person of a..other."^ This seems to imply that there must be 

I R a, 855, laO; Roscoe Cr. Ev., 286. 



ASSAULT AJSTD BATTEBT. 117 

an actual attempt as well as intent to do a violent injury, 
thus somewhat limiting the common law meaning of the 
term.^ An attempt to strike another, with or without a 
weapon, although the party striking misses his aim or is pre- 
vented from hitting the other on account of his dodging or 
running away or by the interference of others, is an assault* 
If within shooting distance the aggressor presents a gun at 
another, provided it be so loaded that it can be discharged,* 
or points a pitchfork at him whilst he is standing within 
reach of it,^ or does any other act under such circumstances 
as satisfy the jury that the aggressor had the ability intend- 
ed and was attempting to commit a violent injury to another, 
they should find him guilty of an assault though he fails en- 
tirely of accomplishing his purpose.* So where a prisoner 
decoyed a female under ten years of age into a building for 
the purpose of ravishing her, and was there detected while 
standing within a few feet of her in a state of indecent ex- 
posure, it was held that though there was no evidence of his 
having actually touched her, he was pro]>erly convicted of an 
assault.* Formerly it was not necessary that the attempt 
should be coupled with a present ability to do an injury, but 
it was sufficient if only a well-founded apprehension was cre- 
ated; as if a gun not in fact loaded was pointed at another 
within shooting distance, this was an assault;^ but under our 
statute this would not be an assault, for it lacks the element 

' 2 Arch. C. P. & P) , 41 ; Hays v. People, 1 Hill, 851 ; State v. Davis, 1 
Ired., 125; Yoes «. State, 4 Engl., 42. 

• 1 Hawks P. C, tlO; Roscoe Cr. Ev., 286; 8 Black. Com., 120; Stephens 
V. Myers, 4 Car. & P., 349; Martin v. Shoppee, 3 Car. & P., 873. 

'2 Bish. Cr. L., ^g23, 28; Geoner «. Sparks, 6 Mod., 173; Anonymous, 1 
Vent., 253; Rei «. James, 1 C. & K., 530. 
. * 2 Arch. C P. <& PL, 40. 

• Ko«coe Cr. Ev., 286 ; Barb. Cr. L., 227 ; 2 Bish. Cr. L., § 23 ; 2 Arch. C. P. 
A PI., 41, 42; Meader v. Stone, 7 Met., 147. 

• Haysr. People, 1 Hill, 351. 

' 2 Bish. Cr. L., §32; State v. Cherry, 11 Ired., 475; State d. Malcolm, 8 
Iowa, 418; Beach «. Hancock, 7 Fost N. H., 223; Stephens v, Myers, 4 Car. 
A P., 849; Stata v. Shepard, 10 Iowa, 130; State v. Banedict, 11 Vt., 286; 
Reg. f>. St. George, 9 Car. & P., 83 ; State tj. Smith, 2 Humph., 457. 



118 TRIAL BEFOBB JUSTICS. 

• 

of a present ability to commit a violent injury now necessary 
to complete the oflfense.' 

§ 167. An Intent to do Harm is Essential, and is the gist of an 
assault, and this is a question for the jury, depending upon the 
circumstances of each case; therefore it is no assault if words 
are used showing a purpose not to commit a present violence;* 
as where one said, laying his hand on his sword, if it was not 
assize-time he would not take such language;' or, raising a whip 
at striking distance, at the same time saying, '* Were you not an 
old man, I would knock yon down."* So where the defendant 
took a pistol and cocked it and held it out as if about to fire, and 
presented it at the head of another, and said if he was not quiet 
he would blow out his brains, it was held that the defendant 
was not guilty of an assault.* So if a man raise his hand 
against another at striking distance and at the same time say: 
"If it were not for your gray hairs," etc., it is no assault, be- 
cause the words explain the action and take away any idea of 
an intention to strike.* Merely pointing a cane at another in 
derision, is no afisault.^ 

§ 168. An Attempt Essential to Constitute an Assault. — Form- 
erly where a defendant raised a deadly weapon against another 
and stood in an attitude to strike such person, but suspended 
the blow to afford the object of his vengeance an opportunity 
to buy his safety *by compliance with the defendant's terms, 
it was an assault though no blow was struck.' As where A, 
being within striking distance, raised a weapon for the pur- 
pose of striking B, and at the same time declared that if B 

> R 8., 3{)5, § 20; see James* Case, 1 C. & E., 530; State «. Swails,8 Ired., 
624. 

■ 1 Hilliard on T., 200; State o. Blackwell, 9 Ala., 79; State o. Davis, 1 
Ired., 125. 

« Bun. N. P., 15; Com. v. Eyre, 1 Serg. & R, 347; Richclls u. State, 1 
Sneed, 606; Tuberville «. Savage, 1 Mod. 3, 2 Eeb., 543. 

* State V. Crow. 1 Ired., 376; Blake v, Barnard, 9 Car & R, 626. 

• Woodruff B. Woodruff, 22 Ga., 237. 

* Com. 0. Eyre, 1 Ssrg. <& R. 317; Suite o. Morgan, 3 Ired., 186. 

' 1 Arch. C. R <fe PI., 42; 1 Wheeler C. C, 410; People •. Ooodwin, 6 
Rogers Rec, 9. 

• 2 Arch. C. P. & PL, 43. 



ASSAULT AND BATfERY. 119 

would perform a certain act he would not strike him, and B 
did perform the required act, in consequence of which no blow 
was given, it was held to be an assault in A.* So where, A 
and B being close together, A drew a pistol, cocked it, pointed 
it toward the breast of B, and said, " If you do not pay me 
my money I will have your life," it was held clearly an as- 
sault.^ But our statute seems to mean that there should be 
an actual attempt to do a violent injury,* which seems to be 
wanting in these cases; and, therefore, it is presumed that 
tliey do not amount to an assault within the meaning of the 
statute. 

§ 169. Effect of Words. — No words whatsoever can amount 
to* or justify* an assault. Yet words may explain and give 
character to physical acts,* and may so combine with attend- 
ant circumstances as to make that an assault, which without 
the words would not be such.^ 

§ 170. Definitions — Wliat Constitutes an Assault and Battery. — 
An assault and battery is defined by statute to be ^^ the un- 
lawful beating of another."* To beat in a legal sense means 
not merely to strike with the hand, a stick or the like, but 
includes every touching, however trifling, in any angry, rude 
or revengeful manner.* As the mere taking hold of the coat 
or laying the hands on the person of another, if done in an 

angry or in a rude and insolent manner;^^ pushing another 

• 

' State V. Morgan, 3 Ired., 186 ; Bloomer «. State, 3 Sneed, 06. 
■ Keefe v. State, 19 Ark., 190; see State v. Sims, 3 Strob., 137. 
•R S., 855, §20; State v, Davis, 1 Ired., 135; Toes v. State, 4 Engl. Ark., 
42. 

* 1 Hawk P. C. C, 61, § 1 ; Stephens v. Myers, 4 Car. & P., 349 ; Keyes v, 
Develyn, 3 £. D. Smith, 518; People «. Bransly, 32 N. Y., 525; State «. 
Wood, 1 Bay, 851. 

* 2 Bish. Cr. L., §40; State v. Wood, 1 Bay, 851; Cushman «. Byan, 1 
Stoiy, 91; Winfleld v. State, 3 Greene Iowa, 339; Donnelly «. Harris, 41 
Ills., 126; Ogden v. Claycomb, 52 Ills., 366; Burchard v. Booth, 4 Wis., 67. 

* State c. Crow, 1 Ired., 375 ; Com. v. Eyre, 1 Serg. & R., 347. 
» 2 Bish. Cr. L., § 25. 

•R 8, 35, §21. 

* 1 Hawk P. C, Chap. 62, § 1 ; Johnson «. Tompkins, 1 Baldw. C. a, 571. 
»• U. 8., V. Ortega, 4 Wash. C. C, 531. 



120 TBIAL BEFOBE JUffTIOE. 

in anger or jostling him out of the way;* spitting in his 
face;' throwing a sqnib at him;' sprinkling paint on him;^ 
holding him by the arm;' pushing another against him;' strik- 
ing a horse upon which he is riding, whereby he is thrown;^ 
throwing water upon him;' or the like;' striking one's 
cane while in his hand; so a blow on the skirt of one's coat 
when upon his person is an assault and battery J^ If the 
keeper of the poor-house cut off the hair of a female pauper 
without her consent and against her wishes, it is an assault 
and battery." It is not necessary that the injury should be 
done by the hand of the defendant." It may be by encour- 
aging a dog to bite" or by riding over a person with a horse," 
or by willfully and violently driving a cart against the car- 
riage of another person and thereby causing bodily injury to 
the person traveling in it.*' It seems the injury need not be 
immediate; where A threw a lighted squib into a market- 
place, which being tossed from hand to hand by diflferent per- 
sons at last hit B, and put out his eye, it was held that this 
was actionable as an assault and battery.*' The offense may 
be committed without any active participation by encourag- 
ing, abetting, counseling, and procuring others to commit an 
assault and battery. As where a number of persons assemble 
to witness a prize fight, they are all equally guilty with the 

> Barb. Cr.Ji., 228; C Mod., 149. 

• People V. Lee, 1 Wheeler C. C, 410 ; 6 Mod., 172. 
» 2 W. Black., 892. 

• 2 Arch. C. P. & PI., 4o. 
•6 Mod., 172. 

• BuK N. P., 16. 

» 1 Mod., 24; W. Jones, 444. 

• Purcell c. Home, 3 N. & P., 664 ; •) A. & El., 602. 

• Barb. Cr. L., 228; Roscoe Cr. Ev., iSS. 

»• 1 Dal., 114; State v. Davis, 1 Hill. S. C, 46. 
" Forde v. Skinner, 4 Car. & P., 239. 
" 2 Arch. C. P. & PL, 47 ; Koscoe Cr. Ev., 288. 
>» 2 Blsh. Cr. L., § 28. 

" State V. Sims, 3 Strob., 137 ; Morton tj. Shopee, 3 Car. & P., 373. 
'•People V. Lee, 1 Wheeler C. C, 364; Com. c. Eyre, 1 Serg. & K., 847. 
"• 2 Arch. C. P. & PL, 47; 2 Starkie, 388, 889 ; Scott «. Siiepherd, 2 Blk. 
Bep., 892 ; 8 Wils., 403. 



ASSAULT AND BATTERY. 121 

principals if they concur with, encourage, and co-operate with 
those engaged in the fight.^ So where the husband was pres- 
ent and did not interfere in any way while the wife commit- 
ted the assault and battery, it was held that the jury had a 
right to infer that she acted with his consent and approbation, 
which would make him a joint trespasser with her.' If one 
person employs another to commit an assault and battery, 
and the act is perpetrated in the absence of the employer, 
both are guilty.' 

§ 171. Who may Commit — Infants, if old enough to com- \ 
init* a crime, and a corporation, may be guilty of an assault 
and battery,' although a corporation can only be made liable 
iu a civil action;' yet it has been held that a corporation may . 
bo indicted for neglecting to do what the law requires^ or for/ 
a misfeasance.' 

§ 172. What not a Battery. — It is no battery for a man to 
pnnch another in earnest discouse.' So if one stands passive- 
ly like an inanimate object — " like a door wall " — and thus ob- 
structs the going of another into a room which he has a right 
to enter,*' or strikes at another at such a distance that he cannot 
possibly tonch him," it is neither an assault nor battery. 

§ 173. Consent in some cases will prevent a party from being 
guilty of an assault and battery, though if the act had been 

' 2 Arch. C. P. & PI., 47; 1 Lewin, 17, Slkes o. Johnson, 16 Mass., 889; 
Avery tJ. Buckley, 1 Iloot, 276 ; Qillon v. Wilson, 3 Monr., 217. 

• 2 Arch. C. P. & PI., 47; PhiUips v. Phillips, 7 B. Monr., 268. 
. • 2 Arch. C. P. & PL, 48; Bell v. Miller, 5 Ohio, 250; State v. Lymburn, 
1 BrcY., 897; Drake v. Ramsey, 5 Ohio, 251. 

• Bullock V. Babcock, 8 Wen., 891. 

• St. Louis, Alton & Chicago R. R Co., r. Dalby, 19 Ills., 866 ; C. & N. W. 
R. R Co. 9. Peacock, 48 im., 253. 

• Id.; 1 Black. Cora., 508; 2 Arch. C. P. & PL, 45; 1 Whart Cr.L., §S85. 
90;lBi8li. Cr. L., §422. 

' 1 Whart. Cr. L. §§ 85-90; 1 Bish. Cr. L., §§ 419, 421 ; People «. Corpora- 
lion of Albany, 1 1 Wen., 539. 

• 1 Whart. Cr. L., § 87; I Bish. Cr. L., §§ 420, 422. 

• Gilb.Ev., 256; 1 Hilliard on T., 203, 204. 
>• 2 Bish. Cr. L., g 27 ; Inness v. Wylie, 1 C. & K., 257 ; Smith's Case 2 Car. 

oK iff 44II. 

» Barb. Or. L., 228. 



122 TBIAL BEFOSE JUSTICE. 

committed without such consent he would have been guilty.* 
As where a surgical operation is performed, or one in good 
faith whips another at his request to save him, as is mistak- 
enly supposed, from a prosecution for a felony.* But a party 
has no right to consent that another shall strike, hurt, maim 
or injure him unless he in good faith believes it will be a ben- 
efit to him, for a consent for any other purpose would be 
against public policy and void, therefore no justification for 
an assault or battery.* As where two or more agree to fight 
and strike one another, they are each, and their abettors, 
guilty of an assault and battery, and it is quite immaterial 
which strikes the first blow.* If the consent is obtained by 
fraud, and the party is thereby induced to believe that it will 
be for his or her benefit, when in truth and fact it will not, 
such consent is no justification for the assault or. battery.' 
Thus if a school-master takes indecent liberties with a female 
pupil who does not resist, her tender years and relative sub- 
jection to him may justify a jury in heeding her testimony 
that what was done was really against her will, in pronounc- 
ing him guilty.* Likewise where a medical practitioner had 
sexual connection with a girl of fourteen who forbore resist- 
ance under the belief that he was treating her medically, as 
he represented himself to be, the English judges held him 
guilty.^ So where a man had connection with a married wo- 
man under the pretence of being her husband, he was held 
guilty of assault and battery.* And where a medical man 

" 1 Arch. C. P. & PI., 47; Pillow v. Bushnell, 5 Barb., 156; Reg. «. Mere* 
dith, 8 Car. & P., 589. 

■ State V. Breck, 1 Hill S. C. 363. 

» 1 Bish. Cr. L. § 360 ; 2 Bisli. Or. L., § 85 ; Roscoe Cr. Ev., 289. 

« Rex«. Perkins, 4 Car. & P.. 637 ; Rex v, Billingham, 2 Car. & P., 234; 
Reg. V. Brown, Cir. & M. 314 ; Rex tj. Lewis, 1 O. & K., 419 ; but see 
Champer v. State, 14 Ohio S., 437 ; Duncan v. Com., 6 Dana, 295. 

• 1 Bish. Cr. L., § 261. 

• Rex tj. Nichol, Rusa. & Ry., 130; I Bennet & Hurd Lead. C, 613 ; Rex ». 
Day, 9 Car. A P., 449. 

• Reg. t>. Reed, 1 Den. C. C, 877; 2 Car. & K., 957; Reg. p. Martin, 9 Car. 
ft P., 213; Re^. v. Case, 1 Eng. L. & Eq., 644. 

• Rex V. Williams, 8 Car. & P., 286; Rex v. Sanders, 8 Car. & P., 265; 
Bex «. Stanton, 1 Car. & K., 415. 



AfiSAULT AND BATTERY. 123 

Stripped with his own hands a female naked under the pre- 
tence of examining her, he was held guilty of an assault and 
battery.^ But where a girl nine years old consented accord- 
ing to the finding of the jury to sexual commerce with some 
boys, the court refused to sustain the conviction of the boys 
for assault.* 

§ 174. When Conductor may Eject a Passenger from a Car. — 
A person is not guilty of an assault and battery if he resists 
the conductor of a railroad car while he is attempting to put 
him off the cars without stopping, under circumstances which 
may endanger his life.* The same rule applies to a passenger 
on a city railroad car drawn by horses.* Since a railroad com- 
pany has no right to put off a passenger except at a regular 
station or usual stopping-place for the non-payment of his 
fare, if the conductor attempts to do it, he is guilty of an 
assault and battery, and the passenger has a right to resist 
him.* But if any passenger shall refuse to pay his fare or to 
comply with any reasonable regulation of the railroad com- 
pany, it is lawful for the conductor of the train and the ser- 
vants of the corporation, after having requested him to leave 
the car, to put him out at any usual stopping-place the con- 
ductor may select* if they use no more force than is neces- 
sary to accomplish the purpose.^ Where the passenger has 
once refused to pay his fare, he may be put off the train 
though he subsequently offers to pay, for under such circum- 
stances the conductor is not bound to receive the fare and per- 
mit the passenger to remain on the train.* If a passenger 

• 

' Hex V. RoBinski, 1 Mood. C. C, 191 ; Bex v. Stanton, 1 Oar. & K.« 415. 

• Reg. V, Read. 1 Den. C. C, 877. 

• Sanford «. Eightii Av. R. R. Co., 23 N. Y., 843. 
•Id. 

• R 8., 812, g 69 ; Parks v. C. B. <& Q. R. R. Co., 18 Ills., 460 ; Terre Haute, 
A. A St. L. R R Co. 0. VanaUa, 21 IHs., 188; I. C. R R Co. «. Sutton, 53 
Ills., 397; Chi. & A. R R Co. «. Flagg, 43 Ills., 864; I. C. R. R. Co. «. 
Whittemore, 48 Ills., 42. 

' Id.: State v. Chovln, 7 Iowa, 204. 

Md. 

' People «. Jilaon, 8 Park. Or. R, 234. 



124 TRIAL BEFORE JUSTICE. 

refuses to surrender his ticket on demand,* or uses grossly 
profane and indecent language, or disturbs tiie peace and safety 
of the other passengers,* the conductor will be justified in 
putting him off the cars between the stations. 

§ 175. Accident. — Where a man doing a lawful act, without 
any intention of doing an injury, unfortunately or by accident 
hurts or injures another, he' is not guilty of an assault and 
battery;' as for assisting a drunken man or preventing him 
from going witliout help, though he is thereby hurt;* or where 
a soldier in discharging his musket by lawful military com- 
mand unavoidably hurts another;* or a horse, by a sudden 
fright, runs away with his rider, not being accustomed so to 
do, and runs against a man;^ or an injury is done by an una- 
voidable accident in a friendly wrestling- match or other law- 
ful athletic sport, if not dangerous.^ It seems to be the gen- 
eral rule that the same facts which would make killing a jus- 
tifiable homicide by misadventure, will be a good defense in 
a criminal action for an assault and battery.^ But it is a bat- 
tery if one of two persons fighting or engaged in any unlaw- 
ful act inadvertently or unintentionally hit a third person, 
for no principle is better settled than that every one should 
be responsible for his unlawful act." 

§ 176. Ckirrection. — Every parent has a right to correct his 
child,*® the guardian his ward," the master his apprentice," the 



» I. 0. R. R Co. V, Whittemore, 4S Ills., 420; People «. Caryl, 8 Park. Cr. 
R, 32«. 

• People «. Caryl, 3 Park. Cr. R, 826. 

« Roscoe Cr. Ev., 289; Barb. Cr. L., 229; Rex v. Gill, 1 Stra., 190. 

• Bull N. P., 16; 1 Russ. by Grea., 751-2. 

• Weaver «. Ward, Hob., 134; 2 Roll Ab., 548; Rex «. Gill, 1 Stra., 490. 

• Gibbons o. Pepper, 4 Mod., 405. 

' Com. Dig. Pleader. 8 M., 18; State c. Elliot, 11 N. H., 540. 

• 1 Whart., g 1254. 

• 2 Arch. C. P. «& PI, 63; James t>. Campbell, 5 Car. & P., 372. 

" 1 Black. Com., 452; 1 Chitty Gen. Pr., 64; Johnson «. State, 2 Humph., 
283; 8 Qreenl Ev., §63; Smith «. Slocum, 62 Ills., 354. 

» 2 Arch. C. P. & PI, 61 ; Roscoe Cr. Ev., £90. 

»■ 2 Arch. C. P. & PI, 87 ; Winstone v. Linn, 1 B. & C, 469 ; People •• 
Phillips, 1 Wlieeler C. C, 155. 



ASSAULT AND BATTEBT. 125 

teacher his scholar.* But in inflicting corporal punishment 
they are respectiYely to exercise reasonable judgment and 
discretion, and be governed as to the mode and severity of the 
punishment by the nature of the offense, the age, size and 
apparent powers of endurance of the child, ward, apprentice 
or scholar.^ The cause must be sufficient, the instrument 
suitable to the purpose, and the punishment administere<i in 
moderation.' And it will be for the jury to determine 
whether the punishment was excessive and improper.* The 
authority of the master to correct his apprentice is personal 
and cannot be delegated to another.^ The master has no 
right to correct his hired servant.* There are authorities 
holding that in former times the husband could govern and 
control the wife to a limited extent;^ but at the present time 
he has no right to beat his wife nor to inflict corporal pun- 
ishment upon her for correction.' He may be convicted of 
an assault and battery if he strikes her, the same as any other 
person.' A person may conflne a friend who is insane, and 
bind and beat him if necessary, and under such circnm- 
stances it is no assault and battery .^^ But if more force and 
violence is used than is actually necessary, in such case it is 
an assault and battery of the most aggravated character. ^^ 
The authority to govern is placed by the law in the father as 
the head of the family, and he may rightfully use so much 

> Morris* Case, 1 City HaU Rec, 52 ; Com. «. Randall, 4 Gray, 86. 

* 1 Hilliard onT., 212; Roscoe Or. Ev., 290; Fletcher v. People, 42 Ills., 
895 ; Com. v. RandaU. 4 Gray, 86. 

• Fletcher v. People, 42 Ills., 895; Cooper v. McJunkin, 4 Ind., 290. 

* 2 Arch. C. P & PI., 61 ; Com. v. RandaU, 4 Gray, 86. 

• 2 Arch. C.P. & PI., 87; People v. Phillips, 1 Wheeler C. C, 155. 

• 1 Chitty C. P., 73-75; 2 Arch. C. P. & PI., 87 ; Matthews «. Terry, 10 
Comi., 225 j Newman v. Bennett, 2 Chitty R, 195; Com. v. Baird, 1 Ashm.^ 
267. 

* 1 Black. Com., 444 ; 1 Hawk P. C, 2 ; 2 Kent Com., 181 ; State v. Chaae^ 
1 Walker, 156; Robbins v. State, 20 Ala., 86. 

• People «. Winters, 2 Park. Cr. R., 10. 

* 2 Barring., 652; 1 Bish. Cr. L., § 891. 

» Roscoe Cr. £y., 290; 2 Arch. C. P. & PL, 44; 8 Greenl. Ey., §68. 
"2Biah. Gr.L.,§8a 



126 TRIAL BEFOBE JUSnCB. 

force as is necessary to maintain order and propriety in his 
household.^ 

§ 177. Defense of Self, Etc. — It is a good defense that the 
alleged assault and battery was in defense of self,^ wife,' has- 
band,^ parent,* child,' servant/ apprentice® or even a stranger.* 
But it has been held that a servant cannot justify a battery in 
the defense of his master's son;^^ nor a tenant in defense of his 
landlord." Yet in our 'opinion any person may use force 
enough to prevent another, even a stranger, from being killed 
or injured." It is a good justification of a wounding or may- 
hem that the prosecutor assaulted and beat the defendant first, 
and that the defendant committed the alleged battery merely 
in his own defense.^^ Where a man assaults another the latter 
is justified in instantly repelling it without waiting until he 
has received corporal injury. As where a man offers to strike 
another, the latter may at once attack him without waiting to 
be struck first.^^ But great care must be taken that the bat- 
tery be such only as is necessary to repel the intended vio- 
lence, for if it be excessive, if it be greater than is necessary 
for mere defense, the prior assault will be no justification.^ 

1 Smith 9. Slocum, 62 Ills., 354. 

• Yandermark v. People, 47 Ills., 122; Ogden v. Claycomb, 52 Ills., 866; 
Scribner 9. Beach, 4 Denio, 448. 

' Boll. Abr., 546; 1 Hawk C, 60, §§28, 24; Boecoe Or. Ev., 291; Barb. 
Or. L,, 280. 
« 2 Arch. 0. P. & PI., 66 ; Barb. Cr. L. 229 ; Bull. N. P., 48 ; 1 Ld. Raym., 62. 
•Id. 

• Id.; Hill 9, Rogers, 2 Iowa, 67. 

' Id., Roscoe Or. Ev., 291; 8 Greenl. Ev., §65. 
" Orton «. State, 4 Greene Iowa, 140. 

• 2 Arch. 0. P. & PL, 45; 1 Hawk C, 62, §3. 

>• Hawk P. C. Ch., 60, § 24; Roscoe Cr. Ev., 291. 

" Seward v, Basiley, 1 Ld. Raym., 62; Gillon «. Wilson, 8 Monr., 217. 

" 2 Arch. C. P. & PI., 56 ; 1 Bish. Or. L., § 877 ; 8 Greenl. Ev., § 65, n. 6. 

" Barb. C. L., 229. 

>« 2 Arch. 0. P. & PL, 55: Dale «. Wood, 7 Moore, 88; State «. Davis, 1 
Ired., 125. 

1* 2 Arch. C. P. & PL) 55; State «. Quinn, 2 Soath Car., Const R, 694; 
Gates V. Lounsberry, 20 John., 427; Elliot v. Brown, 2 Wen., 497; Curtis «. 
Carson, 2 N.H., 589; Baldwin v. Hayden, 6 Conn., 453; Shain v. Markhaiii» 
4 J. J. Manh, 67& 



ASSAULT AKD BATTBBT. . 187 

As where it appeared that the defendant, although he first 
struck in defense, afterward continued to strike from revenge 
after the necessity for it had ceased, he was held guilty of an 
assault and battery. The true rule is, that if the circumstances 
attending the assault are such as to justify a reasonable con- 
clusion in the mind of the defendant of impending danger or 
serious bodily injury, and he commits the battery from the 
instincts of self-preservation, he id not guilty, although he is 
not in any actual danger.^ But one attacked with a knife, be- 
lieving and having reason to believe that he is in imminent 
danger of being wounded, is justified in shooting the assail- 
ant.^ Yet if a person is attacked by another of equal strength 
he has no right to use a deadly weapon, as a knife, poker, 
hatchet or hammer, against a fist or cane.' Kor has a party 
the right to beat the aggressor after he has been disabled or 
has submitted.^ 

§ 178. When Both Parties Guilty. — Both of the parties may 
be guilty of an assault and battery in the same afiray, the one 
for the first assault and battery — the other for the excess of 
rforce used beyond what was necessary for self-defense.* For 
a party having been struck has no right to retaliate by an as< 
sault and battery when it is in his power to keep aloof from 
the party striking.* And if the act be accompanied by declara- 
tions or other unquestionable evidence of the absence of an 
intention to do any further violence, then the party is notified 

* Campbell «. People, 16 Ills., 17; Hopkins d. People, 18 Ills., 264; Ogden 
«. Claycomb, 53 Ills., 866; Scribner «. Beach, 4 Dcnio, 448; Hill v. Rogers, 
2 Iowa, 67. 

■ 1 Bish. Or. L., § 865 ; Rapp v. Ck>m., 14 Monr., 614 

* 1 Hilliard on T., 211 ; Dole v, Erskinc, 35 N. H., 503 ; Shorter v. People, 
2N.Y., 1»8;. 

* Roscoe Or. Er., 290; East. P. O., 272; U. 8. v. Wiltberger, 3 Wash. C. C, 
616; State «. Clements, 82 Me., 279; State «. Burke, 80 Iowa, 831 ; Ogden «. 
Claycomb, 52 Ills., 366. 

* Ogden V. Claycomb, 52 Ills., 866; Dole«. Erskine, 85 N. H., 608; Bart 
lett «. Churchill, 24 Vt, 218. 

* 1 Arch. C. P. & PU 55; State «. Gibeon, 10 Ired., 214; Reg. •. DriscoU, 1 
C. <& Mars., 214. 



128 TBIAL BEFORE JU8TI0E. 

of the absence of any intention to commit a further battery 
and will not be justified in using further violence.* 

§ 179. When Self-defense, etc., is not a Justification. — In reply 
to the defense that the assault and battery was committed in 
tlie defense of self, etc., it may be shown that the first assault 
was justifiable.^ So it may be shown that the first assault 
was committed at a suflScient time previous for the blood to 
cool, and was no part of the same transaction ;' or that the 
aggressor had ceased to strike, and that the battery was un- 
necessary for the defense, and was committed in retaliation 
and revenge instead of in defense;^ or that the force used ex- 
ceeded the necessity of the case.* A party having been struck 
has no right to retaliate by an assault when it is in his power 
to keep aloof from the party striking.* 

§ 180. Defense of Possession. — The defendant may justify an as- 
sault and battery in the defense of his real or personal property.^ 
As to restrain the person assaulted from taking his goods* or 
from taking or rescuing cattle, etc., in his custody upon dis- 
tress,* or from taking, by the owner of personal property, from 

' State V, Sims 3 Strob., 127 ; Ogden ©. Claycomb, 52 Ills., 366. 

* Barb. Cr. L., 230; Bull. N. P., 18; 2 Blsh. Or. L., §39; State v. Hooker, 
17 Vl.. 60S; Com. V. KIrby, 2 Cush., 577; Reg. v. Mabel, 9 Car. & P., 474. 

* Avery «. Ray, 1 Mass., 12; Barry v. Ingalls, 1 Tay., 121 ; Lee «. Woolsey, 
19 John., 819; WillU c. Forrest, 2 Duer, 310; Collins c. Todd, 17 Mis., 537; 
Burcliard o. B)3tli, 4 Wis., 67; Corning v. Corning, 1 Seld., 97. 

^Ogdenv. Claycoinb, 52Ilis.,366; State «. Gibson, 10 Ired., 214; Stoffer 
V. State, 15 Oliio S., 47 ; State v. Hill, 4 Dev. & Bat., 491 ; State v. Ingold, 4 
Jones N. C, 216. 

* Baldwin «. Haydon, 6 Conn., 453; State v. Lazarus, 1 Rep. Const CL, 84; 
Watrous v. Steel, 4 Vr., 629; Shaln v. ^arkham, 4 J. J. Marsh, 578; Ogden 
«. Claycoinb, 52 Ills., 866. 

* 2 Arch. C. P. & PI., 55 ; State «. Gibson, 10 Lred., 214 ; Reg. v. Driscoil, 
1 C. & Mars., 214. 

* Phillips V. City of Springfield, 39 His., 83; Woodman e. Howell, 4 5 Ills., 
867; Weaver «. Bush, 8 T. R, 78; Com. o. Kennard, 8 Pick., 133; State 0. 
Gmlsey, 13 Ired., 348; Harrington v. People, 6 Barb., 607 ; Barnes v. Martin , 
15 Wis., 240; Jones «. Tresilian, 1 Mod., 136; Huper «. Morrison, 27 Wis., 
865. 

" Barnes v. Martin, 15 Wis., 240 ; Gates «. Lounsbury, 20 John., 427 ; Greg* 
ory V. Hill, 8 Term., 299; Collins v, Renison, Sayer, 138. 
' 2 Roll. Abr.L, 10; Barb. Cr. L., 230; Anon., 11 Mod., 64. 



ASSAULT AND BATTEBY. 129 

the peaceable thoagh wrongful possession of another;* or to 
remove the prosecutor out of his close or house;* or to pre- 
vent him from entering it' But the distinction is to be ob- 
served that possession in fact will justify violence if necessary 
to defend it;* but a mere right to the possession will not j'^"^ 
tify an assault and battery tor the purpose of obtaining poB- 
session, whether the person assaulted or a third person be in 
possession.* When the justification is claimed in the defens' 
of the possession, both claiming possession, the question for 
the jury is, which party had actual possession? Where a per- 
son enters the house or premises of another, and is requested 
to depart but refuses so to do, the owner may eject him with- 
out being guilty of an assault and battery, provided he uses 
no more force than is necessary.' But if he turns him out 
with a kick* when gentler measures will do, he will be liable.* 
If the entry was with force and violence, it is lawful to oppose 
force to force, and in such case the intruder may be ejected 
without a previous request to leave.** If, however, a person 
enters another's premises quietly, the owner cannot justify 
turning him out without a previous request to leave.** The 
force used in the defense of one's possession must be appro- 
priate in kind and suitable in degree to accomplish the pur- 



' Barnes v. Martin, 15 Wis., S40; Andre v. Jolin, 5 Blackf., 357 ; Scribner 
«. Beach, 4 Denio, 448 ; Hyatt o. Wood, 4 John., 158. 

• PhiUips V. City of Springfield, 39 IHs., 83 ; Woodman v, Howell, 45 
nia., 367. 

• Barb. Cr. L., 230; Harrington v. People, 6 Barb., 607. 

■» 1 Hilliard on T., 208; Newkerd v. Sabler, 9 Barb., 652. 

• Parsons v. Brown, 15 Barb., 590; Hyatt v. Wood, 3 John., 239 ; Barnes v. 
Martin, 15 Wis., 240. 

•Id. 

' Phinips V, City of Springfield, 89 Ills., 83 ; Woodman c. Howell, 45 
Ills., 367; Com. v. Clark, 2 Met, 23. 

• Wildes case, 2.Lewin, 214 ; McCoy v. State, 3 Engl., 451. 

• State f>. Lazarus, 1 Mills, 34; Reg. v. Sullivan, Car. & M., 209. 

»• 2 Arch. C. P. & PL, 56, 57 ; Roscoe Cr. Ev., 292 ; McDermottu. Kennedy. 
1 Harring., 148; Mcllvoy «. Cockran, 2 A. R Marsh, 669; States. Sagarus, 1 
Rep. Con. Ct, 84. 

" 2 Arch. C. P. & PL, 57; Watrous v. St€el, 4 Vt., 629. 

9 



130 TRIAL BEFORE JUSTICE. 

pose,* and must not be excessive.^ Yet if the trespasser uses 
force in resisting the attempt to remove hira, the owner may, 
after requesting him to leave, oppose force to force; and in 
such case if he be assaulted and beaten, he may justify even a 
mayhem or wounding in self-defense.* But the trespasser 
has a right to defend himself from unreasonable and unneces- 
sary violence.^ 

§ 181. Resistance to Prevent a Levy, when Justified. — It has 
been held that if an officer attempts to take on an execution 
the goods of a person other than the defendant in execution, 
from his possession, such person may maintain his possession 
by force in the same manner as he might against any tres- 
passer who is not an officer.* So it has been held that when 
an officer attempts to levy an execution on articles exempt by 
law from levy and sale on execution, after being warned of the 
fact, the owner may employ as much force as is necessary to 
prevent the levy.' After the officer is once in the peaceable 
possession of the property, the owner is guilty of an assault 
and battery if he attempts to take it from the officer by force.'' 

§182. Defense of Possession no Jastiflcation if Battery was Ex- 
cessive or tlie Other Party had a Ri^ht of Entry. — In answer to 
the justification in the defense of the possession, the other 
party may prove that the battery was excessive* or unneces- 
sarv.* As where one took hold of a rake in the defendant's 
hands in order to take it from him, upon which the defendant 
immediately knocked him down witli his fist, it was held that 
the defendant was not justified.^® So the person assaulted may 

> Com. V. Goodwin, 3 Cush., 154 ; 1 Bish. Cr. L., § a59. 

* State V. Clements, 82 Me., 379; State «. Lazarus, 1 Mills, 84. 
" Barb. Cr. L., 230; State v. Jolmson, 12 Ala., 840. 

* People tj. Gulick, Lalor, 229. 

* Wentworth v. People, 4 Scam., 554; Com. «. Kennard, 8 Pick., 133. 

* State 9. JotiDScm, 12 Ala., 840 ; but sec Cokcly «. State, 4 Iowa, 477 ; eofUra^ 
State 0. Donner, 8 Vt., 424 ; Paris v. State, 3 Oliio N. S., 159. 

* People «. Cooper, 13 Wen., 379 ; Cokely «. State, 4 Iowa, 477. 

* 2 Bish. Cr. L, g 38; Sikes r. Dyke, 17 Ohio, 454; Bartlett v. Churchill. 
84 Yt, 218; French v. Marstin, 4 Post. N. H., 440; Com. 9. Ford, 5 Gray, 476 

* McAuley «. State, 3 Greene Iowa, 435. 
>• Scribner v. Beach, 4 Denio, 448. 



A8BAULT AKD BATTERY. 181 

jnstify the alleged ti^espass on the defendant's possession by 
proving, that he had a right of way over the close, or the like;' 
or that he went to the house of the defendant to serve a sub- 
poena upon him, and finding the outer door open, entered 
peaceably, and only used so much force as was necessary to 
overcome the resistance which he met with in the service of 
the subpoena.^ An assault or battery is not justified by a 
mere suspicion or fear of an encroachment upon the defend- 
ant's possession or property.* 

§ 183. ikittery Jnstlfled by Anthority of Law. — It is a suffi- 
cient justification to show that the assault and battery was 
done under the authority of law, with or without process, no 
greater assault or battery being committed than was necessa- 
ry;* as if one lay his hands gently on another, and tell the 
officer this is the man whom he seeks ;^ or lay his hands upon 
a man if it be necessary to serve him with a civil process;' or 
if an officer having a warrant against a man who will not suf- 
fer himself to be arrested, beat or wound him in the attempt 
to take him,^ — in all of which cases the party is justified. But 
an officer can only justify laying his hands upon a man in 
order to arrest him on a writ or process unless he resists or 
an attempt is made to rescue him.' And even then he can 
justify no greater force than was necessary in order to secure 
his person.* But where the party's clothes and person were 
injured on a recaption after one escape, and in an efibrt to 
overcome resistance and prevent another escape, the onus is 
upon him to prove excessive force.^® 

§ 184. Process no Justification nnlcBS Prodnced — Jnrisdiction. — 



> Barb. Cr. L., 280. 

' Hagar v. Danforth, 20 Barb., 16. 

* McAuley v. State, 3 Greene Iowa, 435. 

* Barb. Cr. L., 230; Roscoe Cr. Ev., 2&2; 8 Greenl. Ev., § 65. 

* 2 Arch. C. P. & PI., 44. 

* Harrison v, Hodgeson, 10 B. & C, 445; 6 Man. & Ry., 392. 
' 2 Arch. C. P. & PL, 44. 

* Barb. Cr. L., 231 ; Roscoe Cr. Ev., 229; 1 Ld. Raym., 229; 2 Stra., 1049. 

* Barb. Cr. L., 281. 

»• Henry t>. Lowell, 16 Barb., 268. 



132 TRIAL BEFOBE JUSTICE. 

An officer cannot justify an assaalt and battery committed 
by him in the execution of process without producing the 
process in evidence,^ nor unless the process is valid on its face 
and the court or magistrate has jurisdiction to issue it.^ 

§ 185. Ennmerated Gases where a Battery is Jnstifled by Author- 
ity of Law. — A man may justify an assault and battery in the 
suppression of a riot or in preventing the commission of a 
felony or breach of the peace.' If, therefore, A and B are 
fighting, and C comes and takes one of them by the collar, in 
order to separate the combatants, he is not guilty of an as- 
sault and battery."* So h. man may justify laying hands upon 
another to prevent him from rescuing goods taken in execu- 
tion* or the like.* So an officer or private person may justify 
an assault and battery in making an arrest, either with^ or 
without process,* where such an arrest is authorized by law.* 

§ 186. Former Acquittal or Conviction. — It is a good defense 
that the defendant was formerly tried upon the merits for the 
same offense and acquitted*® or convicted." But a criminal ac- 
tion in the name of the people for an assault and battery may 
be sustained though there is a civil suit pending in the name of 
the party injured for the same cause.*^ So a criminal action 

> People V. Muldoon, 2 Park. Cr. R., 13; but see Chase «. People, 40 
Ills., 8o2. 

• Bowman f>. St. John, 43 Ills., 337. 

» Whart Cr. L., § 1380 ; Roscoe Cr. Ev., 291 ; 3 Greenl. Ev.,§ 65 ; 2 Arch. 
C. P. & PI., 64; Rex v. Hunt, 1 Moody, 93; Handcock v. Baker, 2 Bos. <& 
Pul., 260. 

MHawkP. C. C, 62, §2. 

• Whart. Cr. L., § 1260. 

• 3 Lev., 113. 

' 2 Bish. Cr. L., § 37. 

■ People 0. Adier, 3 Park. C. R., 254; Phillips v. Tuell, 11 John., 486; 
Holley «. Mix, 3 Wen., 350; Bryan v. Bales, 15 Ills., 87; Main v. McCarty, 
15 Ills., 443; Dodds v. Board, 43 lUs., 95; Paige «. Du Puy, 40 Ills., 507. 
Marsh v. Smith, 49 Ills., 397; Kindred v, Stitt, 61 Ills., 401. 

*AiUe% . 

'• 1 Arch. C. P. & PL, 360. 

» Id., 871. 

" 1 Bish. Cr. L., §266; People «. Judges of Genesee, 13 John., 85; Cook 
V. Ellis, 6 Hill, 467; Jones t>. Clay, 1 Bos. & Pul., 191 ; Jacks v. Bill, 8 Car. 
<fc P., 816; Caddy r. Barlow, 1 Man. & Ky., 275. 



ASSAULT AND BATTEBY. 183 

may be sustained though there is a judgment in the civil ac- 
tion for or against the defendant. Bat a judgment in an ac- 
tion in which the people are the plaintiffs against the defend- 
ant, or in his favor, is a complete bar to another action for 
the same cause in the name of the people,^ unless such judg- 
ment was obtained by fraud or contrivance of the defendant 
for the purpose of escaping the punishment he deserves;^ as if 
he procures some friendly person to make a complarnt who 
will suppress a part of the evidence or some or all the cir- 
cumstances tending to increase the fine or punishment, and 
thereby procure himself to be acquitted or fined a nominal 
sum, when he has been guilty of an aggravated assault and 
battery, in which case the judgment will be no bar to another 
action for the same cause.' So the defendant cannot show a 
former conviction before a justice of the peace founded upon 
the information and confession of himself.^ If a party pro- 
cures himself to be convicted of an offense where the punish- 
ment is fixed by statute, and that the sum has been so fixed 
and paid by him, and therefore the state has not suffered by 
the fraud, the conviction will be a bar to another action for 
the same cause.^ One may be indicted for an assault com- 
mitted in view of the court, though previously fined for the 
contempt.* 

§ 187. Former Acquittal or Conviction, how Proved. — The de- 
fense of a former acquittal or conviction must be proved by 
the record formally made up if the party was tried in a court 



> 1 Arch. C. P. & PI., «60, 861 : McWilliams v, Bragg, 8 Wis., 424. 

■ State ©. Little, 1 N. H., 257; Com. v. Jackson, 2 Va. Cas., 501 ; Com. v. 
Alderman, 4 Mass., 477; St«te v. Colvin, 11 Humph., 509; Bulson v. PtK>ple» 
81 Ills., 409 ; Com. v. Elliot, 2 Mass., 872. 

» 1 Bish. Cr. L., § 1010; 8 Greenl. Ev., §38; State v, Greene, 16 Iowa, 239; 
but see State v Casey, Busbee, 209. 

• 2 Mass., 871; Com. v. Alderman, 4 Mass., 477; State v, Spencer, 1*0 
Humph., 481. 

• Hamilton v. Williams, 1 Tyler, 15 ; State t>. Little, 1 N. H. 257; State 
«. Atkinson, 9 Hamph., 6; Bardett v. State, 9 Texas, 48. 

• 3 Arch. 0. P. & PL, 49; State «. Mann, 2 Dev., 268; State •. Yancy, 1 
Our. L. R, 519. 



184 TRIAL BEFORE JUSTICE. 

of record,' and the indictment, with the finding of the jury 
indorsed thereon by the proper officer, is not sufficient* To 
show a conviction or acquittal before a magistrate, his docket 
should be produced,* accompanied with such evidence, either 
oral* or otherwise, as may be necessary to show that the of- 
fenses are really the same; and for this purpose the defend- 
ant may show by a witness what a witness on a former trial 
swore to, although the latter witness is still alive and within 
the reach of subpoena.* 

§ 188. Evidence in Mitigation of the Fine. — There are some 
excuses which, though not sufficient to justify an assault and 
battery, yet may be received in mitigation of the punish- 
ment for the offense;* as a matter of provocation so immedi- 
ately preceding the assault as to create a fair presumption 
that the violence was committed under the sudden influence 
of passion created by it.^ But when the provocation has been 
given, and time has been afforded for the passions to cool, and 
time had for reflection, such provocation is no justification or 
paliation of a subsequent assault,' though the provocation 
consist of words ever so irritating or provoking.* If, how- 
ever, the words of provocation immediately precede the act 
done, so as naturally to provoke the battery, they may con- 
stitute a ground for the reduction of the punishment.'® So the 
defendant may disprove malice in mitigation of the offense, 
and if he undertakes to do so, it may be shown that the de- 

* 1 Arch. C. P. & PI., 461 ; State ©. Benham, 7 Conn., 414. 

* Rex V, Bowman, 6 Car. & P., 101 ; Rex v. Smith, 8 B. & Ores, 841 ; but 
see Tooke*s case, 25 How. St. T., 446. 

" Rex V. Smith, 8 B. <fe Cres., 841, 842; Binder d. State, 5 Iowa, 457. 

* Duncan v. Com., 6 Dana, 295. 

* State f>. Smith, 11 Ired., 33. 

* Dean v. Horton, 2 McMuUan, 147. 

* Coxe f). Whitney, 9 Mis., 531 ; Merely u. Dunbar, 24 Wis., 183. 
■Ellsworth ©.Thompson, 13 Wen., 658; Willis©. Forrest, 2 Duer, 810; 

Avery v. Ray, 1 Mass., 12: Collins «. Todd, 17 Mis., 537. 

* Lee V. Woolsey, 19 John., 319; Donnelly v. Harris, 41 Ills., 126. 

*• Corning ©.Corning, 2 Seld., 97; Keyes ©. Devlin, 3 E. D. Smith, 518 ;Cush. 
man v. Ryan, 1 Story, 91; Ireland v EUiott, 5 Clarke Iowa, 478; Burchaitl^. 
Booth, 4 Wis^ 67; Donnelly v. Harris, 41 Ills., 126. 



ASSAULT AND BATTERY. 135 

fendant had oflfered to figbt the other party since the com- 
mencement of the action.^ So where the provocation grows 
ont of a question of veracity between the parties, the defend- 
ant may show the truth of the matters in dispute was with 
him, to reduce the punishment.* Though former threats and 
insults will not palliate an assault and battery, yet if the injury 
is done in the attempt to prevent the execution of such threats, 
the fact m«y be shown in mitigation of the punishment.' The 
defendant may show every thing whicli occurred at the time 
of the battery which is any part of the Te% gestce^ The in- 
ducement to the transaction, and all such particulars in the 
conduct of either party leading to the final act, forming a part 
of it, as seem to show what degree of blame attaches to them 
severally, and such acts as will aid the jury in determining the 
just measure of tlie punishment, are admissible in evidence.* 
§ 189. Proof of Using Offensive Words, when Inadmissible in Miti- 
gation of the Fine. — Evidence of opprobrious language used 
by the person assaulted towards the niece and the sister-in- 
law of the defendant was held inadmissible in palliation of the 
oflfense.' So evidence of the declarations of the person 
assaulted respecting the defendant is not admissible unless 
shown to have been communicated to him." If made two 
months previous, they are inadmissible unless communicated 
to the defendant immediately before the assault.® Evidence 
that the person assaulted was a lazy vagabond and indebted 
to the defendant, that the money could not be collected by 
legal process, and that he had just refused to work out the 
debt at ten dollars an hour, is not admissible for the defend- 



* MiUs V. Ciupenter, 10 Ired., 298. 

* Marker v. MiHer, 9 Md., 338. 

* Walters v. Brown, 3 Marsh, 559; Fairbanks u. WiUer, 18 Wis., 287. 

* 2 Greenl. Ev., ? 98. 

* Dean t?. Horton, 2 McMullan, 147. 

* CoUins «. Todd, 17 Mis., 537; Avery v. Ray, 1 Mass., 12; Biirchard tJ. 
Booth, 4 Wis., 67. 

' Garthcr t>. Blowers, 11 Md., 536; Adams <j. People, 47 Ills,, 826. 

* €hurther v. Blowers, 11 Md., 586, 



136 TKIAL BKFOEE JUS'llCE. 

ant in mitigation or extenuation of the assault.^ So a provo- 
cation by another is not evidence in mitigation of the offense, 
though the blow aimed at him fell by accident upon the per- 
son assaulted.^ Evidence of the dissolute conduct or bad 
character for virtue of the person assaulted is not admissible 
for any purpose.* So the defendant cannot prove his good 
character and his* usual peaceable deportment as a citizen.^ 
Where a husband is tried for an assault and battery commit- 
ted on his wife, he may prove in mitigation of the fine that 
when he committed the offense he was provoked to do so by 
the misbehavior and misconduct of his wife.* 

§ 190. What Evidence Admissible to Increase tlie Ponishment. — 
Evidence of previous threats made by the defendant*. or of 
a preconceived intention to commit the assault/ or any other 
evidence tending to show malice,* is admissible to increase 
the amount of the fine. For the same purpose, evidence that 
the defendant is wealthy is admissible.* 

§ 191. Words, or a Provocation at a Different Time, not a Jnstifl- 
cation. — No words will justify an assault and battery.*® Nor 
is it any justification that the plaintiff had busied herself in 
tattling about the defendant and his wife.^* No assault, or as- 
sault and battery, or any provocation whatever, committed at 

> Ward V, State, 28 Ala., 53. 

• Corning v. Corning, 3 Seld., 97. 

* Id.; McEenzie v. Allen, 8 Strob., 546; Givens v. Bradley, 8 Bibb, 192. 

* Drake v. Com., 10 B. Monr., 225. 

» 2 Arch. C. P. & PI., 63 ; Robbina v. State, 20 Ala., 86. 

• Sledge V, Pope, Hayw., 403; Ogletree v. State^ 28 Ala., 698; Morrow v. 
Moses, 8 N. H., 95; see Adams v. People, 47 Ills., 876; Williams v. People, 
54 Ills., 428. 

* Yoes V. State, 4 Engl., 42. 

" Aulger V. Smith, 84 Ills., 584. 

• McNamara c. King, 2 Gilm., 432; Watery v. Fcber, 18 Wis., 500; Bams 
«. Martin, 15 Wis., 240. 

*• State c. Wood, 1 Bay, 351 ; Stephens v. Myers, 4 Car. & P., 849 ; Keyes «. 
Bevelin, 8 E. D. Smith, 518; Cushman 9. Ryan, 1 Story, 91; Winfleld •. 
State, 8 Greene, 889; Donnelly o. Harris, 41 Ills., 126; Ogden v Claycomb^ 
62 Ills., 866; Barchard v. Booth, 4 Wis., 67. 

" Saggs V. Anderson, 12 Ga., 461. 



ASSAULT AND BATTEKY. 137 

a different time, or any antecedent facts which are not parts 
of the same transaction, will justify or excuse an assault and 
battery if the defendant's passion has had time to cool before 
the commission of the offense.^ 

§ 192. Jurisdiction Indictment — Compromise — Evidence — Mitti- 
mus. — Justices of the peace formerly had exclusive jurisdic- 
tion given them of an assault and battery in which the people 
were plaintiffs,^ and their jurisdiction was not affected by the 
fact that the complaint charged an assault and battery with a 
deadly weapon,* but under the present statute their jurisdic- 
tion is not exclusive; therefore a party may now be indicted 
for an assault, assault and battery, and for affrays, though under 
the former statute it was held that he could not be indicted for 
such offense in thisstate.^ The complainant in actions brought 
in the name of the people has no right to compromise the suit.* 
On the trial, when it is doubtful who committed the assault 
and battery, evidence of the ill-will of the defendant to the 
person assaulted may be received as tending to show that he 
was the guilty person.* A person in jail cannot be convicted 
of an assault and battery for resisting an attempt to compel 
him to obey the orders of the jailor, without proof by mitti- 
mus that the jailor had authority to restrainliiim of his liberty.^ 

§193. Reception of the Verdict — Procedure where Offense is 
Committed in View of Jnstice. — Upon conviction for an assault 
and battery, the verdict may be received in the absence of the 
defendant. Under the former statute and constitution it 
was held, where the offense was committed in view of the jus- 
tice, he might order the defendant into custody and proceed 
to trial, without an affidavit or issuing a warrant.® 

* Burchard v. Booth, 4 Wis., 67; CoUlns v. Todd, 17 Mis., 537; Avery o. 
Ray, 1 Mass., 12; Lee v. Woolsey, 19 John., 319. 

• Carpenter «. People, 4 Scam., 197. 

• Severn v. People, 87 IHs., 414. 

* Carpenter v. People, 4 Scam., 197. 

• People V, Bishop, 6 Wen., 111. 

* Jewett «. Banning, 21 N.T., 27; State v. GrifOs, 3 Ired:, 504. 
' People V. Muldoon, 2 Park. Cr. R, 13. 

' Lancaster v. Lane, 19 Ills., 242. 



138 TRIAL BEFOBE JUSTICE. 

Statemekt of the Offekse of an Assault. 

(Commence as in form on page 112) that C. D. did on, etc., at, etc., with 
force and anns,* unlawfully' attempt to strike, beat, wound and commit a vio- 
lent injury on the person of the said A. B. with his fists, then and there 
having the present ability to commit the said violent injury" {conclude as in 
form on page 112). 

STATEMENT OF THE OFFENSE OF ASSAULT AND BATTERT. 

{Commence as inform 07ipage 112), that C. D. on, etc., at, etc., did unlaw- 
fully* beat, bruise, wound and assault him the said A. B. with a club, and 
did then and there violently* and maliciously strike £he right eye of him 
the said A. B. and put out the same' {conclude as inform on page 112). 

§ 194. Ponishmcnt. — " Whoever shall be guilty of an as- 
sault or an assanlt and battery, shall be fined not less than 
three nor more than one hundred dollars.'" 

* These words are proper, but not necessary. 1 Chitty Cr. L., 240; Id., 172, 
n. 8; 2 Arch. C. P. & PI., 52. 

* The word '* unlawfully" is necessary in an indictment, bepause used in 
the statute describing the offense. 1 Chitty Cr. L., 381 ; Curtis v. People, 
Breese, 199, 2d Ed., 256; but see Perry v. People, U Ills., 496. 

* In Iowa an affidavit which charged that the defendant "committed an 
assault upon him the deponent in the county of Dubuque," etc., was held 
sufficient State v Douglass, 1 Iowa, 550. 

* The indictment or complaint need not state that the assault was made 
willfully. State v. Bray, 1 Mo., 180. 

* Charging the act to have been "done riotously and in a violent and tu- 
multuous manner" does not make the charge one for an unlawful assembly 
or riot; nor does it unite two distinct offenses. Slate 9. McClintock, 8 
Iowa, 203. 

* An indictment which charges that the defendant did on, etc., at, etc., 
" in and upon one D., with force and arms make an assault, and him the said 
D. did then and there beat, wound and ill treat, and do other wrongs and in- 
juries," etc., does not charge two offenses. State v. Twogood, 7 Iowa, 252. 

' R 8., 355, § 22L 



MISCELLANEOUS OFFENSES. 189 



SECTION III. 

MiSOELLANEOtJS OfFENSES WHIOH MAY BR TbIED BbFOBB A 

Justice of the Peace. 

^ 195. Provisions of the Statute Relating to Affrays. 

196. Evidence in a Case of an Affray. 

197. Conviction for an Assault and Battery. 

198. Provisions of the Statute Relating to an Unlawful Assembly 

199. Continued. 

200. Refusing to Join Posse. 

201. Keeping Open Tippling House on Sunday. 

202. Definition of Sunday. 

203. Disturbing the Peace of Society on Sunday. 

204. Disturbing the Peace of the Family on Sunday 

205. Disturbing the Peace. 

206. Lewdness, etc. 

207. Continued — ^Public Indecency. 
206. Continued — Indecent Exposure. 

209. Disorderly House— III Fame. 

210. Continued — Jurisdiction of Justice. 

211. Evidence — Character of the House. 

212. Continued — Reputation. 

213. What Evidence Inadmissible. 

214. Variance. 

215. What not a Defense. 

216. Who Liable. 

217. Evidence that Defendant Kept the House. 

218. Evidence that the Hou:9e was Disorderly. 

219. Lessor of House of III Fame, when Liable. 

220. Disturbing Religious Meetings. 

221. Disturbing Camp and Field Meetings. 

222. Disturbing Schools, etc. 

223. Disturbing a Funeral. 

224. Evidence Required to Convict — The Meeting. 

225. Continued — What a Disturbance. 

226. Provisions of the Statute Relating to Gaming. 

227. What a Valuable Thing within the Meaning of the Statute. 
22a Who Liable. 

229. Variance. 

230. Recovery of Losses by Gaming. 



140 TBIAL BEFORE JUBTIOE. 

281. Premises Liable for Losses. 

232. Enumerated Cases held to be within the Statute Relating to Betting 

283. Barratry. 

284. Continued— Bill of Particulars. 

235, Who Guilty of Barratry. 

236. Number of ** Suits or Quarrels'' Necessary. 

287. Jurisdiction — ^Attorney. 

288. Maintenance. 

289. Evidence of Officiously Intermeddling. 

240. Evidence of Want of Interest 

241. Evidence of Intermeddling to Promote Litigation. 

242. Champerty. 

248. Compounding Crime. 

244. Jurisdiction. 

245. Rule at Common Law and under the Statute as to Compounding 

Crimes. 

246. What a Compounding of a Crime. 

247. Evidence. 

248. Assuming a Corporate Name. 

249. Refusing to Allow Prisoner to See Counsel. 

250. Selling Poisonous Drugs without being Labeled. 

251. Selling, eto., Poisonous Drugs without Keeping a Record. 

252. Drunkenness. 

258. Continued— Of Officer. 

254. Officer not Trying to Prevent a Duel. 

255. Officer Neglecting to Suppress an Unlawful Assembly of Twelve or. 

more Persons. 

256. Illegal Fees. 

257. Continued — Private Remedy. 

258. Intimidation of Workmen, eto. 

259. Advertising Lotteries. 

260. Evidence. 

261. Vagabonds. 

262. Continued — Conviction before a Justice. 

263. Dram Shop Defined. 

264. Penalty for Selling Liquor without License. 

265. How License may be Granted. 

266. Form of License— Rights Under — May be Revoked 

267. Bond— How Taken— Suit on. 

268. Selling or Giving to a Minor or Drunkard. 

269. Nuisances — ^Penalty — ^Bond — Evidence. 

270. Liability for Support, eto, 

271. Suit for Damages by Husband, Wife, Child, eto. 

272. What Liable to Execution — ^Proceedings to Bnforoa 
278. When Suit may be before Justice. 

274. Indictment or Fine. 

275. Shifts. 



AFFBAT8. 141 

§876. Eyidence. 

877. City or Village Ordinance no Defense. 

878. Evidence of a Sale. 

879. Sale by Agent, Servant, etc. — Married Woman. 

880. What a Sale: 

881. The License. 

882. Constitutionality of Act, and of Ordinances. 
888. Refasal to Grant License not a Defense. 
884. Pleading. 

1. Affbatb. 

§ 195. ProTisions of the Statute Relating to Aflhiys. — <<If two 
or more persons shall by agreement fight in a public place, to 
the terror of the citizens of the state, the persons so offending 
shall be deemed guilty of an affray, and severally fined not 
exceeding one hundred dollars."* 

STATEMENT OF THE OFFENSE OF AN AFFRAY. 

{pommenee a% in form on page 112) that C. D. and E. F.,' on, etc., at,* etc., 
in a public place/ to wit, in a public street and highyvay there situate,* did 
by agreement* unlawfully fight together/ to the terror of the citizens of this 
state" (eondudeas inform on page 112). 

> H. S., 800, § 250. 

' It is necessary to allege that not less than two persons committed the of- 
fense. R. S.. 800, § 250; Simpson v. State, 5 Yerg., 856 ; State v. Priddy, 4 
Humph., 429. 

* The words '*with force and arms,'* R S., 408, §411, "^being unlawfdlly as- 
sembled," and **arrayed in a warlike manner," are unnecessary, and should 
be omitted. 2 Bish. Or. P., g§ 22, 28 ; State «. Priddy, 4 Humph., 429. 

* An averment that the place of fighting was a public place, is necessary. 
States. Priddy, 4 Humph., 420 ; State «. Heiflein, 8 Humph., 84; but the 
statement that it was in a certain street and highwa}' is suflScient; 2 Bish. 
Cr. P., % 20. 

* The words '* to toit.y in a public street and highway there situate" may 
be omitted. State «. Benthall, 5 Humph., 510. 

* The words ^ by agreement," being in the statute, are necessary. H. S., 
800, § 250. 

' In Indiana it was held to be necessary to insert in an indictment the 
the word "^together" after the word "fight." State v. Vanloan, 8 Ind., 182 ; but 
this word is omitted in our statute, and probably an averment in the Ian 
gnage of the statute would be sufl9cient; ante p. 86, n. 5. 

* The words Mid make an aflOray " do not sofflcientlj charge the oflEiBose. 



142 TRIAL, BEFORE JUSTICE. 

§196. Evidence. — The prosecution must prov^, in order to 
convict the defendants of an affray: 1. An agreement to Jight}^ 
2. That there was an affray or fighting ; 3. That it was m a 
public place/ 4. That it was to the terror of the citizens of this 
state/ 5. That two or more persons were engorged? Those who 
only defend themselves against an illegal assault,' or do not 
make any resistance to an attack made upon them,^ or do not 
consent or agree to fight, are not guilty of an affray. In 
proof of the fighting, there must be a stroke given or a weap- 
on drawn** and acts done equivalent to an assault.* Mere 
words do not constitute an affray.' Where a field is sur- 
rounded by a forest, situated one mile from any highway, it 
does not lose its private character by the casual presence of 
three persons so as to make those who fought there by agree- 
ment guilty of an affray.® So where it appeared by the evi- 
dence that two of the prisoners fought in the midst of a great 
crowd of persons, it was held that the place was a private one, 
and therefore that there was no affray.' But an inclosed lot 
ninety feet from the street, from which it is visible, is a 
public place in which an affray maybe committed.*® It is not 
necessary to show that any othei* terror was actually produced 
than the law will infer from the fighting." In another state 

Simpson r. State, 5 Terg., 356; State v, Priddy, 4 Humph., 429; State «. 
Vanloan, 8 Ind., 182 ; State v. Woody, 2 Jones N. C, 335 ; State «. Simmons, 
6 Strob., 68; contra, State «. Washington, 10 Texas, 128; State o. Benthall, 
5 Humph., 519. 

» R. S., 890, § 250. 

« Id. ; 2 Arch. C. P. & PI, 945 ; Simpson tj. State, 5 Yerg., 356. 

• Lewis Cr. L., 63. 

• O'Neill «. State, 16 Ala., 65; contra. State o. Perry, 5 Jones N. C, 9. 

^ 3 Inst., 158; 4 Black. Ck)m., 145; 2 Arch. C. P. & PL, 947; Simpson e. 
SUte, 5 Yerg., 365; Hawkins o. State, 13 Ga., 822; contra, 1 Russ. on 0^ 
292; State 9. Summer, 5 Strob, 53. 

' 2 Bish. Gr. L., g 3 ; Hawkins 9. State, 13 Ga., 322 ; O'Neill «. State, 16 
Ala., 65. 

^ 2 Bish. Cr. L., §3; O'Neill «. State, 16 Ala., 65. 

« Taylor©. State, 22 Ala., 15. 

• Hunt's Case, 1 Cox C. C, 177. 
^ Carwile v. State, 85 Ala., 392. 

>* 2 Bish. Cr. L., g4; State v. Summer, 5 Strob, 53. 



UNLAWFUL ASSEMBLY. 143 

it has been held that one defendant may be convicted and the 
others acquitted/ but in this state two or more persons must 
be guilty or under our statute there is no affray.* A person 
who aids and abets an affray is guilty as a principal.' 

§197. Conviction for an Assault and Battery. — One or more 
of the defendants may be acquitted on the charge of an affray, 
and be convicted of an assault and battery, provided the com- 
plaint or affidavit contains allegations sufficient to charge such 
offense;* but if the affidavit does not contain allegations suffi- 
cient to charge the offense of an assault and battery, there can 
be no conviction for that offense.* 

2. Unlawful Assembly. 

§ 198. Provisions of the Statute Relating to an Unlawftil Assem- 
bly. — "If two or more persons assemble together to do an 
unlawful act, and separate without doing or advancing to- 
ward it, such persons shall be deemed guilty of an unlawful 
assembly, and be severally fined, not exceeding one hundred 
dollars.'" 

BTATEUBNT OF THE 0PFEN8B OF AN UNLAWFUL ASSEMBLY. 

(Commence as in form on page 112) that C. I), and B. F., on, etc., at, etc., 
did unlawfully and willfully assemble together to do an unlawflil act, to 
toit^ to pull down and remove a certain dwelling-house in the possession of 
the said A. B., and haying so assembled, did separate without doing or ad- 
vancing towards doing the said unlawftil act (conclude as inform an page 112). 

§ 199. Continued. — "If two or more persons assemble for 
the purpose of disturbing the public peace, or committing 
any unlawful act, and do not disperse on being desired or com- 
manded so to do by a judge, justice of the peace, sheriff, coro- 

• Lewis O, L., 74; Carlin «. State, 4 Yerg.,143; Cash «. State, 2Tenn. R, 
198 ; 2 Overt, 198. 

■' R. S., aOO, § 250; Hawkins v. State, 13 Ga., 822. 
» Hawkins v. State, 13 Qa., 822 ; Carlin «. State, 4 Yerg., 143. 
« Slate V. Allen, 4 Hawks, 856; Cash v. State, 2 Tenn., 198. 

• 2 Bish. Cr. P., §25; Com. v. Perdue, 2 Va., Cas., 227. 

• R. S., 390, § 251. 



»• 
« 



144 TBIAL BEFORE JXTSTIOE. 

ner, constable, or other public officer, the persons so offending 
shall be severally fined, not exceeding two hundred dollars."* 

fiTATEMBNT OF THE OFFENSE OF AN UNLAWFUL A88EMBLT— REFUSING 

TO DI6PBB8B. 

{Commence as in form on page 112,) that C. D, and E. F. (add^ if true^ 
"and dicers other persons to the said A. B. unknown'^), on, etc., at, etc., in the 
county aforesaid, did unlawfully and riotously assemble and gather to- 
gether for the purpose of doing an unlawful act, to wit.^ for the purpose of 
assaulting and beating the said A. B., and the said 0. D. and E. F. {and di- 
vers other persons) and each of them, being then and there so assembled and 
gathered together, then and there did not disperse on being then and there, 
while being so assembled and gathered together as aforesaid, desired and 
commanded so to do by one J. 8., then and there a constable of the said 
county, contrary to the form of the statute in such case made and provided 
{conclude as inform on page 112). 

3. Refusing to Join Posse. 

§ 200. Provisions of the Statute Relating — Refusing to Join 
Posse. — "Every male person above eighteen years of age, 
who shall neglect or refuse to join the posse comitattts or 
power of the county, by neglecting or refusing to aid and as- 
sist in taking or arresting or securing any person against 
whom there may have issued any civil or criminal process, or 
by neglecting or refusing to aid and assist in retaking or se- 
curing any person who, after having been arrested or confined, 
may have escaped from such arrest or imprisonment, or 
by neglecting or refusing to aid and assist in preventing any 
breach of the peace, or the commission of any criminal of- 
fense, being thereto lawfully required by any sheriff, deputy 
sheriif, coroner, constable, judge or justice of the peace, or 
other officer concerned in the administration of justice, shall 
be fined not less than ten dollars nor more than fifty dollars."* 

" R 8., 890, § 252; 
* Id^ 889, § 245. 



« 



DISTUBBING THE PEACE OF SOCIETY ON SUNDAY. 145 
STATEMENT OP THE OFFENSE OF REFUSING TO JOIN POSSE. 

{Commence as in form on page 112) that C. D., being a male person 
above eighteen years of age, on, etc., at, etc., did neglect or refuse to join 
the posse eomitatiM and power of the coanty by then and tliere neglecting 
and refusing to aid and assist in taking, arresting, and securing £. F., 
against whom there was then issued a criminal process, the said C. D., be- 
ing tlien and thereto lawfully required* by G. H., then and there a consta- 
ble of the said county, contrary to the form of the statute in such case made 
and provided (conclude as in form on page 112). 

4. Keeping Open Tippling House on Sunday. 

§ 201. Provisions of the Statute. — " Whoever keeps open 
any tippling house, or place where liquor is sold or given 
away, upon the first day of the week, commonly called Sun- 
day, shall be fined not exceeding two hundred dollars."^ 

§ 202. Definition. — " Sunday shall include the time from 
midnight to midnight.'" 

STATEMENT OF THE OFFENSE OF KEEPING OPEN TIPPLING HOUSE ON 

SUNDAY. 

{Commence as in form on page 112) thatC. D. upon the first day of the 

week, commonly called Sunday, to mt., on the day of . A. D. 18 — , 

at the town of in said county, did unlawfully keep open a tippling 

house, a place where liquor was then and there sold (or given away), c(m- 
trary to the form of the statute in such case made and provided (conclude 
a« in form on page 112). 

5. DiSTUKBINO THE PeAOE OF SoOIETY ON SuNDAT. 

§ 203. Provisions of the Statute. — " Whoever disturbs the 
peace and good order of society by labor (works of necessity* 

' It has been held that an indictment at common law for refusing to as- 
sist an officer in securing a person whom he had arrested, was not sufficient 
when it merely alleged the an'est to have been made by ** lawful authority." 
The authority to arrest should have been set forth. State v. Shaw, 3 Ired., 
20, 22. 

' R S., 891. § 259. 

« Id., g 260. 

* A work of necessity does not mean a physical necessity. Com. v. Knox, 
6 Mass., 76. It is a work of necessity to boil sap on Sunday to prevent it 
fix>m running to waste. Whitcomb v. Oilman, 85 Vt, 297; Morris v. State, 
81 Ind., 189; see also Crocket «. State, 88 Ind., 416. 

10 



146 TBIAL BEFORE JUSTIOE. 

and charity excepted), or by any amusement or diversion on 
Sunday, shall be fined not exceeding twenty -five dollars. 
This section shall not be construed to prevent watermen and 
railroad companies from landing their passengers, or water- 
men from loading and unloading their cargoes, or ferrymen 
from carryiug over the water travelers and persons moving 
their families on the first day of the week, nor to prevent the 
due exercise of the rights of conscience by whomever thinks 
proper to keep any other day as a sabbath."' 

STATEMENT OF THE OFFENSE OF SABBATH BREAKING. 

{Commence as inform on page 112) that C. D. upon the first day of the 

week, commonly called Sunday, to to»Y.,on the day of , A. D. 18 — . 

at the town of in said county, did knowingly and willfully disturb the 

peace and good order of society by labor, to wit. (inseft what he did), the said 
labor then and there not being a work of necessity or charity, contrary to 
the form of the statute in such case made and provided (eondude as inform 
on page 112). 

6. Disturbing the Peace of the Family on Sunday. 

§204. Provisions of the Statute. — "Whoever shall be guilty 
of any noise, rout or amusement on the first day of the week, 
called Sunday, whereby the peace of any private family may 
be disturbed, shall be fined not exceeding twenty -five dol- 
lars."* 

8TATKMKNT OF THB 0FFRS8B OF DISTURBINa FAMILY OS SUNDAY. 

(Commence as in form on page 112) that C. D., on the flrst day of the week« 

commonly called Sunday, to wit, on the day of , A. D. 18 — ^ at the 

town of in said county, was guilty of making a great noise hy blowing 

a horn, and screaming and talking with a loud voice, whereby the peace 
of A. B. and liis family was then and there disturbed, contrary to the form 
of the statute in such case made, and provided Heondtide as in form on 
page 112). 

' R. 8., 891, § 261. 
•Id., 892, §262. 



LEWDNESS, EXPOSUBE AND Iin)EC£NCT. 147 

7. DlSTUBBING THE PeAOE. * 

§ 205. Provisions of the Statute. — "Whoever, at a late and 
unusaal hour of the night-time, willfully and maliciously dis- 
turbs the peace and quiet of any neighborhood or family,* by 
loud or unusual noises, or bv tumultuous or offensive car- 
riage, threatening, traducing, quarreling, challenging to fight or 
fighting, or whoever shall carry concealed weapons, or in a 
threatening manner display any pistol, knife, slung-shot, 
brass, steel, or iron knuckles or other deadly weapon, day or 
night, shall be fined not exceeding one hundred dollars."* 

STATEMENT OF THE OFFENSE OF DISTURBINQ THE PEACE. 

{Commence cu inform on page 112) that C. D., od, etc., at a late and unusual 
hour of the night-time, At etc., in said county, did willfully and maliciously 
disturb the peace and quiet of the neighborhood and family of the said A. 
B. by loud and unusual noises, made by blowing horas, firing guns,' scream- 
ing and talking In a loud and unusual manner, contrary to the form of the 
statute in such case made and provided (conclude as in form on page 112). 

8. Lewdness, Exposure of the Person and Other Aots 

OF Indecency. 

§ 206. Provlsioiis of the Statute. — " Whoever shall be guilty 
of open lewdness, disorderly conduct, or other notorious 
act of public indecency tending to debauch the public morals, 
shall be fined not exceeding two hundred dollars."^ 

statement of the offense of an indecent exposure of the 

PERSON. 

(Commence as inform on page 112) that C. D., on, etc., at, etc., in the said 
county, in a public* street, was guilty of a notorious act of indecency tend- 

* A woman occupying a dwelling-house alone is as much entitled to the 
protection of the statute as if surrounded by children or friends. Koe 9. 
People, 89 Ills., 96. 

* R 8., 360, § 56. 

' II has been held that the way and manner in which the loud and un- 
usual noises were made should be stated. Whitesides v. People, Breese, 4, 
2d Ed., 21. 

« R. S., 860, $ 55; Mayer v. Schleichter, 29 Wis., 646. 

* It is sufficient to allege that the exposure was ** to the public view in a 
public place.'* State o. Roper, 1 Der. A Bat., 208. 



148 TSLAX BEFORE JUSTICE. 

ing to debauch the public morals,* by then and there, with intent* to cor- 
rupt and debauch the morals of the people, exhibiting and exposing his 
private parts for a long time, to wit. for the space of one hour in the pres- 
ence and sight* of divers persons, male and female, then and there passing 
and repassing* (conclude (u inform on page 112). 

§ 207. Lewdness — Public Indecency. — A person may be 
guilty of open lewdness by frequenting houses of ill-fame,^ 
by putting his arms openly around a woman, etc., by 
lying in bed with a woman not his wife in the presence of 
others;^ or, if a female, by making indecent advances to 
a man. But a secret familiarity in a room, the doors and 
blinds being shut, only seen through a broken pane of 
glass, is not an open lewdness within the meaning of the 
statute/ The indecent and public exposure of one's per- 
son or the person of another,* the publication of obscene books 
and prints, the utterance of obscene words, the singing of ob- 
scene songs,* ® the exhibition of a monster," and the public sel- 

* In another state it has been held not sufficient to charge the offense in 
the general words of the statute. Whait. Cr. L., §2394; Cameron v. State, 
8 Miss., 494. 

' It is proper, if not necessary, that the intent should be specially stated. 
Miller v. People, 5 Barb., 203 ; Com. v, Haynes, 2 Gray, 72; but see ante g46, 
n. k. 

' It is not necessary to allege that the prisoner was seen by citizens. If 
they could have seen him it is sufficient State v. Roper, 1 Dev. & Bat., 
208; State t, Millard, 18 Vt.,574. 

* In charging the offense of lewdness by frequent! n&: houses of ill-fame, 
it mudt be alleged that the defendant, knowing the house to be a house of 
ill-fame, did openly and notoriously haunt and frequent the same. State v. 
Moore, 1 Swan Tenn., 13G; Brooks v. State, 2 Torg., 482; eontra^ State v. 
Eagle, 2 Humph., 414. 

* It is not necessary to conclude " to the common nuisance." Com. 9. 
Haynes, 2 Gray, 72. 

* 4 Black. Com., 64 ; Brooks v. State, 2 Verg., 482. 
' 2 Whart. Cr. L., g 2390, and notes. 

* Com. 0. Catlin, 4 Mass., 8. 

* Britan v. State, 3 Humph., 293; State v. Roper, 1 Dev. & Bat., 208; Reg. 
V. Webb, 1 Den. C. C, 838; 2 C. & K., 988; T^mp. & M., 23; 18 Jur., 42; 
State V. Hose, 32 Mo., 560. 

'* Com. V, Holmes, 17 Mass., 836 ; Com. v. Sharpless, 2 Serg. & R., 91 ; con- 
tray McJunks, v. State, 10 Ind., 140. 
" Harring v. Walrond, 2 Cha. Ca., 110. 



LEWDNESS, EXPOSUBB Ain> IKDBOENOT. 149 

ling and buying of a wife,^ are probably such notorious acts 
of indecency, tending to debauch the public morals, as may 
be punished under the statute. 

§ 208. Indecent Exposure. — An indecent exposure must be 
in a public place* or where it may be seen.' A place fixed for 
making urine out of sight except of those who enter it, is 
not,^ but an omnibus* or a roof of a house, not visible from 
the street, but visible from the back windows of other houses," 
is a place where the offense may be committed. Where two 
persons went out in their back yard with nothing but their 
shirts on, and were only seen by a man and his wife, it was 
held that it was a question of fact whether there was an in- 
tentional, wanton and indecent exposure of the persons of the 
defendants at such a time and place as to offend against pub- 
lic decency.^ The letting of a stallion to mares in sight of the 
Btreet,* or in a city,* where persons, male and female, are pass 
ing and repassing, or undressing and bathing in the sight of 
a dwelling^^ is such an act of indecency as may be punished as 
a crime. It has been held that the indecent exposure of a per- 
son to only one woman is not a criminal offence," but the better 
opinion is that the intentional exposure of one's private parts 
to a virtuous woman is an aggravated criminal offense, which 
may be punished under the statute.^^ 

» Rex fl. Deleval, 3 Bur., 1434, 1438. 

* 1 Bish. Cr. L., § 1128 ; Reg. v. Orchard, 3 Cox C. C, 248; 20 Eng. L. & 
£q., 598; Reg. v. Holmes Dears, 207, 3 Car. <& P., 360; 20 Eng. L. A Eq., 
697 ; Reg. v. Thallman. 1 Leigh & C, 326. 

' Com. V. Sharpless, 2 Serg «& R, 91 ; State «. Roper, 1 Dev. <& Bat., 208; 
State V. Millard, 18 Vt., 674. 

* Rex. fj. Orchard, 3 Cox C. C, 348 ; 20 Eng. Law & Eq., 598 ; Reg. v. Hairis 
Law R. C. C, 282. 

» Rex. fl. Holmes, 20 Eng. Law & Eq., 597. ^ 

• Reg. V. Thallman, 1 Leigh & C, 326. 
' Miller fj. People, 5 Barb., 203. 

' Crane v. State, 3 Ind., 193. 

• Whart Cr. L., 2397 ; Nolm «. Mayor, 4 Yerg., 163. 
** Rex V. Cumden, 2 Campb., 89. 

" R e. Watson, 2 Cox C. C, 376; 20 Eng. L. & Eq., 699; Bez o. Web., 8 
C. &, K., 933; Reg. v. Thallman, 1 Leigh <& C, 826.. 
>• State 9 Millard, 18 Vt, 574. 



150 tbial befobe justioe. 

9. Disorderly House — Ill-Fame. 

§ 209. Provisions of the Statute. — "Whoever keeps or maintains 
a house of ill-fame or place for the practice of prostitution or 
lewdness, or whoever patronizes the same, or lets any house, 
room or other premises for any such purpose, or shail keep 
a common, ill-governed and disorderly house, to the encourage- 
ment of idleness, gaming, drinking, fornication or otlier misbe- 
havior, shall be fined not exceeding two hundred dollars. When 
the lessee or keeper of a dwelling-house or other building is 
convicted under this section, the lease or contract for letting 
the premises shall, at the option of the lessor, become void, 
and the lessor may have the like remedy to recover the pos- 
session as against a tenant holding over after the expiration of 
his term. And whoever shall lease to another any house, 
room or other premises, in whole or part, for any of the uses 
or purposes finable under this section, or knowingly permit 
the same to be so used or occupied,* shall be fined not exceed- 
ing two hundred dollars, and the house or premises so leased, 
occupied or used shall be held liable for and may be sold for 
any judgment obtained under this section, but if such build- 
ing or premises belong to a minor or other person under 
guardianship, then the guardian or conservator and his prop- 
erty shall be liable instead of such ward, and his property 
shall be subject to be sold for the payment of said judg- 
ment.'« 

§ 210. Jurisdiction of Justice. — Under the preceding section 
of the statute it may be a question not free from doubt 
whether a justice of the peace has jurisdiction to try the of- 
fense of keeping a disorderly house or a house of ill-fame, 
for the reason that as an incident to the conviction, the lease 

* Where the defendant leased a house for a le<^l and proper purpose, not 
knowing it was to be used for an iUcgal purpose, and after the U'ase was 
executed, the lessees kept a place of prostitution and lewdness of which il- 
legal use the defendant had knowledge, but took no moans to prevent the 
same, it was held that he was not liable on an indictment under the statute. 
Abrams v. State, 4 Iowa, 542; 6 Iowa, 117. 

• R 8., 360, § 57. 



DISOBDERLY HOUSE — ILL FAME. 151 

of the keeper of the premises is forfeited in addition to the 
fine, not exceeding two hundred dollars. In the absence of 
any decision of the courts upon the question in this state, we 
think the forfeiture of the lease is only an incident to the 
conviction and not a punishment within the meaning of the 
statute, giving the justice jurisdiction, and therefore that a 
justice of the peace has jurisdiction in these cases.* 

STATEMENT OF THE OFFENSE OF KEEPING A HOUSE OF ILL-FAME. 

(Commence as inform on page 112) that C. D., on the day of , A. 

D. 18 — , and on divers other days and times between that time and the 

present time, at the town' of in the county aforesaid, unlawfully and 

wickedly did and still does keep and maintain a house of ill-fame and 
place for the practice of prostitution, fornication and lewdness, to the en- 
couragement of idleness, fornication aud other misbehavior, and did then 
and' on said other days and times, and there permit and procure for filthy 
lucre and gain^ divers evil-disposed persons,* as well men as women, and 
common prostitutes to resort there and commit whoredom and fornication 
to the common nuisance of all the people {conclude as in Jbrm on page 112), 

§211. Evidence — Character of the House. — The prosecutor 
must prove 1. That the defendant eUher field himself or her- 
self out as t/ie keeper of^ or kept the house alleged to have been 
a house of ill fame hy direct evidence f 2. That such house 

>R. 8., 405, §381. 

* According to some of tlie authorities the offense is local and must be 
described as committed in a particular town. State v. Nixon, 18 Vt., 70; 
Non-is 0. House, 3 Grcene Iowa, 513; contra^ 2 Biah. Cr. P., § 111 ; Zumoff 
c. State, 4 Greene lowii, 526; SCate v. Grogan, 8 Iowa, 23; State v. Shaw, 35 
Iowa, 575; State v. VViusfraud, 37 Iowa, 110. 

* An indictment which avers that the defendant unlawfully kept and main- 
tained a house of ill-fame, resorted to for the purpose of prostitution and 
lewdness, is sufficient without alleging that the house was resorted to by 
divers persons, men as well as women. Com. tj. Ashley, 2 Gray, 356; State 
c. Homer, 40 Me., 438. 

* The words '* for filthy lucre and gain" may be omitted. Cora. v. Ash- 
ley, 2 Gray, 856: Com. v. Wood, 97 Mass., 225; Slate «. Nixon, 18 Vt, 70; 
State t, Bailey, 1 Fost., 345. 

* It is not necessary to state the names of the persons frequenting the 
house. 2 Bisl). Cr. P., § 107 ; State t. Patterson, 7 Ired., 70. 

^ State «. Hand, 7 Iowa, 411. 

» 2 Biah. Cr. P., §118; State v. McDowell, Dudley S. C, 346 ; State «. Bro- 
neU, 29 Wis,, 435. 



152 TRIAL BEFORE JUSTICE. 

was a house of ill-fame. The character of the house may be 
shown by circumstances, such as that the accused, if a woman, 
was a prostitute,* or that the women kept by tlie defendant 
were common prostitutes or were reputed to be such;^ that 
notoriously reputed prostitutes and libertines,' persons of bad 
repute, old and young, male and female, black and white, 
were in the habit of frequenting the house day and niglit;* 
that actual lewd behavior took place in the house;' that fight- 
ing and other disturbance of the peace occurred in the house, 
to the annoyance of the neighborhood;® that there has been 
repeated arrests of girls at the prisoner's house on the charge 
of being prostitutes; that such prisoner procured bail for 
them; that such arrests were made at late hours in the night; 
and that women before convicted were frequently found at 
the defendant's house J Evidence that the defendant procured 
a woman from a distance under peculiar circumstances was 
held admissible.® Even the refusal of witnesses who have 
frequented the house to answer questions in reference to the 
conduct of the inmates and visitor^ while there, on the ground 
that they would degrade themselves by their answers, was in 
one case deemed to be a matter which might be taken into the 
consideration of the jury.' 

§ 212. Continued — Reputation. — It has been held that evidence 
that the house was reputed to be a lewd or bawdy house is 
admissible.*® Under a statute somewhat similar to ours, using 

» State t). McDowell, Dudley S. 0., 846. 

" Harwood «. People, 26 N. Y., 192. 

" State V. McGregor, 41 N. H., 407, 413; GrergtJ. Bendeno, EUis, B. <& B., 
133; Com. v. Gannett, 1 Allen, 7; Harwood «. People, 26 N. T., 193; State v. 
Brunell, 29 Wis., 435. 

. * Com. V, Sewart, 1 Serg. & R, 842; U. 8. v. Nalor, 4 Cranch, 872; State 
«! Foley, 45 N. H., 466. 

• 2 Atlt., 339 ; State o. Patterson, 7 Ired., 70 ; Clementine «. State, 14 Mo., 
112 ; State v. Brunell, 29 Wis., 435. 

• Clementine tJ. State, 14 Mo., 112 ; People v, Cary, 4 Park. C. R, 232. 
» Harwood c. People, 26 N. Y., 190. 

• State t>. McGregor, 41 N. H.. 407. 

• Clementine 'o. State, 14 Mo., 112. 

** State 9. McDowell, Dudley S. C, 346,340; State «. Hand, 7 Iowa, 411 ; 
State V. Brunell, 20 Wis., 435. 



DISORDERLY HOUSE ILL FAME. 163 

the words "keeping a house of ill-fame, resorted to for the 
purpose of prostitution or lewdness," the court held that by 
force of these words it was both permissible and necessary to 
prove the reputation of the hou8e,^also to prove it to be in 
fact a bawdy house.* Yet there is authority for saying that 
evidence of the reputed character of the house is incompe- 
tent.* The character of the defendant,' of those frequenting 
the house, or of the women kept by the accused, may be 
shown to be that of libertines or prostitutes by reputation 
alone;* and evidence of particular instances of illicit inter- 
course is not indispensably necessary,* though such evidence 
may be given,* even if the names of the persons behaving dis- 
orderly are neither stated in the indictment or complaint^ nor 
proved. 

§213. What Evidence Inadmissible. — Evidence that the 
neighbors generally complained of the disturbance is inad- 
missible^ against the defendant. Mere conversations of men 
after coming out of the house, and not in the presence of the 
keeper, are inadmissible against the keeper, being in the na- 
ture of simply hearsay evidence.* 

§ 214. Variance. — Where the house is described as being in 
a particular town or place, this, being a matter of description, 
must be proved as laid.^® 

§ 215. What Not a Defense. — It is no defense to show that 
there was not any indecency or disorderly conduct of any sort 

> CaldweU v. State, 17 Conn., 467. 

• 2 Bish. Cr. P., 114. 

» State V. Bmnell, 29 Wis., 435. 

• 2 Bish. Cr. P., § 112; U. 8. v. Gray, 2 Cranch C. C, 675; Clementine v. 
State, 14 Mo., 112; Com. v. Kimball, 7 Gray, 328; Com. v, Gannett, 1 Allen, 
7 ; contra^ U. 8. u. Jordan, 4 Cranch C. C, 3b8. 

• U. 8. V. Stevens, 4 Cranch C. C, 41 ; State t>. McDowell, Dudley S. 
C.,846. 

• 2 Atk., 339 ; State v. Patterson, 7 Ired., 70. 

' 2 Bish. Cr. P., g 107; J. Anscm v. Stewart, 1 T. R, 754 

• Com. V. Stewart, 1 Serg. & R, 842; Com. v. Hopkins, 2 Dana, 418; Rex 
c. Rogers, 1 B. & C, 272. 

• Com. u. Harwood, 4 Gray, 41. 

i"" RoBCoe Cr. Ev., 796; State v, Crogan, 8 Iowa, 623. 



154 TRIAL BEFORE JUSTICE. 

visible from the exterior of the house^ or tliat the neighbor- 
hood has not been disturbed.* 

§216. AVho Liable. — A married woman is punishable, 
either alone' or jointly,^ with her husband for this offense, 
and the husband will be liable though the wife owns the 
house and furniture and controls and manages it.* There 
must be a keeping of a house, therefore being a common bawd 
and procuring unmarried women to meet and commit forni- 
cation is not such a criminal offense as can be punished under 
this section of the statute.* But a lodger who keeps only a 
single room for use of abawdery is liable for keeping a house 
of ill-fame.' Yet it has been held that if slie is simply a 
woman of loose morals herself and lives alone, and admits one 
man or many to illicit intercourse with her, she does not 
keep a bawdy house; for it is said that more women than one 
must live or resort together to make such a house.® The bet- 
ter opinion is that under our statute a house occupied by only 
one prostitute may become sufficiently famous to make the 
keeper of it liable for keeping a house of ill-fame.' 

STATEMENT OF THE OFFENSE OF KBEPINa A DISORDERLY HOUSE.*^ 

(Commence <u inform on page 1 12) that C. D., on the day of » A. 

D. 18 — , and on divers*' other days and times between that day and the 

• Reg. «. Rice, Law Rep. C. C, 21. 
' Com. r>. Gannett, 1 AUen, 7. 

' Williams' Case, 1 Salk, 383; State v. McGregor, 41 N. H., 407; Com. v, 
Harrington, 3 Pick., 29 ; Com. t?. Lewis, 1 Met., 151. 

• Reg. tj. Williams, 10 Mod., 63; State v, Bentz, 11 Mo.^, 27; Com. v. Lewis, 
1 Met., 151. 

» Com. i>. Wood, 97 Mass., 225. 

• 1 Bish. Cr. L., §1085; Reg. ©. Pierson, I Salk, 387 j 2 Ld. Raym., 1197. 
' Reg. «. Pierson, 1 Salk, 382, 2 Ld. Raym., 1197. 

• State V. Evans, 5 Ired., 603. 

• R. S., 360, §57; Caldwell v. State, 17 Conn., 467. 

'• An indictment charging the defendant with keeping a disorderly house 
and unlawfully procuring for his filthy lucre and gain men and women of evil 
name and fame to frequent it at unlawful times, permitting them there to 
be and remain drinking, tippling and misbehaving themselves, to the great 
damage and common nuisance of all liege citizens in Pennsylvania, was 
held to be sufQcient. Com. v. Stewart, 1 Serg. & R., 342. 

" An allegation that the paity kept such house on a day specified, and on 
divers other days and times, etc., is sufficient Whart. Cr. L., §2386. 



DIBOBDERLY HOUSE — ILL FAME. 155 

making of this affidavit at, etc., in the county aforesaid, unlawfully' did* 
keep and maintain a certaia common, ill-governed and disorderly bouse 
to the encouragement of idleness, gaming, drinking, fornication* and 
other misbehavior;* and unlawfully and willingly did cause and procure 
certain evil-disposed persons, as well men as women, of evil name, fame 
and conversation, to come together on the days and times aforesaid, in the 
said house for his own gain and lucre; and unlawfully did permit the said 
persons in the said house at unlawful limes, as well in the night as in the 
day-time, on the days and times aforesaid, there to be and remain drinking, 
tippling, cursing, swearing, quarreling, and otherwise misbehaving, to the 
great injury and common nuisance^ of the people of this state (concluds <m 
inform on page 112). 

Evidence of Keeping a Disokderly House. 

§ 217. 1. It Mast be Shown that the Defendant Kept the Honse.* 

— This cannot be shown by reputation alone/ but is sufficient 
to show that the defendant held himself or herself out or acted 



' It is sufficient to charge the offense to have been committed **unlaw- 
ftilly" witliout saying **knowingly" or "corruptJy," 2 Whart. Cr. L , § 2886. 

' In Massachusetts, under the statute of tliat state, somewhat similar to 
ours, it was held that it was sufficient to charge the offense substantially in 
the language of the statute, without alleging that the house was resorted to 
by divers persons, men as well as women, or that the defendant kept it for 
lucre. Com. v, Ashley, 2 Gray, 350 ; Stat« v. Bailey, 1 Fost., 343 ; Com. v. 
Pray, 13 Pick., 359. 

' It is no objection to an indictment for keeping a disorderly house that 
it is charged in the same count that it is kept as a bawdy house, a tippling 
house and a dance house; and it is not necessary under such a count to 
prove that aM of such offenses were committed, but the defendant should 
be convicted if it is shown that either was permitted under such circum- 
stances as to make the house disorderly and a nuisance. People v, (^arey, 
4 Park. Cr. R., 238; Com. v. Kimball, 7 Gray, 328; Com. v. O'Kelly, 7 Gray, 
332; 13 Gray, 26. 

• Probably all after the word "misbehavior" usually inserted in a com- 
mon-law indictment is unnecessary. Vanderworker v. State, 13 Aj*k., 700; 
Rex V. Roger, 1 B. & C, 272; Com. v. Pray, 13 Pick., 350; Rex v. Iliggin- 
BOn, 2 Bur., 1232; Rex v. Dixon, 10 Mod., 3ti5; 1 T. R., 734; ante page 38, 
note 5 ; contra^ Frederick v. Com., 4 B. Monr., 7 ; Com. v. Stewart, 1 Serg. & 
R, 342; Com. v. Davenport, 2 Allen, 299; Com. v. Crupper, 3 Dana, 406. 

• It has been held that the conclusion must be to the common nuisance. 
Hunter v. Com., 2 Serg. & B., 29b; Com. v. Stewart, 1 Serg. & R.,342. 

• 2 Blsh. Cr. P., § 278. 
"Id., §118. 



156 TBIAL BEFORE JUSTICE. 

as keeper.' It is immaterial in whom the title to the premises is.' 
The question is whether the defendant did or did not keep the 
house, on which circumstantial' or other evidence may be re- 
ceived for^ or against the defendant 

§218. 2. It Must be Showa that the House was Disorderly. — 
Anything done in or about the house which tends to show 
this, is admissible. As that the defendant kept an open house 
for selling spirituous liquors, and that such spirituous liquors 
were sold to other persons than boarders and lodgers, at times 
to persons who were drunk, at times to persons who came in 
drunk and drank there and went out drunk, and at other times 
to those who came out and went away from the house in a 
lioisy manner and went sky-larking in the streets; that the 
house was kept open on Sunday and at late hours of the night; 
that persons coming out of the house were drunk and disor- 
derly;* that there was such a noise in the house as to make it 
a nuisance; that there was quarreling or fighting, or break- 
ing into or out of the house by persons attempted to be kept 
out or in;* that an instrument or device for gambling was 
used or kept in the house either by the keeper or any other 
person by his permission;' that parties were permitted to 
play at games in the house for money;* that parties were 
permitted to make a great noise in the house, rolling 
bowls in a game commonly called ten-pins ;• that per- 
sons were permitted to remain in the house, fighting of 
cocks, boxing, playing at cudgels, and misbehaving them- 
selves generally,' ' all of which several acts it has been held 

• State V. Hand, 7 Iowa, 411. 

« Williamson v. State, 16 Ala., 431. 

• State V. Worth, R M. Charl.. 5. 

• Couch V. Stjite, 24 Texas, 557 ; Steveus c. People, 67 Ills., 587. 

• U. S. V, Columbus, 5 Cranch C. C, 304; Com. v. Stewart, 1 Berg. A 
R., 342. 

• Com. V. O'Brien, 8 Gray, 487; Garrison v. State, 14 Ind., 281 ; Bloomhuff 
«. State, 8 Blackf., 205. 

' People V. Butler, 1 City Hall Rec, 66. 

• Rex. c. Rogier, 1 B. & C, 272 ; 2 D. & R^ 431. 

• Bloomhuff ^, State, 8 Blackf., 205. 
»• Rex V, Higginson, 2 Bur., 1233. 



DISOBDERLY HOUSE — ILL-FAME. 157 

may be proved for the purpose of showing that the house 
was disorderly. But the keeping of a billiard table in the 
house where persons assemble to play the game of billiards for 
amusement, even though they bet upon the game so far as to 
determine who shall pay for the use of the table, does not 
make the house disorderly.* The mere opinion of a witness 
that the house as kept is a nuisance, is not admissible in evi- 
dence;* and proof of riot or disorder ii> the neighborhood is 
not necessary.* 

§ 219. I^essor of a House of Ill-Fame, when Liable. — At com- 
mon law the letting of a house to a woman of ill-fame, know- 
ing her to be such, with intent that it should be used for the 
purpose of prostitution, is aiding in the commission of the 
oflfense of keeping a house of ill-fame, making the lessor an 
accessory, for which he may be punished as principal.* It 
has been held that if a person merely lets the house and col- 
lects the rents as agent of the owner, he is responsible.* 

STATEMENT OF THE OFFENSE OF LEASING A HOUSE TO BE USED A8 ▲ 

HOUSE OF ILL-FAME. 

(Commence M in form an page 112) that C. D., on/ etc., at, etc., did un- 
lawfully lease and let a certain house and premises there situated {dMcribed 
as follows J insert description)^ to one E. F./ for the term of six months" from 
the tiaid last-named day, to be used by the said E. F. for the purpose of keep- 
ing and maintaining a house of ill-fame and place for the practice of pros- 



' Lansing v. Smith, 8 Cowen, 146; People v. Bergent, 8 Ck)wen, 139; Tan- 
ner «. Trustees, 5 Hill N. Y., 131 ; Harbaugh v. People, 40 Ills., 294. 

* Smith V. Com., 6 B. Monr., 21. 

* U. S. «. Columbus, 5 Cranch C. C, 804. 

* Com. V. Harrington, 3 .Pick., 26 ; Smith v. State, 6 Gill, 425; U. 8. «. 
Gray, 2 Cranch C. C. K., 748; People t>. Townsend, 3 Hill, 479; contra, Reg. 
c. Stannard, Leigh & C, 349, 354; Brockway t>. People, 2 Hill, 558. 

* Lowenstein v. People, 54 Barb., 299. 

* The complaint must state the time of making the lease. Comi v. Moore, 
11 Cush., 600; but it Is not necessary to prove the time as alleged. Com. 
f), Harrington, 3 Pick., 26. 

^ The name of the lessee should be stated or a reason given for'the omis- 
sion. Com. V, Moore, 11 Cush., 600. 

' It is not necessary to state the time when the lease commenced or was 
al an end. Smith «. State, 6 Gill, 426 ; State «. Abrams, 6 Iowa, 117. 



158 TRIAL BEFORE JUSTICE. 

titution and lewdness, to the encouragement of idleness, fornication and 
other misbehavior, the said C. D. then and there well knowing that the said 
house and premises were to be used for the purpose aforesaid, to the com- 
mon nuisance of all the people, contrar}- to the form of the statute in such 
case made and provided {conclude aa inform on page 112). 

10. Disturbing Meetings, etc. 

§ 220. Religions Meetings. — " Whoever by menace, pro- 
fane swearing, vulgar language or any disorderly or unusual 
conduct, interrupts or disturbs any assembly of people met 
for the worship of God shall be fined not exceeding one hun- 
dred dollars."^ 

STATEMENT OlT THE OFFENSE OF DISTURB INO A REIilOIOUS MEETING. 

{Commence M infbrmonpage 112) that C. D.^ on, etc., at a certain meeting- 
house of the {insert the name of the denomination of the church^) church {or at 

a certain camp-ground of the Methodist churcfi) in the town of in the 

said county, did' willfully and unlawfully, by menace, profane swearing/ 
vulgar language, disorderly and unusual conduct,* interrupt and disturb an 
assembly* of people then and there met for the worship of God,' contrary to 
the form of the statute in such case made and provided {conclude as in form 
on page 112). 

§221. Disturbing Camp and Field Meeting. — '^Whoever, dur- 
ing the time of holding any camp or field meeting for religious 

' R S., 860, g 56. 

* The name of the society may be omitted. State v. Ringer, 6 Blackf.. 100. 
' It is sufficient to state the offense substantially in the words of the 

statute. Com. o. Daniels, 2 Va. Cas., 402; State o. Rati iff, 5 Engl., 530; 
State V. Hopper, 27 Mo., 599; State 9. Bankhead, 25 Mo., 558. 

4 Using the words "by profane swearing" and "by talking and laughing 
aloud'' has been held not to make the allegation bad for duplicity. 2 Bish. 
Cr. P., §205 ; State «. Horn, 19 Ark., 578. The words of the profanity need 
not be given. State v, Ratliff. 5 Engl., 580. 

* The manner of the disturbance must be stated and must be proved as 
laid. Straiten o. State, 18 Ark., 688 ; State o Sherrell, 1 Jones N. C, 508. 600. 

*The use of the word ^'congration'' makes an indictment defectlre. 
State 0. Stubblefleld, 32 Mo., 563. 

^ Chargfing the defendant with disturbing a religious assembly commonly 
called a quarterly meeting conference, has been held insufficient in an in- 
dictn\ent at common law. It should charge that the assembly met for the 
worship of Ood, R S., 860, § 58 ; State «. Fisher, 8 Ired., Ill ; .or for a lawful 
purpose, R. S., 860, {60. 



DISTURBING MEETINaS. 159 

purposes, and within one mile of the place of holding such 
meeting, hawks or peddles goods, wares or merchandise, or 
without permission of the authorities having charge of such 
meeting, establishes any tent, booth or other place for vending 
provisions or refreshments, or sells, or gives away, or offers to 
sell or give away, any spirituous liquor, wine, cider or beer, 
or practices or engages in gaming or horse-racing, or exhibits, 
or offers to exhibit, any show or play, shall be fined not exceed- 
ing one hundred dollars for each offense: Provided^ that 
wlioever has his regular place of business within such limits 
is not hereby required to suspend his business."^ 

STATEMENT OF THE OFFENSE B8TABLTSHTNO TENT FOE BELLING PROVISIONS 

NEAR A C AMP-MEETING. 

{Commence as in farm on page 112) that C. D., daring the time of holding 

a camp-meeting for religious purposes on tlie day of , A. D. 18 — , 

within one mile from the place of holding such meeting, in the town of . 

in said county, not having his place of business within such limits of one 
mile« without the permission of the authorities having charge of the said 
meeting, unlawfully did establish a tent for vending provisions and re- 
freshments contrary to the form of the statute in such case made and pro- 
vided [conclude a» in form on page 1 12). 

§222. Disturbing any School, etc. — "Whoever willfully in- 
terrupts or disturbs any school or other assembly of people, 
met for a lawful purpose, shall be fined not exceeding one 
hundred dollars."* 

STATEMENT OF THE OFFENSE OF DISTURBING A SCHOOL. 

{Commence as in form on page 112) that G. D., on, etc., at, etc., in said 
county, did willfully' interrupt and disturb a school, then and there met for 
a lawful purpose,^ contrary to the form of the statute in such case made and 
provided (conclude as in form on page 112). 



' R. 3., 800, g 50. 

•Id., 8 60. 

' The allegation that the disturbance was "* willAiUy" done, is necessary^ 
Stale V, Bankhead, 25 Mo., 558; State v. Hopper, 27 Mo., 599. 

* The words ^' met for a lawfdl purpose,*' are in the statute and necessary. 
State «. Gager, 28 Conn., 232. 



160 TRIAL BEFORE JUSTIOE. 

§223. Distnrbing a Funeral. — " Wlioever willfully inter- 
rupts or disturbs a funeral assembly or procession, shall be 
fined not exceeding one hundred dollars."* 

§224. Evidence. — It must be proved: 1. That there was 
an assembly of people; 2. That such assembly had 7net to 
worship God} or for a lawful purpose,^ 3. That such assem- 
bly was disturbed by the defendant^ — or he should be acquit- 
ted. The place must be proved as laid.* The point of time 
when the assembly should be considered as met together, has 
been hold to be a mixed question of law and fact which in 
some cases should be submitted to the jury.® Where the dis- 
turbance was made at night on the camp-ground of those as- 
sembled, after the services were over for the day and the wor- 
shipers had retired to rest, the court held that there was still 
a sufficient assembly of the people to make the disturber lia- 
ble under the statute.* The statute is violated by a disturb- 
ance at any time before the assembly has so dispersed as to 
be no longer an assembly.^ 

§ 225. What is a Disturbance depends upon the nature and 
character of eacli particular kind of meeting, and much also 
upon the usage and practice governing such meeting.* What 
would be a disturbance of a religious meeting would not be 
a disturbance of a theater.' Where in a contest for a situa- 
tion of a clerk to a meeting-house, one clerk pulled the other 
from the desk, it was held to be a disturbance within the 
statute.*® The audience at a theater may hiss down the play 

'R.S.,861, §61 

» Id., 860, § 58. 

•Id., 361, J 01. 

♦Stratton v. State, 18 Ark., 688. 

* S.ate V. Snyder, 14 Ind., 429; Marvin v. State, 19 Ind., 181 ; State v, Qa^ 
ger, 28 Conn., 282. 

* Com. o. Jennings, 8 Grat., 624; eontraj State v. Edwards, 82 Mo., 548. 

' Williams v, Stute, 3 Sneed, 313 ; Kinney v. State, 88 Ala., 224 ; Hoilings- 
wortli V, Stete, 5 Sneed., 518, 520. 

* Com. «. Porter, 1 Gray, 476. 

* 2 Bish. Cr. L., $§ 808, 309 ; see state v, Yeaton, 53 Me., 125. 
»• Rex V, Hube, 5 T. R, 542. 



GAMING. 161 

or the actor if they do not like the performance,^ but they 
have no right to confederate and conspire together before- 
hand to cry down any actor or performance for the purpose 
of ruining the actor if he does not deserve such treatment.' 
Tlie disturbance must be willful and designed, for an act 
done through accident or mistake is not criminal.' 

11. Gaming. 

§226. Provisions of tbe Statate Relating: to Gaming. — ^< Who- 
ever shall play for money or other valuable things, at any 
game with cards, dice, checks, or at billiards, or with any 
other article, or instrument or thing whatsoever, which may 
be used for the purpose of playing or betting upon, or win- 
ning or losing money, or any other thing or article of value, 
or shall bet on any game others may be playing, shall be fined 
not exceeding one hundred dollars and not less than ten 
dollars."* 

STATEMENT OF THE OFFENSE OF OAMINO.* 

{Gommencs as in form on page 112) that C. D., on, etc., at, etc., in the 
county aforesaid,* did unlawflilly play^ for money* to mt: the sum of one 

' Rex V. Forbes, 1 Crawf. <& Dix. C. C, 157. 

* Clifford V. Brandon, 2 Camp., 358. 

* Com. V. Porter., 1 Gray, 480. 

* R. S., 371, § 126; see Gallagher v. State, 26 Wis., 423. 

* For form of complaint in the state of Wisconsin, see Gallagher v. State, 
26 Wis., 423 ; State v, Lewis, 12 Wis., 434. 

* It is a sufficient statement of the place to allege that it was in the county 
without stating the town or building or other place in which the parties 
played. Covy v. State, 4 Port., 186 ; Groner t>. State, 6 Florida, 39 ; see also 
SubleU V. State, 9 Texas, 53. 

* It is not necessary to state with whom the accused played or with whom 
he bet Green v. People, 21 Ills., 125; Orr v. State, 18 Ark., 450; Romp v. 
State, 3 Iowa, 276; Graham v. State, 1 Pike, 171 ; State v. Dole, 3 Blackf., 
230; Domer v. State, 2 Carter, 308; State «. McBride, 8 Humph., 60; States. 
Prescott, 33 N. H., 212 ; eontrct, Parrott v. State, 5 Engl., 18 Ark., 195 ; Davis 
D. State, 22 Ga., 101 ; Gronner v. State, 6 Florida, 89. 

* A charge that the defendant played for '^valuable things" has been held 
to be too vague ; and that the things played for must be set forth and de- 
flcribed. Anthony v. State, 4 Humph., 83 ; corUrOy Romp «. State, 8 Iowa, 276. 

11 



162 TRIAL BEFORE JUSTICE. 

dollar* at a game' with cards' contrary* to the form of the statute in such 
"'>se made and provided (conclude as inform on page 112). 

BTATEMEKT OF THE OFFENSE OF BETTINO ON A GAME. 

{Commence as in form on page 1 12) tliat C. D., on, etc., at, etc., in the 
county aforesaid, did unlawfully bet a certain sum of money, to wit^ the 
sum of five dollars* (or "a certain valuable thing,* to wit., one horse of the 
value of one hundred dollars^') with E. F.,^ on a certain game with curds 
called whist," then and tliere* being played by and between G. H. and I. J.," 

* It is not necessary to state the amount played for. Dean v. Tennessee, 
Mart & Yei-g., 127; Warren v. State, 18 Ark., 195; Medlock v. State, 18 
Ark., 363; Romp v. State, 3 Iowa, 276; Com. v. Tierman, 4 Grat, 545; Com. 
V. Crupper, 3 Dana, 466 ; State v. McBride, 8 Humph., 66. 

* It is not necessary to state the name of the game played. Green v. Peo- 
ple, 21 Ills., 125 ; State v. Dole, 3 Blackf.,230; Dromer v. State, 2 Carter, 308; 
State v. Maxwell, 5 Blackf., 230; State v. Ross, 7 Blackf, 322; Webster «. 
State, 8 Blackf, 400; Com. v. Bolkom, 3 Pick., 281 ; State v. Prescott, 33 N. 
H., 212 ; Com. v, Tierman, 4 Grat, 545 ; Johnson v. State, 7 Sm. & M., 58! 

' An allegation using the words *' with cards, dice and checks,'* is not 
bad for duplicity. 1 Bish. Cr. P., § 586 ; Wingard v. State, 13 Ga., 396. 

* Since at common law gaming is not a criminal offense, 1 Bish. Cr. L., 
§504, the conclusion should be contrary to the form of the statute ; ante 
page 37, note 1. 

* The particular sum bet need not be mentioned. Moffltv. State, 6 Engl., 169; 
State V. Prescott, 33 N. H., 212 ; Com. v. Tiennan, 4 Grat, 545 ; ^tote v. Ake, 
« Texas, 538; State v. McBride, 8 Humph., 66, 

* The thing bet should be particularly described. Anthony v. State, 4 
Humph., 83; State v. Kilgore, 6 Humph., 44; contra, Harrison v. State, 15 
Texas, 239. 

' It has been held unnecessary to state the name of the person with whom 
the bet was made. Coggins v. State, 7 Port, 263; Romp v. State, 3 Green, 
2 Iowa, 276; Drew v. State, 5 Engl., 82; Green v. People, 21 Ills., 125; or that 
the accused bet with any particular individual; Drew v. State, 5 Engl., 82; 
Mofflt V, State, 6 Engl., 169. 

" The name of the game may be omitted if it is stated that the game was 
with cards. Webster v. State, 8 Blackf, 400; State u. Maxwell, 5 Blackf., 
230; State v. Ross, 7 Blackf., 322; Gibbony v. State, 14 Grat, 582; 2 Dev. & 
Bat., 29; Groner v. State, 6 Flor., 39. 

* It is not necessary to allege that the game was played in the county 
where the bet was made. State v. Kyle, 10 Mo., 389. 

*• It is proper if noi necessary to slate the names of the persons who played, 
80 as to identify the particular offense. Ball v. State, 7 Blackf, 242 ; Butler 
t. State, 5 Blackf, 280; Davis v. State, 1 Ham., 204; Brown v. State, 6 EngU 
574; Jester©. State, 14 Ark., 552; but see Green v. People, 21 Ills., 125; Rice 
V. People, 38 Ills., 435. 



GAMING. 163 

contrary to the foim of the statute in such case made and provided (c^m- 
dude as inform on page 112). 

§227. What a Valuable Thing within the Meaning of the 
Statute. — The offense of gamiug may be committed by play- 
ing for checks, notes, or other instruments understood by the 
parties to represent value and by virtue of which tlie winner 
can in fact obtain value, whether they are collectible by law 
or not;* therefore the playing for or betting checks or count- 
ers, which are agreed by the parties to represent money or 
bank notes, to be paid by the losing party, is a violation of 
the statute.^ An animal such as a horse or a cow, though not 
included within the meaning of the word "thing" as defined 
by the dictionaries, is probably a "valuable thing" within the 
intent and meaning of the statute, so as to make it an offense 
to play for or bet it. 

§ 228. Who Liable. — All persons encouraging the playing of 
cards for money or other valuable thing, though they may not 
bet, are gnilty of gaming* at least as an accessory.* It has 
been held in another state that where a person plays a game 
with cards, knowing that others are betting on the game, he 
is guilty of gaming.* Playing for the price of liquor is a vio- 
lation of the statute against gaming.* But an agreement that 
the losing party shall pay for the use of the billiard table on 
which a game of billiards is played, is not playing for money 
within the meaning of the statute.^ 

§ 229. A Variance between the time the oflTense is alk .^od to 
liave been committed and the time proved, is immaterial.* 
Where it is alleged that a certain sum of money was play- 

' Gibbons v. People, 38 Ills., 442. 

• Id.; Ashlock «. Com., 7 B. Monr., 44; Walton v. State, 14 Texas, 381. 
■ Howlet ». State, 5 Yerg., 145; Frigate v. State, 2 Hamp., 897. 

* R. S., 893, § 274. 

* Smith V. State, 5 Humph., 163, contra, Strawhen v. State, 27 Mis., 432. 

• People V. Lyner, 5 City H. Rec., 138; State v. Maurer, 7 Iowa, 407; State 
«. Cooster, 10 Iowa, 455. 

^ Harhaugh v. People, 40 Ills., 294; People v Sergeant, 8 Cowcn, 140; con- 
trOy State o. Leighton, 8 Foster, 167. 
" Com. V, Hyde, Thach. Cr. Cases, 19. 



164 TRIAL BEFORE JUSTICE. 

ed for, the prosecutor may prove that the parties played for a 
smaller su-m.* But a person charged with playing for money 
cannot be convicted by proof that he played for property.* 
Where A and B were jointly charged with the offense of 
gaming, and were tried together, and it appeared by the evi- 
dence that A and otliers played at one time when B was not 
present, and that B and others played at one time when A 
was not present, it was held that there could be no convic- 
tion against them because they were not jointly liable for 
each offense.* 

§ 230. Recovery of Losses by Gaming. — The statute provides 
that " any person who shall, at any time or sitting, by playing 
at cards, dice or any other game or games, or by betting on 
the side or handS of such as do game, or by any wager or bet 
upon any race, fight, pastime, sport, lot, chance, casualty, 
election, or unknown or contingent events whatever, lose to 
any person so playing or betting any sum of money or other 
valuable thing, amounting in whole to the sum of ten dollars, 
and shall pay or deliver the same or any other part thereof, 
the person so losing and paying or delivering the same shall 
be at liberty to sue for and recover the money, goods or other 
valuable thing so lost and paid or delivered, or any part 
thereof, or the full value of the same, by action of debt, re- 
plevin, assumpsit or trover, or proceeding in chancery, from 
the winner thereof, with costs in any court of competent jur- 
isdiction. In any such action at law it shall be sufficient for 
the plaintiff to declare generally as in actions of debt or as- 
sumpsit for money had and received by the defendant to the 
plaintiff's use, or as in actions of replevin or trover upon a 
supposed finding and the detaining or converting of the prop- 
erty of the plaintiff to the use of the defendant, whereby an 
action hath accrued to the plaintiff, according to the form of 
this act, without setting forth the special matter. In case 
the person who shall lose such money or other thing as afore- 

1 Parsons o. State, 2 Carter, 499. 

* HortoQ V. State, 8 Engl., 62; WUliams «. State, 12 Sm. A M., 58. 

' Elliott V, State, 26 Ala., 78. 



GAHING. 165 

said, shall not, within six months, really and honafde^ and 
without covin or collusion, sue and with effect prosecute for 
such money or thing by him lost and paid or delivered as 
aforesaid, it shall be lawful for any person. to sue for and re- 
cover treble the value of the money, goods, chattels and other 
things with costs of suit by special action on the case, against 
such winner aforesaid, one-half to the use of the county and 
the other to the person suing."* 

§ 231. Premises Liable for Losses. — ^' If any person shall rent 
or lease to another any building or premises to be used or 
occupied, in whole or in part, as a common gaming-house or 
place for persons to come together to play for money or 
other valuable thing, or bet upon any game of chance, or 
shall knowingly permit the same to be so used or occupied, 
such building or premises so used or occupied shall be held 
liable for, and may be sold to pay, any judgment that may be 
recovered under the preceding section. Proceedings may be 
had to subject the same to the payment of any such judg- 
ment recovered which remains unpaid, or any part thereof, 
either before or after execution shall issue against the prop- 
erty of the person against whom such judgment shall have 
been recovered; and when execution shall issue against the 
property so leased or rented, the officer shall proceed to sat- 
isfy said execution out of the building or premises so leased 
or occupied as aforesaid: Provided^ that if such building or 
premises belong to a minor or other person under guardian- 
ship, the guardian or conservator of such person, and his real 
and personal property, shall be held liable instead of such 
ward, and his property shall be subject to all the provisions 
of this section relating to thecollectionof said judgment."* 

§ 232. Ennmemted Cases held to be within the Statute Relating 
to Betting. — A bet or wager implies a risk in both parties;* 
therefore, where goods are sold at their fair valuation, to be 
paid for when a particular candidate is elected, the transac- 

> R S., 872, § 132. 

•Id. 8188. 

' Hizer v. State, 12 Ind., 830 ; Quarles v. State, 5 Humph., 561. 



166 TRIAL BEFOBE JUSTIOB. 

tion 18 not a bdt or wager/ though it would be a bet or wager 
if the goods were sold at a price exceeding their fair value.* 
So an agreement between two persons, the one to make the 
other a present of .a coat if the candidate selected by him is 
not elected, is in law a bet equally if it was such in words.* 
The voting of electors of this state for a president of the 
United States is an election within the meaning of the stat- 
ute.* Formerly betting on the result of an election in an- 
other state was held not to be illegal,* but under the present 
statute it is illegal to bet on an election to beheld anywhere.* 
Betting on a horse-race is bettiiig on a game within the mean- 
ing of the statute, and the money so lost may be recovered 
back.^ 

12. Babbatby. 

§ 233. ProvLnons of the Statute. — " If any person shall wick- 
edly and willfully excite and stir up any suits or quarrels be- 
tween the people of this state, either at law or otherv/ise, with 
a view to promote strife and contention, he shall be deemed 
guilty of common barratry, and shall be fined not exceeding 
one hundred dollars; and if he be an attorney or counselor- 
at-law, he shall be suspended from the practice of his profes- 
sion, for any time not exceeding six months."® 

STATEMENT OP THE OPPKNSB OP BARRATRY. 

{Commence as infbrm on page 113) that C. D., on the day of , A. 

D. 18 — , and on divers other days and times, as well before as afterwards,* 

' Quarles «. State, 5 Humph., 561. 

' Givcns v. Roger, 11 Ala., 543; Parsons o. State, 2 Ind., 499. 

' Johnson v. Jones, 3 Sm. & M., 456. 

• McClorken v. Detrick, 33 Ills., 349. 

• Morgan v. Pettit, 3 Scam., 529. 

• R. B., 872, e$ 132; David «. Ransom, 1 Greene Iowa, 883. 

^ Tatnian «. Strader, 23 Ills., 493; Mosher v. Griffin. 51 Ills., 184; Garrison 
tj. McGregor, 51 Ills., 473; contra^ Adams v. U. S., Morris Iowa, 169. 

• R. S., 355, § 26. 

• Probably the words " and on divers other days and times, as well before 
as afterwards," are unnecessary, though it is usual and safer to insert them, 
for without these words tlie court might possibly erroneously confine the 
proof within the limits of a single day. 2 Bish. Or. P., 103. 



BABBATBY. 167 

at, etc, in the county aforesaid, was a common barrator J and did on the said 
first-mentioned day, and on said other days and times, and tliere wickedly 
and willf\illy excite and stir up divers salts and quarrels between the peo- 
ple of this state, at law and otherwise, with a view then, and on said other 
days and tjmes, and there to promote strife and contention, to the common 
nuisance of all the people' {conclude as inform on page 112). 

§234. Bill of Particnlars. — According to the common-law 
practice, where the particular facts were not stated in charg- 
ing the offense of barratry, the prosecutor was required to 
give the defendant before the trial a note of the particular 
acts of barratry, which he intended to prove against him,* 
and if he did not, the court would not suffer the prosecution 
to proceed with the trial for the offense."* For otherwise it 
would have been impossible for him to have prepared for the 
defense.* The prosecutor was not at liberty to give evidence 
of any other acts of barratry than those which were stated in 
the note of the particulars.* But we do not know of any de- 
cision of the courts of this state adopting such practice here 
except so far as it is adopted as a part of the common law.^ 

§235. Who Guilty of Barratry. — A justice of the peace, by 
exciting and stirring up suits for the purpose of getting fees, 
makes himself guilty of barratry, though the suits are not 
groundless.* An attorney who merely maintains a ground- 
less action cannot be guilty of barratry if he did not advise 

' Alleging that the defendant was a common barrator, was necessary at 
common law, 2 Bish. Cr. L., § 65 ; Rex v. Hard wick, 1 Sid., 282 ; Reg. v. 
Harmon, 6 Mod., 311 ; Reg. v. Uriyn, 2 Saund., 308; and was a sufficient 
statement of the offense without showing any particular facts. 2 Arch. C. 
P. & PI., 1071 ; Lambert v. People, 9 Cowen, 578; Com. v, Davis, 11 Pick., 
432 ; 18 Pick., 362. 

' The conclusion to the common nuisance may possibly be essential. 2 
Bish. Cr. P., § 101. 

• Rex u. Hodgson, 3 Car. & P., 422 ; Rex «. Bootyman, 5 Car. & P., 590 ; 
Lambert v. People, 9 Cowen, 587; Com. v. Snelling, 15 Pick., 321. 

• 2 Bish. Cr. P., § 100. 

• Rex V, Grove, 6 Mod., 18; Anson v. Stewart, 1 T. R., 754. 

• Gkxldard v. Smith, 6 Mod., 262 ; Lambert v. People, 9 Cowen, 587 ; Com. 
«. Pray, 13 Pick., 362; Com. d. Davis, 11 Pick., 432. 

' U. S. V. Ross, Morris Iowa, 164. 

• State V. Chitty, 1 Bailey, 879. 



168 TBIAL BEFOBS JUSTIOB. 

or encourage its commencement.^ The offense of barratry 
may be committed by taking and keeping possession of lands 
in controversy, by all kinds of disturbance of the peace, or by 
spreading false rumors and calumnies whereby discord may 
grow among neighbors.' It has been held that a man does 
not make himself guilty of barratry by commencing any num- 
ber of false actions in his own right,* but the better opinion 
seems to be that if such actions are merely groundless and 
vexatious, without any manner of color, the party commenc- 
ing them is guilty of barratry.** The commencement of three 
suits, with intent to harrass and oppress the debtor, when only 
one was necessary, may be evidence of three acts of barratry.* 

§236. Number of "Suits or Quarrels" Necessary. — The words 
of the statute,* "suits or quarrels," seem to imply that there 
should be more suits or quarrels than one excited or stirred 
up. Just how many instances of offending must be proved, 
does not seem to be clearly settled by the authorities.' At 
common law three instances were ordinarily sufficient to make 
the defendant guilty of barratry.' 

§237. Jurisdiction— Attorney. — Where the accused is an 
attorney or counselor-at-law, since the punishment in addi- 
tion to the fine is that he shall be suspended from practice of 
his profession for any time not exceeding six months, a jus- 
tice of the peace has no jurisdiction of the offense.' Possibly 
to convict the defendant as an attorney or counselor, or to 
oust the justice of jurisdiction, it would be necessary to both 
allege and prove that he was an attorney or counselor. 

UHawkP. C. Cm81, §11. 

• Rex V. Urlyn, 2 Saund. R., n. 1 ; Hawk P. C. C, 81, §§ 1, 2; 8 Co., 30. 
» 2 Arch. C. P. ifc PI., 1070, Roll. Abr.; 355. 

• 2 Bish. Cr. L., § 66 ; 1 Hawk P. C. C, 475, § 3 ; Anonymous, 3 Mod., 97. 
» Com. V. McCuUoch, 15 Mass., 227 ; State v. Cbitty, 1 Bailey, 879. 

• R. 8., 355, 8 26. 

' Com. V. McCulloch, 15 Mass., 237; Com.t>. Davis, 11 Pick., 432; Com. v, 
Tubbs, 1 Cush., 2, 3 ; Sute v. Cbitty, 1 Bailoy, 379. 
■ 2 Bish. Cr. L.. g 65 ; Roscoe Cr. Ev., 808. 

• R 8., 405, § 381. 



haintenanoe 169 

13. Maintknanob. 

§ 238. Provisions of the Statute. — " If any person shall ofH- 
ciously intermeddle in any suit at common law or in chancery, 
that in nowise belongs to or concerns such person, by main- 
taining or assisting either party, with money or otherwise, to 
prosecute or defend sucli suit, with a view to promote litiga- 
tion, he shall be deemed guilty of maintenance, and upon con- 
viction thereof, shall be fined and punished as in cases of com- 
mon barratry: Provided^ that it shall not be considered main- 
tenance for a man to maintain the suit of his kinsman or ser- 
vant, or any poor person out of charity."* 

STATEMENT OP THE OFFENSE OF MAINTENANCE. 

{GomTMnee a$ in form on page 112) that on, etc., at, etc., in the said county, 
C. D. did unlawfully and ofiiciaUy intermeddle in a certain suit then and 
there depending and undetermined in the circuit Ci>urt of the said county 

of , wherein one E. P. was plaintiff and one Q. H. was defendant, in a 

plea of debt that then and there in nowise belonged to or concerned the 
said C. D., by then and there maintaining and assisting the said E. F., a 
party-plaintiff in the said suit, with money and otherwise, to then and there 
prosecute the said suit, with a view then and there to promote litigation,* 
contrary to the form of the statute in such case made and provided' (con- 
elude as inform on page 112). 

§ 239. Evidence of Officiously Intermeddling:, etc. — 1. It must 
be shown that the defendant offlcwuslj/ intermeddled with a 
suit hy maintaining or assisting^ with money or otherwise^ 
to prosecute *or defend it} This may be done by retaining one 
to be counsel for a party to the suit, or otherwise paying the 
whole or a part of the expenses of the suit,* or by furnishing 

» R. 8., 355, §27; Underwood v. Riley, 19 Wis., 412; Baker t>. Baker, 14 
Wis., 131. 

' It is not necessary to negative the proviso in the statute. 1 Bish. Cr. P., 
§639; Lequat v. People, 11 Ills., 330; Metzgar «. People, 14 Ills., 101; eon- 
tra, Mills v, Kennedy, 1 Bailey, 17. 

' Probably it is not necessary that the conclusion should be against the 
form of the statute. 2 Bish. Cr. P., § 115. 

* R. S., 855, § 27 ; Andrew «. Thayer, 30 Wis., 228. 

» 2 Arch. C. P. &P1., 1072; 1 Hawk P. C. C, 83, §4; Barker tf. Barker, U 
Wis., 131 ; Underwood «. Riley, 19 Wis., 412 ; Miller t>. Larson, Id., 463. 



170 TBIAL BEFORE JUSTICE. 

any other valuable thing for the purpose of maintaining the 
action, and by taking and holding possession of lauds in con- 
troversy for a party to the suit by force or subtilty.* Haw- 
kins said "that a man of great power, not learned in the law, 
may be guilty of maintenance by telling another who asks 
his advice that lie has a good title," but we cannot think that 
such is the law under our statute.' It seems clear that a man 
is in no danger of being guilty of an act of maintenance by 
giving another friendly advice as to his proper remedy at law 
or as to the counselor or attorney.'^ A mere promise to main- 
tain a suit is not in itself maintenance."* An attorney-at-iaw 
may contract to render services in the conduct of a suit for a 
fee contingent upon his success therein, and such fee may be 
a stipulated percentage of the amount, or a portion of the 
property recovered. Such contract does not make the attorney 
guilty of maintenance. Otherwise in case he undertakes to 
pay any part of the expenses of the litigation.* 

§ 240. Evidence of Want of Interest. — 2. It must be shown, 
unless the circumstances are such that it will be presumed 
that the suit in nowise belonged to or concerned the defend- 
ant,^ Probably under ordinary circumstances, this being a 
negative fact, particularly within the knowledge of the de- 
fendant, will be presumed unless the contrary is shown.^ If 
a person has an interest in a thing, whether great or small, 
certain or uncertain, vested or contingent, he may assist in 
maintaining an action for it.^ For example, it is not main- 
tenance for a vendor with a warranty to uphold his vendee in 



1 2 Bish. Or. L., § 123 ; Baley v, Deakins, 5 B. Monr., 159. 

• 2 Bish. Cr. L., § 126. 
•2HawkP. C. C, 83, §9. 

• Id., § 8 ; 2 Arch C. P. & PI., 1072. 

» Allard v. Lainirande, 29 Wis., 502; Stearns v. Pelker, 28 Wis., 595. 

• R. 8., 355, § 27. 

^ Great Western R. R. Co. v. Bacon, 30 Ills., 347 ; Potter tj. Deyo, 19 
Wen., 861. 

• Master fj. Miller, 4 T. R., 320; Thalihimer «. Brinckerhoff, 3 Cowen,689; 
Lathrop 9. Amherst Bank, 9 Met., 489; Knight v. Sawin, 6 GreenL, 861; 
Oommins d. Latham, 4 B. Monr., lUo ; Wickham v. Conklin, 8 John., 220. 



MAINTENANOR. 171 

a suit about the title.^ An heir-apparent is permitted to do 
the same for an ancestor concerning the inheritance of land of 
which he is seized in fee.* So where several are interested in 
the general question to be decided, they may contribute to the 
expense of obtaining a judicial determination of that ques- 
tion.' 

§ 241. 3. Evidence of Intermeddling to Promote Litigation. — 3. 
It must be proved that the intermeddling, by maintaining or 
assisting in the prosecution or defense of the suit, was with 
a view to promote litigation} Many acts deemed mainte- 
nance at common law are not offenses under our statute, for 
the reason that they are not done with a view to promote liti- 
gation. An attorney may maintain a suit for a party under 
an agreement to divide the money or property recovered 
without being deemed guilty of maintenance.^ The statute 
permits "a man to maintain the suit of his kinsman, servant 
or any poor person out of charity."* And under a variety of 
circumstances landlords and tenants may assist one another in 
their suits,^ but a servant cannot lawfully lay out his own 
money to assist the master in his suit if done with a view 
to promote litigation.' The general rule is that whenever 
there is a moral duty to assist another in a cause, or the act 
is done without the intent of promoting litigation, the assis- 
tance rendered is no violation of law.® 

§ 242. Champeity. — The common -law offenses of champerty 
and barratry, except so far as they are included in the statu- 

' Williamson v. Sammons, 84 Ala.^ 691 ; Goodspecd o. Fuller, 46 Mc, 141. 

• 1 Hawk P. C. C, 457, § 18 ; Persse tJ. Perase, 7 CI. & F., 279 ; Thalihimer 
o. Brinckerhoff, 3 Cowen, 639. 

• Gowen c. Nowell, 1 Greenl., 293 ; Frost c. Paine, 12 Me., 111. 
*R. 8., 355, §27. 

• Newkirk v. Cone, 18 Ills., 449. 

• R. 8.. 855, § 27. 

» 1 Hawk P. C. C, 459, § 27 ; Thalihimer «. Brinckerhoff, 8 Cowen, 638. 

• 1 Hawk P. C. C, 83, §§ 36, 37. 

• 3 Biah. Cr. L., § 128. 



172 TSIAL BEFORE JUSTICE. 

tory offenses of barratry and maintenance, are abolished in 
this state.^ 

14. Compounding a Crime. 

§ 243. Provisions of the Statnte. — " Whoever takes money, 
goods, chattels, lands or other reward, or promise thereof, to 
compound any criminal offense, shall be fined in double the 
sum or value of the thing agreed for or taken; but no person 
shall be debarred from taking his goods or property from the 
thief or felon, or receiving compensation for the private in- 
jury occasioned by the commission of any such criminal of- 
fense."* 

§ 244. Jurisdiction. — A justice of the peace has jurisdiction 
to try the offense only where the sum or value of the thing 
agreed for or taken does not exceed one hundred dollars." 

STATEMENT OF THE OFFENSB OF COMPOUKDINQ A CRIME. 

(Commence by stating the offenee compounded as in ordinary cases and 

then add) that C. D. afterwards^ to wit., on the* day of , A. D 18 — , 

at, etc., in the said county, well knowing the said criminal offense had been 
committed, did unlawfully take and receive of tlic said £. F. a large sum 
of money, to wit., the sum of fifty dollars, to then and there compound the 
said criminal ofiense, contrary to the form of tlie statute in such ca^c made 
and provided (conclude as infoftn on page 112). 

§ 245. Rale at Common Law and under tlie Statute as to Com- 
ponndin^ Crimea. — At common law it was not uncommon 
when a person was convicted of a misdemeanor which 
principally and more immediately affected some individual, 
as battery, imprisonment, or the like, for the court to permit 

> Newkirk v. Cone, 18 Ills., 449. In Ohio, Key v. Vatticr, 1 Ohio, 182, 
Iowa, Wright v. Meek, 8 Greene, 473, and Vermont, Dauforth v. Streeter, 28 
Vt., 490, champerty is not a criminal offense. 

• Id., § 48. 

» R. S., 858, § 43 ; Id., 405, § 381. 

* Where the time of committing the offense is alleged to be on a day 
subsequent in date to thaJ on which it was charged to have been com. 
pounded, although charged to have been compounded afterwards, the affi. 
davit is insufficient State v. Dandy, 1 Brer., 895. 



COHPOUKDING A CBIHE. 178 

the defendant to speak with the prosecutor before any judg- 
ment was pronounced, and if the prosecutor declared himself 
satisfied, to inflict but a trivial punishment;' but in this state, 
tinder our statute,^ there can be no settlement or compound- 
ing of either a felony' or a misdemeanor.^ Even in an action 
on a penal statute, the plaintiflF has no right to compound 
with the defoTidant without leave of the court, but he has a 
right to receive payment of the penalty or judgment, and may 
discharge it without leave of the court.^ 

§ 24:6. What a Compoanding of a Crime. — Wliere a person who 
is charged with larceny pays money to the person from whom 
the property was stolen, uix)n an agreement that the latter 
would not prosecute for the larceny, that would be compound- 
ing a felony, and would of itself constitute a crime, and 
be punishable as such. If, however, the money was paid to 
the owner of the property stolen, for the purpose of reimburs- 
ing the latter for the expense he had incurred in searching for 
the property, the taking or receiving the money would not be 
criminal.* Where a man accused his cashier of stealing 
money, and the cashier gave his note indorsed by his father 
to settle the matter, there being no prosecution set on foot or 
agreement not to prosecute it, it was held that there was no 
compounding a crime.^ Accepting the promissory note of 
one guilty of larceny, as a conpideration for not prosecuting the 
offense, amounts to a compounding of a felony.' 

> 4 Blackf., 868 ; Beeley n. Wingfleld, 11 East, 46 ; Baker «. Townsend, 7 
Taunt., 422; Kirk o. Strickwood, 4 B. <& Ad., 421. 
• 'R. 8., 358, §43. 

'Jones D. Rice, 18 Pick., 440; Com. «. Pease, 16 Mass., 91; Plumer o. 
Bmith, 5 N. H., 558; Rex o. Stone, 4 Car. & P., 879; Bothwello. Brown, 51 
Ills,, 234; Taylor «. Cottrell, 16 Ills., 94. 

^Collins V. Blantern, 2 Wilson, 841; Edgecombe d. Rodd, 5 East, 294; 
Jones t?. Rice, 18 Pick., 440; Beeley v. Wingfield, 11 East, 46, n. 1. 

* Bradway qui tarn «. Lewortby, 9 John., 251 ; Plummer d. Smith, 5 K. H., 
658; Bailey o Buck, 11 Vt., 252; Burr., 1929; Qrovtel qui tarn v. Woodworth, 
11 John., 474; Uinesburg o. Sumner, 9 Vt, 26. 

* Bothwell V. Brown, 51 Ills., 234; Taylor v, Cottrell, 16 Ills, 94. 
» CaUin t>, Henton, 9 Wis., 476. 

* Com V. Pease, 16 Mass., 94; Com. d. Corey, 2 Mass., 524; 1 Camp., 46; % 
M. & S., 201. 



174 TRIAL BEFORE JUSTICE. 

• 

§247. Evidence. — The record of the conviction is prima 
facie evidence of the felony, but not conclusive as against the 
compounder;* but in the case of a prosecution for compound- 
ing a crime and agreeing to withhold evidence, the acquittal 
of the principal offender is not competent evidence for the 
defense.^ 

16. Assuming a Corporate Name. 

§ 248. Provisions of the Statute. — "If any company, associa- 
tion or person puts forth any sign or advertisement, and there- 
in assumes, for the purpose of soliciting business, a corporate 
name, not being incorporated, or, being incorporated, puts 
forth any sign or advertisement assuming any other or differ- 
ent name than that by which it is incorporated or authorized 
by law to act, such company, association or person shall be 
fined not less than ten dollars nor more than two hundred 
dollars, and a like sum for each day he or it shall continue to 
offend after having been once fined."* 

BTATEMENT OF THE OFFENSE OF ASSUMING A CORPORATE NAME. 

{Commence as in form on page 112) that C. D. and E. F., on, et<5., at, etc.» 
in the said county, then and there being a company, did put forth a cer- 
tain sign and did then and there therein assume, for the purpose of soliciting 
business, a corporate name, the said C. D. and E. F. not being then and there 
incorporated, contrary to the form of the statute in such case made and 
provided (conclude as in form on page 112). 

16. Refusing to Allow Pbisoneb to See Counsel. 

§ 249. Provisions of the Statute. — " All public officers, sher- 
ifis, coroners, jailors, constables or other officers or persons 
having the custody of any person committed, imprisoned or 
restrained of his liberty for any alleged cause whatever, shall, 
except in cases of imminent danger of an escape, admit any 
practicing attorney-at-law of this state, whom such person so 

> State 0. Duhammel, 2 Barring., 532. 

* People D. Buckland, 18 Wen., 592. 

* R S., 885, § 220. 



OMTTiraG TO LABEL POISONOUS DRUGS. 175 

restrained of his liberty may desire to see or consult, to see 
and consult such person so imprisoned, alone and in private, 
at the jail or other place of custody; and when any such 
prisoner is about to be removed beyond the limits of this 
state by any person or public officer, under any pretence 
whatever, he shall at all times be entitled to reasonable delay 
for the purpose of obtaining counsel, and of availing himself 
of the laws of this state for the security of personal liberty. 
If any public officer, or other person aforesaid, shall violate 
the provisions of this act (section), he shall, for every such 
offense, forfeit and pay to the person aggrieved, one hundred 
dollars, to be recovered by action of debt,* in any court of 
competent jurisdiction.^ 

17. Omitting to Label ob Keep Record of Poisonous 

Deugs Sold or Given Away. 

§ 250. Selling Poisonons Drags withoat being Labeled. — 
" Every druggist or other person who shall sell and deliver 
any arsenic, strychnine, corrosive sublimate, prussic acid or 
any other substance or liquid usually denominated as poison- 
ous, without having the word "poison" written or printed 
upon a label attached to the phial or parcel in which such 
drug is contained, or shall sell and deliver any drug or med- 
icine other than upon the prescription of a physician, without 
having the name of such drug or medicine printed or written 
upon a label attached to the phial or parcel containing the 
same, shall be fined not exceeding twenty-five dollars."* 

STATEMENT OF THE OFFENSE OF SELLING ARSENIC WITHOUT BEINQ 

PROFEULY LABELED. 

(Commence as inform on page 112) that C. D.^ on, etc., at, etc., in the said 
county, did sell, and then and there deliver, arsenic, then and there being 
a poisonous substance, to one E. F., without then and there having the 

> A Justice of the peace has jurisdiction of the action of debt. R. 8., 689, *" 
§ 13. Therefore he lias jurisdiction of an action for violating the provisions 
of this section of tlie statute. 

• R S., 387, § 229. 

•Id., 361, §62. 



!76 TBIAL BEFOBE JUSTICE. 

ford ^ poiaon" written or printed upon a label attached to the phial (or 
** parcel^*) in which the said arsenic was then and there contained^ contrary 
to the form of the statute in such case made and provided (conclude as tn 
form on page 112;. 

§ 251. Selling, etc., Poisonous Drugs withoat Keeping a Record. — 

" If any druggist or other person sells or gives away any arsenic, 
strychnine, corrosive sublimate or prussic acid, without the 
written prescription of a physician, and fails to keep a record 
of the date of such sale or gift, the article and amount thereof 
sold or given away, and the person to whom delivered, he 
shall be fined not exceeding fifty dollars for each neglect. 
Wlioever purchases any such poison and gives a false or ficti- 
tious name, shall be punished in the same manner."^ 

STATEMEKT OP THE OFFENSE OF FAILTNO TO KEEP RECORD OF THE 

BALE OR GIFT OF BTRTCHKINE. 

(Commence as in form on page 112) that C. D., on« etc., at, etc., in said 
county, did sell strychnine without the written prescription of a physician, 
and did not then and tliere keep a record of such sale, nor of the amount of 
said stryclinine so sold, nor of the person to whom the said strychnine was 
then and tliere delivered, contrary to the form of the statute in such case 
made and provided (conclude as inform on page 112). 

18. Dbunkenness. 

§252. Provisions of the Statute. — "Any intoxicated person 
found in any street, highway, or other public place, or so found 
disturbing the peace of the public, or of his own or any other 
ikmily in any private building or place, shall for the first of- 
fense be fined not more than five dollars, and upon any sub- 
sequent conviction shall be fined not exceeding twenty-five 
dollars. Prosecutions under this section shall be commenced 
within thirty days after the offense is committed, and the 
justice of the peace may remit the punishment, in whole or 
in part, when he is satisfied the public welfare and the good 
of the offender require it."* 

' R 8., 881, § 63. 
■Id., §64. 



OFFIOEB NOT TRYING TO PREVENT A DUEL. 177 

STATEMENT OF THE OFFENSE OF DRUNKENNESS. 

(Commence a$ in form onpage 112) that C. D., on, etc., at, etc., was found in 
a public street then and there intoxicated, contrary to the form of the statute 
in sucli case made and provided (conclude as inform onpage 112). 

§253. Oontinned — Of Officer. — The statute provides that 
"any oflScer of a town, village, city, county or state, who shall 
be intoxicated while in the discharge of the duties of his 
office, shall be fined for the first offense tlie sum of ten dollars, 
and for the second offense the sum of twenty dollars, and 
for the third offense shall be guilty of a misdemeanor, and, on 
conviction of such misdemeanor, shall forfeit his oflice; and 
in such case the vacancy occasioned thereby shall be filled in 
the same manner as if such officer had filed his resignation in 
the proper office, and it had been accepted by the proper offi- 
cer: Provided^ such acceptance shall have been necessary to 
make the office vacant. The penalties for the first and second 
offense given by this section may be recovered in an action 
of debt, in the name of the people of the State of Illinois, be- 
fore any justice of the peace of the proper county, and when 
collected shall be paid to the county superintendent where 
such offense shall have been committed, for the use of the 
school fund."^ 

19. Officek not Trying to Prevent a Duel. 

§264. Provisions of the Statnte. — "If any judge, justice of 
the peace, sheriff, or other officer bound to preserve the pub- 
lic peace, shall have knowledge of an intention on the part of 
any two persons to fight with a deadly weapon or weapons, 
and such officer shall not use and exert his official authority 
to arrest the parties and prevent the duel, every such officer 
shall be fined not exceeding one hundred dollars."* 



> R 8., 888, 
'Id., 862, §73. 

13 



178 TBIAL BEFOBB jaSTICB. 

STATEMENT OP THE OFFENSE OF AN OFFICEB NOT TRYIHO TO PRBTENT 

A DUEL. 

(Commence as inform on page 112) that C. D., on, etc., at, etc., in the said 
county, then and there being a sheriff of the said county, and being then 
and there bound to preserve the public peace, and tlien and there having 
knowledge of the intention on the part of £. F. and G. H. to fight with 
deadly weapons, did not use and exeii his official authority to arrest the 
said E. F. and G. 11. and then and there to prevent the duel, contrary to the 
form of the statute in such case Inade and provided {conclude as in form 
on page 112). 

20. Officer Neglecting to Suppress an Unlawful As- 
sembly OF Twelve or More Persons. 

§ 356. Provisions of the Statute. — The statute provides in 
substance that " when twelve or more persons, any of them 
armed with clubs or dangerous weapons, or thirty or more, 
armed or unarmed, are unlawfully, riotously or tumultuously 
assembled in any city, village or town, it shall be the duty ot 
each of the municipal officers, constables and justices of the 
peace thereof, and of the sheriif of the county and his depu- 
ties, to go among the persons so assembled, or as near to 
them as they can safely go, and in the name of the state com- 
mand them immediately and peaceably to disperse; and if 
they do not obey, such officers shall command tlie assistance 
of all persons present, in arresting and securing the persons 
so unlawfully assembled;" " and each such officer having no- 
tice of such unlawful assembly, refusing or neglecting to do 
his duty in relation thereto as aforesaid, shall be fined not 
exceeding two hundred dollars."^ 

STATEMENT OF THE OFFENSE OF NEOLECTING TO SUFPBE88 AN UN 

LAWFUL ASSEMBLY. 

(Commence as in form on page 112) that on^ etc., at, etc., in the said county, 
twelve or more persons, some of them armed with clubs and dangerous 
weapons, were unlawfully, riotously, and tumultuously assembled in the 
said town (or village or city) \ that C. D., then and there being a sherifif of 
the county aforesaid, aud then and there having notice of the said unlawful 
assembly, did then and there refuse and neglect to go among the persons so 

> R 8^ 890, § 2o3. 



ILLEGAL FEES. 179 

assembled, or as near to them as he could safely go, and then and there in 
the name of the state command them immediately and peaceably to disperse, 
contrary to the form of the statute in such case made and provided (conclude 
a» inform on page 112). 

21. Illegal Fees. 

§ 256. Provisions of the Statute. — " If any officer authorized 
by law to charge fees shall charge, claim, demand or take any 
greater fee than such as is by law allowed to him for the ser- 
vice performed, or shall charge, claim, demand or take any 
fee, or who shall knowingly charge a fee when no fee is al- 
lowed him by law, or when the services for which such fee is 
charged have not been performed by him or by some person 
for him, he shall, on the first conviction thereof, be fined not 
less than twenty-five dollars nor more than two hundred dol- 
lars, and upon a subsequent conviction of any like oft'ense he 
shall forfeit his office, and be confined in the county jail not 
less than thirty days nor more than one year.'" 

STATEMENT OF THE OFFENSE OF TAKING ILLEGAL FEES. 

(Commence as in form on page 112) that C. D., on, etc., at, etc., in the said 
county, then and there being a justice of the peace of said county, and then 
and there authorized by law to charge fees, did unlawfully charge, claim, 
demand, and take a greater fee than such as was by law then and there al- 
lowed tn him, to wiL^ for administering an oath to a witness on a trial then 
and there had before him between the said A. B. and one £. F., the sum of 
twenty-five cents, contrary to the form of the statute in such case made and 
provided (conclude as in form on page 112). 

§ 257. Ckmtinned — Private Remedy. — " Any officer who vio- 
lates the provisions of the preceding section shall, in addi- 
tion to the penalty therein provided, be fined for each item so 
charged, collected or received not less than ten dollars, nor 
more than one hundred dollars, to be sued for and recovered 
before any justice of the peace of the proper county, in an ac- 
tion of debt, in the name of the People of the State of lUi- 

' R S., 884, § 218. 



180 TRIAL BEFORE JUSTICE. 

nois, and for the use of the person against whom such fee is 
charged, or from whom the same is received or collected."* 

22. Intimidation of Workmen, etc. 

§258. Provisions of the Statute. — " If any person shall, by 
threat, intimidation or unlawful interference, seek to prevent 
any other person from working or from obtaining work at 
any lawful business, on any terms that he may see fit, such 
person so oflfending shall be fined not exceeding two hundred 
dollars."*^ 

statekent of the offense of intimidating wohkmek. 

{Commence as inform on page 112) that 0. D., on, etc., at, etc., in the said 
county, did then and there, by threat, iutimidation and onlawful interference, 
seek then and there to prevent E. F. from working at a lawful business on 
the terms that C. D. then and there saw fit, contrary to the form of the 
statute in such case made and provided (eondude as inform on page 112). 

23. Advertising Lotteries. 

m 

§ 259. Provisions of the Statute. — " Whoever knowingly 
prints, publishes, distributes or circulates, or knowingly 
causes to be printed, published, distributed or circulated, any 
advertisement of any lottery ticket or scheme, or any share 
in such ticket or scheme, for sale, eitlier himself or by another 
person, or sets up, or exhibits, or devises, or makes, for tl\e 
purpose of being set up and exhibited, any sign, symbol, or 
emblematic or other representation of a lottery, or the draw- 
ing thereof, in any way indicating where a lottery ticket or 
any share thereof, or any such writing, certificate, bill, token, 
or other device before mentioned may be purchased or ob- 
tained, or in ^ny way invites, or entices, or attempts to invite 
or entice, any other person to purchase or receive the same, 

'« 

' R. S., 8^, § 214. A proceeding under the preceding section for the 
same violation will not be a bar to an action under this. People d. Sto> 
phens, 18 Wen., 841 ; Batchley o. Moser, 15 Wen., 215. 

• R. S., 876, § 169. 



VAGABONDS. 181 

shall, for each offense be fined not exceeding one hundred 
dollars."' 

8TATBMBNT OF THB OFFENSE OF ADVERTISING A LOTTERT. 

(Oommenee as in form on page 112) that C. D., on, etc., at, etc., ia the said 
county, did unlawfully and knowingly prints publish, distribute and circu. 
late an advertisement of a lottery ticket and scheme for sale, contrary to 
the form of tlie statute in such case made and provided (conclude as in 
form on page 112). 

§ 260. Evidence. — It is not necessary to allege nor to prove 
upon the trial what kind of tickets the defendant advertised, 
nor that they were advertised as being for sale within the 
county where the indictment was found.* A sign-board at a 
person's place of business, giving notice that lottery- tickets 
are for sale there, is an advertisement within the meaning of 
the statute.' And the continuance of such a sign-board, 
though put up before the statute went into effect, is a new 
advertisement by which the penalty of the statute is incurred.^ 

24. Vagabonds. 

§ 261. Provisions of the Statute. — "Vagabonds, idle and dis- 
* solute persons who go about begging, persons who use any 
juggling or unlawful games or plays, runaways, pilferers, 
common drunkards, common night-walkers, lewd, wanton and 
lascivious persons in speech or behavior, common railers and 
brawlers, persons who habitually neglect their employment 
or calling, and do not provide for themselves or for the support 
of their families, and all other idle and disorderly persons, in- 
cluding therein those persons who neglect all lawful business, 
and habitually misspend their time \>y frequenting houses of 
ill-fame, gaming houses or tippling shops, may be confined in 
the county jail, or in the work-house, if any there be in the 
county, or in the house of correction, if any there be in the 

' R 8., 379, § 183. 

• Com. ». Hooper, 5 Pick., 42; Com. v, Johnson, Thatcher, C. C, 284. 

• Com. V, Hooper, 5 Pick., 42. 

• Id. • Com. f». Johnson, Thatcher, C. C, 140. 



182 TBIAL BEFORE JUSTICE. 

county, to which the county has a right to commit any person, 
not exceeding six months.''^ 

STATEMENT OF THE OFFENSE OF BSINO ▲ VAGABOND. 

(Commence as in form on page 112) that C. D., on the day of , 

A. D. 18 — , and from thenceforth to the present time, at, etc., in the said 
county, being then at the time first above mentioned, and all the time since 
to the present time, and there a vagabond, did go about begging, contrary 
to the form of the statute in such case made and provided {condude ae in 
form on page 112). 

§ 262. Continued — Conviction before a Justice. — "When a per- 
son is convicted before a justice of the peace or police magis- 
trate of any offense mentioned in the preceding section, he 
may, instead of the punishment therein mentioned, be fined 
not exceeding twenty dollars, with or without a condition 
that if the same, with the costs of the proceeding, is not paid 
within the time specified, he shall be committed to the county 
iail or to the workhouse, if any there be within the county, or 
to the house of correction, if any there be in the county, to 
which the county has a right to commit any person, as is pro- 
vided in the preceding section, which conditional sentence 
shall be carried into execution as in other cases of commit- 
ment.^ 

26. Selling Liquoe Without License. 

§263. Dram Shop Defined. — '* A dram-shop is a place where 
spirituous or vinous or malt liquors are retailed by less quan- 
tity than one gallon, and intoxicating liquors shall be deemed 
to include all such liquors within the meaning of this act."* 

§ 264. Definition and Pnnisliment. — " Whoever, not having a 
license to keep a dram-shop, shall by himself^ or another, 

> R. S., 392, § 270. The justice has jurisdiction under this section. R. 8., 
405, §381. 

•R. S., 893, §271. 

* Id., 438, § 1. The sale of cider at a public bar is not an offense under 
the statute, witliout proof that the cider was intoxicaling. Com. «. Chap- 
pel, 116 Mass., 7. 



SELLING LIQUOS WITHOUT LICENSE. 183 

either as principal, clerk or servant, directly or indirectly, sell 
any intoxicating liquor in any less quantity than one gallon, 
or in any quantity to be drank upon the premises, or in or 
upon any adjacent room, building, yard, premises or place of 
public resort, shall be fined not less than $20 nor more than 
$100, and imprisoned in the county jail not less than ten nor 
more than thirty days/'^ 

§ 266. How License may be Granted. — "The county boards of 
each county may grant licenses to keep so many dram-shops 
in their county as they may think tlie public good requires, 
upon the application by petition of a majority of the legal 
voters of the town, if the county is under township organiz- 
ation, and if not under township organization, then of a ma- 
jority of the legal voters of the election precinct or district, 
where the same is proposed to be located, and upon the pay- 
ment into the county treasury of such sum as the board may 
require, not Jess than $50 nor more than $300 for each li- 
cense, and upon the compliancy with the provisions of this 
act : Provided^ such board shall not have power to issue any 
license to keep anj' dram-shop in any incorporated city, town 
or village, or within two miles of the same, in which the cor- 
porate authorities have authority to license, regulate, restrain 
or prohibit the sale of liquors, or in any place where the sale 
of intoxicating liquors is prohibited by law."^ 

§ 266. Form of License — Rights under — May be Revoked. — 
" The license shall state the time for which it is granted, which 
shall not exceed one year, the place where the dram-shop is 
to be kept, and shall not be transferable,' nor shall the per- 
son licensed keep a dram-shop at more than one place at the 
same time, and any license granted may be revoked by the 
county board whenever they shall be satisfied that the person 
licensed has violated any of the provisions of this act, or 
keeps a disorderly or ill-governed house or place of^resort for 

> R. 8., 438, 2 2. As to construction of former, statute, see Anderson o. 
People, 68 Ills., 53. 
»R.8.,438, §3. 
' Lewis V, U. S., Morris Iowa, 109. 



184 TSIAL BEFOSE JU6TI0B. 

idle or dissolute persons, or allows any illegal gaming in his 
dram-shop, or in any house or place adjacent thereto."* 

§267. Bond — How Taken, Suit on. — "No person shall be 
licensed to keep a. dram-shop, or to sell intoxicating liquors, 
by any county board, or the authorities of any city, town, or 
village, unless he shall first give a bond in the penal sum of 
$3000, payable to the people of the state of Illinois, with at 
least two good and sufficient sureties, freeholders of the county 
in which the license is to be granted, to be approved by the 
officer who may be authorized to issue the license, conditioned 
that he will pay to all persons all damages that they may sus- 
tain, either in person or property or means of support, by 
reason of the person so obtaining a license, selling or giving 
away intoxicating liquors. The officer taking such bond may 
examine any person oflfered as security upon any such bond, 
under oath, and require him to subscribe and swear to his 
statement in regard to his pecuniary ability to become such 
security. Any bond taken pursuant to this section may be 
sued upon for the use of any person or his legal representa- 
tives, who may be injured by reason of the selling or giving 
away any intoxicating liquor by the person so licensed, or by 
his agent or servant."^ 

§ 268. Selling: or Giving: to a Minor or Drunkard. — " Wlioever 
by himself or his agent or servant, shall sell or give intoxi- 
cating liquor to any minor without the written order of his 
parent, guardian, or family physician, or to any person intox- 
icated, or who is in the habit of getting intoxicated, shall for 
each offense be fined not less than $20 nor more than $100, 
and imprisoned in the county jail not less than ten nor more 
than thirty days."^ 

§ 269. Nuisances — Penalty — Bond — Evidence. — " All places 
where intoxicating liquors are sold in violation of this act, 



» R. 8., 488, § 4. 

• Id., 439, g 5. 

' Id., g 6. The sale of intoxicating liquors to a minor is an offense under 
this section though the vendor does not know that the purchaser is a minor. 
Btate V. Hartfleld, 24 Wis., 60. 



SELLING LIQUOR WITHOUT LIOUNSE. 185 

shall be taken, held and be declared to be common nuisances, 
and all rooms, taverns, eating-houses, bazars, restaurants, drug 
stores, groceries, coffee-houses, cellars or other places of public 
resort, where intoxicating liquors are sold, in violation of this 
act, shall be deemed public nuisances ; and whoever shall keep 
any such place, by himself, his agent, or servant, shall for 
each offense be fined not less than $50 nor more than $100, 
and confined in the county jail not less than twenty nor more 
than fifty days, and it shall be a part of the judgment, upon 
the conviction of the keeper, that the place so kept shall be 
shut up and abated until the keeper shall give bond, with suf- 
ficient security to be approved by the court, in the penal sum 
of $1,000 payable to the People of the State of Illinois, con- 
ditioned, that he will not sell intoxicating liquors contrary to 
the laws of this state, and will pay all fines, costs, and dam- 
ages assessed against him for any violation thereof; and in 
case of a forfeiture of such bond, suit may be brought there- 
on for the use of the county, city, town, or village, in case of 
a fine due to either of them. It shall not be necessary in any 
prosecution under this section to sUite the name of any per- 
son to whom liquor is sold."* 

§ 270. Liability for Snpport, etc — " Every person who shall, 
by the sale of intoxicating liquors, with or without a license, 
cause the intoxication of any other person, shall be liable for 
and compelled to pay a reasonable compensation to any per- 
son who may take charge of and provide for such intoxicated 
person, and two dollars per day in addition thereto for every 
day such intoxicated person shall be kept in consequence of 
such intoxication, which sums may be recovered in an action 
of debt before any court having competent jurisdiction."* 

§ 271. Suits for Damages by Husband, Wife, Ciiild, etc. — Forfeit- 
ure of Lease, etc. — " Every husband, wife, child, parent, guar 
dian, employer or other person, who shall be injured in per- 
son or ])roperty or means of support, by any intoxicated per- 
son, or in consequence of the intoxication, habitual or otherwise, 

»R8.,438,§7. 
•Id., §8. 



186 TBIAL BEFOEE JUSTICE. 

of any person, shall have a right of action in his or her own 
name, severally or jointly, against any person or persons who 
shall, by selling or giving intoxicating liquors, have caused 
the intoxication in whole or in part of sucli person or per- 
sons; and any person owning, renting, leasing or permitting 
the occupation of any building or premises, and having 
knowledge that intoxicating liquors are to be sold therein, or 
who, having leased the same for other purposes, shall know- 
ingly permit therein the sale of any intoxicating liquors, that 
have caused, in whole or in part, the intoxication of any per- 
son, shall be liable, severally or jointly, with the person or 
persons selling or giving intoxicating liquors aforesaid, for 
all damages sustained, and for exemplary damages; and a 
married woman shall have the same right to bring suits and 
to control the same and the amount recovered, as ajfeme 8ole\ 
and all damages recovered by a minor under this act shall be 
paid either to such minor or to his or her parent, guardian or 
next friend as the court shall direct; and the unlawful sale 
or giving away of intoxicating liquors shall work a forfeiture 
of all rights of the lessee or tenant, under any lease or con- 
tract of rent upon the premises where such unlawful sale or 
giving away shall take place; and all suits for damages un- 
der this act may be by an appropriate action in any of the 
courts of this state having competent jurisdiction."* 

§ 272. What Liable to Execution — Proceeding to Enforce. — 
"For the payment of any judgment for damages and costs that 
may be recovered against any person in consequence of the 
sale of intoxicating liquors under the preceding section, the 
real estate and personal property of such person, of every 
kind, except such as may be exempt from levy and sale upon 
judgment and execution, shall be liable; and such judgment 
shall be a lien upon such real estate until paid; and in case 
any person shall rent or lease to another any building or 
premises to be used or occupied, in whole or in part, for the 
sale of intoxicating liquors, or shall knowingly permit the 

' K 8., 438, §9. As to the constitutionality of this section, see NotTis House 
«. State, 8 Greene Iowa, 512 ; Our House No. 2 o. State, 4 Greene Iowa, 172. 



SELLING LIQUOR WITHOUT LICENSE. 187 

same to be so used or occupied, such building or premises so 
used or occupied shall be held liable for, and may be sold to 
pay any such judgment against any person occupying any 
such building or premises. Proceedings may be had to sub- 
ject the same to the payment of any such judgment, which 
remains unpaid, or any part thereof, either before or after ex- 
ecution shall issue against the property of the person against 
whom such judgment shall have been recovered; and when 
execution shall issue against the property so leased or rented, 
the officer shall proceed to satisfy said execution out of the 
building or premises so leased or occupied, as aforesaid: Pro- 
vided^ that if such building or premises belong to a minor or 
other person under guardianship, the guardian or conservator 
of such person, and his real and pereional property, shall be 
Kable instead of such ward, and his property shall be subject 
to all the provisions of this section relating to the collection 
of the said judgment."* 

§ 273. When Snit may be before Justice. — " When the dam- 
ages claimed under either the eighth or ninth section of tliis 
act do not exceed the sum of two hundred dollars, the action 
therefor may be prosecuted before a justice of the peace of 
the proper county, and the judgment may be enforced in the 
same manner as other judgments recovered before justices of 
the peace. "^ 

§ 274. Indictment or Fine. — "Any fine or imprisonment men- 
tioned in this act may be enforced by indictment in any 
court of record having criminal jurisdiction, or the fine above 
may be sued for and recovered before any justice of the peace 
of the proper county, in the name of the People of the State 
of Illinois; and in case of conviction the ofiender shall stand 
committed to the county jail until the judgment and costs are 
fully paid."» 

§ 275. Shifts. — " The giving away of intoxicating liquors^ 

» R 8.. 438, § 11. 
• Id., § 12. 
»IcL,gl2. 



188 TRIAL BEFOKS JUSTICB. 

or other shift or device, to evade the provisions of this act, 
shall be held to be an unlawful selliug."^ 

§ 276. Evidence. — " In all prosecutions under this act, by 
indictment or otherwise, it shall not be necessary to state the 
kind of liquor sold; nor to describe the place where sold; nor 
to show the knowledge of the principal, to convict for the 
acts of an agent or servant; and in all cases the persons to 
whom intoxicating liquors shall be sold in violation of this 
act, shall be competent witnesses."' 

§ 277. City or ViUa^re Ordinanee no Defense. — <^It shall be no 
objection to a recovery under this act that the oftense for 
which the person is prosecuted is punishable under any city, 
village or town ordinance."* 

STATBMENT OF THE OFFBIYSB OF 8ELLIKO LIQUOK WITHOUT A LICBN8B.* 

{Conunmee agin formonpukge 112) that C. D., oUfetCf at,* etc., ia the said 
county then not having a legal license to keep a dram-shop," unlawfully and 

> R. 8., 438, § 18 ; Allen «. State, 5 Wis., 829. 

* Id., § 14. 
■ Id., § 15. 

* A warrant cannot issue without an affidavit or complaint, ii. S., 040, § 
22; Smith v. Brown, 6 Chicago Legal News, 392; R S., 59, Cons. Art. IL, § 
6. Since the proceeding before a justice is a criminal prosecution, Ward 
«. People, 13 Ills., 635; Webster v. People, 14 Ills., 367; but see Qraubuero. 
City of Jacksonville, 50 Ills., 87, the constitution gives the accused the right 
to appear and defend in person and by counsel, to demand the nature and 
cause of the accusation, and to have a copy thereof. R. S., 00 ; Cons. Art. 
II., §9; Sullivan t>. City of Oneida, 61 Ills., 243; Fink v. City of- Milwau- 
kee, 17 Wis., 27, which seems to imply that the nature and cause of the ac- 
cusation should be stated in writing. Ante §40. For form of complaint in 
the State of Wisconsin, see State v. Bielby, 21 Wis., 204; in Iowa, see 
Divine t. State, 4 Iowa, 444; State v. Ansaleme, 15 Iowa, 40. 

* It is sufficient if the offense is charged to have been committed in the ap- 
propriate county, although it is desirable, but not essential, that the town 
or city be designated, Zumoff v. State, 4 Greene Iowa, 526 ; eojUniy House «. 
State, 3 Greene Iowa, 513; State v. Winsfraud, 37 Iowa, 110. 

* This is a sufficient allegation of not having a license. Cannady «. 
People, 17 Ills., 159; State v. Bums, 20 N. U., 550; Allen t. State. 5 Wis., 
829. 



Iv 



4 



SELLING LIQUOR WITHOUT LICENSE. 189 

willfully did selP to divers' persons intoxicating liquor' in less quantities 
ttan one gallon,* contrary to the form of the statute in such ca^e made and 
provided (eonelndeas inform on-page 112). 

§278. Evidence of a Sale. — The sale may be established 
either by the positive testimony of those who were present at 
the sale or by circumstances.* And it is not necessary in 
order to find the defendant guilty, that the liquor was handed 
to a person who asked for it and that it was paid for or charged 
to some one.* Evidence that the defendant kept a bar with 
bottles in it,^ or that the defendant kept spirituous liquors in 
his dram-shop, is proper.* That the witness heard the parties 
call for brandy, and saw them pour from a bottle handed 
them and labeled brandy something that looked like brandy, 
and then drank it, is sufficient evidence that the liquor was 
brandy.* Whether a sale of one gallon of intoxicating liquor 
by one not having a license, with an understanding that the 
purchaser may call for it in such quantities as he wishes, is a 
fair transaction or a mere evasion, is a question of fact to be 
determined by tlie jury.^* It must bo proved that the sale was 



* It is not necessary to allege that the defendant received a compensation 
for the liquor, titate f>. Downer, 21 Wis., 274; Huntermeister «. State, 1 
Iowa, 101 ; Clare v. State, 5 Iowa, 509. 

' The name of the person to whom the liquor was sold need not be stated, 
nor that it is unknown. Wrocklegeo. State, 1 Iowa, 168; Zarresseller o. 
People, 17 Ills., 101; Cannady v. People, 17 Ills., 159; State v. Gummer, 22 
Wis., 441; State v. Bielby, 22 Wis., 204; Myers v. People, 67 Ills., 504; 
om^TYX, State 9. Allen, 32 Iowa, 491. 

* The kind of liquor sold or price paid for it need not be stated. Zarros- 
seller v. People, 17 Ills., 101 ; Cannady v. People, 17 Ills., 159 ; coniray as to 
the price paid, Divine v. State, 4 Ind., 240 ; Snyder v State, 5 Ind., 195 ; 
State V, Miles, 4 Ind., 577; Hubbard v. State, 11 Ind., 554. 

* The minimum quantity to be sold without license is one gallon. SuUi- 
«Tan 0. People, 15 Ills., 233; Bennett «. People, 16 Ills:, 160; Zarresseller «• 

People, 17 Ills., 101; Cannady v. People, 17 Ills., 159. 

* Yallance v. Everts, 3 Barb., 553; Com. o. Shaw, 116 Mass., 8. 

* Kimball v. People, 20 Ills., 348. 
' People V. Hulbut, 4 Denio, 133. 

* Yallance v. Everts, 8 Barl.>., 553. 

* Baurouse v. State, 1 Clark, Iowa, 874. 
'^ Baker v, Richardson, 1 Coweu, 77. 



190 TRIAL BEFOBE JUSTICE. 

made after the statute or ordinance took effect.^ And it is 
erroneous to permit evidence of a greater number of offenses 
than there are counts in the indictment.* 

§ 279. Sale by Agent, Servant, etc. — Married Woman. — Where 
a party permits liquor to be sold which is drank in the build- 
ing occupied by him, he is as responsible as if he had made 
. the sale himself.' Or if the sale is made at the employer's 
place of business by his clerk, servant or agent, in his absence 
or presence, under circumstances from which the jury have a 
right to infer that the clerk, servant or agent acted by his 
authority or permission, such employer is liable.^ But in 
order to convict the employer for the sale of intoxicating 
liquors, the jury must be satisfied of his permission or assent 
to the sale and not merely of his knowled^' of it* It is no 
defense to an indictment for selling liquor "without license 
that the defendant sold it as the clerk, servant or agent of 
another not having a license,® or that the liquor was sold for 
medicinal purposes.^ Two persons may be jointly indicted 
and convicted for selling liquor without license,* even if one 
is in the employ of another as his servant or clerk,* and the 
judgment upon an indictment is several against each for the 

' Newlancl v. President and Trustees of Aurora, 14 Ills., 364, 17 Ills., 379 ; - 
1 Bisli. Cr. P., § 460; People «. Jenness, 5 Mich., 805; People v. Hopson, 1 
Dcnio, 574. 

• Hodgman v. People, 4 Denio, 235 ; Rex v. Williams, 6 Car. & P., 626 ; 
Lovell V, State, 12 Ind., 20. 

" Jones u. People, 14 Ills., 197, 198. 

• Hall u. McKechnie, 22 Barb., 244; State v. Brown, 31 Me., 520; State v. 
Dow, 21 Vt, 484; 1 Gray, 481 ; 3 Iowa, 566; Stale tj. Strieker, 33 Iowa, 136; 
Com. V. Smith, 102 Mass., 144. 

• State V. Finan, 10 Iowa, 20 ; Com. «. Putnam, 4 Gray, 16 ; Goods v. State, 3 
Greene Iowa, 566. 

• Schmidt «. State, 14 Mo., 137; Roberts t. O'Conner, 33 Me., 496; State «. • 
Bugbee, 22 Vt., 33 ; Buttan v. State, 3 Humph., 208 ; Hays v. State, 13 Mo., 246.* 

' State tj. Qummer, 22 Wis., 441 ; 21 Wis., 274 ; contra, 2 Carter Ind.. 658 ; 
19 Mo., 391 ; and see 9 Bush Ky., 569. 

•Statfi V. Caswell, 2 Humph., 399; Ingersol v. Skinner, 1 Denio, 640; 
Hall V. McKechnie, 22 Barb., 244; Com. v. Sloan, 4 Cush., 53. 

• French «. People, 8 Park. Cr. R., 114 



SELLING LIQUOR WITHOUT LICENSE. 191 

whole penalty,' while in a proceeding by action the penalty is 
joint and cannot be. collected but once.^ A married woman 
is liable for selling intoxicating liquors of her husband, with • 
out a license.' 

§ 280. What a Sale. — A sale is not constituted by an agree- 
ment to sell.^ There must be a delivery of the liquor.* But 
the payment of the purchase price need not be actually made, 
for a sale on credit is within the prohibition of selling, though 
the law would not enforce the payment.* If the particular 
drink is mixed with other unknown ingredients and sold under 
another name, still the act is a sale of the drink.^ 

§ 281. The License. — It is not for the prosecution to prove 
that the defendants had no license at the time of the sale, for 
since if he has one it is so easy for him to produce it and it 
being a matter within his particular knowledge, unless he does 
produce it, it will be presumed that he had none.* The li- 
cense must be in due leo^al form* and a certificate that one is 
licensed is not a license,^^ neither is a parol license sufficient." 
undoubtedly if the power which gives the license omits to 
make up the proper record of its proceedings, the omission, 
though reprehensible, does not impair the license.^* Upon ap- 

* 1 Bish. Cr. L., §957; Com. f>. Harris, 7 Grat., 600. 

* Marsh v. Shute, 1 Denio, 230; Curtis «. Hurlbut, 2 Conn., 809; Arnold 
r. Loveleless, 6 Rich., 5U ; Conley v. Palmer, 2 N. Y., 182; Tracy v. Peny, 
5 N. H., 504; but see Rex «. Bliasdale,4 T. R., 809; Barada d. State, 13 
Mo., 94. 

' Rex V. Crofts, 7 Mod., 397; Com. v. Murphy, 2 Gray, 572; State v. Col- 
lins, 1 McCord, 355; 3 N. H., 207. 

* Pulse V, State, 5 Humph., 108; Banchory. Warren, 33 N. H., 183. 
•Id. 

* Emmerson v. Noble, 32 Me., 380. 

' Com. V. Odlin, 23 Pick., 275; Com. v. Bathrick, 6 Cush., 247; but see 
State V. Laffcr, 38 Iowa, 422. 

•Greenl. Ev., §79; Whart. Cr. L., 2434; Potter v. Deyo, 19 Wen., 361; 
Smiths. Joyce; 12 Barb., 21 ; Pendergast v. City of Peru., 20 Ills., 51 ; Great 
Western R. R. Co. v. Bacon, 80 Ills., 347; Gerisg v. State, 1 McCord, 678; 
eantTii, Mehan o. Slate, 7 Wis., 670. 

* State V. Shaw, 570. 

»• Com. V, Spring, 19; Pick., 396. 

" Lawrence v, Gracy, 11 John., 179; State v, Moore, 14 N. H., 451. 

«■ 29 Me., 442. 



\ 



192 TRIAL RBFOSE JUSTICE. 

plication for a license the licensing power may reject or grant 
tlie same in its discretion.* Tlie individnal licensed can only 
sell in the place and within the time specified in the license.^ 
If he does otherwise the license aflfords him no protection.' 
The person licensed may sell either by himself or his agent.* 
A license to two men as partners to keep a dram-shop will 
authorize one of them to sell after the other has retired from 
the business;* yet a license given to one partner confers no 
authority on his co-partner to sell intoxicating liquors.® If 
one sells intoxicating litjuor without a license, no conviction 
for such sale will authorize any further unlicensed selling." 
A license cannot relate back so as to legalize an illegal sale al- 
ready made.* A person who has a license is bound by any 
subsequent legislation, to which, therefore htj must conform.* 
If a license is unduly granted, that is, granted contrary to 
law, it does not protect the holder.'^ It is not necessary for 
an administrator or an executor to take out a license before 
Belling intoxicating liquors belonging to the estate of the de- 
ceased." 

§282. Constitntionality of Act and of Ordinances. — It is well 
settled that the statute prohibiting the sale of intoxicating 
liquor without a license is constitutional.*^ But where a city 

• 

» R. 8., 438, § 3; State tj. 'Downer, 21 Wis., 277. 

• R. S., 438, § 4; 7 Foster N. H., 289. 

" 2 Bish. Cr. L., 4th Ed., 1131 ; HalPs Case, 8 Grat.,588 ; State v. Hughes, 24 
Mo., 147. 

• Com. V. Park, 1 Gray, 553; Barnes v. Com., 2 Dana, 390; Thompson v. 
State, 5 Humph., 188. 

• State V. Gerhardt, 3 Jones Law, N. C, 178. 

• Long V. State, 27 Ala., 32; contra., Btirnes v. Com., 2 Dana, 390; 9 Id., 
800; State v, Davis, 23 Me., 403 ; and see Hairs Case, 8 Grat., 588. 

• State t>. McBride, 4 McCord, 332; State v, Cassedy, 1 Richardson, 90. 

• State «. Hughes, 24 Mo., 147. 

• State V. Fairfield, 37 Me., 517; 1 Ohio, 15; 38 N. H., 225; 18 Mo., 515. 
» 1 Jones, N*. C, 276 ; 19 Ark., 688. 

" Williams v. Troop; 17 Wis., 463. 

>• Kittering «. City of Jacksonville, 50 Ills., 39; City of East St Louis v, 
Wehrung, 46 Ills., 892; Jones v. People, 14 Ills., 196; (Joddard v. Town of 
Jacksonville, 15 Ills., 590 ; Santo v. Stat«, 2 Iowa, 165 ; but see Gtecbrick v. 
State, 5 Iowa, 492; Walters «. State, 5 Iowa, 507; State «. Bartmeyer, 81 
Iowa, 601. 



BELLING LIQUOB WITHOUT LIOENSB. 193 

charter anthorized the common council to declare tlie selling, 
giving away or the keeping on hand for sale any spirituous 
or intoxicating liquors, etc., in the city a nuisance, it does not 
authorize an ordinance making it an offense for any person 
within the city to have in his possession any intoxicating 
liquors, etc.* 

§ 283. Refiosal to Grant License not a Defense. — It is no defense 
to an indictment for selling liquor without license that the 
defendant had applied for a license, which was refused solely 
because the licensing board had determined not to license any 
sale of spirituous liquors.^ 

§284. Pleading. — In Iowa where to an indictment for sell- 
ing liquor without a license, the defendant pleaded that he 
had a license, and issue was joined upon that plea, and upon 
that issue the jury found the defendant guilty, it was held 
tliat the plea should have been, " not guilty;" that the state 
should not have joined issue upon any other plea, and that the 
verdict and judgment rendered under such an issue should 
have been arrested.' 

> Sulliyan v. City of Oneida, 61 Ills., 243. 

* State V. Downer, 21 Wis., 274; Eadgilm v. City of Bloomington, 68 Ilia, 
229. 

* Peters «. State, 8 Greene Iowa, 74. 

18 



194 TBIAL BBFOBB JUSTIOE. 



SECTION IV. 

Offenses Against Property which mat be Tried bbforb 

A Justice of the Peace. 

§ 285. Canada Thistles. 

286. CJontlnued — Railroads to Destroy. 

287. Failing to Protect Castor Beans. 

288. Cruelty to Animals. 

289. Continued — By Railroads and Carriers. 

290. Bull Baiting, Cock Fighting, etc. 

291. Unnecessarily Frightening Team by Engineer 

292. Injuring or Destroying Baggage. 

293. Defacing, etc., Advertisements, etc. 

294. Failing to Protect Saltpetre Caves. 

295. Bringing Animals Infected with Contagious Disease Into this State 
or Suffering them to Run at Large. 

296. Trespass upon Gardens, etc. 

297. Trespass upon Orchards, etc. 

298. Setting Fire to Woods, Prairies, etc. 

299. Counterfeiting Trade Marks. 
800. Simulating Trade Marks. 

1. Canada Thistles. 

§ 285. Provisions of the Statute. — " Whoever shall bring 
into this state, whether in packing of goods, or in grain or 
grass seed, or otherwise, any seed of the Canada thistle, and 
permit the same to be disseminated so as to vegetate on any 
land in this state, and whoever shall permit any Canada this- 
tle to mature its seed on any land owned or occupied by him 
so that the same is or may be disseminated, shall be fined not 
less than ten nor more than one hundred dollars; the fine to 
be paid to the commissioners of Canada thistles, if any is ap- 
pointed in the town, precinct, city or village, or otherwise as 
directed by law."^ 

» R. S., 857, § 40. 



FAILING TO PBOTEOT OASTOS BBANS. 195 

§ 286. ConUnned — Railroads to Destroy. — " If any company, 
association or person owning, controlling or operating a rail- 
road shall refuse or neglect to dig up and destroy, or take 
other certain means of exterminating, Canada thistles and 
other noxious weeds that may at any time be growing upon 
the right of way, or any other lands of such roads, or apper- 
taining thereto, they shall be fined for each offense not less 
than fifty nor more than two hundred dollars; the fine to be 
paid as in the preceding section."^ 

STATEMENT OF THE OFFENSE OF BRINGING INTO THE STATE SEED OF 

CANADA THISTLES. 

(Commence a» inform on page 112) that C. D., on, etc., at, etc., in the said 
county, did unlawfully bring into the said county of and state of Illi- 
nois, certain seed of the Canada thistle, and then and there did permit the 
same Ui be then and there disseminated so as to then and there vegetate on 
certain lands, there situate, lying and being in this said state of Illinois, 
contrary to the form of the statute in such case made and provided (con- 
clude (M in form on page 112). 

2. Failing to Protect Castok Beans. 

§ 287. Provisions of the Statute. — " Whoever plants or raises 
castor beans without protecting thera from the approach of 
cattle or other stock, by a good and lawful fence, shall be 
fined not less than three dollars nor more than one hundred 
dollars, and a like sum for each day he shall allow the same 
to rema;in so unprotected after having been once fined : Pro- 
vided, the provisions of this section shall not apply to any 
county where domestic animals are by law prohibited from 
running at large."* 

STATEXSNT OF THE OFFENSE OF FAILIKG TO PROTECT CASTOR BEANS. 

(Commence as in form on page 112) that C. D., on, etc., at, etc., In said 
county did raise castor beans, without then and there protecting thorn from 
the approach of cattle or other stocls by a good and lawful fence, contrary 
to the form of the statute in such case made and provided (conclude ae in 
form on page 112). 

>R. 8., 858, §41. 
* 14, 858, S 42. 



196 tbial befobb justigb. 

3. Gbuelty to Animals. 

§ 288. Provisioiia of the Statute. — " Whoever shall be guilty 
of cruelty to any animal in any of the ways mentioned in this 
section shall be fined not less than three dollars nor more 
than two hundred dollars, viz. : 

jp*ir8t.—^j over-loading, over-driving, over- working, cruelly 
beating, torturing, tormenting, mutilating, or cruelly killing 
any animal, or causing or knowingly allowing the same to be 
done. 

Second. — ^By cruelly working any old, maimed, infirm, sick 
or disabled animal, or causing, or knowingly allowing the 
same to be done. 

Third. — By unnecessarily failing to provide any animal in 
his charge or custody, as owner or otherwise, with proper food, 
drink and shelter. 

Fourth. — ^By abandoning any old, maimed, infirm, sick or 
disabled animal. 

Fifth. — By carrying or driving, or causing to be carried or 
driven or kept, any animal in an unnecessarily cruel man- 
ner.^ 

STATEMBirr OF THE OFFENSE OF CRUELTY TO ANIMALS. 

(Oommtnce <u in form an page 112) that C. D., on, etc., at, etc., in said 
county, was guilty of cnieUy to a certain anima], to imY., to a horse by then 
and there overloading the said animal, contrary to the form of the statute 
in such case made and provided {coneludsas in form on page 112). 

§ 289. Continued — By Railroads and Carriers. — '<No railroad 
company or other common carrier, in the carrying or trans- 
portation of any cattle, sheep, swine or other animals, shall 
allow the same to be confined in any car more than twenty- 
eight consecutive hours (including the time they shall have 
been upon any other road), without unloading for rest, water 
and feeding, for at least five consecutive hours, unless delayed 
by storm or accident, when they shall be so fed and watered as 
soon after the expiration of such time as may reasonably be 

>Ra,859,§60. 



I 

« 

I 

« 

I 



OKITELTY TO ANIMALS. 197 

done. When bo unloaded, they shall be properly fed, watered 
and sheltered during such rest by the owner, consignee or 
person in custody thereof, and in case of their default, then 
by the railroad company transporting them, at the expense of 
the said owner, consignee or person in custody of the same; 
and such company shall have a lien upon the animals until the 
same is paid. A violation of this section shall subject tlie 
offender to a fine of not less than three dollars nor more than 
two hundred dollars."* 

STATEMXZTT OF THE OFFENSB OF ALLOWnrO CATTLE TO BE CONFIKED 
KOBE THAN TWSNTT-EIGHT HOURS IN A CAR. 

(Commence ae inform an page 112) that the Chicago, Burlington & Quincy 
Railroad Company, on, etc., at, etc., in the said county, then and there being 
a railroad company duly incorporated under the laws of this State of Illin- 
ois, in then and there canying and transporting of certain cattle, to wit., fifty 
head of steers, did unlawfully allow the same to be confined in a car more 
than twenty-eight consecutive hours, without then and there unloading the 
same, the said railroad company not being then and there delayed by storm 
or accident, contrary to the form of the statute in such case made and pro- 
vided {eondude as inform on page 112). 

§ 290. Continaed — Bnll-Baitiiig, Gock-Fighting, etc. — << Who- 
ever shall keep or use, or in any way be connected with or in- 
terested in the managemdht of, or shall receive money for the 
admission of any person to an}' place kept or used for the 
purpose of fighting or baiting any bull, bear, dog, cock or 
other creature, and every person who shall engage, en courage^ 
aid or assist therein, or who shall permit or sufifer any place 
to be so kept or used, and every person who shall visit such 
place so kept or used, or who shall be found therein, shall be 
fined not less than three dollars nor more than two hundred 
dollars."* 

STATEMENT OF THB OFFENSE OF KEEPING A PLACE FOR OOCK-FIOHTIlta. 

(Commence ae inform on page 1 12) that 0. D., on, etc., at, etc., in the said 
county, did unlawfully keep a place for the purpose of then and there 
fighting cocks, contrary to the form of the statute in such case made and 
provided {conclude ae in form on page 112). 

> R. S., 859, 8 51. 
•Id, §52. 



198 TRIAL BEFOBE JUSTICE. 

4. Unnecessabilt FiaGHTENiNG Team by Engineer. 

§ 291. ProTisions of the Statute. — The statute provides in 
substance that any engineer having cliarge of and running 
an J railroad engine or locomotive, " who shall wantonly or 
unnecessarily blow the engine or whistle so as to frighten any 
team, shall be liable to a fine of not less than ten dollars nor 
more than fifty dollars."* 

BTATBUBNT OF 'THE OFFENSE OF T7NNECBS8ARILT FRIOHTENINa A 

TEAK BT AN ENGINEER. 

{Commence as in form on page 112) that C. D., on, etc., at, etc., in the said 
county, then and there being an engineer, and then and there having charge 
of a railroad engine, did unlawftiUy, wantonly and unnecessarily blow the 
said engine whistle, so as then and there to frighten the team of the said A. 
B., then and there lawfully being, contrary to the form of the statute in such 
case made and provided {conclude as inform on page 112). 

5. Injuring or Destroying Baggage. 

» 

§ 292. Provisions of the Statute. — " If any baggage-master, 
express agent, stage-driver, hackman, or any other person 
whose duty it is to handle, remove or take care of trunks, va- 
lises, boxes, packages or parcels, whPile loading, transporting, 
unloading, delivering or storing the same, whether or not in 
the employ of a raih-oad, steamboat, or stage company, shall 
wantonly or recklessly injure or destroy the same, he shall be 
fined not exceeding two hundred dollars."* 

STATEMENT OF THE 0FFE148E OF INJURING BAGGAGE. 

{Commence as inform on page 112) tliat C. D., on, etc., at, etc., in the said 
county, then and there being a baggage-master, and it then and there being 
the duty of tlie said C. D. to handle, remove, and take care of trunlvs, valises, 
boxes, packages and parcels, while then and there loading, transporting, 
unloading, delivering and storing the same, did wantonly and recklessly 
injure the trunk of the said A. B. wliile the said 0. D. was then and there 
loading, transporting, unloading, delivering and storing the same, as it was 
then and there his duty to do, contrary to the form of the statute in such 
case made and provided {conclude as inform on page 113). 

« R a, 380, 1 191. 
• Id., 8 193. 



* defaoing adverti8emknt8. 199 

6. Defacing, Teasing down, etc., of Advebtisements, 

Legal Notices, etc. 

§ 293. Provisioiis of the Statute. — " Wlioever intentionally de- 
faces, obliterates, tears down or destroys, in whole or in part, 
any copy, transcript or extract of or from any law of the United 
States, or of this state, or any proclamation, advertisement, 
or notification set up at any public place by authority of 
law, or by order of any court, during the time for which the 
same is to remain set up, shall be fined not exceeding two 
hundred dollars."^ 

STATEMENT OF THE OFFENSE OF TEARING DOWN A LEGAL 

ADYERTISEMBHT. 

(Oommenee as inform an page 112) that £. F., on, etc., at, etc.. in the said 
connty, then being one of the constables of the said county, had in his hands 
an execution issued by L. M., a justice of the peace of said county, on the — 

day of , A. D. 18—, upon a judgment then lately entered by the said 

justice in favor of the said A. B. plaintiff, against C. D. defendant, in a cer- 
tain action, the subject matters and parties of which the said L. M. had jur- 
isdiction before entering the said judgment by which said execution the said 
E. F. constable, as aforesaid, was commanded to make of the goods and 
chattels of the said C. D. the sum of fifty dollars debt and two dollars 
costs, and for the purpose of making the same, the said £. F. constable, 

as aforesaid, by virtue of the said execution, afterwards, to wit., on the 

day of , A. D. 18 — , levied upon the goods and chattels of the said C. 

D., and afier wards and on the same day in the county aforesaid, appointed 

the day of , A. D. 18 — , at o'clock in the noon, as the 

time, and the residence of the said C. D. as the place, for the sale thereof, 

and did on the said day of , A. D. 18 — , by authority of law, give ten 

days' previous notice of such sale by advertisement in writing, posted up 
in said county in the vicinity where the said sale was to be made, one of 
which said advertisements was posted on the outer door of the house of 

, an innkeeper of the said county ; and that the said C. D. afterwards, 

to toit.t on the day of , A. D. 18 — , at, etc., in the said county, 

did unlawfully and intentionally deface, obliterate, tear down and de- 
stroy the said advertisement so posted and set up by authority of law on 

the outer door of the said as aforesaid, during the time for which the 

same was to remain posted and set up, contrary to the form of the statute in 
such case made and provided (ponclude as in form on page 112). 

> R S., 882, § 205 ; Faulds v. People, 66 Ills., 210. 



200 TBIAL BEFOBE JUSTIOE. * 

8H0BTEB FOBM. 

{Commence ae inform on page 112) that C. D., 00, etc., at, etc., in the said 
county, did onlawfally and intentionally deface, obliterate, tear down and 
destroy a certain advertisement, to tctt., a notice of tlie sale of the property 
of the said C. D., on an ezecation set up at a place in said county by au- 
thority of law, during the time the same was to remain set up, contrary to 
the form of the statute in such case made and provided {conclude ae inform 
en page 112). 

7. Failing to Pbotbot Saltpetre Oaves. 

§294. Provisions of the Statute. — "Whoever works any 
saltpetre cave, or other place where saltpetre is taken or 
manufactared, without protecting the same from the approach 
of cattle or other stock by a good and sufficient fence, shall 
be fined not less than three dollars, nor more than one hun- 
dred dollars, and in a like sum for each day he shall allow 
the same to remain so unprotected after being once fined.''' 

8TATBMEXT OF THE OFFENSE OF FAILIKG TO PROTECT A SALTPETRE 

CAVE. 

{Commence as inform on page 112) that C. D., on, etc., at, etc., in the said 
county, did work a saltpetre cave without then and there protecting the 
same ft-om the approach of cattle and other stock by a good and sufficient 
fence, contrary to the form of the statute in such case made and provided 
{conclude a» inform on page 112). 

8. Bbingino Animals Infected wnn Contagious Disease 
INTO THIS State oe Suffering theh to Run at Large. 

§295. Provisions of the Statute. — "Any person who shall 
hereafter knowingly and willfully bring or cause to be brought 
into this state any sheep or other domestic animals infected 
with contagious disease, or who shall knowingly and willfully 
suffer or permit sheep or other domestic animals infected with 
contagious disease to run at large, shall be fined in any sum 
not exceeding one hundred dollars, and shall be liable in a 
civil action for all damages occasioned thereby."* 

"R. 8., 891. §257. 

• Id., g 258. Fpr statute relating to Texas or Cherokee cattle, see 
R 8., 141, §8 12-23; Newkirk «. Milk. 62 Ills., 172; Heirick «. Gray, 66 
His., 101. 



T&ESPABS. 201 

STATSX EST OF THB OFFBITOB OF BBINOINO IKTO THIS BTATB 8HBEP IH- 

FECTBD WITH GONTAOIOD8 DISBA8B. 

(Commsnee a$ inform on ptige 112) that C. D., oiif etc., at, etc., in the said 
comity, did unlawfully, knowingly and willfully hring (or ^^ cause to be 
hroiight") into this state of Illinois ten sheep then being infected with a 
contagious disease called {insert the name cf the disease), contrary to the form 
of the statute in such case made and provided (conclude as inform on page 
112). 

9. Tbespass. 

§296. Upon Gardens, etc. — "Wlioever willfully enters and 
passes over any garden, yard, or other improved field, after- 
being expressly forbidden so to do by the owner or occupant 
thereof, shall be fin6d not exceeding five dollars."* 

8TATBHBNT OF THB OFFBN8B OF TICBSPAB8 UPON A OARDBN. 

(Commence as in form on page 112) that C. D., on, etc., at, etc., in the said 
county, unlawfully and wiliAiUy did enter and pass over a certain garden 
of the said A. B., after being expressly forbidden so to do then and there 
by the owner and occupant of the said garden, contrary to the form of the 
statute in such case made and provided (conclude as in form on page 112). 

§ 297. Upon Orchards, etc. — " Whoever shall, hereafter, enter 
the inclosure of any person without leave of the owner, and 
pick, destroy or carry away any part or portion of the fruit 
of any apple, pear, peach, or plum, other fruit-tree, vine, or 
bush, shall be fined not exceeding one hundred dollars,'" 

BTATBMBNT OF THB 0FFBN8B OF PICKING, BTO., OF THB FBUIT OF AH 

APPLB TBBB. 

(Commence as in form on page 112) that 0. D., on, etc., at, etc., in the 
said county, did unlawfully enter the inclosure of the said A. B., and then 
and there, without leave or license of tlie said A. B., then and there being 
the owner of the said inclosure, did uiflawfuUy pick (or '* destroy*^ ur *' ca/T' 
ry ateay**) a part or portion of the fruit of an apple-tree, the property of 
the said A. B., contrary to the form of the statute in such case made and 
provided (conclude as in form on page 112). 

» R 8., 892, § 266. 
* Id., 892, § 265. 



202 TBIAL BBFOBS JUBTIOB. 

10. SETTiNa Fire to Woods, Pbmbies and other Grounds, 

§ 298. Provisions of the Statute. — " If any person shall., at 
any time hereafter, willfully and intentionally or negligently 
and carelessly set on fire, or cause to be set on fire, any woods, 
prairies or other grounds whatsoever, he shall be fined not 
less than five dollars nor more than one hundred dollars: 
Provided^ this section shall not extend to any person who 
shall set on fire or cause to be set on fire any woods or prai- 
ries adjoining his own farm, plantation or inclosure, for the 
necessary preservation thereof from accident by fire, between 
the last day of November and the first day of March, by giv- 
ing to his neighbors and the owner or occupant of such land, 
and any person likely to be affected thereby, two days' notice 
of such intention: Provided^ dX^o^ \\\i& section shall not be 
construed to take away any civil remedy which any person 
may be entitled to for any injury which may be done or re- 
ceived in consequence of such firing."* 

STATEMENT OF THE OFFENSE OF FIRINO A PRAIRIE. 

{Commence a» inform on page 112) that C. D., on, etc., at, etc., in the said 
county, unlawfully, willfully and intentionally did set on fire a certain 
prairie there situate, contrary to the form of the statute in such case made 
and provided {conclude as inform on page 112). 

11. COUNTEBFBITING TrADE MaRKS. 

§ 299. Provisions of the Statute. — " Whoever knowingly and 
willfully counterfeits, or causes to be counterfeited, any pri- 
vate stamp, label, or trade-mark, used by a merchant or man- 
ufacturer about the sale of his goods, with intent to defraud 
the purchaser or manufacturer, or sells such goods with such 
counterfeit stamps, labels or trade-mark thereon, knowing 
them to be counterfeit, shall, for each ofiense be fined not ex- 
ceeding two hundred dollars."' 

> R 8., 354, § 18. 

* Id., 869, §115 ; see State «. Burge, 7 Iowa, 225. 



SIMULATING TBADE-MARES. 203 

STATElCBin! OF THE 0PPEN8B OP COUNTBKPEITINO TRADE-MARK. 

Oommmce as in farm on page 112) that C. D., on, etc., at, etc., in the said 
county, knowingly and willfully did counterfeit a certain trade-mark, then 
and there used by the said A. B., then and there being a merchant, about 
the sale of his the said A. B.'s goods, with intent to defraud the purchaser 
of the goods having the said trade-mark thereon, contrary to the form of 
the statute in such case made and provided {conclude as inform on page 112). 

12. Simulating Trade- Marks. 

§ 300. Provisions of the Statute. — " When any person uses 
any peculiar name, letters, mark, device or figures, cut, 
stamped, cast or engraved upon, or in any way attached to or 
connected with any article manufactured or sold by him, to 
designate it as an article of a peculiar kind, character or 
quality, or as manufactured by him; whoever shalJ, without 
his consent, use the same or any similar names, letters, marks, 
devices or figures, for the purpose of falsely representing any 
article to have been manufkctured by him, or to be of the 
same kind, character or quality as that manufactured or sold 
by the party rightfully using the same, shall for each offense 
be fined not exceeding two hundred dollars.'" 

statement of the offense of simulating a tbade-mark. 

(Commence as in form on page 112) that the said A. B. on the day of 

y A. D., 18 — , used the peculiar mark, towit.^ "Moline plow" stamped 

upon certain plows, then and there manufactured and sold by him, to 
designate them as articles of a peculiar kind and quality, and as manufac- 
tured by him the said A. B.; that C. D. then and there, without the said A« 
B.'s consent, did unlawfully use the said mark for the purpose then and 
there of falsely representing certain other .plows, then and there manufac- 
tured by the said C. D. to hav^e been manufaciured by the said A. B., and to 
be of the same kind and quality as the said plows manufactured, stamped and 
sold by the said A. B. as aforesaid, contrary to the form of the statute in 
such case made and provided (conclttde as in form on page 112). 

> R S., 869, i 116 



304 TBIAL BEFOSB JUSTIOB 



SECTION V. 

KuiBANOES. 

$801. What a Nuisance at Common Law. 
802. Provisions of tlie Statute Relating to Nuisances. 
808. Continued — Punishment. 

804. Obstructing and Encroaching upon Roads. 

805. Eyidence — Highway, how Acquired. 

806. Dedication. 

807. Town Plat — Effect of Adverse Possession. 

808. Highway, how Acquired under the Statute. 

809. Existence of Highway, how Proved. 

810. Abandonment. 

811. Street, etc., how Vacated. 

812. Ofifense not Committed by Omitting to Obey Orders. 

§ 301. What a Nuisance at Common Law. — At common law 
obstructing public roads^ and navigable streams,^ permitting 
a public highway* or bridge* to be grossly out of repair,* pol- 
luting streams, etc.,' carrying on offensive trades,^ keeping 
bawdy,* disorderly* or gaming^® houses, keeping large quan- 
tities of gunpowder in populous places," persons infected 

> 18 Serg. & R., 403 ; Rex «. Morris, 1 B. & Ad., 441 ; Neff 9. Paddock, 26 
Wis., 547 ; People v. Cunningham, 1 Denio, 524. 

' Com. «. Church, 1 Bar., 105 ; Mofifett «. Brewer, 1 Iowa, 848 ; Renwick «. 
Morris, 7 Hill, 575, 5 Ind., 433. 

' Slate «. King, 8 Ired., 411 ; Simpson v. State, 10 Yerg., 525. | 

* Reg. «. Birmingham and Gloucester R R. Co., 9 Car. & P., 469.- o^ 

• 2 Arch. C. P. & PL, 989 ; 1 Bish. Cr. L., 419. 

• Com. t). Webb, 6 Rand., 726. j 

* 1 Bish. Cr. L., § 1138; Lansing v. Smith, 8 Cowen, 146. 
' 4 Black. Com., 168; Rex v. Williams, 10 Mod., 63; People «. Erwin, 4 

Denio, 129. ) 

' 4 Black. Com., 167; State «. Berthed, 6 Blackf., 474 ; Rex 9. Dixon, 10 

Mod., 836. 
'* Hex t). Dixon, 10 Mod., 886 ; State v. Haines, 80 Me., 65. 
>i Anonymous, 12 Mod., 842; People «. Sands, 1 John., 78 



1 

i 



^ 



NXJISANOES. 205 

with a contagions disease going abroad,^ bringing into a 
public place a glandered horse or an animal otherwise in- 
fected with a contagious disease,* collecting crowds of idle 
persons,* blasphemy,^ profane swearing,* common scolds of 
the feminine gender,* common barrators,^ eavesdroppers,* open 
lewdness,* frequent and public drunkenness,'® the exhibition 
of a monster," and the publication, sale or exhibition of ob- 
scene books and prints,'* were severally nuisances and misde- 
meanors punishable by fine and imprisonment;'* and under 
some circumstances could be abated without resorting to le- 
gal proceedings." Some of these ofienses are provided for by 
statute and are elsewhere considered. 

§ 302. Provisions of the Statute Relating to Nuisances. — Under 
our statute it is a public nuisance: 

1. To cause or sufier the carcass of any animal or any 
offal, filth or noisome substance to be collected, deposited or 
to remain in any place, to the prejudice of others. 

2. To throw or deposit any offal or any other offensive mat- 
ter, or the carcass of any animal, in any water course, lake, 
pond, spriug, well or common sewer, street or public highway. 

8. To corrupt or render unwholesome or impure, the water 
of any spring, river, stream, pond or lake, to the injury or prej- 
udice of others. 

4. To obstruct or impede, without legal authority, the pas- 
sage of any navigable river or waters. 

> Hex f>. Vantandillo, 4 M. & S., 78 ; Hex v. Burnett, 4 M. & S., 273. 

* Reg. «. Henson, 18 Eng. L. & Eq., 107. 

* Buker «. Com., 10 Penn., 412 ; Com.o. Smith, 6 Coali., 80. 
« 1 Blab. C. L., § 498. 

• Id.; Com. v. Pray, 18 Pick., 859. 

• 4 Black. Com., 168; 2 Arch. C. P. & PL, 997. 

' James «. Com., 12 Serg. & R., 230 ; Com. v. Davis, 11 Pick., 432. 
' 4 Black. Com., 167 ; State v, Williams, 2 Tenn., 168. 
' ' 2 Arch. C. P. & PL, 1006; Smith o. State, 1 Humf b., 896. 
'^ State V. Rose, 82 Mo., 560, 561 ; Enowles o. State, 8 Day, 108. 
" Harringo. Walrond, 2 CUa. Ca., 110. 

>* Com. «. Holmes, 17 Mass., 876; Com. o. Sbarpless, 2 Serg. & R., 9L 
>• 1 Biflh. Cr. L., §§ 1071-1074; 2 Arch. C. P. & PI., 980-1030. 
^ Moffett «. Brewer, 1 Greene Iowa, 84ai 



206 TRIAL BEFORE JUSTICE. 

5. To obstruct or encroach upon public highways, private 
ways, streets, alleys, commons, landing-places, and ways to 
burying-places. 

6. To carry on the business of manufacturing gunpowder, 
nitro-glycerine, or other highly explosive substance, or mix- 
ing, or grinding the materials therefor in any building 
within twenty rods of any valuable building erected at the 
time such business may be commenced. 

7. To establish powder magazines near incorporated towns, 
at a point diiFerent from that appointed according to law by 
the corporate authorities of the town, or within fifty rods of 
any occupied dwelling-house. 

8. To erect, continue or use any building or other place for 
the exercise of any trade, employment or manufacture, which, 
by occasioning noxious exhalations, offensive smells, or other- 
wise, is offensive or dangerous to the health of individuals or 
of the public. 

9. To advertise wares or occupation, by painting notices of 
the same on, or affixing them to, fences or other private prop- 
erty, or on rocks or other natural objects, without the consent of 
the owner, or, if in the highway or other public place, without 
permission of the proper authorities: Provided^ that nothing 
in this section contained shall be construed to prevent the 
municipal authorities of any incorporated city, town or village 
from declaring what shall be nuisances and abating the same 
within their limits.^ 

§ 303. Continued — Punishment. — "Whoever causes, erects or 
continues any such nuisance shall for the first offense be fined 
not exceeding one hundred dollars, and for a subsequent of- 
fense shall be fined a like amount, and confined in the county 
jail not exceeding three months. Every such nuisance, when 
a conviction therefor is had in a court of record, may, by 
order of the court before which the conviction is had, be abat- 
ed by the sheriff or other proper officer, at the expense of the 
defendant, and it shall be no defense to any proceeding under 

> R. 8., 885, § 221 



KUI8A170E8. 207 

this section that the nuisance is erected or continued by vir- 
tue or permission of any law of this state."* 

STATEMENT OF THE OFFENSE OF A NUISANCE BY SUFFERING A NOISOME 

SUBSTANCE TO BE DEPOSITED. 

(Commence as in farm on page 112) that C. D., on the day of , A. 

D. 18 — , and continually' from the said day to the time of making this affi- 
davit, at, etc./ in the said county, did cause and suffer the carcass of an 
animal and a largo quantity of offal, filth and noisome substance, then, 
and during all of the said other time, and there to be collected, deposited 
and remain near the dwelling-houses of E. F.-, G. H. and the said A. B., 
there situate, and being then, and during all of the said time, and there, to 
the prejudice of the said £. F., G. H., A. B. and others, and to the common 
nuisance* of all the people there lawfully being and abiding (eonelude as 
inform on page 112). 

STATEMENT OF THE OFFENSE OF THROWING THE CARCASS OF AN 

ANIMAL INTO A POND. 

(Commence ae in form on page 112) that C. D., on, etc., at, etc., in said 
county, did unlawfully throw the carcass of an animal, io wit.^ a dead hog, 

into a certain pond commonly called , there situate (conclude as inform 

on page 112). 

§ 304. Obstmcting and Encroaching upon Roads. — To obstruct 
or encroach upon a public highway is indictable* as a public 
nuisance,^ though a justice of the peace has jurisdiction to try 

» R S., 885, g 222. 

* It is sufficient to say that the defendant erected and thence continually, 
etc., maintained the nuisance. Our House No. 2 v. State, 4 Greene Iowa, 
172; Baugh v. State, 14 Ind., 29; Ashbrook «. Com., 1 Bush, 139. The 

words "on the day of ^ A. D. 18 — , and on divers other days and 

times, between that day and the day of," etc., are sometimes used. 2 Arch. 
0. P. & PI., 980. And if the prosecutor does not desire to have the nui- 
sance abated, there is no necessity of alleging that it is continuing. State 
«. Hull, 81 Me., 84; State «. Shilling, 14 Iowa, 456. 

* It is sufficient to state the town or city in which the nuisance was main- 
tained, without being any more definite as to the place. Jeuks v. State, 17 
Wis., 665. 

* The authorities are conflicting as to whether an indictment should con- 
clude ** to the common nuisance," etc. 2 Bish. Or. P., ^g 862-864. 

*R S., 385, § 221, Sub. 5; Sweeny v. People, 28 Ills., 208; Leech «. 
Waugh, 24 Ills., 228; Dimon v. People, 17 Ills., 416; Martin «. People, 13 
lUs^ 841, 23 Ills., 895 ; but see Town of Havana v. Biggs, 58 Ills., 483. 

* R. S., 885, § 221, Sub. 5; Neflf t>. Paddock, 26 Wis., 547. 



208 TBIAL BEFOAB JXJSTIOB. 

the first offense, but not the second.* Probably the provis- 
ions for the punishment of these offenses, contained in the 
road laws of 1873,* are impliedly repealed by the revision of 
the criminal law of 1874 providing for their punishment.* 
Under the former statute, somewhat similar to the present, it 
was held that the continuing of an obstruction was a different 
offense from that of obstructing a road^ and was not indicta- 
ble, the only remedy supposed to be proper being by a civil 
proceeding to recover the penalty for continuing the obstruc- 
tion.* 

STATBICBNT OF THE OFFENSB OF OBSTBUCTIKa A PUBLIC HIGHWAY.* 

(Commence as inform on page 112) that C. D., on, etc., at, etc., in the said 
county, did unlawfuUy' erect and build a fence in and across the public 

higliway leading from the city of in the said county of and state 

of Illinois to the village of in the said county* on the northwest quar- 
ter of section in township north of the base line and range 

east of the principal meridian, and did thereby then and there obstruct the 
said public highway, contrary to the form of the statute in such case made 
and provided (conclude as inform on page 112). 

§305. Evidence. — Highway, how Acquired. — A public high- 
way may be acquired by condemnation under the statute,* by 

> R. 8., 885, § 221 ; Id., 405, § 381. 

* R S., 921, 922, §§ 58, 59, 60; Id., 939, §§ 151, 152. 
» R 8., 385, 386, §§ 221, 222. 

* Lowe n. People, 28 Ills., 518. 

* Sweeny «. People, 28 lUs., 208. 
' Dimon v. People, 17 Ills., 416. 

"* In Iowa an indictment which charged that the defendant willflilly ob- 
structed the public road (describing it) contrary to law was held to suffi- 
ciently aver that the act charged was unlawfully done. Capps «. State, 4 
Iowa, 503. 

* The description of the road is material and must be proved as laid. A 
description of a road from A. to B., is sufficient. Martin «. People, 23 Ills., 
395 ; Dimon «. People, 17 Ills., 416 ; Harrow o. State, 1 Iowa, 489 ; Capps «. 
State, 4 Iowa, 502. If, however, a local description sufficient to identify 
and fix the precise point of obsti'uction is given, as well as the termini of the 
road, the latter may be disregarded, and proof of the existence of the road 
at the place of obstruction is sufficient Houston «. People, 68 Ills., 185; 
Harrow o. State, 1 Iowa, 439. 

* R B., 923, ^ 69-97 ; Id., 934, §§ 136-150. 



IffUISANCES. 209 

a grant from the owner,* by prescription' or by dedication to 
and acceptance by the public' After twenty years user 
nnder a claim of right by the public, a grant will be pre- 
sumed,^ and the existence of the public highway be established 
by prescription,* but the travel must be confined to a specific 
line or way.* 

§ 306. Dedication. — To constitute a dedication, there must be 
an intention to make it by the owner of the fee and also an 
acceptance.^ The intention on the part of the owner may be 
manifested in writing, by declarations or by acts, and if the 
declarations are without writing the dedication is not within 
the statute of frauds;* but the intention must be unequivocal 
and satisfactorily proven, and the acceptance must appear. 
Where the public are the donees of the easement, this is usual- 
ly manifested by acts, such as taking charge of, using* and re- 

1 Grabe v. Nichols, 86 lUs., 92. 

Md.; Dimon «. People, 17 111s., 416; Daniels v. People, 21 Ills., 442; 
Gentlemen v. Soule, 82 Ills., 271 ; Town of Lewistonv. Proctor, 27 Ills., 417 ; 
Houston V. People, 63 lUs., 185. 

* Marcy «. Taylor, 19 Ills., 634; Daniels t>. People, 21 Ills., 489; City of 
Benville t>. Stookey 23 Ills., 442; Grube «. Nichols, 36 Ills., 92; Trickey o. 
Schlader, 52 Ills., 78; City of Peoria v. Johnston, 56 Ills., 49; Town of 
Havana v. Biggs, 58 Ills., 483; Field v. Carr, 59 Ills., 198. 

* Grube v. Nichols, 36 Ills., 92; Daniels v. People, 21 Ills., 442; Town of 
Lewiston, 27 Ills., 414 ; Blute v. Scribner, 23 Wis., 357 ; Lemon v. Hayden, 
18 Wis., 159 ; Hanson v. Taylor, 23 Wis., 547. 

* Gentleman v. Soule, 82 Ills., 278. 

' Id. ; Houston «. People, 63 Ills., 185, 

* City of Oswego f>. The Oswego Canal Co., 6 N. Y., 257; Kelley «. City 
•of Chicago, 48 Ills., 889; People v. Com. of Highways, 52 Ills., 498; Gardi- 

ner v. Tisdale, 2 Wis., 153; City of Peoria v. Johnston, 56 Ills., 49; Town 
of Havana o. Biggs, 58 Ills., 483; Gentleman t). Soule, 82 Ills., 279; City 
of Milwaukee «. Davis, 6 Wis., 877; BushneUt). Scott, 21 Wis., 451; Hard, 
ingv. Town of Hale, 61 Ills., 198; Field i>. Carr, 59 Ills., 198; Id., 492; 
Bartran v. West, 28 Wis., 416 ; Buchanan v. Curtis, 25 Wis., 99 ; State o. 
Tucker, 86 Iowa, 485. 

■Warren f>. Town of Jacksonville, 15 Ills., 240; Alvord ©.Ashley, 17 
His., 869; Tuckey «. Schlader, 52 Ills., 79; Town* of Havana v. Biggs, 58 
Ills., 488; Gentleman «. Soule, 82 Uls., 279; Field o. Carr, 59 Ills., 198; 
Gonnehan v\ Ford, 9 Wis., 240. 

' Alvord «. Ashley, 17 Ills., 868 ; People v. Com. of Highways, 52 Ills., 498; 
Kelley v. City of Chicago, 48 Ills., 888 ; Buchanan «. Curtis, 26 Wis., 99. 
14 



210 TBIAIi BBFOSB JUSTICB. 

pairing the higliway by the proper authorities.* But it 
cannot be essential to the acceptance that they 3hould repair 
the road, for it might never require repairing. Any other act 
on the part of the public which manifests an intention to 
accept, such as the public travel and use as a highway, is as 
satisfactory evidence of the acceptance as repairing by the 
officers.* A party is estopped from denying the dedication 
from the acquiescence in the using and repairing of the road 
by the public, either of himself or of his grantor, though it be 
the Government.* If a road has been traveled by the public 
for eight or nine years, such fact does not raise the presump- 
tion that the same is legally established unless there is evi- 
dence of the owner's intention to dedicate it to the public* 
It does not conclusively follow, because a person when he 
fenced his land left out a strip the width convenient for a 
road, that he designed to dedicate it to the public for that 
purpose, though such fact is strong evidence of such de 
sign. If at the time he fenced out the strip he actually in- 
tended to dedicate it for a public road, and the dedication is 
accepted by the public, he cannot subsequently change his 
purpose and resume the grant.* Twenty years is not required 
to complete a dedication, for the moment it is accepted, if 
within ever so short a time as a day or year or ten years, the 
dedication is irrevokable,^ though at any time before acceptance 
it may be revoked,^ and from the time of the acceptance it be- 
comes a public road' and continues such unless discontinued 

> Gentleman v, Soule, 83 Ills., 279 ; Alvord v. Ashley, 17 His., 863; Dan- 
niels V. People, 21 Ilia., 439; Grube v. Nichols, 36 Ills., 97; People «. Com. 
of Highways, 52 Ills., 601. 

* Inglehart v. Hobart, 19 Ills., 637; Holdane v. Trustees of the Village of 
Cold Springs, 23 Barb., 103; People v. Com. of Highways, 52 Ills., 501. 

• Alvord V, Ashley, 17 Ills., 339; Trickey v. Sclilader, 62 Ills., 78. 

* Id., Dimon «. People, 17 Ills., 416. 

• Grube v. Nichols, 36 Ills., 97; Town of Havana v. Biggs, 58 Ills., 483; 
Harding v. Town of Hale, 61 Ills., 193. 

• Grube v. Nichols, 36 Ills., 97; Leech f>. Waugh, 24 Ills., 228. 

* Marcy v. Taylor, 19 Ills.. 634; Buchanan v. Curtis, 25 Wis., 9p. 

* liadeau o. Mead, 14 Barb., 323; Bidsell t). New York C. R. R. Co., 26 
Barb., 630. 

• Proctor V, Town of Lewiston, 25 Ills., 158. 



KUISANCES. 211 

or abandoned by the public* A street in an unincorporated 
town or village may be dedicated in the same manner as a 
road in the country, and when thus dedicated and accepted be- 
comes a public highway.* 

§ 307. Town Plat — Effect of Adverse Possession. — The 
acknowledgment and recording of a town plat is the highest 
evidence of the dedication of the streets and alleys marked 
upon it* And such streets and alleys must pursue the width 
given them by the plat, until changed by the proper authority.^ 
The ground for the street should be properly indicated on the 
town plat, and other requisitions of the statute should be com- 
plied with, to enable the city or town and others to enforce the 
opening of such streets.^ Loi^g &nd continued possession ad- 
verse to the claim of the public may be shown to repel the 
presumption of dedication sought to be established by equivo- 
cal or doubtful acts of the owner.* 

§ 308. Highway, how . Aoqaired under the Statute. — A sub- 
stantial compliance with the requirements of the statute in 
laying out a highway, if nothing fundamental is omitted, is 
all that is requisite; the strictest possible compliance with 
the statute is not demanded.' Formerly in counties under 
township organization the statute requiring the petition for 
a new road to designate the point of commencement^ would 
not permit any deviation by the commissioners from the 

> Town of Lewiston «. Proctor, 27 Ills., 417 ; Dimon v. People, 17 III., 
422; Champlin v. Morgan, 20 Ills., 181. 

' Leech v. Wuugh, 24 Ills., 228, 28 Ills., 491. 

' Trustees v. Havens, 11 Ills., 554; Hunter «. Middleton, 13 Ills., 50; Waugh 
c. Leech, 28 Ills., 491; Godft-ey «. City of Alton, 12 Ills., 29; City of Peoria 
9. Johnston, 56 Ills., 45 ; Carter v. City of Chicago, 57 Ills., 283 ; City of Mil- 
waukee V. Davis, 6 Wis., 877; Trustees, etc.,©. Walsh, 57 Ills., 86J; City of 
Belleville v, Stookey, 23 Ills., 441 ; Yates «. Judd, 18 Wis., 119; Williams v. 
Smith, 22 Wis.. 594; but see 82 Wis., 484; 27 Wis., 492. 

* Waugh «. I^ch, 28 Ills., 491. 

* City of Bellville v. Stookey, 23 Ills., 441. 

* Id., 444; City of Peoria «. Johnston, 56 Ills., 45. 

» Town V, Town of Blackberry, 29 Ills., 188; Austin 9. Allen, 6 Wis., 184; 
but see Shinkle v. Magi 11, 58 Ills., 428; Haywood «. CoUms, 60 Ills., 328; 
Dolphin 9. Pedley, 27 Wis., 469. 

' Laws 1861, 249, §§ 51, 55. 



212 TBIAL BEFOBB JUSTICE. 

point BO fixed ;^ but under the pi*esent statute the commission- 
ers are permitted to .make changes "between the termini of 
the road described in the petition, as the convenience and in- 
terest of the public in their judgment may require."* The 
provisions of the statute requiring the commissioners to meet 
to hear reasons for or against the road within twenty days 
after the expiration of tlie twenty days required for post- 
ing (M>pies of the petition' is mandatory and not merely di- 
rectory, and must be complied with.* Notice must be given 
as required by the statute of the meeting of the commission- 
ers,^ for it is essential to their jurisdiction, and the want of it 
will vitiate their proceedings.® And before a new road can 
be opened or an old one changed, there must be a report and 
survey. These and a plat of the road must accompany the or- 
der of the commissioners declaring such highway opened, and, 
with the petition, should be filed with the town clerk, who 
should note the time of filing. But a. mistake of the clerk in 
the time of filing may be shown.^ The statute doe§ not require 
the notice of the meeting for the purpose of hearing reasons 
for or against the establishing of the road to be filed with the 
town clerk.® The final order reciting that the proper notices 
were given, is the highest and best evidence, it seems, of such 
fact.* And after the owner has joined in the petition and 
released all claim to damages,^' or has accepted the damages 
allowed by law for opening a highway, it is too late for him 
or his grantee to declare the proceedings for opening it void, 

> Shinklc v, Magill, 58 Ills., 422. 

• R. B.. 924, § 75. 

• Id., § 72. 

• Bliinklev. Magill, 58 Ills., 422; Com. v. Harper, 88 Ills., 104; Wood o. 
Commissioners of high ways, 62 Ills., 391. 

• R. 8., 924, §§ 72, 73. 

*Com. «. Harper, 88 Ills., 104; Eeech «. People, 22 Ills., 478; State o. 
Langer, 29 Wis., (58; bat see Wells v. Hicks, 27 Ills., 345. 

» R 8., 627, 8 80 ; Town «. Town of Blackberry, 29 Ills., 138 ; Damp «. 
Town of Dane, 29 Wis., 419 ; Isham v. Smith, 21 Wis., 82. 

• Bhinkle «. Magill, 58 Ills., 422. 
•Id. 

» THckey «. Schlader, 52 Ills., 78. 



KUIBANOIiS. 218 

for it amounts substantially to a dedication of the road.^ 
Proof that the signers of a petition for laying out a highway 
are freeholders, where the question comes collaterally in issue, 
may be made by parol; documentary evidence not being ab- 
solutely indispensable in such cases.' 

§309. Existence of Highway, how Proyed. — The existence of 
a public highway or a common street acquired by prescrip- 
tion* or by dedication/ and its location,* may be proved by 
^parol. Proof that the road is used and traveled by the pub- 
lic as a highway, and is recognized and kept in repair by the 
proper officers, furnishes a legal presumption, liable to be re- 
butted, that such road is a public liighway.* But if the road 
was acquired by condemnation under the statute, documentary 
evidence is the best, and therefore required.'' According to 
some of the earlier decisions, when an order establishing a 
road is introduced in evidence, it is unnecessary in the first 
instance to go farther and show that the previous steps 
required by statute have been taken.* But since nothing will 
be presumed in favor of a court of inferior or limited jurisdic- 
tion,* a special power granted by statute, affecting the rights 
of individuals, and which divests the title to real estate, ought 
to be strictly pursued and should appear to be so on the iaoe 

> TowD V. Towo of Blackberry, 29 lUs., 188; State 9. Langer, 29 Wis., 69; 
23 Wis., 215. 

* Anstin «. AUen, Wis., 134. 

Grube v. Nichols, 38 Ills., 93; Eynkan v. People, 1 Gilm., 8; Town of 
Lewiston v. Proctor, 27 Ills., 417; Dimoa v. People, 17 Ills., 416. 

* Dimon v. People, 17 Ills., 417; Eymanv. People, 1 Gilm., 10. 

* Eyman «. People, 1 Gilm., 4; Town of Lewistoo v. Proctor, 27 Ills., 417; 
Warren «. President, etc., of tbe Town of Jacksonville, 12 Ills., 236 ; Nealy 
«. Brown, 1 Gilm., 10; Town of Havana v. Biggs, 58 Ills., 483; Uiner «. 
People, 34 Ills., 297. 

* Eyman v. People, 1 Gilm., 8 ; Nealy t). Brown, 1 Gilm., 10. 

'Town©. Town of Blackberry, 29 Ills., 138; Com. ». Harper, 88 Ills., 
104; but see Grube 9. Nicholas, 36 Ills.. 93. 

* Nealy o. Brown, 1 Gilm., 10 ; Ferris v. Ward, 4 Gilm., 499 ; Dumoss o. 
Francis, 15 Ills., 546. 

' Shufeldt «. Buckley, 45 Ills., 223 ; Peacock «. Bill, 1 Saand., 74; Wells t 
Mason, 4 Scam., 89; Kenny «. Greer, 13 Ills., 443; Clark o. Harkness, 1 
8cam., 57 ; Von Eettler v, Johnson, 57 Ills., 109. 



214 TRIAL BEFOBB JUSTIOB. 

of the proceedings.* The correctness of these decisions may 
well be doubted.^ Until the road has been legally opened an 
indictment for obstructing it will not lie.* 

§ 310. Abandonment. — Where the fact appears with others 
tliat the road has not been repared by the public/ or that 
the public have ceased to travel over it, and have acquired an- 
other road which accommodates the public travel, a jury will 
be warranted in presuming an abandonment of the first road, 
and it is error to instruct the jury that the new road must 
accommodate the public equally as well as the former road.^ 
Evidence that the supervisors have ordered the defendant to 
open the road and remove the obstruction, is competent to 
show that the road has not been abandoned.* The act of au 
individual obstructing a public road cannot divest the public 
of its rights in respect to the road, unless submitted to for 
such a period of time as to raise a fair presumption of aban- 
donment.^ Twenty years' adverse possession and complete 
non-user of a road or street by the public for that time af- 
fords a presumption of the extinguishment of the rights of 
the public to such road or street.* But public rights in 
roads and streets are not barred by our seven years' statute of 
limitations.* 

§311. Street, etc., how Vacated. — The corporate authorities 
of any town or city have the power **to vacate or close any 
street, alley or public ground or any portion of the same," by 
a vote of three- fourths of the aldermen or trustees,* and a road 

' Smith V. Hileman, 1 Scam., 825 ; Garret v, Wi^i^ins, 1 Scam., 887 ; Day o. 
Cushmao, 1 Scam., 475; Haywood v, Collins, 60 Ills., 829. 

• Com. «. Harper, 38 Ills., 104. 

^ Keech v. People, 22 Ills., 478 ; 20 Ills., 807. 

• Town of Lewiston v. Proctor, 27 Ills., 418. 

• Gnibe «. Nichols, 36 Ills., 93; City of Peoria v. Johnston, 56 Ills., 45; 
Gentleman o. Soule, 82 Ills., 272; Town of Lewiston v. Proctor, 27 Ills., 
414 ; Chaplin «. Morgan, 20 Ills., 181 ; Gardener «. Tlsdale, 2 Wis., 154. 

• Martini?. People, 13 Ills., 341. 

» Powers V. Watkins, 58 Ills., 380. 

• City of Peoria v. Johnstim, 56 Ills., 51. 

• City of A.lu>n v. Illinois Tranjpartation Co., 12 Ills., 88; City of Peoria 
«. Jolinston, 56 Ills., 52. 



NUI8AN0E8. 216 

may be discontinued by tlie commissioners of tlie higliwajs 
on the proper petition.* 

§312. Offense not Committed by Omitting^ to Obey Orders.—* 
In a prosecution under the statute for obstructing a highway 
it must be shown that some act lias been done by the defend- 
ant in violation of the statute. A mere omission to do some 
act or obey an order of the commissioners of highways will 
not warrant a conviction.' 



» R. a, 1092, § 1 ; Id., 218, § 62, Sub. 7. 

■ Id.. 924, §§ 70, 73, 75. 

* Wiley «. Town of Brimfleld, 59 Ills.. 807. 



216 SPEGIFIO OVFKH8BB. 



OHAPTEB IV. 

Sfboifio Offenses. 
L Trbason. 

IL HOMICIDB. 

1. Murder. 

3. Manslaughter. 

in. Offenses against Pebsoeb. 

1. Abortion. 

2. Abduction. 

8. Assault with Intent to Commit a Felonj 

4. Assault with a Deadly Weapon. 

5. Concealing Death of Bastard 

6. Criminal Carelessness. 

7. Ci-uelty to Children. 

8. Dueling. 

9. False Imprisonment 

10. Kidnapping. 

11. Mayhem. 

12. Poisoning. 
18. Rape. 

14. Sodomy. 
IV. Offenses against Pbopebtt. 

1. Arson and Burning. 

2. Burglary. 

8. Embezzlement 

4. Graves, G^raveyards and Cemeteries. 

5. Larccncy. 

6 Malicious Mischief. 

7. Altering and Defacing Brands with Intent to Steal, eta 
8w Keceiving and Restoring Stolen Property. 

9. Robbery. 

10. Trespass. > 

y. Forgery, Coontbrfeiting and Kindred Offenses. 

1. Forgery. 

2. Counterfeiting. 

8. Having in Possession Counterfeit Coin, Forged and ' 

Counterfeit Public SeQurities, Bank Bills, etc 
4. Making or Knowingly Having in Possession Coniu 
terfeiting Tools. 



I 

' 8. Libel. 



TBBAiBON. S17 

6. Forging and Counterfeiting Seals and Signatures of 
Office. 

YI. CHiLATnTO, Swindling and Dbfsaudino. 

1. Cheating. 

2. Swindling by Cards, Sliglit of Hand, etc. 
8. False Pretenses. 

4. False Heir. 

5. Falsely Personating another. 

6. Frauds. 

7. Fraudulent Stock. 

8. Fraudulent Sale of Lands. 

9. Fraudulent Conveyances. 

10. Fraudulent Acknowledgment. 

11. Fraudulent Receipts. 

12. Lotteries. 

YIL Offbnses aoainst Public Mobalitt, Health and Pubuo 

POLICT. 

1. Adulteration. 

2. Adultery. 
8. Bigamy. 

4. Circulating Obscene Books, eta 

5. Currency Unauthorized. 

6. Gaming Houses. 

7. Gaming in a Tavern. 

8. Gaming Decoys. 

9. Gambling in Grain, etc. 
10. Incest 

. 11. Prize Fighting. 

Till. Offenses against the Publio Jubtxob. 

1. Bribery. 

2. Conspiracy. 
8. Escape. 

4. Falsely Assuming an Office. 
6. Misconduct of Officers. 

6. Peijury. 

7. Resistance to Officers. 

8. Witnesses. 

IX. Offenses against the Public Peace and TaAirquzLiiZTr. 

1. Extortion by ThreaU. 

2. Intimidation. 



4. Racing. 

5. Rout 

6. Riot 

7. Suppression of Unlawful Assemblies. 

8. Injuries to Property by Unlawful Assemblieit 



218 BPEOIFIO OFFENSES. 

X. A0CE88ORIEB TO CRimsfi, Attempts to Coummjt Offkh- 
SE8 AND Offenses at Ck>MM0N Law. 

1. AccesBories to Crimes. 

2. Attempting to Commit an Offense. 
8. Offenses at Common Law. 

SECTION I. 

TSRABOS. 

§818. Who can Commit 

814. Definition and Punishment. 

815. Misprison of Treason. 

816. Evidence Required — ^Allegiance. 

817. Levying War. 

818. Who Guilty of Treason. 

819. Adhering to the Enemies of the Government 

820. Time— Place — Proof that the Persons Adhered to were Enemies- 

Number of Witnesses. 

§ 313. Who can Commit. — ^'Crimes against the Government 
and the people shall consist in treason and misprison of trea- 
son, and can only be committed by persons owing allegiance 
to the state."* 

§ 314. Deflnitton and Ponishment. — '^Treason shall consist in 
levying war against the Government and people of this state 
in the same, or being adherent to the enemies of this state, 
giving them aid, advice and comfort in this state or else- 
where. Any person being thereof duly convicted of open 
deed, by two or more witnesses, or voluntary confession in 
open court, shall suifer the pains and penalty of death; and 

when the overt act of treason shall be committed without the 

* 

limits of this state, the person charged therewith may be ar- 
rested, tried and punished in any couiity in this state, within 
tlie limits of which he may be found; and the offense may be 
charged to have been committed in the county where he may 
be arrested.'^ 

§ 315. Misprison of Treason. — '^ Misprison of treason shall 

> R 8., 893, § 268. 
* Id., §264. 



TREASON. 219. 

consist in the knowledge and concealment of treason, without 
otherwise assenting to or participating in the crime. Any 
person found guilty thereof shall be imprisoned in the peni- 
tentiary not exceeding two years."* 

8TATSMB27T OF THE OFFENSE OF TREASON. 

{Commence as in form on page 85) that C. D., on, etc., at, etc., in the said 
county, then and there being a citizen and resident of, and owing aUegi- 
ance and fidelity to, the said state of Illinois, not weighing the duty of the 
said allegiance and fidelity, but then and there wickedly' devising and in- 
tending the peace of the Qovemment and the people of the said state to dis- 
turb, with divers false traitors to the number of one thousand persons, 
whose names to the said A. B. are unknown,* being persons then and there 
owing allegiance to the said state, armed and arrayed in a warlike manner, — 
that is to say, with guns, swords, clubs, staves, and other warlike weapons^ 
as well offensive as defensive, — unlawfully, maliciously and traitor- 
ously assembled* and joined together against the Government and the peo- 
pie of the said state of Illinois, did unlawfully, maliciously and traitorous- 
ly/ levy war against the Government and people of the said state of Illinois 
within the said state, contrary to the duty of the allegiance of him the said 
C. D.,* against the peace and dignity of the people of this said state of Illi- 
nois^ (eondud^ as inform on page 86). 

§ 316. Evidence Required — Allegiance. — The prosecutor 
must prove : 1, That the defendcmt owed allegiance to the 

> R 8., 892, § 206. 

* The statement of an overt act is necessary, and it must be proved as 
alleged. Vaughn's Case, 2 Halk., 684; 2 Whart Or. L., § 2741. 

' The names of the co-conspirators must be stated if known ; if not, it 
must be stated that their names are unknown. 2 Bish. Cr. P., § 1088. 

* Laying several overt acts in one count for high treason, will not make it 
bad for duplicity. Bex v. Jenour, 7 Mod., 400; Rex «. Benfield, 2 Bur., 
980. 

* An indictment must allege the offense to have been committed " traitor- 
ously." 2 Chitty Cr. L., 63. 

* An indictment must charge that the traitorous act was done contrary to 
the defendant's duty of allegiance. Rex v. Tucker, Comb, 257. 

* All indictments must conclude '^ against the peace and dignity of the 
said state of Illinois." R S., 78, Con. Ills., Art. Y I., § 88 ; but it has not been 
customary to conclude with these words in complaints. 

' Bince treason is an offense at common law in each state, Resp «. Chap* 
man, 1 Dall., 56; People v» Lynch, 11 John., 549, it is not necessary to con* 
dude **against the form of the statute," etc. ; ante p. 87, n. 1. 



220 SFEOIFIC OFFENSES. 

state : 2. That he levied war against the Government cmd 
people of this state or adhered to the etiemies of this state, 
giving them aid^ advice and comfort. To prove that the de- 
fendant owed allegiance, it may be shown that he was a cit- 
izen of the state; then he will owe allegiance to it whether he 
was absent temporarily or not.* If the defendant is an alien, ^ 

proof that he resided in the state with his family and efi&cts, 
or that he had gone abroad and left his family and e£Eects here, 
is sufficient to sliow that he owed allegiance to the state.' 
The allegiance of aliens is local and terminates when they 
leave the state with their families and effects.' 

§ 317. Levying War. — Any assembling of men for the treas- 
onable purpose and with the intent of overthrowing the Gov- 
ernment of the state is levying war, within the meaning of 
the statute.^ Actual fighting need not be proved,^ enlisting 
and marching being enough without coming to battle.* But 
the mere enlisting men to serve against the Government, 
without getting them together, is not sufficient to constitute 
a levying of war.^ And the bare assembling of men, if not 
of a warlike character and with the intent and for the pur- 
pose of overthrowing the Government, comes short of the 
overt act which is required.* A mere conspiracy to over- 
throw the Government, however atrocious such conspiracy 
may be, does not of itself amount to the crime of treason.* 

» 1 Black. Com., 870, 371 ; Rex «. Story, Dyer R., 298, 30 ; Foster's Crown 
L., 59; 2 Kent Com., 42^0; U. S. «. Williams, 2 Cranch, 82/i; Murray o. 
The Charming Betsey, 2 Cranch, 64. 

« 3 Greenl. Ev., § 239; 23 Law li., 705; U. 8. v. Villatto, 2 Dall., 870; 
U. 8. c. Willberger, 5 Wheat., 76, 97. 

• 2 Bish. Cr. L., § 1235. 

• Ex parte Bollman, 4 Cranch, 126; U. 8. t>. Burr, 4 Cranch, 469; People • i 
©. Lynch, 11 John., 549 ; Resp. v, Carlisle, 1 Dall, 35 ; U. 8. «. Vigol, 2 Dall., 

246; U. 8. V. Mitchell, 2 DaU., 848. ' 

• Foster, 218. 1 Hale, 144. , 

• Rex t). Vaughan, 2 Sa!k., 634 ; 2 Burr's Tr., 401. j 

• Ex parte Bollman, 4 Cranch, 75 ; Cond. R., 33. j 

• 2 Bish. Cr. L., § 1231 ; 2 Whart. Cr. L., § 2768; Poster, 210; 1 Hale, 131, 
133, 149 ; U. 8. «. Hoxie, 1 Paine C. C. R., 265 ; U. 8. t). Han way, ^ Wallace, Jr^ 
139; Reg. c. Frost, 9 Car. & P., 129; Rex c. Lord Gordon Doug., 590; 4 
Tucker's Black. App., 21 ; People «. Fries, Wheeler St. Tr., 666. • 

.•23LawR., 705, 707. 



TREASON. 221 

§ 818. Who Guilty of Treason. — When war has been levied, 
all those who voluntarily perform any part, however minute, or 
however remote from the scene of action, and who are actu- 
ally leagued in the general conspiracy, are traitors.^ Then en- 
listing or procuring any person to he enlisted in the service 
of the enemy is an act of treason,^ and all persons assembling 
and marching with those traitorously assembled are guilty 
of treason, wliether they are aware of the purposes of the as- 
sembly or aid and assist in acts of violence or not,* unless 
compelled to join and continue with them from a well- 
grounded fear of present d^th.* 

§ 319. Adhering to the Enemies of the Government. — A person 
may be guilty of adhering to the enemies of the state by giv- 
ing them intelligence or sending them provisions or selling 
them arms or treacherously surrendering s, fortress to them, 
or the like,* or by encouraging them to aid such enemies in 
any way. And it is immaterial whether such acts are in- 
duced by sympathy with the purpose of the enemies or a 
desire for gain,* or whether the enemies of the state are citi- 
zens of the state at open war with it or foreign pirates or 
robbers, acting under the authority of no particular nation, 
but who invade our state without any open hostilities between 
their nation and our state.^ But the offense of adhering and 
giving aid and comfort to the public enemies of the United 
States is not treason against the people of the state of Illi- 
nois.' 

*JSIx pofrU Bollman, 4 Crauch, 75 ; 2 Oond. R, 88; Com. o. Knapp. 9 
Pick., 496; 2 Borr^a Tr., 401; U. 8. «. Burr, 4 Cranch, 470; U. S. v.Piyor, 
8 Wash. C. C, 284. 

< Resp. «. McCarthy, 2 Dall., 86; Rex «. Harding, 2 Vent., 816. 

* Rex 9. The Earls of Essex, Moore, 621. 

* 1 East P. C, 70; Rex «. Gordon, 1 East P. C, 71 ; Respublica «. McCar- 
thy, 2 Dall., 86; R. «. McCrowther, Foster, 1; 5 Car. & P., 816; U. 8.«, 
Hodges, 2 Dall., 87; 2 Wlieeler C. C, 477. 

* 2 Arch. C. P. & PL, 892; 4 Black. Com., 83; 2 Chltty Cr. L., 68; 2 Whart. 
Cr. L., § 2787 ; 8 Greenl. Ev., § 244. 

•2Bi8h.Cr..L., §1284;28LawB.,697, 601; U.8.«.Pryor, 8Wa8h.a 
C 284. 
' 4 Black. Com., 88 ; 2 Chitty Cr. L., 68. 

* People «. Lynch, 11 John., 611« 



222 SPEOIFIO 0FFENSB8. 

§ 320. Time — Place — Proof that the Persons Adhered to were 
Enemies — Number of Witnesses. — If the prisoner is charged 
with an offense committed in this state, one good overt act 
must be proved to have been committed in the county where 
the venue is laid, then other overt acts of the same species of 
treason in other counties, whether charged in the complaint 
or not, may be proved if they amount to direct proof of the 
overt act charged,* or to show the intention of the defendant.* 
After proving a conspiracy and connecting the defendant with 
it, then the acts and declarations of the conspirators in the 
furtherance of the common design are admissible in evi- 
dence.' Time need not be proved as alleged, provided that 
it be shown to be within three years, so that the offense is not 
outlawed.'* Public notoriety may be sufficient evidence of 
the fact that the persons to whom the defendant adhered were 
enemies of the state, but where war is only recently pro- 
claimed, the gazette containing the proclamation may be 
given in evidence.* Although a person can only be convicted 
of treason by a voluntary confession in open court, or by two 
or more competent witnesses,* yet he may be held to bail or 
indicted wpoh the evidence of one.'' 

• Barb. Cr. L., 24; 2 Arch. C. P. & PI., 888. 
' liespublica v. Maline, 1 Dall., 83. 

• 1 East P. C, 70, 98. 
*RS., 898,§315. 

• Barb. Cr. L., 25 ; Poster, 219, 1 Hale, 164. 

• R 8., 392, § 263. 

' 2 Arch. C. P. & PL, 889 ; 1 Burr's Tr., 196. 



HOXIOIDB. 228 



SECTION II. 

Homicide. 

8 821. Provisions of the Statuet Kelaticg to Murder. 
322. Continued — Punishment. 

823. Continued— Time of Death. 

824. Evidence Required— 1. Of the Killing. 

825. Of Death being Caused by the Injury. 
820. Of the Means used to Kill. 

827. Killing may be without Violence— Neglect 

828. Proof that tlie Killing was Substantially in the Manner Alleged iB 

Sufficient. 

829. 2. That the Deceased was a Human Being. 

830. 3. That the Deceased was "in the Peace of the People.*' 

331. 4. That the Prisoner Killed the Deceased. 

332. When Accused Liable for the Killing. 

333. 5. Of Malice Aforethought. 

334 Malice Express and Implied, Defined. 

335. Malice, when Presumed. 

336. The Using of Dangerous Weapons, when Evidence of Malice. 

337. Gross Recklessness, when Evidence of Malice. 

888. Circumstances Indicating Mai ice — Previous Attempts to Assassinate 

— Threats — Declarations, etc. — Good Will. 

889. When -Malice may be Inferred from an Intent to Commit a Felony. 
340. What a sufficient Provocation to show Want of Malice. 

841. Continued. 

842. Time for the Passions to Cool. 

843. Duelling. 

844. After the Passions have had Time to Cool, a Provocation may be 

Evidence of Malice. 

845. Malice need not have Existed for any Considerable Time before 

the Killing. 

846. 6. Of Time and Place. 

847. Party Killing in one County and Party Killed in Another. 

848. Cause, Administered in one County, Death Occurring in Another. 

849. Self-Defense. 

850. Continued— What Danger Sufficient to Excuse the Killing. 

851. What Evidence Admissible to Explain the Motives of tlie Accused. 
^2. When the Necessity for Killing in Self-Defense Must be Avoided. 
858. What Force may be Used in Self-Defense. 



224 8PE0IFI0 OFFBNSBS. 

§ 864. Defense of Others. 

855. Defense of Property. 

856. By an Officer Resisted 

857. According to Lawful Sentence. 

858. By Misadventure. 
* 859. Otlier Defenses. 

860. Defendant, when Discharged. 

861. Burden of Proof. 

863. Petit Treason. 

868. Murder by Arson. 

864. Continued — Evidence. 

865. Murder }^y Perjury. 

866. Murder by Producing a Miscarriage. 

867. Murder by Displacing a Switch. 
, 868. Murder by an Accessory. 

869. Manslaughter — Defined. 

870. Voluntary. 

871. Involuntary. 

872. Punishment. 

878. Evidence in a Case of Manslaughter. 

874. Cases Collected Illustrating the Difference between Murder and 

Manslaughter. 

875. Unintentional Killing in doing an Unlawful Act 

876. Continued— Illustrations — Negligence. 

1. MUBDEB. 

§ 321. Provisions of the Statate. — " Murder is the unlawful 
killing of a human being, in the peace of the people, with 
malice aforethought, either express or implied. The unlaw- 
ful killing niay be perpetrated by poisoning, striking, starv- 
ing, drowning, stabbing, shooting, or any otlier of the various 
forms or means by which human nature may be overcome, 
and death thereby occasioned. Express malice is that delib- 
erate intention unlawfully to take away the life of a fellow 
creature, which is manifested by external circumstances ca- 
pable of proof. Malice shall be implied when no considera- 
ble provocation appears, or when all of the circumstances of 
the killing show an abandoned and malignant heart. "^ 

§ 322. Continued — Punishment. — '^ Whoever is guilty of 
murder, shall suifer the punishment of death, or imprison- 

>RS.,874,§140. 



HUBDSB. 225 

ihent in the penitentiary for his natural life, or for a term 
not less tlian fourteen years. If the accused is found gnilty 
by a jury, they shall fix the punishment by their verdict. Upon 
a plea of guilty, the punishment shall be fixed by the court."* 
§323. Continued — Time of Death. — "In order to make tlie 
killing either murder or manslaughter, it is requisite that 
the party die within a year and a day after the stroke received 
or the cause of death administered, in the computation of 
which the whole of the day on which the hurt was done shall 
be reckoned the first."^ 

STATEMENT OP THE OFFENSE OF MURDER.' 

{Commence as in form an page 85) that C. D./ on, etc., at etc., in the said 
county, did unlawfully,* feloniously* and willfully, with malice af'ore- 

> R 8., 374, § 142. 

• Id., § 147. 

' For form of an indictment for murder, by inoculating with the virus 
of small-pox, see Fairlee v. People, 11 Ills., 1 ; for another form for murder 
by striking, see Jackson o. Pqople, 18 ills., 2G9: State v. McCormick, 27 
Iowa, 403; State v, Watkins, 27 Iowa, 415; State «. Boyle, 28 Iowa, 522. 

• It is not necessary to insert the words ** with force and arms.** R. 8., 
408, §411 ; 3 Chitty Or. L., 733; 7 T. R.; 1 Keb, 652; 2 Hawks P. C. C, 25, 
§90; 1 Bish. Cr. P., §502; or "not having the fear of God before his eyes," 
or ** being moved and seduced by the instigation of the devil.** 1 Chitty Cr 
L., 239, 240; 1 Bish. Cr. P., §501. 

•possibly not necessary. Perry v. People, 14 Ills., 497; 1 Chitty Cr. L., 
241; Rex9. Young, 1 Russ., 391; Jerry v. State, 1 Blackf., 396; State 9. 
Bray, 1 Mo., 180; Curtis v. People, 1 Breese, 197, 2d Ed., 256; Fairlee v. Peo- 
ple, 11 Ills., 1 ; but it is advisable to insert it in an indictment, Curtis v. 
People, Breese, 199, 2d Ed., 256 ; 1 Scam., 285 ; and it is used in the statute, 
R. 8., 874, § 140. 

• At common law the word "feloniously" was necessary. 2 Hale P. C, 184, 
185; 8 Hale P. C, 187; 1 Arch. C. P. & PI, 301; Rex t>. Dearing, Cro. Eliz., 
193 ; Fairlee v. People, 11 Ills., 1 ; Curtis v. People, 1 Breese, 199, 2d Ed., 256 ; 1 
Scam., 288 ; Jackson «. People, 18 Ills., 269 ; Jane v. State, 3 Mo., 6 ; State «. 
Murdock, 9 Mo., 780; State «. Oilbort, 24 Mo., 880; WilliamB «. State, 8 
Humph., 685. 

16 



226 SPECIFIC OFFENSES. 

thought,* assault' and then and there unlawfully, feloniously' and willfully 
with malice aforethought did strike* one Flora Temple,* a human being,* in 

* The word "willfully" is usually inserted in compliants, Barb. O. L., 
521 ; Haines T., 27«-7, and in indictments, 1 Arch. C. P. & PI., 881 ; 3 Chitty 
Cr. L., 750; 2 Bish. Cr. P., §541; Jackson c. People, 18 Ills., 261 ; Lake©. 
People. 1 Park. Cr. R., 406. If, however, the word ''feloniously'' is inserted, 
it is said to be unnecessary to use the word "willfuliy," Rex. v. Haydon, 4 
Co., 41a, but advisable to insert it, 2 Bish. Cr. P., ^55 543, 546. The omission 
of the words "with maliqe aforethought" will make the offense manslaugh- 
ter" instead of murder. 8 Chitty Cr. L., 750, n. p.; 1 Arch. C. P. & PI. 301; 
State V. Nealy, 20 Iowa, 108; Sarah v. State, 27 Missis., 268; Com. t>. Gibson, 
2 Va. C, 70 ; Stale v, Duvall, 26 Wis., 415 ; Fonts c. State, 4 Greene Iowa, 500 ; 
but see Anderson v. State, 5 Pike, 445. 

' Where the killing is charged to have been from a battery, it is said to 
be necessarj' in «n indictment to aver an assault. 1 Arch. C. P. & PI., 885; 
J^esier v. Stat<\ 9 Mo., 666. Yet in one case, where the killing was by shoot- 
ing, it was held that the word "assault" was not absolutely essential. 3 
Bish. Cr. P., §513; Reed p. State, 8 Ind.. 200. 

* The allegations "feloniously," etc., apply to the stroke as well as to the 
assault, and it is not necessary to repeat them before the word "strike." 1 
Bish. Cr. P., g 574; Rex. u. Nicholson, 1 East P. C, 346; State v, Owen, 3 
Murph., 7; State v. Rabon, 4 Rich., 260; Maile t). Com., 9 Leigh, 661; 
Heydon's Cose, 4 Co., 41a; contra, Reap. v. Honeyman, 2 Dall., 228 ; State 
u. Watkins, 27 Iowa, 415; State v. McCormick, 27 Iowa, 403; State «. 
Knouse, 29 Iowa, 118, State v. Thcmipson, 31 Iowa, 393; and see Fairlee©. 
People, 11 Ills., 1. 

* Where the death arises f^om any wounding by beating, or bruising, it 
is said that the word "struck" or "strike" is essential. 1 Chitty Cr. L., 213; 
2 Bish. Cr. P., §516 ; L«)ng»s Case, 5 Co., 120a, 1226, 123a; State v. Owen, 1 
Murph., 452; but where the blow was made with a dirk, the words **stab," 

"stick," and "thrust," Gibson v. Com.. 2 Va. C. Ill; or where the killing was 
by shooting, the words "did shoot off and discharge," State v. Freeman, 1 
Speirs, 57, are equivalent to the word "strike," and sufficient 

*The Christian and surname of the person killed must be correctly stated 
if known. 2 Hawk P. C. C, 23, § 78 ; 2 Bish. Cr, P., 506 ; Davis v. People, 19 
Ills., 74; Vandermark©. People, 47 Ills., 122; State©. Dudley, 7 Wis., 664; 
State V. Lincoln, 17 Wis., 581 ; State v. Kube, 20 Wis., 217; State v, Kroscher, 
24 Wis., 64; cofitra. State u. Emigh, 18 Iowa, 123; or alleged to be 
unknown, or that the deceased "was not named," "not baptised," will not 
do, 2 Bish. Cr. P., §§506-511. But if described by the initials of his 
Christian name and he was as well known by his initials as his full name, 
it is sufficient. Vandermark v. People. 47 Ills., 122. It is sufficient to de- 
scribe the deceased by the name by which he is commonly known. Peo- 
ple V, Freeland, 6 Cal., 96; State v. Angel, 7 Ired., 27. An error in the mid- 
dle letter of the name has been held to be immaterial. People t?. Lockwood, 
6 Cal., 2a5 ; Miller i;. People, 39 Ills., 458 ; Moore's Civil Justice, 436 n. 3 ; and 
see Humphrey v. Phillips, 57 Ills., 135 ; Erskine v. Davis, 25 Ills., 251. 

" None of the precedents contain the allegation that the person killed was 



MUBDBR. 227 

the peace of the people, then and there being* 'with a certain stick,* then 
and there held in his right hand, and did tliercby then' and there givu her 
a mortal^ wound on the back side of her licud, of which said mortal 
wound* the said Flora Temple then and there instantly died {or ^^languWied 
a short time, and tJien^ on tlie day of , A. 2>.. 18 ^and there 

a human being, though the words are used in the statute defining the offense. 
In Iowa it has been held that such allegation is unnecebsary. State «. 
Stanley, 33 Iowa, 530. 

' Under our statute it should be alleged that the deceased was in the 
peace of the people. R. S., 374, § 140; though at common law it was un- 
necessary, 3 Chitty Cr. L., 750, n. n; Heydon's Case, 4 Co., 40a; Com. 9. 
Murphy, 11 Cush., 472. 

' The length and thickness of the stick is sometimes stated. Jackson v. 
People, 18 Ills., 270; but it is not nece^jsary or usu.iUy dtma. 3 Ciiitty Cr. 
L., 763. In an indictment it has been considered necessary, if the death 
was occasioned by an instrument in the hand of the party, to so allege, 1 
Bish, Cr. P., § 515 ; 1 Arch. C. P. & PI., 886, and to state the kind of instru- 
ment, and whether it w^is held in the right or left hand or in both. Id., 
Barb. Cr. L., 531. The words *' in both hands*' are sufficient without in- 
serting the word •• his** between the words '* both** and ** hands.** Ward v. 
State, 8 Blackf., 101. It is not necessary to state the value of the instru- 
ment used. 1 Arch. C. P. i& PI., 886 ; 2 Bish. Cr. P., § 505. 

*The allegation of time and place " then add there** should be repeated 
to every material fact issuable and triable ; 1 Chitty Cr. L., 108 ; Id., 218, 
220; unless the fact stated. necessarily refers to the time and place previous- 
ly mentioned. Jackson v. People, 18 Ills., 270 ; Com. v. Baker, 12 Cush., 186. 

* In an Indictment it must be alleged that the wound was mortal ; 2 
Bish. Cr. P., g 521; 1 Hale P. C, 186; State v, Conley, 39 Ma., 78; Rex v. 
Ladd, 1 Leach, 96; and it has been held that the length and depth of the 
wound must be averred, so that it may appear that it was mortiil; 1 Arch. 
C P. & PI., 887; State v. Owen, 1 Murph., 432; but this doctrine has been 
overruled; Id.; State v. Moses, 2 Dev., 452; State v. Crank, 2 Bailey, 66; 
Lazier v. Com., 10 Orat., 708; Dias «. State, 7 Blackf., 30; Com. «. Wood- 
ward, 103 Mass., 155; People v. Stevenson, 9 Cal., 273; or at least it can only 
be urged on motion to quash the indictment, if at all; R. S., 408, §4U; 
Stone V. People, 2 Scam., 338. 

* It must be alleged that the deceased died on account of the injuries in- 
flicted. Fairlee t>. People, 11 Ills., 1 ; Jackson v. People, 18 Ills., 269. But 
it is sufiScient to allege that he died of the wound, and it need not be added 
that he died by the stroke. State v. Conley,^ 39 Me., 78; State «. Wimberley» 
8 McCord, 190 ; People o. Loyd, 9 Cal., 54. 



228 8FE0XFI0 OFFENSES. 

efiftT*') : and so the said A. B., on his oath says that the said C. D.,' in man- 
ner and by means aforesaid, nnlawfally, feloniously, and willAilly, with 
malice aforetiiought, did willfully kill and murder* the said Flora* Tem- 
ple* (eoncluds as in form on page 35). 

STATEMENT OF THE OFFENSE OF HURDEB (WITH ▲ KNIFE*). 

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, did unlawfully, feloniously and of his malice aforethought, with 
a knife then and there held in his right hand, assault and stab one G. H., 
a human being, in the peace of the people then and there being, and gave 
him several mortal wounds,^ of which said mortal wounds the said G. H. 

' The time of both the stroke and death must be stated, Uiat the death 
may appear to have taken place within a year and a day after the mortal 
injury, R. S., 374, g 147; 2 Hale P.C, 179; People t>. Wallace, 9 Cal., 30; 
People V. Cox, 9 Cal., 32. And it has been said that where the killing is by 
a battery it is not sufficient to allege that ** he instantly did die;" Whart Cr. 
L., § 10(io ; contra. State v. Stanley, 33 Iowa, 530 ; but these words are used 
substantially in many of the approved precedents; 3 Cbitty Cr. L., 752; 2 
Bish. Cr. P., § 551; and we cannot see why they ai*e not sufficient 

* It is said to be better to omit the averment of time and place in the con- 
clusion where tlie stroke was on one day and the death on another ; 2 Bish. 
Cr. P., §§ 549, 550; but in such case the insertion of the words, *' then and 
there" has been held not to make the time uncertain; State v. Huggins, 12 
Rich, 402; Woodsides v. State, 2 How. Missis., 655. 

* The word '* murder " was formerly said to be essential because used in 
the English statute defining the ofi:ense; 2 Bish. Cr. P., § 548; 1 Arch. C. P. 
<& PI., 391 ; 3 Chitty Cr. L., 750, n. u ; Dias v. State, 7 Blackf., 20; and it 
would be safer to insert the word " murder" in the conclusion of an indict- 
ment, though since it is not used in our statute as in the English, it seems 
to ha unnecessary. In another state, where the statute is like ours, it was 
held not to be necessary ; Anderson v. State, 5 Pike Ark., 444. 

* The omission of the name of the person killed in the conclusion has 
been held to vitiate tlie indictment. State v. Pemberton, 30 Mo., 376; Dias 
V, State, 7 Blackf, 20 ; but see State v. Moses, 2 D«3v., 452. 

* It is not necessary to conclude ''against the statute." 2 Bish. Cr. P., 
g§ 499. 548. 

* For form of an indictment for murder by shooting held good, State o. 
Stanley, 33 Iowa, 527. 

' While in an indictment it is considered necessary to state in what part 
of the body the wound was given, Jackson v. People, 18 Ills., 270; Dias o. 
State, 7 Blackf., 20, yet in a complaint this is not usually inserted, Barb. 
Cr. L., 665 ; Haines T., 377 ; and it has been held that an indictment which 
charged the wound to have been inflicted in and upon the body of the de- 
ceased was sufficient Sanchez o. People, 24 N. Y., 147 ; 4 Park. Cr. R, 
535; see State v. Green, 7 Ircd., 89. 



HUBDEB. 229 

languished a short time, and then, on the — 7- day of , A. D. 18 — ,and 

there died {or thm and there instantly did die) ; and so the said A. B. on his 
oath says that the said C. D., in manner and by means aforesaid, unlaw- 
fully, feloniously and willfully, with malice aforethought, did kill and 
murder the said G. H. {conclude 04 inform on page 35). 

STATBMBNT OF THE OFFBNSB OF HURDBR BY POISON.* 

{Oommence as inform on page 85) that C. D., on, etc., at, etc., in the said 
county, did unlawfully, feloniously, willfully, and of his malice afore- 
thought, a large quantity of deadly poison called white arsenic,* to wit., the 
quantity of two drachms of the said white arsenic, did put, mix and mingle 
into and with a certain quantity of beer which one G. H. was then and 
there about to drink (the said C. D. then and there well knowing that he, 
the said G. H., intended and was then and there about to drink the said 
beer, and the said C. D. then and there also well knowing the said white 
arsenic, as aforesaid by him put, mixed and mingled into and with the said 
beer, to be a deadly poison); and that the said G. H. afterwards, to wit., on the 
day and year aforesaid, at the town aforvjsald, in the c )uaty aforesaid, did 
take, drink and swallow down a large quantity, to toit.y half ^ pint of the 
said beer, with which the said white arsenic was so mixed and mingled by 
the said O. D. as aforesaid (he the said G. H., at the time he so took, drank 
and swallowed down the said beer, not knowing there was any white ar- 
senic or any other poisonous or hurtful ingredient mixed or mingled with 
the said beer) ; by means whereof he the said G. H. then and there became 
mortally sick and distempei'ed in his body; and the said G. H. of the 
poison aforesaid, so by him taken, drank and swallowed down as afore- 
said, and of the said mortal sickness and distemper* occasioned thereby, 

fix)m the said day of , in the year last aforesaid, until the day 

of , A. D. 18 — , in the county aforesaid, did languish, and languishing 

did live on which said day of , A. D. 18 — , at the town aforesaid 

in the county aforesaid of the said mortal sickness occasioned by the said 
poison as aforesaid died; and so the said A. B. <m his oath says that the 
said C. D., in manner and form aforesaid, unlawfully, feloniously, willfully 
and of his malice aforethought, did kill and murder the said G. H. against 

> For form of allegation of malice held sufficient, State v. Duvall, 26 Wis., 
416. 

' It has been held that the kind of poison need not be stated or proved. 
Carter 0. State, 2 Ind., 617; yet, according to some of the authorities, it is 
necessary to state the kind of poison used, but not necessary to prove such 
allegation; 2 Bish. Cr. P., §555; proof that the deceased was poisoned by 
any otlier kind of poison being sufficient to warrant a conviction ; 2 Hale P. 
C, 185; Rex v. Pigeonry, 7 Mod., 149. 

' The words *' of which said mortal sickness and distemper" were held 
sufficient Keg. v. Sandys, 2 Moody, 227 ; C. & M., 845. 



230 8PE0IFI0 OFFENSES. 

the peace and dignity of the people of the state of Illinois {eoTuXude <u tJi 
form on page 85). 

Evidence Bequieed. 

§ 324. 1. It Most be Proved that the Person alleged to have been 
Mnrdered has been Killed.' — It is said to be a good general rule 
never to convict a man for murder or manslaughter unless 
the fiict was proved to have been done, or at least the body 
found dead, because instances have arisen of persons being 
executed for murdering others who have afterwards been 
found alive.^ There are, however, numerous authorities sus- 
tained by the better reason for saying that when the dead 
body has not been found, the fact that the person lias been 
killed may be proved by circumstantial evidence, when the 
facts and circumstancs are so strong as to render it morally 
certain and leave no reasonable doubt of such fact, and the 
actual proof of the finding and identifying is not absolutely 
essential;' as where the deceased was thrown overboard into 
the sea and was never heard of afterwards,* or where the body 
was entirely burned up so that it could not be identified.* But 
it has been held, atler an examination of all the authorities, 
by the Court of Appeals in N. Y., that a person cannot be 
convicted of murder or manslaughter unless the dead body 
has been found and identified or there is direct evidence of 
the killing by those who saw it.* 

§ 325. Continued — The Death must have been Caused by the In- 
jury. — It sometimes becomes a difficult question to determine 
whether the deceased was killed by the injury received from 

» State tj. Vincent, 2i Iowa, 570. 

* 2 Hale, 200. 

»3 Gieenl. Ev.. § 30; 1 Arch. C. P. & PL, 833; Whart. Am. Cr. L. of 
Horn.. 316 ; Burr Circ. Ev., 678-680 ; U. S. t?. Johns, 1 Wash. C. C, 372 ; State 
«. Frier, I Wright O., 20; U. S. v. Gilbert, 2 Sumn. C. C, 27 ; Com. v. Web- 
ster, 5 Cush., 296; People ©. Ruloff, 3 Park. Cr. R, 454; People ©. Wilson, 
3 Park. Cr. li., 199 ; Stocking v. Slate, 7 Ired., 326. 

* Uindmardh'd Case, 2 Leach, 571 ; People «. Wilson, 8 Park., 199. 
' Com. V. Webster, 5 Cush., 295. 

* Uuloff «. People, 18 N. Y., 179; see also holding same doctrine, Beg. «. 
Hopkins, 8 Car. & P. 591 ; Bo^coe Cr. £v., 13; 4 Biackf., 358. 



HUBDEB. 



231 



lihe accused, by his own act or neglect, or by the improper 
treatment of his physician. If the injury caused the death, it 
is sufficient to warrant the conviction of the person who did the 
injury of murder though the person injured might have re- 
covered had he used proper care himself,* or submitted to a 
surgical operation to which he refused submission,^ or had the 
Burgeons treated the injury properly.' So if the person would 
have died from some other cause already operating, yet if the 
injury hastened the termination of life, this is enough."* But 
where the wound was not of itself mortal, and the party died 
in consequence, solely of the improper treatment, not at all 
of the injury, the person doing tfie injury cannot be convicted 
of murder.* Yet where both the injury and improper treat- 
ment jointly caused the death, the person doing the injury 
may be convicted of a felonious homicide.* 

§ 326. The Means Used to Rill. — It is immaterial as respects 
the responsibility for the killing by what sort of force death 
is produced; as whether it proceeds from the action of the 
mind or body,^ or by working upon the fears of another where- 
by he is put into such a passion of grief or fear that the party 
either dies suddenly or contracts some disease whereof he 
dies;® whether it operates solely or concurrently with other 
things;^ whether it was consented to by the person on whom 

' Rex D. Rew, J. Kel, 26; 1 Hawk P. C, 93; McAUister v. State, 17 Ala., 
434; Com. «. Green, Ashm., 2B9; Com. v. McPike, 3 Cush , 181. 

• Reg. c. Holland, 2 Moody & Ry., 351 ; Reg v. West, 2 Car. & K., 784. 

• State V. Baker, 1 Jones N. C, 267; Com. c. Hackett, 2 Allen, 136; Reg. 
«. Haines, 2 Car. & K., 368. 

• 1 Hale P. C, 429 ; 2 Bish. Cr. L., § 638 ; State tJ. Morea, 2 Ala., 275 ; Rex 
«. Martin, 5 Car. & P., 130; Rex v. Webb, 1 M. & Rob., 405. 

• 3 Greenl. Ev., § 139; 1 Hale P. C, 428; Ucg. v, Conner, 2 Car. & K., 518; 
Parsons v. State, 21 Ala., 300; State©. Scales, 5 Jones N. C, 420, 423. 

• Com. V, Hackett, 2 Allen, 136, 141 ; Stat« u. Morphy, 33 Iowa, 276 ; contra^ 
State V. Scott, 12 La. An., 274. 

' Reg. D. Pitts, C. & M., 284; 1 East P. C, 225; 3 Greenl. Ev., § 142. 

• 1 Bish. Cr. L., § 562; Reg. t>. Pitts, C. & M., 284; Rex v. Evans, 1 Russ. on 
Crimes, 489; U. S. v. Freeman, 4 Mason, 505; contra^ 1 Hale, 427, 429; 1 
East P. C, 225 ; Barb. Cr. L., 31. 

•RextJ. Rossel, 1 Moody, 356: Ross c. Com., 2 B. Monr., 417; Reg. v. 
Haines, 2 Car. & K., 368 ; McAllister c. Stale, 17 Ala., 434; Rex v. Rew, J. 



282 8FR0IFI0 OFFBNBES. 

it operated or njt;* whether it was a blow^ or a drag* or an 
instrument or otlier thing used to procure an abortion,^ or a 
command addressed to an inferior under obligation to obey,' 
or an unlawful confinement,* or a leaving of a dependent per- 
son in a place of exposure,^ or any omission of duty which 
the law enjoins,® or a ball discharged from a gun;^ whether it 
was accompanied by acts of other persons concurring in what 
was done or operated alone,*® or was of any other nature." 

§ 327. The Killing May be Without Violence — Neglect. — It is 
sot necessary that the death should be caused by actual vio- 
lence, for if a man does an act the probable consequence of 
which may be and eventually is death, such killing may be 
murder, although no stroke be struck by himself, and no kill- 
ing have been primarily intended;** as where a person carried 
his sick father, against his will, in a severe season from one 
town to another, by reason whereof he died;" or where a har- 
lot left her child in an orchard covered only with leaves, in 
which condition it was killed by a kite;" or where a child was 



Kel, 26; Ileg. «. HoUand, 2 Moody & Ry., 351 ; Reg. t>. West, 2 Car. & K., 
784. 

» Com. «. Parker, 9 Met., 263, 265 ; Rex. c. Hughes, 5 Car. & P., 126 ; Reg. 
«. Alison, 8 Car. & P., 418; Rex o. Russel, 1 Moody, 356. 

•ahortertJ. People, 2 Com., 193; Gray»s Case, J. Kel, 64, 133; Keat'41 
Case, Skin, 066. 

• Rex V, Martin, 3 Car. <& P., 211 ; Ann «. State, 11 Humph., 159. 

• Com. T. Keeper, 2 Ashm., 227; Reg. ©. West, 2 Car. & K., 784 ; Com. «. 
Parker, 9 Met., 263. 

' U. S. «. Freeman, 4 Mason, 505. 

• Reg. t>. Marriott, 8 Car. & P., 420. 
» Bears Case, 1 Leon, 327. 

• Rex ©. Squire, 1 Russ. on Crimes, 490; Rex t>. Saunders, 7 Car. & P., 277; 
Reg. V. Shepherd, Leigh & C, 147 ; Reg. c. Dant, Leigh & C, 567; ]^g, «. 
Smith Leigh & C, 607 ; Reg. e. Renshaw, 20 Eng. L. & Eq., 593. 

• State v. Sisson, 8 Brev , 58. 

»• People tj. Mather, 4 Wen., 229 ; Reg. «. Haines, 2 Car. & K., 368 ; Reg. c. 
Mazeau, 9 Car. <& P., 676. 
" Chichester's Case, Aleyn, 12. 
«• 4 Black. Com.. 197; Com. v. Webster, 5 Cush., 295. 
>• 1 Hawk P. C. C, 3, § 5; 1 Hale, 431,432. 
>« 1 East P. C, 226 ; 1 Hale, 431 ; Reg. v. Piummer, 1 Car. & K., 600. 



MTJSDER. 233 

placed in a hogsty. where it was destroyed;* or where a parish 
officer shifted a child from parish to parish until it died from 
want of care and sustenance;^ or forcing a person to do an 
act which is likely to produce his death and which does pro- 
duce it;' or where death comes by reason of an omission to 
discharge a legal duty;^ or whei'e death ensues from gross or 
willful neglect and carelessness of a medical man.^ In these 
cases it was considered that the acts so done were with malice 
prepence.* 

§ 328. Proof that the Killing^ was Substantially in the Manner 
Alleged is Soflcient. — It will be sufficient if the manner of 
the death proved agree in substance with that charged^ 
Therefore, evidence that the deceased was killed with a dif- 
ferent weapon from that described is admissible^ if the instru- 
ment was capable of producing the same kind of death;* as 
if a wound or bruise be alleged to have been given with a 
sword, proof may be i^ceived that it was given with a statt* or 
axe;*® or if a wound or bruise is alleged to have been given 
with a wooden staff, it may be proved to have been given 
with a stone." But proof that the murder was committed by 
striking with a gun on the head does not sustain the charge 

> 1 East P. C, 226; Reg. «. Crampton, C. & H., 597; Rex v. Sblf, 1 Leach« 
137; Ann v. State, 11 Hamph., 159. 

• Palmer, 545. 

• Russ. Cr. L., 425; U. S. «. Freeman, 4 Mason, 505; Reg. v. Pitts, C. A 
M., 284. 

• Reg. V. Hughes, Dears & B., 248; 7 Cox C. C, 301 ; Reg. v. Lowe, 3 Car. 
& K, 123; Reg. V. Haines, 2 Car., 368. 

• Rex. t>. Long, 4 Car. & P., 898; Rex «. Van Butchell, 8 Car. & P., 635 ; 
Rex «. Williamson, 3 Car. & P., 685. 

• 1 Hale P. C, 427, 429, 1 East P. 0., 225; Barb. Cr. L,, 30; 2 Bish. Cr. L., 
S635. 

' 2 Bish. Cr. P., §514; Roscoe Cr. Ev., 706; Barb. Cr. L., 53 ; 1 Arch. C. 
P. & PL, 885; Dukes v. State, 11 Ind., 557; Keg. v. Warman, 1 Den. C. C, 
183. 

• 1 Arch. C. P. & PL, 884; People v, Colt, 3 Hill, 432; Com. «. McAffeOp 
108 Mass., 458. 

• Barb. Cr. L., 53; MackaHay's Case, 9 Co., 67. 

>* State V. Fox, 1 Dutcher, 556 ; State v. Smith, 32 Me., 869. 
" Rex V, Sharwin, 1 East P. C, 341. 



234 SPECIFIC OFFENSES. 

of shooting from a gun by means of powder and shot.* 
Where the killing is charged to have been by one description 
of poison, the charge may be supported by proof of another 
description of poison.* But if a person be charged with one 
species of killing, as by poison, he cannot be convicted of a 
species of death entirely diiferent.^ The charge of ej^posure 
as the cause of death is not supported by proof of accelera- 
tion merely/ So if the indictment charges that the death 
was occasioned by two jointly co-operating causes, as by 
starving and beating, both must be proved or the indictment 
fails.* 

§ 329. 2. It most Appear that the Deceased was a Haman Being. — 
A child in its mother's womb is not a human being within 
the meaning of the statute. The rule is that it must be 
born.* Every part of it must come from the mother before 
the killing of it will constitute a felonious homicide.' The 
umbilical cord which attaches it to her need not be parted,* 
neither need the child have breathed, if it otherwise had life 
and independent circulation;^ while, on the other hand, sup- 
pose it to have breathed before being fully born, and then death 
to have ensued by unnatural means before the delivery was 
complete, it could not be the subject of this offense.*® There- 
fore where a woman sunders the head from her infant's body 

» People ©. Guedell, 43 Ills., 226. 

• 3 Oreenl. Ev., § 135 ; Carter v. State, 2 Carter Ind., 617 ; Rex v. Pigeonry, 
7 Mod., 149; 2 Hale P. 0., 115 ; 2 Hawk P. C. C, 23, §84. 

• 1 Arch. C. P. & PI., 885 ; Rex c. Briggs, 1 Moody, 818 ; Rex v. Thomp- 
son, 1 Moody, 139 ; Rex v. Kelley, 1 Moody, 113; Rex «. Hughes, 5 Car. & 
P., 126; Rex V. Tyre, Russ. & Ry., 345. 

• Stockdale's Case, 2 Lewin C. C, 220; Barb. Cr. L., 55; 3 Greenl. Ev., 
§141. 

• Stockdale's Case, 2 Lewin C. C, 220; Rex «. Saunders. 7 Car. & P., 277. 

• Rex f>. Brain, Car. & P., 349; Abrahams v. Foshee, 3 Iowa, 274. 

• Rex V, Brain, 6 Car. & P., 349 ; Rex o. Crutchley, 7 Car. & P., 814 ; Rex «. 
Bellis, 7 Car. & P., 850; Rex v. Poulton, 5 Car. & P., 329. 

• Rex D. Reeves, 9 Car. & P., 25 ; Rex v. Trilloe, C. & M., 650; 2 Moody, 
260 ; Rex v. Crutchley, 7 Car. & P., 814. 

• Rex V. Brain, 6 Car. & P., 349. 

'• Rex t>. Sellis, 7 Car. & P., 850; Rex v. Enoch, 6 Oar. A P., 539; Beg, v. 
Poulton, 5 Car. & P., 329. 



MUKDEB. 235 

before the birth is complete, or otherwise kills the cliild, she 
is not guilty of murder.* If, however, a child receives an in- 
jury while it is yet unborn, and it is afterwards born alive 
and then dies, the person doing the injury is guilty of mur- 
der.* So if a person intending to procure an abortion does 
an act which causes the child to be born alive before the 
natural time, and consequently less capable of living, where- 
by it dies after birth from this premature exposure to the ex- 
ternal world, he is guilty of murder;* and if one counsels 
before birth a mother to kill her infant after birth, and she 
does it, he becomes thereby an accessory before the fact to her 
act of murder.* 

§330. 3. The Deceased mnst have been '^in the Peace of the 
People," by wliich is meant in the enjoyment of the right of 
existence at the particular time and place when and where 
he was killed.* Therefore it is jiot murder for a sheriff to 
hang a mail in pursuance of a judgment and sentence of a 
court having jurisdiction,* but if a person be condemned to 
be hanged, and the sheriff behead him, this is murder.^ So 
it is not murder to take the life of any enemy in the actual 
heat of battle in time of war,* for the person killed had not at 
tliat moment and in that place a right to his life if the other 
could take it away. If one maliciously kills an alien enemy 
not in the exercise of war,* or if a person not authorized exe- 
cutes the sentence of death,^®it is murder. A person forfeits 

» Reg. t>. West, 2 Car. & K., 784; Rex v. Senior, 1 Moody, 846; Reg. v, 
Poulton, 5 Car. & P., 329; Rex v. Brain, 6 Car. & P., 849; Rex v. Pulley, 6 
Car. & P., 539; Rex v. Wright, 9 Car. P., 754. 

• 8 Inst., 50; 1 Hale P. C, 433; Reg. v. West, 2 Car. & K., 784; Rex c. 
Senior, 1 Moody, 348. 

• Reg. V. West, 2 Car. & K., 784 ; Rex v. Senior, 1 Moody, 346 ; 1 Roscoe 
Or. Ev., 695; contra, 1 Hale P. C, 433; 5 Taunt., 21. 

• 1 Hale P. C, 433 ; 3 Inst., 51 ; R. S., 393, 8 274. 

• 1 Hawk P. C, 94, 8 15 ; 1 Hale P. C, 43 ; 2 Bish. Cr. L., § 630 ; Rex. v, De. 
pardo, 1 Taunt, 26; Russ &Ry., 134; Rex v. Helsham, 4 Car. & P., 394. 

•R. 8., 375, §151. 
' 1 Hale P. C, 433. 
•Id. 

• State 0. Grit, 13 Minn., 341. 
» 1 Hawk P. C, 80, g 9. 



236 SFEOtFIO OFFENSES. 

his right of existence by attacking another, making it neces- 
sary to kill bim in self-defense/ or by attempting to commit 
a felony, making it necessary to kill bim to prevent tbe com- 
mission of tbe offense.* The law protects every person,* even 
tbe greatest criminal, and no man has a right to take bis life, 
except by its authority and in tbe manner prescribed by its 
provisions.* If an alien comes here, even in time of war, it 
is murder to kill him except in actual heat and exercise of 
war.* If he submits and lays down his arms, his life must be 
spared .• 

§331. It must be Proved that the Prisoner Killed the Deceased 
— Confessions. — If the dead body has been found under cir- 
cumstances showing that the deceased was killed, then it may 
be shown tbat the deceased was killed by the prisoner by cir- 
cumstantial evidence,^ which ought not only to be consistent 
with the prisoner's guilt, but inconsistent with any other ra- 
tional conclusion.® Confessions are competent evidence in a 
case, but alone are not sufficient to convict a man of murder 
nnless sustained by the facts and circumstances.* If, how- 
ever, the confessions are made by a prisoner under the in- 
fluence of promises, or are extorted by violence or threats. 



• Young 1?. State, 11 Humph., 300; People v. Shorter, 4 Barb., 460; Shorter 
9. People, 2 Com. N. Y., 193 ; Campbell ©.People, 16 Ills., 17 ; People v. Cole 
4 Park. Cr. R, 35 ; but see Greschla v. People, 53 Ills., 295 ; State v, Harris, 
1 Jones N. C, 190. 

• 1 Hale P. C, 481, 547; Oliver «. State, 17 Ala., 587; U. S. v. Rutherford, 
8 Wash. C. C, 515; People «. Payne, 8 Cal., 841 ; State v. Roane, 2 Dev., 58; 
Rapp V. Com., 14 B. Monr., 614. 

' State c. Jones, Walker Missis., 88. 

• 8 Inst., 50; 2 Bish. Cr. L., §§630, 631 ; Penn v. Robertson, Addison, 246. 

• 4 Black. Com., 198, 1 East P. C, 227. 

• Vatel Law of Nations, & 3, § 146; 1 Bish. Cr. L., 134. 

' Ruloffc. People, 1» N. Y., 179; Gates v. People, 14 Ills., 434. 

• Hodge's Case, Lewin C. C, 227 ; 3 Greenl. Ev., §§ 134, 137. 

• Gates V. People, 14 Ills., 437; People t>. RulofT, 8 Park. Cr. R., 401, 437; 
People V. Porter, 2 Park. Cr. R., 14; Bergen v. People, 17 Ills., 426; Cun- 
ningham v. Com., 9 Bush. Ky., 149; State v. Osti*andcr, 18 Iowa, 454; 
State t). Pratt, 20 Iowa, 267; State v. Wright, 19 Iowa, 94; Bute v, Rora. 
backer, 19 Iowa, 755; State v. Turner, 19 Iowa, 144; State v. Wilson, 8 Iowa, 
407; State v. Hcnkle, 6 Iowa, 380; State o. Stanley, 83 Iowa, 531. 



MURDEB. 237 

they are not admissible in evidence.* But if facts are elicited 
by such confessions, they may be given in evidence.* 

§ 332. When Accused Liable for the Killing. — It is not neces- 
sary that the killing should have been done by the prisoner's 
own hand. If he was actually present aiding and abetting 
the deed, or was constructively present by performing his 
part in an unlawful and felonious enterprise, expected to re- 
sult in homicide, fiuch as by keeping watch at a distance to 
prevent surprise, or the like, and murder is committed by 
some other of the party in pursuance of the original design,' 
or if he combined with others to commit an unlawful act 
with the resolution to overcome all opposition by force, and 
it results in murder, though at the time of the act he is at 
such a distance as to be out of view,* or if he employ another 
person unconscious of guilt, such as an idiot, lunatic or child 
of tender age as the instrument of his crime, he is guilty as 
the principal and iulmediate offender, and the charge against 
him as such will be supported by evidence of these tacts;* 
but mere presence is not sufficient to constitute a party a 
principal to a murder unless he aids, assists or abets.^ 

§ 333. 5. The Rilling must be Shown to have been ** with Mal- 
ice Aforethought, either Express or Implied."^ — The legal sense 
of the words '^ malice aforethought" is not confined to a par- 
ticular animosity to the deceased, but extends to an evil de- 

" Gates©. People, 14 Ills., 437; Miller «. People, 39 Ills., 457; Austin v. 
People, 51 Ills., 28G ; Cropper v. U. S., Morris Iowa, 259. 

* Gates t>. People, 14 Ills., 437. 

» Foster, 259, 350, 353 ; Ilex v. Culkin, 5 Car. & P., 121 ; Brennant. People, 
16 Ills., 51 1 ; People t>. Mather, 4 Wen., 229 ; Rex v. Locket, 7 Car. & P., 800 ; 
Kennedy v. People, 40 Ills., 488 ; U. B. v. Ross, 1 Gallis C. C. R., 524 ; Com. «. 
Roberts, 108 Mass., 296. 

* U. 8. «. Ross, 1 Gallis' C. C. R., 524; Brennan «. People, 15 Ills., 511; 
Reg. V. Howell, 9 Car. & P., 437 ; State 9. Simmons, 6 Jones N. C, 21 ; Com. 
«. Daley, 4 Penn. Law J., 154; Reg. «. Tyler, 8 Car. & P., «16 ; State v. Nash, 
7 Iowa, 350. 

* 3 Greenl. Ev., § 138; Rex «. Palmer, 1 N. R, 96; Com. v. Hill, 11 Maas., 
186; Com. «. Chapman, 11 Cush., 422; Rex o. Michael, 9 Car. & P., 356. 

' Connaughty v. State, 1 Wis., 159 ; State o. Farr, 33 Iowa, 653. 
' State V. Declotts, 19 Iowa, 447 ; State «. McCormick, 27 Iowa, 402; Shan- 
nahan o. Com., 8 Bush. Ky., 463 ; Blemen v. Com., 7 Bush. Ey., 820. 



r 



338 BPECIFIO OFFENSES. 

sign in general, a wicked and corrupt motive, an intention to 
do evil, the resnlt of which is fatal.^ It is sufficient that the 
circumstances show cruelty and malignity carrying in them 
a plain indication of a depraved, wicked and malignant spirit.* 
The books generally define maliee aforethought to be such a 
depraved condition of mind as shows a total disregard of so- 
cial duty and a Jieart bent wholly on evil.' 

§ 334. Malice Express or Implied, Defined. — ^^ Express malice 
is that deliberate intention unlawfully to take away the life 
of a fellow creature which is manifested by external circum- 
stances capable of proof;"* such as by lying in wait, antece- 
dent menaces, former grudges and conserted schemes to do 
the deceased bodily injury.* Malice shall be implied when no 
considerable provocation appears or when all the cirpumstan- 
ces of the killing show an abandoned and malignant heart;"* 
as where a person without any apparent provocation reckless- 
ly shoots another,^ or willfully poisons another, or kills an- 
other suddenly without provocation, for no person, unless he 
be of an abandoned heart would be guilty of such an act up- 
on a slight or no apparent cause.* In such cases the law will 
infer a general malice from such depraved inclination to mis- 
chief.* As a sane m^n is a voluntary agent acting upon mo- 

» Foster, 256 ; 4 Black. Com,, 198 ; 1 East P. C, 215 ; Vandermark v. People, 
47 IHs., 123. 

"State V. Turner, Wright, 20; U. S. t>. Cornell, 2 Mason, 60; State v. 
Smith, 2 Strob., 77 ; Com. v. Drew, 4 Mass., 891 ; Anthony v. State, 13 Sm. 
& M., 263. 

* 2 Bish. Cr. L., § 675 ; State v. Jarrott, 1 Ired., 76 ; U. S. v. Cornell, 2 Ma- 
son, 60; State «. Smith, 2 Strob., 77; Beauchamp v. State, 6 Blackf., 299; 
People V. Divine, 1 Edin. Sel. Cas., 594; Reg. v. Tayler, 8 Car. & P., 620; 
State V. Sinmons, 3 Ala., 497. 

* R. S., 374, § 140. 

* Hale, 451 ; 4 Black. Com., 199 ; 1 Arch. C. P. & PL, 847. 
« R. S., 874, § 140 ; Kennedy v. People, 40 Ills., 488. 

* Vandermark v. People, 47 Ills., 123 ; Perry tj. People, 14 Ills., 498. 

" 4 Black. Com.,.200 ; Barb. Cr. L., 26 ; 1 East P. C. C, 5, § 2 ; Riley «. 
the State, 9 Humph., 646 ; State v. Tipsey, 3 Dev., 485 ; State v, Siasoa, 8 
Brev., 58; State v. Tilley, 3 Ired., 424; Mitcbumu. State, 11 Ga., 615. 
• • 1 Hale, 474; 1 Hawk P. 0. C, 29, § 12; 4 Black. Com., 200; 1 East P. 0. 
C, 5, §18; Peny tj. People, 14 Ills., 498; Vandermark t>. People, 47 Ills., 
122, 



MusDss. 239 

tiyes, he must be presumed to contemplate and intend the 
necessary, natural and probable consequences of his own acts. 
If, therefore, one voluntarily or willfully does an act which 
has a direct tendency to destroy another's life, the natural and 
necessary conclusion from the act is that he intended so to 
destroy sucli person's life, and from such act the law will im- 
ply malice.^ . 

§ 335.. Malice, when Pi^esnmed. — Malice is presumed from the 
fact of killing unaccompanied with circumstances of extenua- 
tion,^ and it is incumbent. upon the prisoner to prove such 
circumstances as will rebut this presumption,' though the bur- 
den of proving malice is upon the people,* and if they do not 
prove it beyond a reasonable doubt, the prisoner should be 
acquitted of the crime of murder, but may be convicted of 
manslaughter.'^ In the absence of apparent well-founded danger 
of great bodily harm, or such provocation as is calculated to 
excite irresistible passion, the law will imply malice.* So if 
a man assault another with intent to do him a bodily injury, 
and death ensue, malice suflScient to constitute murder will 
be presumed if the act be of such a nature as plainly and in 

» State 1?. Town, Wright, 75; Mitchell v. State, 5 Yerg., 340; State v. Mc- 
FaU, Addis, 255; People v. McLeod, 1 Hill, 377; State v. Turner, Wright, 
20; McDaniels v. State, 8 Sm. & M., 401 ; State v, Tilley, 3 Ired., 424; Ann 
f>. State, 11 Humph., 159; People ©. Kirby, 2 Park. Or. R,28; Green «. 
State, 28 Missis., 687 ; State v. Johnson, 3 Jones, 266 ; but see U. S. v. Arm- 
strong, 2 Curtis, 446. 

• People D. March, 6 Cal., 543; State u. Knight, 43 Me.j 11 ; Com. ©. Eork, 
9 Met., 93; Rex v. Greenacre, 8 Car. & P., 35; McDanieU. State, 8 Sm & M., 
401 ; State «. Dicklotts, 19 Iowa, 447; Com. v. Hawkins, 3 Gray, 463; Mur- 
phy V. People, 87 Ills., 448; Peri v. People, 65 Ills., 18; eantra. Good all v. 
State, 1 Oregon, 333; State «. Gillick, 7 Iowa, 288; State v. McCormick, 27 
Iowa, 402. 

• R. 8., 876, § 155 ; 1 Arch., C. P. & PI., 851 ; 4 Black. Com., 201 ; State «. Zel- 
lers, 2 Halset., 220; Rex v, Greenacre, 8 Car. & P., 35; Murphy v. People, 
37 111s., 448. • 

*2Bi8h. Cr. P., §617; Com. v. Hawkins, 3 Gray, 463 ; Com. «. York, 9 
Met., 93; Maher «. People, 10 Mich., 213. 

• Chase©. People, 40 Ills., 358; Hopps v. People, 31 Ills., 385; Bi*ennan «. 
People, 15 Ills., 617; Barnett v. People, 54 Ills., 330; State v, Mc^ally, 38 
Iowa, 580 ; contra. State v. Boyle, 28 Iowa, 522 ; State «. Knouse, 29 Iowa, 11& 

• Petri V. People, 65 Ills., 18. 



240 SPECIFIC OFFEK8B8. 

the ordinary course of events must put the life of the de- 
ceased in jeopardy.* 

g 336. The Using of Dangerous Weapons, etc., Weapons, when 
Evidence of Malice. — The using of a dangerous and deadly 
weapon with violence, without excuse, thereby producing 
death, is strong,^ and according to some of the authorities,* is 
conclusive evidence that the killing was with malice afore- 
thought Yet if the deadly weapon is employed neither with 
direct aim nor in a manner likely to be deadly in the particu- 
lar instance, the law will not imply malice from the using of 
such weapon/ The question of what is a deadly weapon 
where there is no dispute about the facts, is one of law for the 
court and not of fact for the jury.* 

§ 337. Gross Recklessness, when Evidence of Malice. — Malice 
may be proved by evidence of gross recklessness of human 
life, whether it be the act of wanton sport, such as purposely 
and with intent to do hurt, riding a vicious horse into a crowd 
of people whereby death ensues;* or by casting stones or other 
heavy bodies likely to create danger over a wall or from a 
building with intent to hurt the passers-by, one of whom is 
killed,^ or where a parent or master corrects a child in a savage 
or barbarous manner or with an instrument likely to cause 
death, whereof the child dies.* 

> People «, Rector, 19 Wen., 606 ; State v, Hissenkamp, 17 Iowa, 25. 
' Clark D. State, 8 Humph., 671; Peiry c. People, 14 Ills., 4U8; State©. 
Gillick, 7 Iowa, 287 ; State v. Neeley, 20 Iowa, 109. 

• Com. V. Yi)rk, 9 Met., 98; Com. v. Webster, 5 Cush.,295; State v Smith, 
2 Strob., 77; Rex v. Thomas, 7 Car, & P., 817 . Grey's Case, J. Kel, 64; Rex 
V. Hazel, 1 Leach, 883 ; U. S., v, McQlue, 1 Curt. C. C, 1 ; Green «. State, 28 
Missis., 687. 

• Slate V, Roane, 2D3v., 58; State t. West, 6 Jones N. C 505. 

• State «. West, 6 Jones N. C, 505; contra, U. S. t>. Small, 8 Curtis C. C, 
241. 

• Hawks P. C^ b. 1, c 81, §61; 1 Ld. Raym., 148; FostSr, 261; Roscoe 
Cr. Ev., 710; State «. Vance, 17 Iowa, 138. 

• Roscoe Cr. Ev.,710; lEast P. C, 234;Stote «. Myers, 19 Iowa, 517; Peo- 
ple t. Puller, 2 Parker, 16. 

'Foster, 262, 1 Hale P. C, 474; 8 Greenl. Er^ §147; Grey's Case, J. 
Kel, 64. 




MTJBDEB. 241 

§ 338. Evidenee of Malice — Previons Attempts to Assassinate — 
Tlireats, Declaratioiis, etc, — Goodwill. — The former attempts 
of the defendant to assassinate the deceased, his former 
threats or declarations that his intentions were deadly, his 
expressions of a vindictive feeling towards him, the existence 
of any motive likely to instigate him to kill the deceased, his 
making prepartitions for the concealing of the body, the lay- 
ing of a train of circumstances which may be calculated to 
break the surprise or baffle the curiosity which would proba- 
bly be occasioned by the homicide, and any facts or circum- 
stances showing a harbored design against his life, are admis- 
sible in evidence to show malice.' On the other hand, 
expressions of good will and acts of kindness on the part of 
the prisoner towards the deceased are always considered im- 
portant evidence to show want of malice.^ But the declara- 
tions of the accused about the deceased on the day of the 
killing, but some time after the offense was committed and 
at another place, are not evidence for the accused.* 

§ 339. Wlien Malice may be Inferred tram an Intent to Commit a 
Felony, etc. — Whenever one does an act with the design of 
committing a felony, either at common law* or by statute* or 
such a misdemeanor as is likely to endange^ human life,* by 
which the life of another is accidentally but unintentionally 
taken, he is guilty of murder; because such conduct evinces a 
depraved mind and shows malice against all mankind;^ there- 
fore, if a person designs to kill one person, and in carrying 

» 1 Whart. Cr. L., §§ 635, 1113; Benedict t>. State, 14 Wis., 424; State 9. 
Stanley, 88 Iowa, 534; Com. v. Madan, 102 Mass., 1 ; but see Albright o. 
State, 6 Wis., 74. 

• 1 Whart. Cr. L., J 635. 
•Gardiner u. People, 3 Scam., 88. 

• Hawk P. C, 86, ^ 11 ; 1 East P. C, 222 ; 2 Bish. Cr. L., § 694 ; Gore's Case, 
9 Co., 81a ; Rex v. Plummer, J. Kel, 109; 12 Mod., 627; State t>. Spencer, 1 
Zab., 196 ; U. S. «. Ross, 1 Gallis C. C, 524 ; Beets v. State, Meigs, 106 ; U. S. o. 
Travers, 2 Wheeler C. C, 508; Brennan v. People, 15 Ills., 511. 

• R. S., 374, § 145 ; State «. Smith, 32 Me., 369 ; State v. Shelledy, 8 Iowa, 
479 ; but see 1 Roscoe Cr. Ev., 710. 

• R. S., 374, § 145 ; 2 Bish. Cr. L., § 691. 

State «. Spencer, 1 Zab., 196 ; State «. Benham, 28 Iowa, 155. 

16 



24:2 SPECIFIC OFFENSES. 

out that design accidentally kills another,* or administers a 
drug to a pregnant woman, or does to her any criminal act 
with tlie design of procuring an abortion,* and thereby causes 
her death, he is guilty of murder.' 

§ 340. What a Safficient Provocation to Show Want of Malice. — 
Evidence that a sudden and considerable provocation caused 
the prisoner to do the fatal act may be received to show tliat 
the killing was without malice aforethought;^ as where a per- 
son is assaulted and strikes back without being influenced by 
passion, and unintentionally, but unnecessarily and unfortu- 
nately, kills his assailant,* or where the mind is blinded by 
passion and the killing springs from the passions and not 
from malice,® the offense is only manslaughter. Therefore, 
where two persons upon a sudden quarrel engage in a mutual 
combat, if either in the heat of it kill the other, though 
with a deadly weapon, his offense is only manslaughter,^ even 
though he made the first assault,* and the fatal blow, prompted 
by the heat of the fight, was given with intent to take life.* 



* Reg. t>. Smith, 33 Eng. L. & Eq., 567 ; State v. Smith, 2 Strob., 77 ; State 
V. Cooper, 1 Green N. J., 362. 

» 1 Hale P. C, 429 ; 1 East P. C, 230 ; Com. v. Keeper, 2 Ashm , 227 ; Com. 
V. Parker, 9 Met., 263, 26^3 ; State v. Moore, 25 Iowa, 128. 

■ Roscoe Cr. Ev., 709; 2 Bish. Cr. L., § 691. 

*R. B., 374, §140; Id., §§ 144,145; Preston v. State, 25 Missis., 883; 
Campbell v. State, 23 Ala., 44; Com. v. Hare, 4 Penn. L. Jour., 257; State 
«. Norris, 1 Hayw, 429 ; Peri v. People, 65 Ills., 18; State v, Varice, 17 Iowa, 
138 ; State u. Decklotts, 10 Iowa, 448; Kriel v. Com., 5 Bush. Ky., 368. 

•R. S., 874, §145; People o. Harper, 1 Edm. Sil. Cas., 180; Stoflfer ©. 
State, 15 Ohio 47; Com. v. Dunn, 8 Smith Pa., 9; U. S. ©. Wilberger, S Wash. 
C. C, 515; Young v. State, 11 Humph., 200; State v. Tackett, IHawks, 210; 
Nelson v. State, 10 Humph., 518. 

• Preston ». State, 25 Missis., 383; State v. Hill, 4 Dev. & Bat, 491, 496; 
Haile v. State, 1 Swan Tenn., 248; Young v. State, 11 Humph., 200. 

* Kex V. Snow, 1 Leach, 151 ; 1 East P. C, 224 ; Com. t?. Biron, 4 Dall., 125 ; 
Allen V, State, 5 Yerg., 453; State v. Roberts, 1 Hawk, 349; Rex v. Ayres, 
Russ. & Ry., 48; U. S. t>. Mingo, 2 Curt. C. C, 1. 

•State V. Floyd, 6 Jones N. C, 392 ; State v. Hill., 4 Dev. & Bat., 491 ; 
Suite V. Curry, 1 Jones N. C, 280. 

• Quarles v. State, 1 Sneed Tenn., 407 ; Rex v. Taylor, 5 Burr, 2793 ; Rex 
o. Snow, 1 Leach, 151. 



MUKDER. 243 

If, however, he made the first assault without provocation, 
and the person killed only acted in self-defense;* or if he com- 
menced the quarrel with intent to kill his adversary* or to do 
him great bodily harm,* or continued the fight after he had 
had time for his passions tocool,^ or after he had overpowered 
his adversary willfully and deliberately killed him;* or if the 
homicide was not the result of passion,® or if in tlie heat of 
passion he defends himself with a deadly weapon, and uses it 
in a cruel manner not justified at all by the nature and dan- 
ger of the assault,^ — the offense amouiits to murder. The 
accused cannot justify the killing of the deceased with whom 
he has provoked a quarrel for the purpose of getting an op- 
portunity to take his life.® 

§34L Continued. — The provocation must be considerable,* 
A slight blow,'® or an intent to commit an assault," or a libel" or 
a suspicion of adultery with one's wife, or'" the adultery of an- 



' Hugct*8 Case, J. Kel, 50, Gl; Anonymous; J. Kel, 58; State o. Hill, 4 
Dev. & Bat, 491 ; Reg. v. Mawgridge, J. Kel, 1 19 ; Murphy v. People, 37 
Ills., 447. 

* Adams «. People, 47 Ills., 876; State t>. Neeley, 20 Iowa, 109; Reg. v. 
Kirkham, 8 Car. <& P., 115; llcx«. Masou, 1 East P. C, 239: Kennedy v. 
People, 40 Ills., 488; State o. Benliam, 23 Iowa, tM ; Reg. ©. Smith, 8 Car. & 
P., 160; State tj. Johnson,! Ired., 354; SUUo t>. Tilley, 3 Ired., 424; Cope- 
land V. State, 7 Humph., 479. 

* Stewart t>. State, 1 Ohio 68; People «. Rector, 19 Wen., 606. 

* State V. McCants, 1 Speers, 384 ; Com. v. Qreen, 1 Ashm., 289 ; Onbey*8 
Case, 2 Str, 766; 2 Ld. Raym, 1489. 

* Rex V. Shaw, 6 Car. & P., 372; Com. v. Crane, 1 Va. Cas., 78; King©. 
Com., 2 Va. Cas., 78; State v. Scott, 4 Ired., 409 ; Shorter v. People, 2 Com., 
193. 

* 1 Hawk P. C, 96; State v. Johnson, 1 Ired., 354; Com. «. Green, 1 
Asbm., 289. 

' Rex V. Lynch, 5 Car. & P., 324; State ». Cray ton, 6 Ired., 164; Suie v. 
Curry, 1 Jones N. C, 280 ; Rex i>. Thomas, 7 Car. & P., 817. 

* Kennedy «. People, 40 Ills., 488; State «. Benham, 23 Iowa, 155; State 
t. Stanley, 83 Iowa, 532. 

* R. 8., 374, §§ 143, 144; Petri v. People, 65 III^., 18. 

'• Stedman*8 Case, Foster, 292 ; Com. v. Mosler, 4 Barr., 264. 
" Copeland v. State, 7 Humph., 479; Prickett v. State, 23 Ala., 89. 
'^ State V, Will, 1 Dev. & Bat., 121, 169. 
"* State «. Avery, 64 N. C, 608. 



244 SPECIFIC OFFBN8E8. 

other's wife,* or mere words,' is or are not a safficieut justification 
to reduce the offeuBe of killing another to manslaughter. But 
an assault' or battery not sufficient to endanger life,^ or an as- 
sault with provoking words,^ or an illegal arre8t,*or detecting 
another in the act of adultery with one's wife,^ or of sodomy 
with his son,* or in stealing from his pocket,* is a sufficient 
provocation to reduce the offiense of killing another to man- 
slaughter. Of course whether these acts are or are not suffi- 
cient to mitigate the oftense to manslaughter will depend upon 
the circumstances of each case. 

§ 342. Time for the Passions to Cool. — In every case of homi- 
cide, however great the provocation may be, if there be a suffi- 
cient time for the passions to subside or cool and for reason 
to interpose, such homicide will be murder.*® The question 
of what is a sufficient time for the passions to cool, is one of 
law and not of fact." They must cool in a reasonable time;** 
that is, in such a time as the passions of an ordinary man un- 
der the like circumstances would cool.** In one case an hour 

* People*. Horton, 4 Mich., 67. 

' 1 Hawks P. a, 98, g 83 ; Beauchamp v. State, 6 Blackf., 299 ; State v. Bar. 
field, 8 Ired., 344; Felix o. State, 18 Ala., 720; Ogden v. Clay comb, 52 
Ills., 365; Lord Morley*8 Case, 6 Howell St, Tr., 66; Rapp «. Com., 14 B. 
Monr., 614. 

* Ray V. State, 15 Ga., 223. 

* State V. Sizemore, 7 Jones N. C, 206. 

* Keg. V, Sherwood) 1 Car. & K., 556. 

* Rand v. Davis, 7 Car. & P., 785; Reg, f». Tooley, 11 Mod., 242; Rex «. 
Thompson, 1 Moody, 80 ; Roberts «. State, 14 3(o., 138 ; Jones v. State, 14 
Mo., 409. 

' Hawks P. C, 98, § 36 ; Foster, 298 ; Reg. «. Kelly, 2 Car. & K., 814; Pear-' 
son^s Case, 2 Lewin, 216 ; State v, John, 8 Ired., 830 ; State v. Samael, 3 Jones 
N. C, 73. 

" Reg. V, Fisher, 8 Car. & P., 182. 

* Rex V, Fray, 1 East P. C, 236 ; 1 Hawks P. C, 09, § 38. 

>• R. S., 374, § 144; Foster, 296; Haywood's Case, 6 Car. & P., 157; Rdg^v. 
Kirkham, 8 Car. «& P., 115; People v. SuHivan, 3 Seld., 396. 

"2 Bish. Cr. L., §713; State v. McCants, 1 Speers, 384; State f>. Cra- 
ton, 6 Ired., 164; State «. Dunn, 18 Mo., 419; Rex v. Fisher, 8 Car. & P., 
182; Beaachamp o. State, 6 Blackf., 299; Felix o. State, 18 Ala., 720; Rex v, 
Beeson, 7 Car. & P., 142 ; State t. Jones, 20 Mo., 58. 

»Id. 

** Kirkpatrick «. Com., 7 Casey Pa., 198. 



HURDEB. S45 

was deemed a saflScient time for the passions to cool.' In an- 
other from the morning yntil the afternoon was deemed snf- 
ficient.* If two persons qnarrel in the mornings and by agree- 
ment meet and fight in the afternoon, or on the next day, 
their passions will be presumed to have cooled, and if one 
kills the other he will be guilty of murder.* If after the prov- 
ocation the prisoner falls into other discourse and talks de- 
liberately upon other subjects, or pursues any other business 
or design not connected with the immediate object of his pas- 
sion nor subservient thereto, so that it may be reasonably sup- 
posed that his attention was once called off from the subject 
of the provocation, any subsequent killing of his adversary 
is murder.^ Where a weapon is brought from a distance af- 
ter the provocation and then concealed, this is evidence that 
there was a sufficient time for the passions to cool.' 

§843. Dueling. — It is not only murder for one man to 
kill another in a duel,* but the seconds of both parties,^ and 
all others present giving countenance and encouragement to 
the transaction, are also guilty of murder,* for the interval be- 
tween the time of the agreement to fight and the killing is 
sufficient for the voice of reason and humanity to be heard, 
and therefore the killing is attributed to deliberate revenge 
and punished as murder.* 

§ 344. Aft^r the Passions have had Time to Cool, a Provocatioii 
may be Evidence of Malice. — After the passions have had time 

> Reg. f>. Oneby, 2 Stra., 766 ; 2 Ld. Raym., 1485. 

■ Rex V. Legg, J. Kel, 27. 

• 1 Hawkfl P. C, 96, §22; 2 Bish. Cr. L., 712; but see Maher «. People, 10 
Mich., 212, 228. 

• Com. V, Greene, 1 Ashm., 289. 

■ State V, Norris, 1 Hayw., 429. 

• Smith «. State, 1 Yerg., 228; 1 East P. C, 242; R 8., 861, §68; Maw. 
gridge's Case, 17 Howel St. Tr., 57, 66: 2 Howe! St Tr., 1033, 1038. 

» 1 Hawks P. C, 97, § 81 ; Reg. v, Yoang, 8 Car. & P., 644 ; Reg. v. Cuddy, 
1 Car. & K., 210; Reg. v. Baronet, Dears, 51 ; contra, 1 Hale P. C, 442. 

• 2 Blsh. Cr. L., 311. 

• R 8., 374, § 144. 



246 SPECIFIC OFFENSES. 

to cool,' or are in fact cooled, or if the passions have never 
been excited,^ the provocation may .be and often is the cause 
of malice, and instead of mitigating the offense, furnishes the 
motive for the killing, and is evidence to show actual malice.* 
When there is proof of express malice at the time of com- 
mitting the act, the provocation will not reduce the offense 
to manslaughter.* Where malice has once been shown to 
exist it will be presumed to have continued up to the time of 
the commission of the act, and the burden of proof is on the 
slayer to rebut this presumption.* 

§ 345. Malice need not have Existed for any Considerable length 
of Time before the Killing. — The words " malice aforethought" 
do not imply deliberation or the lapse of a considerable time 
between the malicious intent to take life and the actual exe- 
cution of that intent.* Therefore, whether the design to 
effect death was formed on the instant or had previously been 
entertained, is immaterial, for the malicious killing in either 
case is murder.^ 

§346. 6. The Time and Place must be Proved. — The time of 
both the injury and the death must be proved, so that the 
death may appear to have taken place within a year and a 



'People V. Sullivan, 3 Beld., 396; Ld. Morley's Case, 7 St. Tr., 431; 
Rex V. Campbell, Boston L. Rep., 324; Stater. Yarborough, 1 Hawks, 78; 
Rex «. Thomas, 7 Car. & P., 817. 

• 1 Hawks P. C, 96, § 23; State u. Johnson, 1 Ired., 354; Com. v. Green, 1 
Ashm., 289, 298; State v. Green, 37 Mo., 466. 

• Wbart. Cr. L., § 635 ; 1 East P. C, 252 ; State v. Stanley, 33 Iowa, 534. 

* Slate 0. Johnson, 1 Ired., 354; State c. Ferguson, 2 Hill S. C, 619: State 
«. Lane, 4 Ired., 113; State v. Tilley, 3 Ired., 424; Stewart©. Slate, 1 Ohio 
S. R., 66; Jones v. State, 14 Mo., 409; Slate v, Martin, 2 Ired., 101 ; Green©. 
State, 13 Missis., 382; Milchumt). State, 11 Ga., 615. 

* State V, Johnson, 1 Ired., 354; State v. Tilley, 3 Ired., 424; Shoemaker «. 
State, 12 Ohio. 43 ; Com. v. Green, 1 Ashm., 289 ; State v. Hildreth, 9 Ired., 429. 

•Com. V. Webster, 5 Cash., 295; Petri v. People, 65 Ills., 18; State©. 
Decklotts, 19 Iowa, 447; Bohannon ©. Com., 8 Bush. Ky., 481. 

'People ©. Austin, 1 Park. C. R., 154; People v. Clark, 3 Sold., 385; 
Mitchum ©. State, 11 Ga., 615; Green ©. State, 13 Mo., 382; Rex v. Legg, J. 
Eel, 27, 128 ; Bcauchamp ©. State, 6 Blackf., 299; U. S. ©. Cornell, 2 Mason, 
60, 91 ; McAdams ©. State, 25 Ark., 405. 



MURDEB. 247 

day after the mortal iDJury.* The place where the injury was 
inflicted or the cause of death administered, or where the 
party died, must be proved, so that it may appear that the 
court has jurisdiction to try the offense.^ 

§ 347. Party Killing in one County and Party Killed in Another. 
— The statute provides that "if the party killing sliall be in 
one connty and the party killed be in another county at 
the time the cause of death shall be administered or inflicted, 
or if it is doubtful in which of the several counties the cause 
of death was administered or inflicted, the accused may be 
tried in either county/ 

§ 348. Ganse Administered in one Connty, Death Occurring in 
Another. — " If the cause of death is administered or inflicted 
in one county, and the party die within anotlier county, or 
without the state, the accused shall be tried in the county 
where the cause of death was administered or inflicted "* 

Defenses. 

§ 349. Self-Defenae. — The statute provides that " if any 
person kill another in self-defense, it must appear that the 
danger was so urgent and pressing that in order to save his 
own life, or to prevent his receiving great bodily harm,® the 
killing of the other was absolutely necessary; and it must ap- 
pear also that the person killed was the assailant, or that the 
slayer had really, and in good faith, endeavored to decline 

» R. 8., 374, § 147 ; 2 Bish. Cr. L., § 640 ; State v. OrveU, 1 Dev., 139. 

• R. 8., 406, §§395-402; Rice v. People, 38 lUs., 435; Jackson v. People, 
40 Ills., 405. 

* R. 8., 407, § 397. This section of the statute is not unconstitutional^ 
State V. Pauley, 12 Wis., 637. 

• R. 8., 407, § 398. 

* An instruction that in order to justify the killing the threatened dani^er 
must be so great as to create a reasonable belief in the mind of tlie accused 
of imminent peril to life or the most serious bodily harm, is erroncou:!. 
The words "great bodily harm" as used in the statute, fall far short of **the 
most serious bodily harm." Reins t;. People, 30 Ills., 257; State o, Bjvl- 
ham, 23 Iowa, 155. The terms "great personal injury" have been held 
equivalent in import to the terms " great bodily harm." Qreen v. State, 28 
Missis., 687. 



I 



248 SPECIFIC OFFENSES. 

any further struggle before the mortal blow was given.'** 
The defendant is not entitled to the benefit of the plea of self- 
defense if he sought the deceased with a view to provoke a 
difficulty or to bring on a quarrel.^ 

§350. Continued — What Ihinger Sufficient to Excuse the Kill- 
ing. — It has been held under the statute that actual danger 
is not indispensable to justify the killing of another in self- 
defense.' If the danger is so imminent and pressing that a pru- 
dent man would suppose that it was necessary to take the life 
of his assailant to save his own or prevent his receiving great 
bodily harm, then the killing is justifiable if the person 
menaced acted in good faith.^ Men threatened with danger 
must judge from things about them of the necessity for self- 
defense, and will not be responsible criminally for acting on 
honest convictions where other judicious men would have 
been alike mistaken as to the extent of the danger.^ It can- 
not, however, be said that one doing all in his power to take 
the life of another with a gun is justified in so doing, because 
the person assaulted endeavors to dispossess him of the 
weapon as a means of preserving his own life, though this 
act may have unintentionally contributed to the discharge of 
the gun.* The jury must determine whether the circum- 
stances surrounding a homicide were such as to induce a be- 
lief in a reasonable mind that the act was necessary to save 
his own life or that of a wife or child.' 

§ 351. What Evidence Admissible to Explain the Motives of the 

" R. 8., 375. § 149. 

* State V, Nceley, 20 Iowa, 109-116; State v. Stanley, 83 Iowa, 532. 
•Campbell t). People, 16 Ills., 17; Hopkinson «. People, 18 Ills., 266; 

Williams v. People, 54 Ills., 423; Oliver v. State, 17 Ala., 586; Pritchett, 22 
Ala., 89; Noles «. State, 26 Ala., 81. 

* Campbell v. People, 16 Ills., 17; Maher v. People, 24 Ills., 241; Coin. v. 
Woodward, 102 Mass., 155; Adams v. People, 47 Ills., 876; Ogden v. Clay- 
comb, 52 Ills., 366; State v. Bcuham, 23 Iowa, 151; State v. Burke, 30 Iowa, 
831 ; Petri v. People, 65 Ills., 18; State v. Neeley, 20 Iowa, 109. 

* Campbell v. People, 16 Ills., 17; State v. Collins, 32 Iowa, 39. 

* Murphy v. People, 37 Ills., 448 ; State v, Benham, 23 Iowa, 155. 

* Schnler v. People, 23 Ills., 17; Williams v. People, 54 Ills., 422; People 
«. Austin, 1 Parker Cr. R., 154. 



KUBDEB. 249 

Accused — Threats. — Every circumstance connected with the 
alleged homicide which wonid tend to induce a belief in the 
mind of a prndent man that it was necessary to take the life 
of the deceased to save his own, or prevent his receiving great 
bodily harm, or to excuse or palliate the conduct of the party 
charged, or explain his motives, should be received in evi- 
dence and be submitted to the jury.* For this purpose evi- 
dence that tended to show that the fatal blow was struck 
while the prisoner and deceased were engaged in a fight which 
was the result of a conspiracy between the deceased and seve- 
ral others "to clean out or whip" the prisoner and his friends, 
the arrangement being that the deceased should make an at- 
tack upon the prisoner, which he did (it appearing that the 
prisoner knew of the conspiracy at the tiine of the attack and 
of all that was done in pursuance of the conspiracy upon him) 
is competent.* So evidence of threats made by the deceased, 
if known to the accused at the time of the homicide, is com- 
petent to enable the jury to determine whether the prisoner 
was prompted by a reasonable and well-grounded belief that 
he was in danger of losing his life or sufiering great bodily 
harm.* But evidence of such threats is not competent un- 
less shown to have been known to the deceased before the 
homicide,* or if made a long time previous thereto.* It is 
proper for the defendant where there is evidence tending to 
show that the killing was in self defense, to give evidence that 
before the homicide he knew, or had good reason to believe, 
that the deceased was a man of greatjnuscular strength, prac- 
ticed in seizing persons by the throat in a peculiar way, which 

" WiUiams «. People, 54 Ills., 423. 
•Id. 

* Campbell v. People, 16 Ills., 18; Dupree, 33 Ala., 380 ; Monr.c. State, 5 
Oa., 85; Pritchett v. State, 22 Ala., 39 ; Keener v. State, 18 Qa., 194 ; but see 
People V. Rector, 19 Wen., 569. 

* Keener u. State, 18 Ga., 194; Atkins «. State, 16 Ark., 568; Newcomb «. 
8tat€, 37 Missis., 383; Lingo v. State, 29 Ga., 470; Cocker «. State, 2 Ark., 
68; Powell «. State, 19 Ala., 577; Adams v. People, 47 ins.,376; eontray Peo- 
ple V. Rector, 16 Ills., 18; Cornelius v. Com., 15 B. Monr., 539. 

* Monroe v. State, 5 Ga., 85 ; State v. Jackson, 17 Mo., 544; State v, Haji, 
88 Mo., 287 ; Keener v. State, 18 Ga., 194. 



250 SPECIFIC OFFENSES. 

would render thera helpless,^ or was a savage, quarrelsome, 
dangerous and vicious man,* or was armed with a deadly wea- 
pon,' for the purpose of showing that he had good reason to 
believe that his own life was in danger. 

§ 352. When the Necessity for Killing in Self-Defense must be 
Avoided. — When a man expects to be attacked, his right to 
defend himself does not arise until he has done everything to 
avoid the necessity.^ Even if another is meditating his life, he 
must wait until some overt act is done and the danger becomes 
immediate before he is justified in the killing.* Yet it has 
been held that if one has been assaulted by another who has 
threatened to kill him, he is not bound to run and escape in 
the particular instance, thus increasing his danger by encour- 
aging the assailant to repeat the attempt when he will per- 
haps be less prepared to resist.* In such case it is presumed 
that the circumstances must be such that a prudent man 
would suppose that it was necessary to take tlie life of his 
assailant to save his own or to prevent his receiving great 
bodily harm either then or at some future time.^ A man, as 
a general rule, has no right to stand on his ground and kill 
his adversary if he knows he can avoid it by running, because 
such homicide is not necessary,^ though it has been said that 

1 Dukes 13. State, 1 Ind., 557, 565; People 9. Murray, 10 Cal., 309; contra^ 
Com. «. Mead., 12 Gray, 167, 169. 

• Pritchett ©. State, 22 Ala., 39; State «. Smith, 12 Rich., 430; Pfomero. 
People, 4 Park. Cr. R., 558; contra^ State v. Field, 14 Me., 244; People «. 
Anderson, 2 Wheeler C. C, 390. 

• Vandermark ©. People, 47 Ills., 123; Campbell v. People, 16 Ills., 17; 
State t). Thompson, 9 Iowa, 18S, 192; Tweedy v. State, 5 Iowa, 433. 

• 1 East P. C, 271, 272; People v. Sullivan, 3 Seld., 396; Atkins©. Stat«, 16 
Ark., 568 ; Reins v. People, 30 Ills., 257 ; corUray Bohannon id. Com., 8 Bush. 
Ky., 48. 

» Dyson v. State, 26 Missis., 362; 2 East P. C.,272; State «. O'Conner, 31 
Mo., 389; Lander v. State, 12 Texas, 462; Hinton t>. State, 24 Texas, 454. 

• Phillips t). Com., 2 Duvall, 328; Tweedy v. State, 5 Iowa, 433; Bohan- 
non tJ. Com., 8 Bush. Ky., 481. 

» Campbell v. People, 10 Ills., 17; Maher «. People, 24 Ills., 241; Bohan- 
non c. Com., 8 BuHh. Ky., 482. 

• 1 Hale P. C, 479.481 ; 4 Black. Com., 185; Shorten?. People, 2 Com., 193; 
Greschia v. People, 53 Ills., 295, 301 ; Pierson t>. Stale, 12 Ala., 149; State «, 
Vance, 17 Iowa, 138 ; State «. Benham, 23 Iowa, 155. 



MURDER. 251 

when there is reasonable ground to believe tliat the attack is 
with a murderous or felonious intent, the person attacked is 
under no obligation to fly, because it is his duty to prevent 
and arrest all persons attempting to commit a felony, there- 
fore he may stand his ground, and if need be kill his adver- 
sary.* It has been held to be the same where the attack is 
with a deadly weapon.* 

§ 853. What Force may be Used in Self-Defense. — A person 
has no right to use any more force in self-defense than a per- 
son of ordinary prudence would deem necessary under the 
circumstances.* If he is struck with the naked hand, and 
there is no reason to believe there is a design to do him great 
bodily harm, he will not be justified in returning blows with 
a dangerous weapon.* Even if a felonious attack is made up- 
on him with intent to kill him, he has no right needlessly to 
kill his assailant if it is not necessary for his defense and he 
has no suflicient reason to believe that it is.' If one need- 
lessly shoots a felon instead of having him arrested, he com- 
mits a felonious homicide.' 

§ 354. Defense of Others. — The master and servant, parent 
and child, husband and wife, killing an assailant in the nec- 
essary defense of each other respectively are excused, the act 
of the relation assisting being construed the same as the act 
of the party himself.^ Generally one may do for another 

» Foster, 272; 8 Inst, 58; 1 East P. C, 271 ; Stater. Mullen, 14 La. An., 
570; State «. Thompson, 9 Iowa, 188; State tj. Harris, 1 Jones N. C. 190; 
Tweedy «. State, 5 Iowa, 433 ; State v. Kennedy, 20 Iowa, 569. 

•State ©.Thompson, 9 Iowa, 188, 192; State tJ. Collins, 32 Iowa, 38. 

•GreschiatJ. People; 53 111s., 295,301; 1 East P. C, 280, §51; Foster, 

273 ; People v. Doe, 1 Manning, 451 ; State v. Hoover; 4 Dev. & Bat, 365. 

' * Shorter v. People, 2 Com., 193; Atkins v. State, 16 Ark., 568; Stewart v. 

State, 1 Ohio N. S., 66; State «. Scott, 4 Ired., 409; State v. Vance, 17 

Iowa, 138. 

• 1 Bish. Cr. L., § 842; State v. Tweedy, 11 Iowa, 350; State d. Neeley, 20 
Iowa, 108; State v. Thompson, 9 Iowa, 188; State o. Collins, 33 Iowa, 39. 

• Rex t>. Scully, 1 Car. & P., 319 ; HoUoway's Case, W. Jones, 198 ; Cro. 
Car., 137. 

• 1 Hale, 484; 4 Black. Com., 186; U. S. v, Wilberger,3 Wash., C. C, 515; 
Com. v. Riley, Thach. Cr. Cas., 471 ; Short v. State, 7 Yerg., 510; Schnier c. 
People, 23 Ills., 17; Rex v. Bourne, 5 Car. & P., 120; Pond v. People, 8 
Mich., 150; Statten <?. State, 30 Missis., 619; Sharp v. State, 19 Ohio, 879. 



252 8PE0IFI0 0FFENSB8. 

what he may do for himself.^ Therefore a guest in a house 
may defend the house,^ or the neighbors of the occupant may 
assemble for that purpose.' 

§ 355. IXefeoae of Property. — All reasonable and necessary 
force may bo used to defend one's real and personal property 
of which he is in the actual possession against another who 
comes to dispossess him without right.* But he can never in- 
nocently carry this defense to the extent of killing the ag- 
gressor except in defense of his dwelling-house, called his 
castle.^ If no way but that is left him, he must yield and get 
himself righted by resort to law.* If, however, in employing 
necessary force in such defense, the party resisted is acciden- 
tally killed, the homicide is not punishable unless a danger- 
ous weapon or more force is used than is necessary when 
other means would have been sufficient.^ 

§ 356. By an Officer Resisted. — " If an officer in the execu- 
tion of his office, in a criminal case, having legal process, be 
resisted and assaulted, he shall be justified if he kills the as- 
sailant. If any officer or private person attempt to. take a 
person charged with treason, murder, rape, burglary, robbery, 
arson, perjury, forgery, counterfeiting or other felony, and 
he be resisted in the endeavor to take the person accused, 
and, to prevent the escape of the accused, by reason of such 
resistance, he be killed, the officer or private person so killing 



• 1 Bish. Cr. L., § 877, 1 East P. C, 289, 292, 293 ; Rex v. Adley, 1 Leach, 
206; Com. f>. Drew, 4 Mass., 391 : Reg. v. Tooley, 11 Mod., 242, 

• Curtis V. Hubbard, 4 Hill N. Y., 437; Cooper»s Case, Cro. Car., 544. 

• Semayne's Case, 5 Co., 91. 

• 1 East P. C, 402 ; Rex v. Ford, J. Kel., 51 ; Harrington t>. People, 6 Barb., 
607; Com. «. Kennard, 8 Pick., 133; State v. Godsey, 13 Ired., 348. 

• 1 Cliitty Cr. L., 56 ; Semayne*s Case, 5 Co., 91 ; State v. Morgan, 3 Ired., 
186; State v. Smith, 3 Dev. & Bat., 117; Com. v. Drew, 4 Mass., 891; Mon- 
roe V. State, 5 Ga.,85; States. Vance, 17 Iowa, 138; State v.Zellers. 2Hal8t., 
220; Carrol v. State, 23 Ala., 28; Roberts v. State, 14 Mo., 138; Moore «. 
Hussey Hob., 93, 96. 

• U. S. V. Wilberger, 3 Wash. C. C, 515. 

' 1 Hale P. C, 473; Foster, 291 ; State v. Zellers, 2 Halst, 220; Com. c. 
Drew, 4 Mtiss., 891 ; McDaniel «. State, 8 Sm. & M., 401; Wild's Case, % 
Lewin, 217. 



KURDEB. 253 

shall be justified: Provided^ that such officer or private per- 
son, previous to such killing, shall have used all reasonable 
efforts to take the accused without success, and that from all 
probability there was no prospect of being able to prevent in- 
jury from such resistance, and the consequent escape of such 
accused person."^ 

§357. According to Lawful Sentence. — '^Justifiable homicide 
may also consist in unavoidable necessity, without any will 
or desire, and without any inadvertence or negligence in the 
party killing. An officer who, in the execution of public jus- 
tice, puts a person to death in virtue of a judgment of a com- 
petent court of justice, shall be justified. The officer must, 
however, in the performance of his duty, proceed according to 
the sentence and law of the land."* 

§ 358. By Misadventnre. — " Excusable homicide, by misad- 
venture, is when a person is doing a lawful act, without any 
intention of killing, yet unfortunately kills another, as where 
a man is at work with an ax, and the head fiies off and kills 
a bystander, or where a parent is moderately correcting his 
child, or a master his servant or scholar, or an officer punish- 
ing his criminal, and happens to occasion death., it is only a 
misadventure, for the act of correction was lawful; but if a 
parent or master exceed the bounds of moderation, or the offi- 
cer the sentence under which he acts, either in tlie manner, 
the instrument, or quantity of punishment, and death ensue, 
it will be manslaughter or murder, according to the circum- 
stances of the case."* 

§ 359. Other I>efenses. — " All other instances which stand 
upon the same footing of reason and justice as those enumer- 
ated, shall be considered justifiable or excusable homicide."* 

§360. Defendant, when Discharged. — "The homicide appear- 
ing to be justifiable or excusable, the person indicted shall, 
upon his trial, be fully acquitted and discharged."* 

' R. 8., 875, i 150. 
•Id., §151. 

* Id., § 152; State «. Benham, 28 Iowa, 155. 

* R. 8., 875, g 158. 
•Id., §154. 



254 SPECIFIC OFFENSES. 

§361. Bnrdcn of Proof. — "The killing being proved, the 
burden of proving circumstances of mitigation, or that justify 
or excuse the homicide, will devolve on the accused, unless 
the proof on the part of the prosecution sufficiently manifests 
that the crime committed only amounts to manslaughter, or 
that the accused was justified or excused in committing the 
homicide."^ 

§362. Petit Treason. — At common law petit treason was 
the unlawful, felonious and malicious killing of another to 
whom the offender owed allegiance of private and domestic 
faith, there being a relation of trust and confidence between 
the parties, making it the duty of the offender to protect and 
defend the person killed, which trust and confidence was be- 
trayed by the treachery and breach of faith of the offender in 
committing the homicide.* As where a servant kills his mas- 
ter, a wife her husband, and a child his parent. But by stat- 
ute the distinction between petit treason and murder is abol- 
ished. Any person who might have been indicted for petit 
treason must hereafter be indicted for murder, and if con- 
victed, be punished accordingly.' 

§ 363. Murder by Arson. — If the life of any person is lost 
by willfully and maliciously burning any building of anoth- 
er, or any church meeting-house, school-house, state-house, 
court-house, work-house, jail, or other public building, or any 
boat or other water-craft, or any bridge of the value of fifty 
dollars, erected across any of the waters of this state^ the 
statute provides that the offender or person so burning or 
causing such burnings shall be deemed guilty of murder and 
punished accordingly.* * 

» R. 8., 876, § 155. 

« 3 Chitty Cr. L., 743; 4 Black. Com., 75. 

• R B., 374, § 141. 

^ Id^ 854^ g 18 ; see statute in full, post § 443. 



MURDEB 255 

STATEMIEKT OF THE OFFENSE OF MURDEK BY ARSON. 

(Commence as in the form on page 35) that C. D., on, etc., at, etc., in 
the said county, did feloniously,^ willfully and maliciously,* set fire to and 
bum {or ** cause to be set fire to and burned,^^) a certain barn of the value' of 

dollars, situated in the town of in the county aforesaid, then and 

there being the property of another person, to wit., of G. H., the said G. H. 
then and there being in the said bam and in the actual possession of the. 
same; and that in consequence of such burning as aforesaid the said G. H. 
then and there lost his life by being then and there burned in the said 
barn, by reason whereof the said G. H. then and there instantly died {or 

** languished a short time and then, on the daj/ of A.D. 18 , and 

there died^*), whereby the said C. D., in the manner and form aforesaid, in 
the county aforesaid, unlawfully, feloniously, w^ith malice aforethought, 
did kill and murder the said G. H. in the peace of the people then and 
there being, contrary to the form of the statute in such case made and pro- 
▼ided {conclude as in the form on page 35). 

§364. Evidence. — A design to produce death is not essen- 
tial to constitute the offense of murder by arson if the burn- 
ing was willful and malicious; and it is immaterial whether 
the prisoner knew that there was any person in the building 
or not except to show malice.^ 

§ 365. Murder by Peijnry. — " Every person who by willful 
and corrupt peijury, or subornation of perjury, shall procure 
the conviction and execution of any innocent person, shall be 
deemed and adjudged guilty of murder, and punished accord- 
ingly."* 

' As to the necessity of the word " feloniously," see argument of Scates, 
Clark «. People, 1 Scam., 118; 1 Arch. C. P. & PI, 801. 

*The words '* willfully and maliciously" are in the statute, R. S., 354, § 
13, and necessary; 2 Bish. Cr. P., § 43; Jesse v. State, 28 Missis., 100. 

• When a part of the punishment for the offense of arson was a fine 
double the value of the property burned, it was necessary to state its value. 
Clark V. People, 1 Scam., 120. And if the courts should hold that the 
words " of the value of fifty dollars" apply to all the buildings mentioned 
in the statute, it would still be necessaiy to allege that the property was of 
such value; but if they should hold otherwise, it would be unnecessary. 
Com. f). Hamilton, 15 Gray, 480. 

• People V, Orcutt, 1 Park. Cr. R., 253. 
» R S., 387, § 226. 



256 SPECIFIC OFFENSES. 

8TATSHENT OF THE OFFENSE OF MURDER BT PEBJDRT. 

(Commence as inform on page 35) that at a circuit coort held at the conrt- 

house in the of , in and for the said county of , in the said 

Blate of Illinois, on the day of ^ A. D., 18 — , before the Hon. , 

Judge of the said court, then and there being duly elected and qualiHed as 
such judge presiding, a certain indicCment then depending in the said court 
against one J. K. came on to be tried, and was then and there in due form of 
law tried by a Jury of the said county, in due manner talcen and sworn for 
that purpose, in and by which said indictment it was charged and alleged 
(here %et forth the indictment for the murder of L. M). And this deponent 
further says, that at and upon the trial of the said J. K. upon the said in- 
dictment, C D. did then and there appear, and was then and there produced 
as a witness for and in behalf of the people of the said state of Illinois 
against the said J. K., and he the said C. D. was then and there in open court 
duly sworn (or ^^affirmed*^) as such witness as aforesaid, before the said 

court and jury by , then and there being the clerk of the said court, 

and then and there having full power and authority to administer tlie said 
oath (or ^'affirmation^*) that the evidence which he the said C. D. should 
give to tlie court and jury so sworn, between the people of the said State of 
Illinois and the said J. K., should be Uie truth, the whole truth, and nothing 
but tlie truth, and it then and there, upon the trial of the said J. K. on the 
said indictment, became and was a material question whether the said J. 
K. did strike and kill the said L. M., and thereupcm the said C. D., being 
so sworn as aforesaid, and having so taken a lawful oath in the said judi- 
cial proceeding, where by law an oath (or '^affirmation**) was required then 
and there unlawfully, willfully, corruptly and feloniously, with malice 
aforethought, contriving and intending to procure and cause the said J. K. 
to be unjustly convicted of the said offense of murder charged in the said 
indictment and to be executed therefor, did then and there, knowingly, 
falsely, corruptly, willfully, maliciously and feloniously swear C'or affirm") 
say, depose and give in evidence to the jun)rs of the said jury before the said 
Judge in said court, among other things, that the said J. K. did strike and 
kill the said L. M. ; whereas, in truth and in fact the said J. K did not 
strike or kill tlie said L. M. ; whereby the said C. D. did then and there 
knowingly, willfully and corruptly swear Iklsely and commit willful and 
corrupt perjury, and thereby then and there unlawfully, willfully and felo- 
neously, with malice aforethought did procure the conviction of the said J. 
K., then and there being an innocent person. 

And this deponent further says, that the said C. D., by the said willful 
and corrupt perjury, so committed by him as aforesaid upon the said trial, 
did unlawfully, feloniously, and willfully, with malice aforethought, kill 
and murder the said J. K. then and there being in the peace of the people, 
contrary to the form of the statute in such case made and provided (conclude 
OM inform on page 85). 



HUSDBB. 257 

§ 366. Harder hy Prodncing a Miscarriage. — Both by statute^ 
and at common law* a person procuring or causing an abor- 
tion or miscarriage, when not necessary for the preservation 
of the mother's life, if the mother dies, is guilty of murder. 

STATEMENT OF THE OFFENSE OF MURDER BT PRODUdNG A 

MISCARRIAGE. 

(Commence as in form on page 85) that C. D., on, etc., at, etc., in the said 
coun^f did unlawfVilIy, feloniously and wiUflilly, with malice aforethought, 
administer to one G. U., then and tliere being a woman pregnant with 
child and in the peace of the people, a certain noxious substance called 
savin, with intent then and there to produce the miscarriage of ihe said G. 
H., and did thereby unlawfully, feloniously and willfully, with malice afore- 
thought, cause the miscarriage of the said G. U., it not being then and tliere 
necessary to cause such miscarriage for ths preservation of the life of the 
said G. H. (the said C. D. then and there well knowing that tlio said 
noxious substance would produce such miscarriage), by reason where- 
of the said G. H. languished a short time and then, on the day of , 

A. D. 18~, and there died (or '^ihen and there instantly died'^) (conclude as 
in form on page 35). 

§367. Mnrder by Displacing Switch. — The statute provides 
tliat " whoever willfully and maliciously displaces any switch, 
signal or rail of any railroad, or breaks down, or rips up, in- 
jures or destroys, any track, bridge or other portion of any 
railroad, or places any obstructions thereon, or places any false 
signal upon or along the line of any railroad track, or does 
any act to any engine, machine or car of such railroad, with 
intent that any person or property being or passing on or 
over such railroad shoald be injured thereby, shall be impris- 
oned in the penitentiary not less than one nor more than five 
years. Or if, in consequence of any such act, done with such 
intent, any person being or passing on or over such railroad 
suffers any bodily harm, or any property is injured, tlie per- 
son so offending shall be imprisoned in the penitentiary not 
less than three nor more than ten years. And if, in conse- 
quence of any such act, done with such intent, any persou is 

> R 8., 868, § 8. For the statute in fhll, see post § 378. 
* Tickler's Case, 1 East P. C, 230; Com. v. Keeper, 2 Ashm., 227; Com. «. 
Parker, 9 Met, 268, 265 ; but see Smith <?. State, 8 Kedding, 48. 

17 



268 SPECIFIC OFFENSES. 

killed, the person go offending shall be • deemed guilty of 
murder and punished accordingly."* 

STATEMENT OP THE OFFENSE OF MURDER BY DI6PLACI1!0 A SWITCH. 

{Commence as in i?ie form on page 35) that C. D., on, etc., at, etc., in said 
county, did willfully, maliciously and feloniously displace a certain switch 
of a certain railroad called {insert the nams of the railroad\vfii\\ intent that 
a person, to wit^ one E. F., then and there bring, and ])asslng on and over 
the said railroad, should be unlawfully and feloniously injured Uiereby; 

and that afterwards, to wit, on the day of , A. D. 18 , at the 

town of in the said county, in consequence of displacing the said 

switch as aforesaid, with the intent aforesaid, the said E. F. was at the time 
and place last above mentioned unlawfully and feloniously ,with malice afore- 
thought, killed and murdered ; whereby the said C. D. did at tlie time and 
place last above mentioned unlawfully, willfully and feloniously, with mal- 
ice aforethought, kill and murder the said E. F., being at the time and place 
last above mentioned in the peace of the people, contrary to the form of 
the statute in such case made and provided {amclude as in the form on 
page 35). 

§368. Murder by an Accessory. — An accessory is considered 
by our law as principal, and may be punislied accordingly.* 

STATEMENT OF THE OFFENSE OF MURDER BY AN ACCESSORY. 

{Commence as in the form on page 35) that one E. F., on, etc., at, etc., in 
the said county, did unlawfully, feloniously and willfully, with malice 
aforethought, assault G. H, in the peace of the people then and there being, 
and give him several mortal wounds with a stick then and there held in 
his right hand, on the left side of his head, of which said mortal wounds 
the said G. H. then and there instantly died {or '' languished a short time 

and then, on the day of , A. D. 18 , and there died^*) ; and tliat 

C. D, was then and there present unlawfully, feloniously and willfully, with 
malice aforethought, aiding, abetting and assisting the said E. F. in the 
said murder {conclude as in the form on page 35). 

2. Manslaughter. 

§ 369. Provisions of the Statute — Manslaughter Defined. — "Man- 
slaughter is the unlawful killing of a human being without 

» R. 8., 379, § 18G. 

•R.B., 893, §274; State t). Brown, 25 lowa^ 561; State ©.Thornton, 26 
Iowa, 80; Van Meter t>. People, 60 Ills., 169. 



MAKSULUGHTEB. 25.9 

malice, express or implied, and without any mixture of delib- 
eration whatever. It must be voluntary, upon a sudden heat 
of passion, caused by a provocation apjjarently suflSeient to 
make the passion irresistible or involuntary in the commis- 
sion of an unlawful act, or a lawful act without due caution 
or circumspection."* 

§ 370. Voluntary. — " In cases of voluntary manslaughter, 
there must be a serious and highly provoking injury, inflicted 
upon the person killing, sufficient to excite an irresistible pas- 
sion in a reasonable person, or an attempt by the person killed, 
to commit a serious personal injury on the person killing. 
The killing must be the result of the sudden, violent impulse 
of passion, supposed to be irresistible; for if there should ap- 
pear to have been an interval between the assault or provoca- 
tion given and the killing sufficient for the voice of reason and 
humanity to be heard, the killing shall be attributed to delib- 
erate revenge, and punished as murder."' 

§ 371. Involuntary. — "Involuntary manslaughter shall con- 
sist in the killing of a human being without any intent to do 
80, in the commission of an unlawful act, or a lawful act, which 
probably might produce such a consequence, in an unlawful 
manner: Provided^ always^ that where such involuntary kill- 
ing shall happen in the commission of an unlawful act, which 
in its consequences naturally tends to destroy the life of a hu- 
man being, or is committed in the prosecution of a felonious 
intent, the offense shall be deemed and adjudged to be mur- 
der."' 

§ 372. Punishment. — "Whoever is guilty of manslaughter 
shall be imprisoned in the penitentiary for his natural life, oi 
for any number of years. If the accused is found guilty by a 
jury, they shall fix the punishment by their verdict; upon a 
plea of guilty, the punishment shall be fixed by the court."* 

' R. S., 874« 2143. This defiDition is the same as at common law. State 
«. Shclledy, 8 Iowa, 478. 

• R 8., 374, § 144. 
•Id., §145. 

• Id., § 146. 



S60 8PB0IFI0 OFFENSES. 

STATEKSNT OF THE OFFENSE OF XANBLAUGHTEB.' 

(Commence cut in form on page 35) that C. D., on, etc., at, etc., in the said 
county, unlawfully, feloniously and willfully did cast and throw a certain 
stone, then and there held in his right hand, and then and there unlaw- 
fully, feloniously and willfully did thereby strike, penetrate and wound £. 
F., tlien and there being in the peace of the people, thereby giving the said B. 
F. then and there a mortal wound, in and upon the right side of the head, 
near the right temple of the said E. F., of which said mortal wound the 
said E. F. then and there instantly died (or ** languiehed a short time and 
thenj on tJie day of , A, D. 18 — , and tliere died^*). 

And so the said A. B. on his oath says, that C. D., in the manner and by 
means aforesaid, unlawfully, feloniously and willfully did kill the said E. 
F., against tlie peace and dignity of the people of the state of Illinois (con- 
dude as in form on page 85). 

§ 373. Evidence. — Tlie evidence in case of manslaughter is 
substantially the same as in murder, except that in case of 
manslaughter no malice must exist or is required to be proved, 
for it is the want of malice and deliberation which reduces 
the crime of murder to manslaughter.* 

§ 374. Cases Collected Ulnstrating the Difference between Murder 
and Manslaughter. — The statutes have stated the difference be- 
tween murder and manslaughter as clearly as it can be stated 
in words. Yet the distinction may be illustrated and made 
somewhat clearer by a reference to some of the cases. Where 
the deceased took hold of the bridle-reins of a horse on wliich 
the prisoner was mounted, and held him for thirty or forty 
minutes, and the prisoner at the end of that time struck the 
deceased with a jug of molasses which he happened to have in 
his hand, and thereby killed him^ the offense was held to be 
manslaughter and not murder.* If one under the color or 
claim of authority unlawfully arrest, or actually attempt or 
offer to arrest, another, and the latter in his resistance kills 

* Strike out the words **malice aforethought*' and the word "murder" in 
the statement ot the offense of murder, then such statement will be a suffi- 
cient statement of the offense of manslaughter. For a form of an indictment 
for manslaughter held not to be good, see State o. McBride, 26 Wis., 409. 

* 1 Arch. C. P. & PI., 806. 

* State 9. Ramsey, 5 Jones N. C, 195. 



llAKfiLAUGHTEB. 261 

the aggressor, the offense will be manslaughter/ A person 
is guiltj of manslaughter if, when he is assaulted with a fist, 
he instantly stabs to death the assailant,' or if after request- 
ing another to leave his house he ejects him with a kick* or 
resorts to any other violent battery,* when ^ntler measures 
will do, and thereby kills him, or if he intentionally takes the 
life of another in the defense of his property other tlian his 
dwelling-house,* or if he finds another in the act of adultery 
with his wife, and in the first transport of passion kills hira.* 

§ 375. Unintentioiial Killing in I>oing an Unlawful Act. — The 
killing of a human being without any intent to do so in the 
commission of an unlawful act is manslaughter.'^ As where 
a man found a trespasser upon his land, caught him, and in 
beating him accidentally killed him, without intending to do 
80, it was held to be manslaughter.* And so where a man is 
engaged in unlawful and dangerous sport,* or shoots at the 
poultry of another without intending to steal it,'® or throws a. 
stone at another wantonly and in play merely," and accident- 
ally kills another, the offense is manslaughter. 

§ 376. Continued — Illnstrations — Negb'gence. — The invol- 
untary killing of another in doing a lawful act, which probably 
might produce such consequence in an unlawful manner, is 



• Ck>in. V. Drew, 4 Mass., 891 ; Rex o. Deleany, Jebb, 88; Reg. «. Tooley, 11 
Mod., 242; Roberts v. State, 14 Mo., 138; Rex v. Gordon, 1 East P. C, 315; 
2 Wheeler C. C, 495. 

' Stewart o. State, 1 Ohio S., 66, 71 ; SUte «. Tarborongh, 1 Hawks, 78; 
State o. Tackett, 1 Hawks, 210; State o. Kennedy, 20 Iowa, 569; State «. 
Neeley, 20 Iowa, 569. < 

' Wild*s Case, 2 Lewin, 214; McOj v. State, 3 Engl., 451. 
Rexo. LoDgden, liuss. & Ry., 228; Reg. o. Sullivan, C. & M., 209; 
State V. Lazaras, 1 Mills, 34; McCk>y v. State, 3 Engl., 451. 

• U. S. V, Wiltburger, 3 Wash. C. C, 515. 

State V. Samuels, 8 Jones L. N. C, 74; People o. Ryan, 2 Wheeler 
C. C, 54. 
^ R. S., 374, § 145 ; but see Rowan v. State, 30 Wis., 129. 
' Foster, 291; 1 Hale, 473 ; 1 East P. C. C, 5, § 32. 

• 1 East Cr. L., 279. 

>• Foster, 258, 259 ; 1 Arch. C. P. & PI., 764. 
" 1 Hawks. 29, § 9. 



262 SPECIFIC OFFENSES. 

manslaughter.* As where a merchant in raising a cask of 
wine to a third story over a crowded street, without suffi- 
ciently guarding the method of raising the cask, let it slip 
and thereby killed two women, it was held to be manslaugh- 
ter.^ So driving with loose reins on a frequented road, 
whereby death ensues, has been held to be manslaughter.* So 
it has been held that it is manslaughter if one discharges a gun 
in the dark and kills one whom he did not see.^ The offense, 
where correction is inflicted with an instrument not deadly, 
but improper for correction, or with a proper instrument to 
an improper degree, whereby death unexpectedly ensues, is 
manslaughter.'* And so where an engineer left the engine 
in charge of an incompetent person,* where a pilot failed to 
make himself understood by a foreign helmsman,^ where the 
proper signal was neglected by a railway tender,* and where 
a ground bailiflf neglected to ventilate a mine,* — in all these 
cases where death ensues the defendant is guilty of man- 
slaughter. 

» R. 8., 874, § 145. 

* Rex V. RigmardoD, 1 Lewin, 180. 

* Rex t>. DaUoway, 2 Oox O. C, 273; Rex v. Murray, 5 Cox C. C, 862; 
Rex 0. Haines, 2 Car. & K., 368. 

* People V. Fuller, 2 Park. Cr. R, 16. 

* Rex V. Cheeseman, 7 Car. & P., 455 ; Anonymous, 1 East P. C, 261 ; 1 
Hawks P. C, 85, § 5. 

* Rex V. Hogan, 5 Eng. Law. & Eq., 553. 

' Rex V. Spence, 1 Cox, 352; but see Rex o. AUen, 7 Car. & P., 153; Rex v. 
Greene, 7 Car. & P., 156. 
■ Rex V. Pargeter, 3 Cox, 191. 
' Rex V, Haines, 2 Car. & K., 368. . 



OFFSNBSS AOAIK8T PSB80N8. 263 



SECTION III. 
Offenses Against Persons. 

g 877. The Common Law as to Abortions. 
878. Provisions of tlie Statute as to Procuring Abortions 
379. Ecb.)lic or Ab )rtifacient Drugs. 
S8D. Certificate Required. 
881. Advertising Abortifacient Drugs. 

382. Evidence Required— 1. Of Applying the Instrument or Administer- 

ing the Drug, etc., to the Woman. 

383. 2. That the Instrument, etc., will Produce an Abortion, etc. 
88 L Abduction of a Female. 

38 >. Evidence of Abduclion of a Female. 
381. Abduction of a Child. 

387. Assault with Intent to Commit a Felony. 

388. Assault with Intent to Murder. 
883. Evidence of the Assault. 

390. Evidence of the Alleged Intent — Variance. 

391. What Sufficient Evidence of the Intent. 

392. Acquittal of Higher Crime and Conviction of the Lesser. 
893. Defense of Property, when no Justification. 

394. Assault with a Deadly Weapon. 

895. Evidence of an Assault with a Deadly Weapon — Conviction of Les- 

ser Offense — Formsr Conviction of an Assaul^t no Bar. 

896. Concealing Death of Bastard. 

397. Evidence of Concealing Death of Bastard. 

398. Who may be Convicted of Concealing, etc. 
899. Criminal Carelessness. 

400. Of a Physician. 

401. Of a Common Carrier. 

402. Cruelty to Children and Others. 

403. Dueling Defined. 

404. Punishment. 

405. Sending, Accepting or Carrying a Challenge. 

406. Disabilities On Conviction of Dueling. 

407. Dueling by Appointment Made within the State. 

408. Leaving the State to Engage in a Duel. 

409. Former Conviction or Acquittal in Another State. 

410. Indictment for Dueling. 

411. Publishing Another as Coward. 



264 SPEOIFIO OFFBN8B8. 

% 412. Evidence of Challenging, etc., Place. 
418. Wliat is a Challenge. 

414. Effect of a Provocation. 

415. False Imprisonment 

416. Evidence of False Imprisonment. 

417. What an Imprisonment 

418. The Imprisonment may be by Words. 

419. When Parent Liable for Imprisoning his Child. 

420. Imprisonment by a Military Officer, when JuBtifled. 

421. Kidnapping — Definition and Punishment 

422. Effect of the Consent of the Child. 

423. Physical Force Need not be Used. 

424 Effect of a Decree as to the Custody of the Child. 

425. Mayhem — Definition and Punishment 

426. Evidence of the Maiming. 

427. Evidence of the Malicious Intent 

428. Maiming Justified in Defense of Self. 

429. Acquittal of the Mayhem and Conviction of a Lesser Offense. 
480. Poisoning — Punishment 

431. Rape — Provisions of the Statute as to— Punishment 

432. Continued^Emission. 

433. Evidence of Penetration. 

484. Evidence that the Rape was Done by Force and against the Will of 

the Woman. 

485. What Resistance Essential — Presumption from Friendly Convene- 

ti(»n, Marks, etc. 

486. Examination of the Woman as to her Complaining — Of other 

Witnesses. 

487. What Evidence Admissible as Tending to Show the Woman Oonr 

sented. 

488. What not an Excuse — ^Partial Consent Acquits. 

439. Circumstances Impainng or Strengthening the Testimony of the 

Prosecutrix. 

440. Liability of the Husband for a Rape on his Wife. 

441. Sodomy. 

442. Evidence of Sodomy. 

1. Aboktion 

§ 377. The Common Law as to Abortions. — At common law it 
was no offense to perform au operation upon a pregnant 
woman by her consent, for the purpose of procuring an- abor- 
tion and thereby succeed in the intention unless the woman 
waa " quick with child.^^ If, before the mother had become 



ABOSTION. 265 

« 

sensible to its motion, it was not a crime,^ if afterwards, when 
it was considered hj the common law that the child had a 
separate and independent existence, it was held to be highly 
criminaP and was a misdemeanor.' 

§ 378. Proyisioiis of the Statute as to Procnring Abortions. — 
Our statute provides that ", whoever, by means of any instru- 
ment, medicine, drug or other means whatever, causes any 
woman, pregnant with child, to abort or miscarry, or at- 
tempts to procure or produce an abortion* or miscarriage,* 
unless the same were done as necessary for the preservation of 
the mother's life, shall be imprisoned in the penitentiary not 
less than one nor more than ten years; or if the death of the 
mother results therefrom, the person procuring onipausing 
the abortion or miscarriage shall be guilty of murder."* 

379. Ecbolic or Abortlfadent Drugs. — ^^ If any druggist, 
dealer in medicine, or other person, sells to any person any 
drug or medicine, known or presumed to be ecbolic or aborti- 
facient, except upon the written prescription of some well 
known and respectable practicing physician, or keeps on hand, 
or advertises or exposes for sale, or sells any pills, powders, 
drugs or combination of drugs designed especially for the use 
of females, without keeping a certificate as required in the 

1 Com. V. Porker, 9 Met., 263; State v. Cooper, Zab., 53; Smith o. State, 83 
He., 48; Com. v. Bangs, Mass., 887: Abrams v. Foshee, 8 Iowa, 274; conr 
tra, 1 Whart. Cr. L., g 1220; Lewis Cr. L., 12; Mills v. Com., 1 Harris, 681. 

•Id. 

» Halliday «. People, 4 Gilm., Ill; 3 Chitty Cr. L., 798; Roscoe Cr. Ev., 
266 ; 1 Black. Com., 129. 

* The word *^ abortion" is defined to be the premature exclusion of the hu- 
man foetus after the period of quickening. 1 Russ. on Cr., 671 ; 1 Chitty 
Gen. Pr.. 85 ; 2 Arch. C. P. & PL, 96. 

* The expulsion of the ovium or embryo within the first six weeks after 
conception is technically a miscarriage. Chitty Med. Juris., 410; Smith «. 
State, 83 Me., 48. But the criminal attempt to destroy the foetus at any 
time before birth is termed in law a miscarriage. Id. ; but see People «. 
Lohman, 2 Barb., 216 ; 1 Com., 379 ; People v. Stockhame, 1 Park. Cr. R, 424. 

* R. S., 852, § 8 ; State v. McBride, 26 Wis., 409. The defendant may be 
tried in the county wherein the medicine intended to prod uce the miscar- 
riage was administered, and not in that where the miscarriage took place* 
Btate V, HoUenback, 86 Iowa, 112. 



266 SPECIFIC OFFENSES. 

next succeeding section, he shall for each offense be fined not 
less than fifty dollars nor more than five hundred dollars, or 
be confined in the county jail not less than thirty days nor 
more than six raontlis, or both : Provided^ this section shall 
not be construed to apply to compounds known as 'oflScinal.' '" 

§ 380. Certificate Required. — "Before any pills, powders, drugs 
or combination of drugs designed expressly for the use of fe- 
males, shall be kept or exposed for sale or sold, the proprie- 
tor thereof sliall submit under oath a true st4itement of the 
formula by which tlie same is compounded, to five well- 
known and respectable practicing physicians, in the county 
where the same is proposed to be sold, and shall procure their 
certificate signed and verified by the affidavit of each of them, 
that such combination is not abortifacient; and every person 
keeping on hand, or in any manner advertising or exposing 
for sale or selling such combination, shall keep such certifi- 
cate, or a sworn copy thereof, with the formula attached, for 
the inspection of any person desiring to see the same."* 

§381. Advertising Abortifiieieiit Drags. — " Whoever adver- 
tises, prints, publishes, distributes or circulates, or causes to 
be advertised, printed, published, distributed or circulated, 
any pamphlet, printed paper, book, newspaper notice?, adver- 
tisement or reference, containing words or language giving 
or conveying any notice, hint or reference to any person, or 
to the name of any person, real or fictitious, from whom, or 
to any plae-e, house, shop or office where any poison, drug, 
mixture, preparation, medicine or noxious thing, or any in- 
strument or means whatever, or any advice, information, di- 
rection or knowledge may be obtained for the purpose of 
causing or procuring the miscarriage of any woman pregnant 
with child, shall be punished by imprisonment not exceeding 
three years, or fine not exceeding one thousand dollars."* 

»RS^832,§4. 
•Id. §5. 
•Id^853,§«. 



ABORTION. 267 

STATEMENT OF THE OFFENSE OF PRODUCINO A MI8CARRTAOB. 

{Commence as in form on pa-ge 85) that C. D., on, etc., at, etc., In the said 
county, did unlawfully and feloniously administer to one G. H., then and 
there bring a woman pregnant with child, a certain noxious' substance 
called savin, with intent, then and there to produce the miscarriage) of the 
said G. H., and then and there did thereby unlawfully and feloniously 
cause the miscarriage of the said G. H., it not being Uicn and there necessary 
to cause such miscarriage for the preservation of the life of the said G.H ;"• 
the said C. D. then and there well knowing that the said noxious substance 
would produce such miscarriage, contrary to the form of the statute in such 
case made and provided {conclude as in form on page 35). 

8TATEMEKT OF THE OFFENSE OF ATTEMPTING TO PRODUCE MISCARRIAGE. 

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, did unlawfully, feloniously and willfully use and employ a certain 
instrument' called a fi)rceps in and upon one G. H., then and there being a 
woman pregnant with child, and then and there did thereby unlawfully^ 
feloniously and willfully attempt to procure and produce the miscarriage 
of the said G. H., it not being necessary to procure or produce such mis- 
carriage for the preservation of the life of the said G. H.,* contrary to the 
form of the statute in such case made and provided {conclude as in form on 
page 85). 

§ 382. Evidence Required — 1* It Most be Proved that the De- 
fendant applied an Instrument or Administered Medicine, Drug or 
other Noxious Thing to the Woman.^ — To constitute an ad- 
ministering or causing to be taken, it is not necessary thut 
the delivery should be by the hand of the defendant. It is 
ButBcient if the defendant mixes the substance and tells the 
woman that it is for her,' or delivers it to her with intent to 



' The name of the medicine need not be stated, nor need it be descril)ed as 
noxious. State v. Vawter, 7 Blackf., 922. 

• This negative averment is probably necessary. Metzger v. People, 14 
Ills., 101; 7 Blackf.,502; State©. Abbott, 11 Foster N. II., 434; State©. God- 
frey, 24 Me., 234. 

• The wonis " a certain instrument, the name of which is to the jurors 
unknown," were held to be a sufficient description of the instrument. Com^ 
o. Snow, 116 Mass., 47. 

• It is not necessaxy to allege that the woman did not die. Com. v. Thomp- 
son, 108 Mass., 461. 

• R. 8., 862, § 8 ; 2 Arch. C. P. & PI., 101. 

• Rexv. Harley, 4 Car. & P., 369 ; Rex u. Cadman, R. &.M. C. C, 114. 



268 8PBCIFI0 dFFBNSES. 

cause an abortion or miscarriage, and the pregnant woman 
takes it in his presence or absence and it causes her to abort or 
miscarry.* It is not necessary to prove that " the child was 
qnick" to convict the defendant of producing a miscarriage.' 
It has been held that the defendant may be guilty of an at- 
tempt to procure a miscarriage, though the evidence showed 
affirmatively that the woman supposed to be pregnant was 
not so in fact/ 

§ 383. 2. It Mnst be Proved that the Instmment, Medicine, 
Drag or other Noxious Substance named in the Indictment woold 
Canse a Woman Pregnant with Child to Abort or Miscarry.^ — 
Tliis may be proved by the defendant's admissions or other- 
wise.* Where the noxious substance was called in the indict- 
ment *'a decoction of a certain shrub called savin" (which is 
produced by boiling the leaves), and the evidence was of an in- 
fusion (which is produced by pouring boiling water on the 
leaves of the shrub), the variance was held to be immaterial as 
they were of the same nature.* It has been intimated that a 
person may be convicted of an attempt to procure a miscar- 
riage though the thing administered was not capable of produc- 
ing it, if such person supposed it would.' And it is admissible 
to prove that ergot, a drug shown to have been administered 
to the pregnant woman, was popularly supposed to produce 
abortion, the object being to prove an attempt to procure 
an abortion.' The fact of the secretion of the foetus about 
the building where the offense is alleged to have been com- 
mitted is admissible in evidence as tending to prove the 
corpus delicti? 

* Reg. V. Wilson, 3 Eng. Law & Eq. R, 605. 

* People «. Jackson, 8 Hill, 92; State c. Howard, 32 Vt, 380. 

* Reg. «. Goodball, 1 Den. C. C, 187, 2 Cox. C. C, 40 ; 2 Car. & K., 293 ; 
but see Rex v. Scudder, 1 Moody, 216; Rex v. Goldsmith, 8 Camp., 76; Rex 
0. Phillips, 3 Camp., 73. 

* R. S., 352, § 3; 2 Arch. C. P. & PL, 102 
» 2 Arch. C. P. & PL, 102. 

' Rex 0. Phillips, 3 Camp., 74. 

' RextJ. C^>e, 6 Car. & P., 403; Rex«. Phillips, 3 Camp., 74. 

* Carter v. State, 2 Carter, 617. 

* State V. Howard, 32 Vt, 380, 406. 



abobtiok. 269 

3. Abduction. 

§ 384. Prorisioiui of the Statute Relating to the Abduction of a 
Female. — ^^ Whoever entices or takes away anj nnmarried 
female of a chaste life and conversation from the parents' 
house, or wherever she may be found, for the purpose of pros- 
titution or concubinage, and whoever aids and assists in such 
abduction for such purpose, shall be imprisoned in the peni- 
tentiary not less than one nor more than ten years. "^ 

STATEMJEKT OF THS OFFENSE OF ABDUCTIOK OF A FEMALE. 

{Oommence m in farm on page 85) that C. D., on, etc., at, etc., in the 
said county, did unlawfully and feloniously entice and take away one E. F., 
then and there being an unmarried female, of a chaste life and conversa- 
tion from her parents* hoase, for the purpose of prostitution, contrary to the 
form of the statute in such case made and provided* {conclude as in form 
on page 85). 

§ 386. Evidence. — * If the female leaves her home voluntarily, 
without being enticed, aided or assisted by the defendant, and 
cohabits with him, he is not guilty of her abduction, though it 
would be otherwise if he had purposely enticed her to leave.* 
The words ^'of a chaste life and conversation" in the statute 
mean actual and personal virtue in tlie female, and to sustain 
an indictment it is necessary that she should have been chaste 
and pure in conduct and principle up to the time of the com- 
mission of the offense or the commencement of acts on the part 
of the accused which resulted in the abduction of the female.^ 
Under the Massachusetts statute it was held that the statute 
did not apply to a case of a man's enticing a woman to leave 

» R. B., 852, g 1. 

' Since the ahduction of a female for the purpose of prostitution was not 
an indictable offense at common law. Carpenter «. People, 8 Barb., 608, the 
conclusion should be against the form of the statute, etc. It seems, how- 
ever, that a conspiracy for such purpose was indictable at common law. 
Rex t>. Grey, 8 St. Tr., 519; 1 East P. C, 11, g 10. 

' Carpenter «. People, 8 Barb., 608. 

* Id. In Iowa it has been held that an unmarried female who had be- 
come unchaste by sexual intercourse, might reform and gain a character 
for chastity within the meaning of the statute. State «. Canon, 18 Iowa, 872L 



270 SPECIFIC OFFENSES. 

her abode for the purpose of illicit sexual intercourse with 
hira ;^ but the insertion of the word "concubinage" in our 
statute^ would make it apply to such a case. The previously 
chaste character of the female is presumed, and the onus is 
upon the defendant to show to the contrary,' and if she has 
been examined to show that she was enticed from home and 
seduced, she may be cross-examined as to her chastity, etc.* 
Where acts of lewdness and immodesty on the part of the 
female were shown, it was held proper fur the people to rebut 
this evidence by testimony showing that she was a young 
woman of good character for cliastity, of correct and modest 
deportment, and that until tlie occurrence with the defendant 
was considered a virtuous girl.' 

§ 386. Provisions of the Statute Relating to the Abduction of a 
Child. — "Whoever unlawfully takes or decoys away any child 
under the age of twelve years, with intent to detain or con- 
ceal such child from its parents, guardian or other person 
having the lawful charge of such child, shall be confined in 
the county jail not exceeding one year, or fined not exceeding 
two thousand dollars, or both, in the discretion of the court: 
Provided^ this section shall not apply to any one who in 
good faith interferes tio protect the child from abuse or cruel 
treatment."* 

STATElCEirr OP THE OFFENSE OF ABDUCTION OF CHILD. 

(Gommenae as in form on page 85) that C. D., on, etc., at, etc., in said 
county, did unlawfully take and decoy E. F., then and there being a child 
under the age of twelve years, with intent then and there unlawfully to de- 
tain and conceal such child from its parents, then and there having lawful 
charge of the said E. F., contrary to the form of the statute in such case made 
and provided {canduds as inform on page 35). 

* Com. V. Cook, 12 Met, 93 ; and see Carpenter v. People, 8 Barb., 613 ; 
State V. Ruhl, 8 Iowa, 449. 

« II. 8., 352, § 1. 

» Andre t). State, 5 Iowa, 896; State «. Sutherland, 80 Iowa, 570; State v. 
Higdon, 32 Iowa, 262. 

* State u. Sutherland, 80 Iowa, 570. 

* State V. Sliean, 32 Iowa, 88. 
•R S., 352, §2. 



assault with intent to commit a felony. 271 
3. Assault with Intent to Commit a Felony. 

§ 387. Provisions of the Statute. — "An assault with an intent 
to commit murder, rape, mayhem, robbery, larceny, or other 
felony, shall subject the offender to imprisonment in the pen- 
itentiary for a term not less than one year nor more than 
fourteen years."* 

§ 388. Oontinned — With Intent to Mnrder. — '* Whoever at- 
tempts to commit murder by poisoning, drowning, stran- 
gling or suffocating another, or by any means, shall be guilty 
of the crime of assault with intent to murder, and punished 

accordingly."* 

I 

STATEMENT OF THE OFPKNSB OF AN ASSAULT WITH INTENT TO 

MURDER.' 

(Oommenee as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, with a drawn sword which the said 0. D. then and there held in 
his right hand, did unlawfully make an assault* upon one E. F.,* in the 
peace of the people, then and there being with an intent," then and there 

»RS.,355, §23. 

• Id., § 24. 

• For a form of indictment, see McKinney v. State, 25 Wis., 378. 

• It is not necessary to allege the commission of the act constituting the 
assault, nor to state the instrument or means used by the assailant nor the 
manner of making the assault. Conolly «. People, 3 Scam., 474; State v. 
Dent, 3 Gill & J., 8; Stale t>. Chandler, 24 Mo., 371; Bloomer p. State, 3 
Sneed, 66; People o. Petlit, 1 John., 511 ; U. S. v. Herbert, 5 Cranch C. C, 
87 ; contra, Beasley v. State, 18 Ala., 535 ; Trexler n. State, 19 Ala., 21 ; State 
V. Johnson, 11 Texas, 22; Jennings v. State, 9 Mo., 852; State v. Johnson 19 
Mo., 213. 

• The name of the person assaulted and intended to be killed must be 
stated if known. State «. Patrick, 3 Wis., 812 ; Vandermark v. People, 47 
Ills., 122; Jones d. State, 11 Sm. & M., 315; contra. State v. Emegh, 18 Iowa, 
12ti; but where the person is described by the initials of his Christian name 
and is as well known by such initials as by his full name, which is a ques- 
tion for the jury lo determine, a conviction will be sustiiined. Vandermark 
t>. People, 47 Ills., 122. 

• The words " with intent in and upon the said B. F., then and there felo- 
niously, willfully, and of his malice aforethought, to commit murder,'' have 
been held sufficient to describe the intent Curtis 9. People, Breese, 197, 
2nd Ed., 256; State «. Williams, 3 Foster, 821 ; McCoy ©. State, 3 Engl., 451. 



272 SFEqiFIO OFFENSES. 

nnlawftilly/ willfully and feloniously, with malice aforethought,' to kiUand 
uurder the said E. F. (conclude as inform on page 85). 

STATEMENT OF THB 0FFBK8B OF AN ASSAULT WITH INTBNT TO COMMIT 

A BAFB. 

(Commence as in form on page 35) that C. D. on, etc., at, etc., in the said coun- 
ty, did unlawfully make an assault upon A. B., then and there being a female, 
with intent* then and there feloniously* and forcibly to ravish, and carnally 
know the said A. B.* against her will* (conclude as inform on page 35). 

STATEMENT OF THB OFFBNSB OF AN ASSAULT WITH INTENT TO BOB. 

(Commence as inform on page 35) that O. D., on, etc., at, etc., in the said 
county, did unlawfully and violently make an assault upon one E. F. with 
intent' then and there, feloniously and violently,^ by ft>rce (or " intimida^ 
Hon") to rob, steal, take and carry away the money of the said A. B. of the 
value of ten dollars, from the person and against the will of the said A. B., 
(conclude as inform on page 35). 

* The word "unlawfully" may be omitted. Fairlee v. People, 11 Ills., 1; 
Pen-y v. People, 14 Ills., 499; State u. Williams, 3 Poster N. H., 321 ; but see 
Curtis V. People, Breese, 256, 1 Scam., 285. 

* The words "feloniously, with malice aforethought," are necessary. Rice 
«. State, 16 Ind., 298; McCoy «. State, 3 Engl., 451 ; State v. Howell, 1 Ga., 
158; State v. Wilson, 7 Ind., 516; State v. Free, 19 Wis., 591 ; Curtis e. Pool 
pie, 1 Breese, 197, 1 Scam., 285; contra, People v. Pettit, 3 John. R., 511; 
Robinson v. Com., 16 B. Monr., 609; State v. Newberry, 26 Iowa, 4d7. 

" The word " intention" may be substituted for the word ** intent" State 
V. Tom, 2 Jones N. C, 414. And it has been held that the word "attempt" 
may be substituted for the statute word " intent." Johnson v. State, 14 Ga., 
55; ctmtra. State v. Ross, 25 Mo., 426; State v. Marshall, 14 Ala., 411; Nu- 
gent f). State, 19 Ala., 540. 

* The word "feloniously" is indispensable. Curtis v. People, 1 Scam., 285 ; 
Mears v. Com., 2 Grant Pa., 385. 

* As to a variance in the name of the female, see State v, Emeigh, 18 
Iowa, 123. 

* The words **against her will" should not be omitted. Mears v. Com., 2 
Grant Pa., 385 ; see also Nugent 9. State, 19 Ala., 54. An indictment which 
alleged an assault with intent to carnally know and ravish by force against 
her will a child under ten years of age was held good. Fizell «. State, 25 
Wis., 364. 

» The word " violently" is essential. 2 Leach, 702 ; 1 East P. C, 420, 421 ; 
but see State v. N ichols, 8 Conn., 496. 

' The allegation of an intent to rob is indispensable. Conolly «. People, 
8 Scam., 474; State «. Hailstock, 2 Blackf., 257; but the allegation "with 
intent then and there, willfully, unlawfhlly and feloniously to commit a 



ASSAULT WITH INTENT TO COMMIT A FELONY. 273 

STATEMENT OF THE OFFENSE OF AN ASSAULT WITH INTENT TO 

COMMIT LARCENY. 

{Comment as inform an page 35) that C. D., on. etc., at, etc., in the said 
county, did unlawfully make an assault upon E. F., with intent^ then and 
there, feloniously to steal, take and carry away the goods and chattels of the 
said E. F., to wit,, one gold watch of the value of one hundred dollars, 
(conclude tis in form on page 35). 

§ 389. 1 . Evidence — An Assault Must be Proved.* — Under our 
statute an assault cannot be committed unless there is a present 
ability to commit a violent injury.* Therefore a man with a 
gun containing nothing but powder and a cotton. wad (though 
he believes that it contains a bullet) cannot commit an assault 
with intent to do murder on a man forty feet distant, by 
shooting at him with a gun so loaded.^ Yet if he levels a 
gun at another and shoots, the presumption is that it was 
loaded with powder and ball.* Au assault with intent to kill 
may be committed without an actual striking or wounding,* 
or doing any personal injury.^ 
. §390. 2. The Intent Must be Proved as Alleged.^ — If the as- 

robbery of goods and chattels Arom the person of the said A. B.," was held a 
sufficient statement of the intent, where no objection was taken before plead- 
ing. Id. So the words '^with an intent,'* the moneys, goods and chattels of 
the said E. F., from the person and against the will of the said E. F., then 
and tliere, feloniously and violently to rob, steal, take and carry away, 
against the form of the statute in such case made and provided, were held 
a sufficient statement of the intent. Reg. v. Huxley, C. & M., 596. 

' The words ** with intent to steal from the pocket" without stating the 
goods or moneys intended to be stolen, were held sufficient. Com. v. 
Rogers, 5 Serg. & R., 463: Com. v, McDonald, 5 Cush., 363. 

* Siate V. Jefferson, 3 Harring., 571; Morgan v. Srate, 13 Sm. & M., 342; 
Morman «. State, 24 Missis., 54; Penn. v. McBirnie, Add., 30. 

'R. S., 855, §20; Jane's Case, 1 Car. & E.,530; State o. Malcom, 8 
Iowa, 413. 

* State V. Swails, 8 Ind., 524; contra^ State v. Shephard, 7 Conn.» 54; Cald- 
well f . State, 5 Texas, 18. 

» Caldwell v. State, 5 Texas, 18. 

* State 0. McClure, 25 Mo., 29. 
' State V, Myers, 19 Iowa, 517. 

* State V. Jefferson, 8 Harring., 571 ; Morgan v. Stat«, 18 Sm. & M., 242; 
Penn. v. McBirnie, Add., 80; Morman o. State, 24 Missis., 54; State o. Keal, 
87 Me., 468 ; bat see U. S. o. Thorpe, o Cranch C. C, 89. 

18 



1 



374 dPECtFIO OFFENSES. 

« 

saiilt is alleged to have been done with intent to commit one 
felony, and the evidence be of an intent to commit another, 
though it be of the like kind, the variance is fatal.* Therefore, 
where the prisoner was charged with an assault with intent to 
murder, maim and disable, and the jury found that the intent 
was to commit robbery, and that the prisoner cut and mained 
the watchman with intent to disable him till he could eflfect 
his own escape, it was held that the prisoner ought not to be 
convicted.* Where the intent charged was to commit a rape, 
evidence that the defendant, in a conversation before the 
alleged commission of the offense, stated upon being asked if 
the prosecutrix was an unchaste woman, that he did not know, 
*'but was going over to try her, and if it was all right, would 
tell them," was held not to show that the thought of crimi- 
nal intercourse with the prosecutrix was in the defendant's 
mind.' 

§391. What Sufficient Evidence of the Intent. — The intent 
must be shown by proof of such facts and circumstances 
accom])anying the transaction as would have constituted the 
offense charged to have been committed, in case the accused 
had succeeded in carrying his intention into full effect.^ 
Therefore if murder is charged to have been intended to be 
committed, the evidence must show that if death had ensued 
it would have been murder.* If malice is not shown, the de- 
fendant cannot be convicted of an assault with intent to mur- 
der.^ But the presumptions as to malice are the same as on 

» 3 Groenl. Ev., § 17; Rex v. Jenks, 2 Leach C. C, 774, 2 East P. Q., 514; 
Com. V. Shiiw, 7 Met,, 52, 57. 

• Rex V. Boyce, 1 Moody C. C, 29 ; Rex v. DufBn, Russ. & Ry., 365 ; Rex «. 
Gillon, 1 Moody C. C, 85. 

■ Stale V. Warner, 25 Iowa, 202. 

♦ King^c. State, 21 Ga.,220; State v. Malcom, 8 Iowa, 413; State v. Parme- 
lee, 9 Cowen, 259; Sharp v. State, 19 Ohio, 379; State v. Nichols, 8 
Conn., 496. 

» McCoy f>. State, 3 Engl., 451 ; State v. Neal, 37 Me., 468; State v. Ander- 
son, 2 Tcnn. R., 6; People v. Vinegar, 2 Park. Cr. R., 24. 

■ Hopkinson v. People, 18 Ills., 264; People v. Vinegar, 2 Park. Cr. R., 24. 



ASSAULT WITH INTENT TO COMMIT A FELONY. 275 

the trial of an indictment for murder.* If a person fires a 
pistol with malice prepense or a total disregard of human life, 
he and all acting with him are guilty of an assault with in- 
tent to murder.* And if intending to murder A, and sup- 
posing B to be A, a person shoots at and wounds B, he may 
be convicted of an assault upon B with intent to murder him.* 
§392. Acquittal of the Higher Crime and Conviction of the 
Lesser. — If the accusation includes an offense of an inferior 
degree, the accused may be acquitted of the higher crime and 
convicted of the lesser.* Therefore on an indictment for an 
assault with intent to commit murder, if it is alleged that the 
assault was with a deadly weapon, the defendant may be con- 
victed of an assault with a deadly weapon with intent to inflict 
a bodily injury,* provided the jury find the facts necessary to 
constitute such offense.' Otherwise if there is no allegation that 
the assault was with a deadly weapon. So if the felonious 
intent is not proved, the defendant may be convicted of the 
assault alone.^ There are authorities holding that on an in- 
dictment for an assault with intent to commit a felony, if the 
felony is proved to have been committed, the accused must be 
acquitted,® but the better opinion is that he may be convicted 



» Id., People V. Shaw, 1 Park. Cr. R., 327; Wright v. State, 9 Yerg., 342; 
but see Reg. v, Jones, 9 Car. <& JBL, 258. 

• Perry v. People, 14 Ills., 490; Vandermark v. People, 47 Ills., 122; State 
V. Myers, 19 Iowa, 517. 

» Rex V. Smith, 33 Eng. L. & Eq., 567. 

• Prindeville v. People, 42 lUa., 217; White t>. People, 32 N. Y., 469; Car- 
penrer «. People, 4 Scam., 197; People o. Jackson, 3 Hill, 92; Com. t>. Mc- 
Grath, 115 Mass., 150; Com. v. Deau, 109 Mass., 349; Dedrew «. People, 2 
N. Y., 183: Orton v. State, 2 Greene Iowa, 140; State t>. Cross, 12 Iowa, 66; 
Gillespie v. State, 9 Ind., 3S0. 

• Beckwith v. People, 26 Ills., 503. 

• Id.; Carpenter v. People, 4 Scam., 197. 

' State V. Bowling, 10 Humph., 52; Stewarts. State, 5 Ohio, 242; Clark v. 
State, 12 Ga., 850; Gardenhier t>. State, 6 Texas, 358; Com. «. Cooper, 15 
Mass., 187; McKinney v. State, 25 Wis., 378; State v. Felner, 19 Wis., 661; 
Dixon V. State, 3 Iowa, 416. 

" Koscoe Cr. Ev., 886 ; Barb. Cr. L., 78 ; Rex v. Hammond, 1 East P. C. 411, 
440; 1 Russ. on C, 681 ; Com. «. Squire, 1 Met., 258; Com. v, Roby, 12 Pick^ 
496; Com. v. Kingsbury, 5 Mass., 106. 



276 SFEOIFIO OFFENSES. 

of the assault with intent to commit the felony, though the 
proof shows that he actually committed the felony.* Such- 
conviction is no bar to a subsequent prosecution for the felony,* 
On an indictment for a rape a party may be convicted of an 
assault with intent to commit a rape.' 

§ 393. Defense of Property, when no Jostiflcation. — An assault 
with intent to kill cannot be justified on the ground that it 
was necessary for the defense of property, except of the dwel- 
ling-house of the accused.* 

4. Assault with a Deadly Weapon. 

§ 394. Provisions of the Statute. — ''An assault with a deadly 
weapon, instrument or other thing, with an intent to inflict 
upon the person of another a bodily injury, where no consid- 
erable provocation appears, or where the circumstances of the 
assault show an abandoned and malignant heart, shall subject 
the ofiender to a fine not exceeding one thousand dollars nor 
less than twenty-five dollars, or imprisonment in the county 
jail for a period not exceeding one year, or both, in the dis- 
cretion of the court."* 

8TATBMBNT OP THE OFFENSE OF AN ASSAULT WITH A DEADLY WEAPON. 

{Commence as in farm on page 85) that C. D., on, etc., at, etc., in the said 
county, without any considerable provocation* wliatever, with a deadly 

» Reg. c. Button, 11 Q. B., 929, 12 Jur., 1017; State c. Leavitt, 32 Me., 183 ; 
Lohman o. People, 2 Barb., 216, 1 Com., 379 ; State v. Shephard, 7 Conn. 
R., 54. 

■ Severin f>. People, 87 Ills, 415 ; Preeland c. People, 16 Ills., 380 ; Gardiner 
«. People. 20 Ills., 434; contra, 1 Bish. Cr. L., § 1057. 

•Prindeville c. People, 42 Ills., 217; State «. Shephard, 7 Conn., 54; Com. 
«. Cooper, 15 Mass., 187 ; State o. Cross, 12 Iowa, 66. 

* State v. Morgan, 8 Ired., 186, 

•R 8., 355, §25. 

' An indictment must aver that no considerable provocation appeared, or 
that the circumstances of the assault showed an abandoned aud malignant 
heart Baker «. People, 49 Ills., 809 ; Reddan v. State, 4 Greene Iowa, 187; 
see Winfield v. State, 8 Greene Iowa, 839. 



ASSAULT WITH A DEADLY WEAPON. 277 

"weapoD,' to toity with an ax,' did unlawfully, willAiUy and malicioualj'' 
• make an assault upon the said A. B., with intent then and there unlawflilly, 
willfVilly and maliciously* to inflict upon the person of the said A. B. a 
bodily iigury, contrary to the form of the statute in such case made and 
provided (conclude <u inform on page 85). 

# 

§ 395. Evidence — Ck^nyiction of the Lesser Offense — Former G<m- 
Tiction of an Assault no Bar. — The statute points out the proof 
required. Tlie offense is only an assault and battery of an aggra- 
vated character,^ and the same rule of evidence applies as in 
other cases of assault and battery. The previous threats of the 
prisoner are admissible in proof.* Where a party holds a 
deadly weapon in one of his hands and makes an assault upon 
another with the other, but does not use or threaten to use 
the deadly weapon, he is only guilty of an ordinary assault 
and not of an assault with a deadly weapon with intent to in- 
flict bodily injury.* If there is no eyidence that the assault 
was with a deadly weapon, or of the intent to inflict a bodily 
injury, the defendant maybe convicted of the lesser ofiense of 
assault.^ And a conviction of an assault and battery will not 
bar a prosecution for an assault with a deadly weapon on the 
same transaction.® An assault with intent to commit bodily 

' In Iowa, where the indictment alleged the assault to have been com- 
mitted with a ** deadly weapon*' in the language of the statute, it was held 
to be a sufficient description of the instrument. State v, Seamons, 1 Greene 
Iowa, 418. 

' An assault with an ax or a chisel will be considered an assault with a 
deadly weapon without being so alleged. Dollarhide v. U. S., 1 Morris, 
283; States. Ostrander, 18 Iowa, 437; Com. v. Brauham, 8 Bush. Ky., 387. 
Where the offense is charged to have been committed with several deadly 
weapons it is only necessary to prove the us§ of one to convict the defend- 
ant. State V. McClintock, 1 Greene Iowa, 892. 

* The offense is only' a misdemeanor, and therefore the word ^^feloniously'* 
should not be used in stating the intent. U. S. v. Gallagher, *2 Paine, 447. 

* Cokley v. State, 4 Iowa, 477. 

• Sharp V, People, 29 Ills., 464. 

• Tarpley v. People, 42 Ills., 340. 

^ Beckwith v. People, 26 Ills., 500 ; Carpenter v. People, 4 Scam., 197; Gil. 
lespie 0. State, 9 Ind., 380; Foley v. Stale, 9 Ind., 863; Brantley v. State, 18 
8m. & M., 468 ; Beg. v. Nichols, 9 Car. & P., 267 ; Orton v. State, 2 Greene 
Iowa, 140; State v, Shephard, 10 Iowa, 126. 

8 Severin v. People, 37 Ills., 414; Freeland v. People, 16 Ills., 380. 



278 BFEOIFIG OFFENSES. 

injury is not justified by a "considerable provocation" if the 
circumstances show "an abandoned apd malignant heart. "^ 

5. Concealing Death of Bastabd. 

§ 396. Pi-ovisions of the Statute. — "If any woman shall en- 
deavor, privately, either by herself or by procurement of 
others, to conceal the death of any issue of her body, which if 
born alive would be a bastard, so that it may not come to 
light, whether it shall have been murdered or not, she shall 
suffer confinement in the county jail for a term not exceeding 
one year: Provided^ however, that nothing herein contained 
shall be so construed as to prevent such mother from being 
indicted and punished for the murder of such bastard child."* 

STATEMENT OF THE OFFENSE OF OONCEALTNa BASTARD. 

{Commence a» in form on page 85) that C. D., on, etc., at, etc., in the said 
coanty, then and there being a single woman, did unlawt'ally endeavor, 
privately to conceal the death of tlie issue of her body, tlien and there 
being an unnamed* male child, which said child was then dead, and if it 
hod been born alive would have been a bastard, so that it might not come 
to light, whether it had been murdered or not, contrary to the form of the 
statute in such case made and provided {conclude as inform on page 85). 

§397. Evidence. — Prove: 1. Tliat the accused was a single 
woman and pregnant with a child, or if a married woman, that 



' Winfield «. State, 8 Greene Iowa, 889. 

• R. S., 858, § 44. 

" Possibly necessary. Hoscoe Cr. Ev., 887; Beg. o. Hicks, 2 Moody & 
Iiy.,503. 

^ An indictment must show that the child was dead. Perkins* Case, 
1 Lewin C. C, 44 ; Douglas v. Com., 8 Watts, 585 ; buf it need not state nor 
be proved whether the child died before, at or after its birth ; Id. ; Ilex o. 
Coxhead, 1 C^u:. & K., 623 ; where an indictment charged that the defend- 
ant afterwards, etc., *the said Infant having on the day and year aforesaid 
died, did endeavor privately to conceal the death of tlie said infant," it was 
held that this was a sufficient averment of the death of the child. Boy lea 
«. Com., 2 Serg. & R., 50. It is not necessary to set forth in what manner 
or by what acts the mother endeavored to conceal the death. Id. ; State «. 
Mckee, Add., 2. 



OONOEALING DEATH OF BASTARD. 279 

Bhe was pregnant by an adulterous intercourse/ and the 
non-access of the husband, for if the woman ' cohabited with 
her husband the child will be conclusively presumed to be 
legitimate, unless the husband was impotent.^ 2. That the 
child was dead, and the issue of her body, and whether a male 
or female. 3. That she endeavored privately to conceal its 
death by a secret burial or otherwise. It is immaterial 
whether the child was dead or alive when born,'^ and the 
woman may be convicted though the death was probably 
known to an accomplice.* So tlie woman may be convicted 
whether the body of the child was buried or otherwise con- 
cealed by an accomplice who acted as her agent in the mat- 
ter.* Private burying is pointed out as evidence. But as 
the concealment of the death may be occasioned by accident 
without any design unless there be a concealment of preg- 
nancy, labor, etc., or some other circumstances of concealment, 
there being no person present at the birth is not sufficient to 
convict the mother.' 

§ 398. Who may be Convicted of Concealing, etc. — A person 
other than the mother of a bastard child cannot be convicted 
of the offense of concealing the death of such child,^ unless 
upon an indictment which charges the mother of the bastard 
also with the offense. Such person may, however, upon 
proper proof, be convicted as an accessory of aiding, assisting, 
abetting, counseling, commanding or procuring the com- 
mission of such offense.* 



» State c. Pettaway, 3 Hawks, 623; 2 Arch. C, P. & PL, 117. 
•IGreenl. EV.J28. 

• Rex V. Coxhead, 1 Car. & K., 023 ; Perkin's Case, 1 Lewin Q. C\, 44 ; eon- 
tr(L, State o. Love, 1 Bay, 167; State o. Joiner, 4 Hawks, 350; Com. v. Clark, 
2 Ashm., 105. 

* Bex v. Cornwall, Hubs. & Ry., 886 ; contra^ Peat's Case, 1 East P. C, 5, 
§ 15, 129. 

• Douglas's Case, 1 Moody C. C, 480, 7 Car. <& P., 644; Rex t>. Bird, 3 
Car. & K., 817. 

' Pexm 0. McKee, Add., 1. 

» RoBCoe Cr. Ev., 887; Reg. «. Wright, 9 Car. & P., 754. 

* State V, Bprague, 4 R. I., 257 ; Rex v. Bird, 2 Cor. & K., 817. 



280 8pe0ifi0 0ffenbe8. 

6. Cbimikal Cabelessnbss. 

§ 399. What Constitutes. — Gross carelessness which resaltb 
in an injury to others is criminal independent of the statutes; 
and with certain limits supplies the place of a direct criminal 
intent.* As where a person by gross negligence in doing a 
lawful or an unlawful act causes the death of another, he is 
guilty of either murder or manslaughter, as the case may be.* 
If a man being on a horse which he knows to be accustomed tc 
kick, willfully rides him amongst a crowd of persons, and the 
horse kicks a man and kills him, the rider is guilty of murder, 
although he had no malice against any particular person, nor 
any other intention than that of diverting himself by fright- 
ening the persons around him.* So if one having an animal 
which he knows is dangerous, permits him to go at large and 
he kills a man, the owner is indictable.* And if a person sets 
fire to an out-house, so near a dwelling-house as to endanger 
the latter, and it is burned, this act is deemed in law to be a 
burning of the dwelling-house.* 

§400. Of a Physician. — If a person, whether a licensed 
practitioner or not, holds himself out as a physician, or pre- 
tends to be competent to treat diseases and to deal with the 
life or health of others, causes the death of another by his 
gross* ignorance, carelessness or negligence, he is guilty of 
manslaughter, even though he might not have intended bod- 
ily harm to his patient,^ or if the injury falls short of the de- 

> Bturges «. Maitlnnd, Anthon, 158; Com. v. Rodes, 6 B. Monr., 171. 

• 1 Bish. Cr. L., f5 »14; Rex v. Oarr., 8 Car. & P., 163; Rex v. Edwards, 8 
Oac & P., 611 ; Ann o. State, U EumplL, 159; U. S. v. Freeman, 4 Ma- 
son, 505. 

» 1 Hawks P. C, 81, § 68. 

• 1 Bish. Cr. L., §318; 1 East P. C, 265; Stumps v. Kelley, 23 Ills., 
140, 142. 

• Gage V. Sbelton, 8 Rich, 242. 

• Rex «. Long, 4 Car. & P., 398; Rex v. Van Butchell, 8 Car. & P., 629; 
Rex «. Williamson, 3 Car. A P., 635. 

' Rex V. Spiller, 5 Car. <& P., 333 ; Rex v, Simpson, 1 Lewin, 172; Rice «. 
State, 8 Mo., 561; R. «. Senior, 1 Moody 0. C, 846; Fairlee v. People, 11 
Ills., 1. 



OBIHIKAL CASELE88NES8. 281 

privation of life, he may be punished for a misdemeanor.* 
But if he acts in good faith, with a reasonable degree of skill, 
and adopts the treatment ho deems best, he is not criminally 
liable, though the treatment should be erroneous in the eyes 
of those who assume to know what treatment should be 
adopted, and though he is called by those who deem them- 
selves wise, grossly ignorant of medicine and surgery.* An 
ignorant person stands in a different position if a volunteer 
when professional attendance could be had elsewhere than he 
would if forced to act because no other assistance could be 
obtained.* 

§401. Of a Common Carrier. — The statute provides that 
" whoever having personal management or control of, over 
any steamboat,^ or other public conveyance used for the com- 
mon carriage of persons, is guilty of gross carelessness or 
neglect in, or in relation to, the conduct, management or con- 
trol of such steamboat or other public conveyance while be- 
ing so used for the common carriage of persons, whereby the 
safety of any person shall be endangered, shall be imprisoned 
in the penitentiary not exceeding three years, or fined not 
exceeding five thousand dollars."^ 

STATEMENT OF THB OFFENSE OF CRIMINAL CABELBSSNESB OF A MAN- 

AOBR OF A STEAMBOAT. 

(Commence ae inform on page 35) that C. D., on, etc., at, etc., in the said 
county, then and there having the personal management and control of and 

over a certain steamboat called ^ then and there used for the common 

carriage of persons, was guilty of gross carelessness in the conduct, man- 
agement, and control of the said steamboat while then and there being used 
for the common carriage of persons, by then and there {inaert a statement 

" R«. Grovenvelt, 1 Ld. Raym., 213; Rex v. Long, 4 Car. & P., 405. 

* Com. V. Thompson, 6 Mass., 134; Rice v. State, 8 Mo., 561; Holmes o. 
8Ute, 23 Ala., 17. 

» 1 Whart. Cr. L., § 1015; R. «. Webb, 2 Lewin C. C, 196. 

* At common law if a person in command of a steamboat by negligence 
or carelessness unintentionally ran down a boat, etc., and the person in it 
was thereby drowned, he was guilty of manslaughter. Rex «. Green, 7 
Car. & P., 156; Rex v. Allen, 7 Oar. & P., 153; Reg. «. Taylor, 9 Oar^ 672. 

* R. 8., 859, § 49. 



282 SPECIFIC OFFENSES. 

of the partictUar acts of carelessness), whereby the safety of E. F., G. H.,and 
the said A. B., was then and there endangered, contrary to the form of the 
statute hi such case made and provided {conclude as inform on page 35). 

7. Cjruelty to Childeen and Others. 

§402. Provisions of the Statate, — "Any person who shall 
willfully and unnecessarily expose to the inclemency of the 
weather, or shall in any other manner injure in health of 
limb, any child, apprentice, or other person under his legal 
control, shall be fined not exceeding five hundred dollars, or 
imprisonment in the penitentiary not exceeding five years."* 

STATEMENT OF THE OFFENSE OF CBUEIiTY TO A CHnJ>. 

(Commence as inform on page 35) that CD., on, etc., at, etc., in the said county 
did willfully and unnecessarily expose to the inclemency of the weather 
E. F.i then and there being the child of the said C. D., and under hjs legal 
control, and then and there did thereby injure the health of the said E. F., 
contrary to the form of the statute in such case made and provided (con- 
elude as inform on page 85). 

8. DlTKLINO. 

§ 403. Defined. — A duel is an aggravation of the common- 
law ofifense of affray,^ though it is not necessary that the 
fighting should be in some public place, as it is in the case of 
an affray.' It may be defined to be a fighting together by 
two or more persons with any deadly weapon in pursuance of 
such an agreement as permits one to take the life of another 
in the encounter.* The time of making the agreement is im- 
material if it was before the figliting.*^ , 

§404. Provisions of the Statate — Punishment. — ''Wlioever 
fights a duel with any deadly weapon, although no death en- 

' R. 8., 359, § 53. 

• 2 Bish. Cr. L., § 5 ; 1 Russ. on Cr., 291, 292. 

• 4 Black. Com. 145; The State v. Summer, 5 Strob., 53; Simpson v. State, 
SYerg, 350; Curlin «. State, 4 Yerg., 143 ; Klum ©.State,! Blackf.,877; 
State V. Heflin, 8 Humph . 84. 

• 2 Bish. Cr. L., 813; Herriott v. State, 1 McMuIlan, 126. 

• Herriott t». State, 1 McMullan, 126. 



DUELING. 283 

sues, and every second, and whoever aids and abets in such 
duel, shall be imprisoned in the penitentiary not less than 
one nor more than five years, or be fined not exceeding three 
thousand dollars."* 

§ 405. Continned — Sending, Accepting or Carrying Challenge. — 
" whoever challenges another to fight a duel with any deadly 
weapon, or sends or delivers any written or verbal message, 
purporting or intended to be such challenge, or accepts any 
such challenge or message, and whoever knowingly carries 
or delivers any such challenge or message, shall be irppris- 
oned in the penitentiary not less than one nor more than 
five years, or fined not exceeding three thousand dollars."* 

§406. Continned — Disabilities. — "Whoever shall be con- 
victed under either of the two preceding sections, shall be in- 
capable of holding or being elected to any oflice of profit, 
trust or emolument, either civil or military, under the con- 
stitution or laws of this state."* 

§ 407. Continned — By Appointment Made within the State. — 
"Whoever, being an inhabitant or resident of this state, by 
previous appointment or engagement, made within the same, 
fights a duel without the jurisdiction of this state, and in so 
doing inflicts a mortal wound upon any person, whereof such 
person afterwards dies within this state, and every second en- 
gaged in such duel, shall be deemed guilty of murder within 
. this state, and may be indicted, tried, and convicted in the 
county where such death shall happen."* 

§ 408. Continned — Leaving the State to Engage in. — " If any 
inhabitant of this state shall leave the same for the purpose 
of eluding the operation of the provisions herein contained 
respecting dueling or challenges to fight, with intent of giv- 
• ing or receiving any challenge herein prohibited, or of aid- 
ing or abetting in giving or receiving such challenge, and 
shall give or receive any such challenge, or shall aid or abet 

> R 8., 861, § 65. 

' Id., § 66; Com. «. Barrett, 118 Mass., 802. 

■ R. a, 861, § 67. 

* Id., i 68. 



284 8FECIIFIC OFFENSES. 

in giving or receiving the same, withont this state, he shall 
be deemed as guilty, and shall be subject to the like punish- 
ment and disabilities as if the offense had been committed in 
this state."* 

§ 409. Continued — Former Conviction or Acquittal. — " Every 
person indicted under either of the two preceding sections 
may plead a former conviction or acquittal of the same of- 
fense in another state or country, and if such plea be admitted 
or established, it shall be a bar to any further proceedings 
against such person for the same offense."^ 

§410. Continned — Indictment. — "It shall not be necessary 
in an indictment against any person for fighting a duel or 
against his seconds, aiders, abettors or counselors, or against 
any person for sending or accepting a challenge, or for car- 
rying any challenge, or delivering any message intended as 
or purporting to be a challenge, or for being present at the 
fighting of any duel as a second, or for aiding or giving coun- 
tenance to any duel, or the sending or accepting any chal- 
lenge, to specify the nature or kind of the engine, instrument, 
or weapon with which the duel shall be fought or intended 
to be fought, so that it be alleged in the indictment that the 
engine, weapon or instrument was deadly, the probable con- 
sequence of fighting with which might be the death of the 
parties.'" 

§411. Continned — Publishing as a Coward. — "If any person 
shall, in any newspaper or handbill, written or printed, pub- 
lish or proclaim any other person as coward, or use any other 
opprobrious or abusive language, for not accepting a chal- 
lenge to fight a duel, or for not fighting a duel, such person 
BO offending, on conviction shall be fined not exceeding five 
hundred dollars, or imprisoned not exceeding three months. 
The publisher or printer of any such newspaper, handbill, or 
other publication, may be summoned as a witness, and shall 
be required to testify against the writer of such handbill or 

>R 8., 361, §69. 
•Id., 862, §70. 
• Id, § 71. 



DUBLING. 285 

publication; and if any such printer shall refuse to testify in 
relation to the premises, either before the grand or petit jury, he 
shall be deemed guilty of a flagrant contempt of court, and may 
be punished by tine and imprisonment, or either: Provided^ 
that the testimony given by any such witness shall, in no 
case, be used in any J)rosecution against such witness."' 

8TATEHENT OF THB 0FFRN8B OF DUELING. 

{Pommence as in form on paige 35) that 0. D., on, etc.. At, etc., in the said 
county, by agreement between the said C. D., and oneG. H., did unlawfully 
and willfully fight a duel with the said Q. H., with a deadly weapon, the 
probable consequence of fighting with which might be the death of the 
»iid parties, contrary to the form of the statute in such case made and pro. 
vided (conclude <u inform on page 85). 

STATEMENT OF THB OFFENSE OF CHAIXENOINO ANOTHER TO FIGHT A 

DUEL. 

{Commence as in form on page 85) that C. D., on, etc., at etc., in the said 
county, did unlawfully, willfully, and wickedly, challenge* one G. H. to 
fight a' duel with and against him,^ with a deadly weapon, the probable 
consequence of fighting with which might be the death. of the said C. D. 
and Q. H., contrary to the form of the statute in such case made and pro- 
yided (conclude as inform on page 85). 

STATEMENT OF THE OFFENSE OF ACCEPTING A CHALLENGE TO FIGHT A 

DUEL. 

(Commence as in form on page 85) that C. D., on, etc., at, etc., in the said 
county, did unlawfully, willfully and wickedly accept a challenge to fight 
a duel with one G. H. with deadly weapons, the probable consequence of 
fighting with which might be the death of the said C. D. and G. H., con- 
trary to the form of the statute in such case made and provided (conclude as 
inform on page BS). 

> R 8., 862, § 78. 

* An indictment for sending a challenge in the form of a letter need not 
set out with either the words of a letter or its substance. Brown «. Com., 2 
Va. Gas., 516 ; Heflren «. Com., 4 Met. Ey., 5. 

' An ayerment that the defendant gave the prosecutor a challenge to fight 
in a single combat is equivalent to an averment that he challenged him to 
fight Ivey V. State, 12 Ala., 276. 

^ It is not necessary to state the place where the intended dael is to bo 
fought Ivey «. State, 12 Ala., 276. 



286 SPECIFIC OFFENSES. 

8TATBMEI9T OF THE OFFENSE OF DELIYEHINa ▲ CHALLENGE TO FIOHT A 

DUEL. 

(Commence €Lg in form on page 35) that C. D., on, etc., at, etc., in the said 
county, by the desire of G. H. did unlawfully, willfully and knowingly 
cAiry and deliver to E. F. a written messasje, then and there purporting and 
intended to be a challenge from and on the part of G. H. to £. F. to fight 
a duel with the said £. F., with deadly weapons, the probable consequence 
of fighting with which might be the death of the said G- H. and E. F. con, 
trary to the form of the statute in such case made and provided {conclude as 
inform on page 85). 

STATEMENT OF THE OFFENSE OF ACTING AS A SECOND IN A DUEL. 

{Commence as in form on pa^e 35) that E. F., on, etc., at, etc., in the said 
county, by agreement between the said E. F. and G. H. did unlawfully, 
willfully and wickedly fight a duel with the said G. H., with deadly wea- 
pons, the prt)bable consequence of fighting with which might be the death 
of the said E. F. and G. H. ; and that C. D. was then and there unlawfully, 
willfhlly and wickedly present, aiding and abetting in said duel as second, 
contrary to the form of the statute in such case made and provided {con- 
eltide as inform on page 35). 

§412. Evidence — Place. — It must be proved, not only that 
the prisoner wrote the challenge, but also that he sent it* 
The prisoner may be tried in the county in which he mailed the 
challenge, or in which it was received.^ A challenge to fight 
a dnel out of the state is indictable.* On the trial the decla- 
rations of a second are admissible in evidence against the 
•principal.* 

§ 413. What is a Challenge. — No particular form of words is 
required to constitute a challenge, and it is immaterial whether 
it is verbal or written.* If it is in writing, parol evidence is 
admissible to explain it.** The crime is in the in^ntation to 

> Aulger V. People, 84 Ills., 486. 

' State t>. Dupont, 2 McCord, 334; Rex c. Williams, 2 Camp., 506; Rex «. 
Burdett, 4 B. <& Aid., 95, 127. 

'State V. Farrer, 1 Hawks, 487; State c. Taylor, 8 Brev., 248; 1 Const 
R., 107. 

* State t). Dupont, 2 McOord, 334. 

* State V. Perkins, 6 Blackf., 20 ; 1 Hawks, 487, § 3 ; State o. Strickland, 2 
Nott & McC, 181. 

' Com. D. Hart, 6 J. J. Marsh, 119; Com. v. Pope, 3 Dana, 418. 



A ^ 



DUELING. 287 

fight, and is complete when the invitation is delivered,* or 
when the challenge is sent, whether it reach the person to 
whom it is sent or not.^ The words in which it is given are un- 
important if they are intended for a challenge, and to be so 
understood, they come within the law, even though to common 
apprehension their significations are less broad.^ The words 
"Yon are a scoundrel and defrauded the king of his duty. I 
will prick you to the heart and call you to an account," were 
held under the circumstances presented to the court not to be 
sufficient to constitute a challenge/ So a letter containing 
the following expressions, "It appears that a nife is your favor- 
ite of setling fuses, and if so bea the case you can consider 
that it will sute me, you are a Coward and darsent to except of 
the offer, i want the same chanse of sharpening mi nife, you 
can set your day and i will be on hans," was held not to con- 
stitute a challenge.* Usually whether the words amount to a 
serious challenge to fight or were a mere effusion of passion 
when there is any dispute about the facts, is a question to be 
determined on the trial of an indictment by the jury.® If the 
latter, the jury should acquit.'' Expressing a readiness to ac-. 
cept a challenge does not constitute one.® So a letter which 
is not a challenge, but an invitation to another to send one, is 
not within the statute.' It is sufficient for the prosecution to 
show that the challenge was sent, for the prosecution is not 
presumed to have the challenge in its possession.*® 

§ 414. Effect of a Provocation. — No provocation, however 

> State V. Taylor, 1 Tread., 107. 
» Rex V. WiUiams, 2 Camp., 606. 

■ Com. V. Pope, 3 Dana, 418 ; Ivey c. State, 13 Ala., 276 ; Gordon c. State, 
4 Mo., 375 ; State t>. Faurer, 1 Hawks, 487. 

• Rex «. Pound, W. Kel., 58. 

• Aulger «. People, 34 Ills., 486. 

• State «. Strickland, 2 Nott& McC, 181; People «. Wood, 8 City Hall 
Rec, 139; Gibbon's Case, 1 Southard, 40 ; Com. «. Levy, 8 Wheeler, C. C„ 
246 ; Herriott v. State, 1 McMuHin, 126. 

' Com. «. Hart, J. J. Marsh, Ky., 130. 

• Com. V. Tibbs, 1 Dana, 534. 

• Aulger tj. People, 34 Ills., 486. 

*• Rex V. Williams, 2 Camp., 506; Com. «. Hooper, Thach., Cr. Cas., 400L 



288 SPECIFIC OFFENSES. 

great, is a justification for challenging another to fight a 
duel, although evidence of a provocation should be received 
in mitigation of the punishment.* 

9. False Impbisonment. 

§ 415. Provisions of the Statute — I>efinition — Punishment. — 

" False imprisonment is an unlawful violation of the personal 
liberty of another, and consists in confinement or detention 
without sufficient legal authority. Any person convicted of 
false imprisonment shall be fined in any sum not exceeding 
five hundred dollars, or imprisoned not exceeding one year in 
the county jail."^ 

BTATEMEIirr OF THE OFFENSE OF FALSE IMPRISONMENT. 

{Commmee as in form on page 35) that G. D., on, etc., at, etc., in the said 
CQunty, did anlawfully and forcibly make an assault upon E. F.,' and* did 
then and there unlawfully and injuriously, against the will and without the 
consent of the said £. F., and without any warrant or sufficient legal au- 
thority* or any reasonable or justifiable cause whatsoever, imprison, confine 
and detain the said £. F. for a long time, to wit., for the space of three days 
{conclude cu inform on pagt 85). 

§ 416. Evidence. — All the prosecutor has to prove is the 
imprisonment; for that is presumed to be unlawful until the 
contrary is shown.® It is for the defendant to justify it by 
proving that it was lawful, which he may do by showing that 
he had authority to arrest the party imprisoned without a 

' 1 Arch. C. P. & PI., 927; Roscoe Cr. Ev.,376; Rex t> Rice, 8 East, 581. 

• R 8., 865, § 95. 

' The allegation of an assault is unnecessary. 8 Chitty Cr. L., 885, n. d; 8 
Stark. Ev., 1448; 2 Bish. Or. P., § 866. 

* Charging both an assault and false imprisonment does not make the 
statement bad for duplicity, for when taken together they constitute one 
offense. Francisco v. State, 4 Zab., 80, 32. 

* An indictment should negative Uie auUiority. Redfield «. State, 24 
Texas, 138. But it has been held that the allegation that the person of- 
fended against was '^unlawfully and feloniouly imprisoned'* was sufBcient, 
and that it need not be added that it was done without legal authority, for 
the latter was implied by the former. U. B. o. Lapoint, 1 Morris, 140. 

• 2 Arch. C. P. & PI., 94. 



FAL8B IMPRISONMENT. 289 

warrant,* or by virtue of civil or criminal process.' The 
words " legal authority" in the statute, require process to be 
procured and issued in good faith on probable cause, other- 
wise the prosecutor is liable;' but a writ issued by a court 
having jurisdiction of the subject matter, and regular on its 
face, will protect an officer who executes it in good faith and 
returns it regularly from a prosecution for false imprison- 
ment.* 

§ 417. What an Imprisoninent. — Every confinement is an 
imprisonment, whether it be in a common prison or in a pri- 
vate house, or even by forcibly detaining one in the street,* 
or by confining him in one prison when sentenced to be con- 
fined in another.* Where a counselor-at-law went into the 
jail to see a prisoner, telling the turnkey as he went in that 
he should not be detained but six minutes, but the turnkey 
locked him in for the space of half an hour, it was held that 
the turnkey was guilty of false imprisonment.^ But it has 
been decided that the lifting up a person in his chair and car- 
rying him out of a room in which he was sitting, and keeping 
him out, was not a false imprisonment.* Where, upon a war- 
rant being shown a person, he voluntarily and without com- 
pulsion or a declaration of arrest attended the constable who 
had the warrant to the magistrate, it was held there was no 
false imprisonment.' If one employs another to make an ar- 
rest under circumstances making the arrest illegal, such em- 
ployer is guilty of false imprisonment.*® 

' jlnte §56-60; Floyd v. State, 7 Engl., 43; Mitchell o. State, 7 Engl., 50. 

• Slomer v. People, 25 Ills., 70. 

• Rowland t>. Veale, 1 Cowper, 18; Teft v, Ashbaugli, 13 Ills., 602; arUe 
§46. 

• Floyd V. State, 7 Engl. Ark., 43 ; Johnson v. Tompkins, 1 Bald., 571 ; 
State V. Rollins, 8 N. H., 550; Long v. Rogers, 17 Ala., 540. 

« 1 Bish. Cr. P., § 1152; 1 Salk., 408; Skin., 664; and see Millar v. State, 2 
Kansas., 174. 
' People V. Lent, 4 City Hall Rec, 56. 

• 2 Arch. C. P. & PI., 92. 

• ArrowBmith v. Mesurier, 2 K. R., 211 ; see also Simpson «. Hill, 1 Esp. 
R., 431 ; Russen «. Lucas, 1 Car. A P., 153. 

^ Floyd 9. Btate» 7 Engl., 43 : Reg. o. Tracy, 6 Hod., 178. 

19 



290 ' SPECIFIC OFFENSES. 

§ 418. Con tinned — The Imprisonment may be by Words. — 

Words are sufiScient to constitute an imprisonment if the per- 
son is restrained thereby,' for one is not obliged to incur the 
risk of personal violence and insult by resisting until ac- 
tual violence is used,* though some of the older authorities 
held that false imprisonment necessarily included a battery.* 

§419. When Parent Liable for Imprisoning his Child. — While 
the law gives the parent a large discretion in the exercise of 
authority over his children, yet this authority must be ex- 
ercised within the bounds of reason and humanity, and if the 
parent commits wanton and needless cruelty upon his child, 
the law will punish him. So where the parent confined his 
child, a blind and helpless boy, in a cold and damp cellar with- 
out fire during several days in mid-winter, giving as an excuse 
therefor that the child was covered with vermin, it was held 
that he was liable to indictment and punishment for false im- 
prisonment.'* 

§ 420. Imprisonment by a Military Officer — When Justified. — 
In time of war a reasonable suspicion that a person is trans- 
porting munitions of war to the enemy's country is a good 
defense by a military officer to a prosecution for false impris- 
onment of such person.* 

10. Kidnapping. 

§ 421. Definition and Punishment. — "Whoever willfully and 
without lawful authority forcibly or secretly confines or im- 
prisons any other person within this state against his will, or 
forcibly carries or sends such person out of the state, or forci- 
bly seizes or confines or inveigles or kidnaps any other person, 
with the intent to cause such person to be secretly confined 

' Pike V. Hanson, 9 N. H., 491 ; Bloomer v. State, 3 Sneed, 66; Smith tj. 
State, 7 Humph., 43. 

• 3 Stark. Ev., 1448. 

* 1 Ru8S. on Cr., 753; 1 Gab. Or. L., 82; 1 Hairing., 143; »md see Long «. 
Bogers, 17 AJa., 540. 

* Fletcher v. People, 52 Ills., 396. 

• Clow «. Wright, Brayt, 118. 



KIDNAPPING. 291 

or imprisoned in this state against liis will, or to cause such 
person to be sent out of the state against his will, shall be im- 
prisoned in the penitentiary not exceeding five years, or fined 
not exceeding one thousand dollars, or both. This section 
shall not extend to a parent taking his or her minor child, un- 
less such parent is deprived of tLe right to have the custody 
of such child by the order of a court of competent jurisdic-. 
tion.'" 

STATEMENT OF THE OFFENSE OF KIDNAPPING. 

(Commence as in form on page 35) that C. D. on, etc., at etc., iu Uie said 
county, did unlawfully make an assault on one E. F., and him did then and 
there beat, bruise and ill-treat, and without lawful authority, did then and 
there falsely, forcibly and feloniously imprisiin the said E. F. within this said 
state of Illinois against his will,^ and without lawful authority did then 
and there willfully, forcibly and feloniously kidnap,* carry and send the 
said E. F. out of the said stale of Illinois* into another stare, to wiY., into the 
state of Kentucky, against the will of the said E. F., contrary to the form 
of the statute in such case made and provided {conclude an in form on 
page 35). 

§ 422. Effect of the Consent of the Child. — The consent of a 
child of very immature years does not make tlie otherwise 
unlawful abduction of such child with the intent required by 
law any the less kidnapping. Just how old a child must be 
before he is capable of consenting, will depend very much 
upon the circumstances of each case. Children of four,'* live,* 

' R 8., 377, § 166. 

' The allegations of an assault, battery and false imprisonment may be 
omitted, but without them the defendant cannot beheld for the lesser offense. 
Com. «. Turner, 3 Met., 19, 26. And the insertion of these allegations will 
not make an indictment bad for duplicity. 2 Bish. Cr. P^ 5^602; Com. v. 
Kickerson, 5 Allen, 518. ^ 

* At common law it is not sufficient to cliarge the defendant with kidnap- 
ping. Click V. State, 3 Texas, 282. 

* It is sufficient to follow the terms of the statute. Hamilton «. Com., 3 
Pa., 142; State v. Griffin, 3 Barring. Del,, 559; State «. McRoberts, 4 
Blackf., 178. 

* State f), Farrar, 41 N. H.. 53. 

* Com. V. Robinson, Thatch. Cr. Cas., 488. 



292 BPEOIFIO OFFENSES. 

six* and nine* years respectively have been held to be too 
young to render their consent available in the defense. 

§ 423, Physical Force Need not be Used. — It is not necessary 
that physical force be used. It will be sufficient to show 
that tlie mind was operated upon by falsely exciting the fears 
by the use of threats or other undue influence, amounting 
substantially to a coercion of the will as a substitute for vio- 
lence. In coming to a conclusion in such case the jury 
should' take into consideration tlie condition of the person 
kidnapped, his or her age, education and condition of mind, 
and .all the circumstances connected with the transaction as 
detailed by the proof. The crime is more frequently com- 
mitted by threats and menaces than by employment of actual 
physical force and violence.' Procuring the intoxication of a 
sailor as a means of getting him on shipboard without his 
consent, and then taking him into a ship and to another coun- 
try ;* or carrying away a free black child fiv^e years of age 
against her will from the family of the person by whom she 
had formerly been owned as a slave,^ is kidnapping. 

§ 424. Effect of a Decree as to the Custody of the Child. —Where 
on a decree for a divorce the custody of the child is assigned 
to one of the parents, if the other parent seizes him and car- 
ries, him off, he is guilty of kidnapping.* And it is the same 
offense in a third person who by the request of the parent not. 
having the right to the custody of the child by the order of 
the court, seizes him and carries him away, though the child 
is not in the actual possession of the parent entitled to his 
custody, but is at school to which the latter had sent the child 
for education,^ 



» State V. Rollins, 8 N. H., 550. 

' Cora. f). Nickerson, 5 Allen, 518, 537. 

■ Moody V. People, 30 Ilia., 815. 

* Hadden v. People, 25 N. Y., 373. 

* Com. 9. Robinson, Thatch. Cr. Cas., 488. 

* State «. Farrar, 41 N: H., 53. 

' Com. «. Nickeraon, 5 Allen, 518. 



M/ITHBM. 293 

11. Mayhem. 

§ 425. ProYisioiis of the Statute — Defliiition and Panlshment. — 

""Whoever, with malicioas intent to maim or disfigure, cuts 
or maims the tongue, puts out or destroys an eye, cuts or 
tears off an ear, cuts, slits or mutilates the nose or lip, cuts 
off or disables a limb or other member of another person, 
shall be imprisoned in the penitentiary not less than one nor 
more than twenty years, or fined not exceeding one thousand 
dollars, and confined in the county jail not exceeding one 
year."^ 

BTATEUfBNT OF THB OFFENSE OF MATHBIC. 

{Commenee as inform on page 85) that C. D., on, etc., at, etc., in the said 
comity, with a knife which the said 0. I), then and ther6 held in his right 
hand, did unlawfully, willfully and feloneously with malicious intent to 
maim and' disfigure, cut out the tongue of the said A. B." {or "• with Ms thumb 
and fingers did uniawfuUp. wiUfuUy and feUmeously^ and with malicums intent 
to main and ditftgure^ptU out and destroy the rights fye of the said A, B.\ and 
the said A. B. was tliereby then and there maimed,* contrary to the form of 
the statute in such case made and provided {conclude as in form on page 85). 

§426. Evidence — 1. The Maiming must be Proved. — On an 

indictment* for biting off an ear it is suifieient that a part of 
the ear was bitten off;* yet if the part bitten off is so small 
that it does not disfigure the person, and can only be discov- 
ered on close inspection and examination when attention is 

» R. 8., 382, § 207. 

* The word *' and" may be properly substituted for the word "or" in the 
statute. Angel v. Com., 2 Va. Cas., 281. 

* It is sufficient to describe the offense in the language of thei statute. 
State V. Buley, 8 Port, 472; Respublica v. Reiker, 3 Yates, 2^2. An indict- 
ment will be defective unless it substantially pursues the statutory words. 
Com. V. Lester, 2 Va. Cas., 198. 

* It has been held that in an indictment for biting off an ear it is not nec- 
essary to state whether it was the right or left ear. State v. Green, 7 Ired.« 89. 

* An indictment for mayhem at common law, in'addition to the statement 
of the injury, must also charge that the party was thereby maimed. Haw- 
kins P. C, 179, 224; Chitty Cr. L., 164, 219, 2 Black. Com., 252; Chick v. 
State, 7 Ilumph., 161. 

* State V. Qerkin, 1 Ired., 121 ; State v, Abram, 10 Ala., 928. 



294 SPEOIFIO OFFENSES. 

directed to it, tlie offense is not mayhem.* Disabling the 
arm of a man by shooting, is a suflScient maiming within the 
statute.^ The cutting off, disaWing or weakening a man's 
hand or finger, or striking out an eye' or foretooth, or castrat- 
ing him, are maims.* At common law the cutting off of a nose, 
ear or the like was not a mayhem, because the effect was sim- 
ply to disfigure, not to weaken,^ but our statute makes these 
often ses mayhem.® 

§ 427. 2. There must be a Malicious Intent to Maim or Disfl^nre.^ 

— This intent will usually be presumed from the act of maim- 
ing.® It is not necessary wliere the injury is done in sudden 
conflict that the defendant sliould have formed the malicious 
intent to maim or disfigure previous to the conflict; it is suf- 
ficient that he formed such intent during the conflict.* 

§428. Defense.' — It it good defense to an indictment for 
mayhem that the maiming was necessarily done in self-de- 
fense.^^ 

§ 429. Acquittal of the Mayhem and Ckmyiction of a lesser Offense. 

— Where an indictment for mayhem sufficiently alleges an 
assault, which it may do without using the word "assault,"" if 
the proof fails to show a rnayliem, the defendant may be con- 
victed of the assault and acquitted of the mayhem.^^ One 
charged with being present, aiding and abetting at a mayhem 

» State V. Abram, 10 Al:i., 028. 

* U. 8. V. Scroggins, 1 llciiup., 478. 
■ Chick V. State, 7 HiimpU., 161. 

* 1 East V. C, 393. 

* Id.; 3 Chitty Cr. L., 784 ; Scott v. Com., 6 Serg. & R., 224; State v. Mairs, 
1 Coxe N J., 4:)3; Bute o, NeweH, 7 >Iass., 248. 

* R. S., 382, § 207. 

' Com. V. Laucake, 1 Yeales, 417; State v. Daufoith, 3 Conn., 112; Penn. v. 
McBinie, Add., 3J. 

» State ij. Evans, 1 Hayw., 281; State v. Crawford, 2 Dev., 425; State v. 
Gerkin, 1 Ired., 121; ctmtra, Penn. v. McBirne, Add., 80. 

* St:4!te V, Simmons, 3 Ala., 4^7. 

'• llavden tJ. State. 4 Blackf., 5 16 ; Cockcroft «. Smith, 2 Salk., 642 ; 1 Ld. 
Raym., 177; State r. Abram, 9 Ala., 928. 
" Brcnliam v. State, 1 Io\v:i, 542. 
" Queat V. State, 19 Ark., 405. 



BAFE. 295 

may, if the evidence justifies it, be convicted of the assault 
and battery, merely while the principal of the first degree is 
convicted of the mayhem.^ 

12. Poisoning, 

§ 430. Provisions of the Statnte — Punishment. - — " Wlioever 
willfully and maliciously administers, or causes to be admin- 
istered, or taken by any person, any noxious or destructive 
substance or liquid with intent to cause the death of such 
person, or mingles any poison with food, drink or medicine, 
or willfully poisons any spring, well or reservoir of water, 
with such intent, shall be imprisoned in the penitentiary not 
exceeding twenty years."* 

STATEMENT OP THE OFFENSE OF POISONING WITH INTENT TO KILL.* 

{Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, feloniously, wiHfully and maliciously did administer (or '' cause to 
be administered") to G. H., a certain noxious, poisonous and destructive 
substance called arsenic, with intent thereby then and there feloniously, un- 
lawfully, and willfully with malice aforethought, to cause the death of the 
said G. H., contrary to the form of the statute in such case made and pro- 
vided (conclude as inform on page 35). 

13. Eape. 

§ 431. Provisions of the Statute — Definition and Punishment. — 
"Rape is the carnal knowledge of a female, forcibly and 
against her will. Every male person of the age of fourteen 
years and upwards, who shall have carnal knowledge of any 
female child under the age of ten years, either with or with- 

* State V. Absence, 4 Port, 397. 

• R. 8., 8S8, § 230. 

■ It has been held that an indictment which averred, that the defendant 
feloniously, willfully and maliciously mingled a drachm of deadly poison 
called belladonna, with the food of a certain woman, with intent thereby 
feloniously, willfully and of his malice aforethought to kill her, was suffi- 
cient without averring that he knew the belladonna to be a deadly poisoa, 
or did the act knowingly, or that the woman was about to eat the food, or 
that he intended her to eat it Com. v. Borse, 108 Mass., 487. 



296 BPEOIFIO OFFENSES. 

out her consent, shall be adjudged to be guilty of the crime 
of rape. Every person convicted of the crime of rape shall 
be imprisoned in the penitentiary for a term not less than one 
year, and may be extended to life."* 

§ 432. Continued — Emission. — •* It shall not be necessary to, 
prove emission to convict any person of the crime of rape."* 

STATEMENT OF THE OFFENSE OF RAPE. 

{Commence as in form on page 85) that C. D./ on, etc., at, etc., in the said 
county, violently and feloniously did make an assault* in and upon one G. 
H.,* then and there being a female,* and her the said G. H. then and there 
violently and against her will,^ feloniously' and forcibly* did ravish^* and 

> R. S., 388, § 237. 

* Id., § 238. 

* It is not necessary to allege that the defendant was fourteen years of age 
or upwards, nor that the female was not the wife of the defendant. Com. «. 
Bcannel, 11 Cush., 574; Com. v, Foger^y, 8 Gray, 489; People «. Ah. Yick, 
29 Cal., 575; State t>. Farmer, 4 Ired., 224; State «. Storkey, 63 N. C, 7. 

* The words " did make an assault" are probably not essential. Reg. «. 
Allen, 9 Car. & P., 521, 2 Moody, 179; O'Connell «. State, 6 Minn., 279, 285; 
although without them in case of the failure to prove the rape, the defend- 
ant could not be convicted of a simple assault 2 Bish. Cr. P., § 955. 

* As to a variance between the proof and allegation as to the name of the 
injured person, see State v. Emeigh, 18 Iowa, 122; ante page 272, note 5. 

* It has been held, where a similar form was used, that the court could and 
must see that G. H. was a female, without inserting the words *' then and 
there being a female." State «. Hussey, 7 Iowa, 409 ; State v. Farmer, 4 
Ired., 224; Taylor tJ. Com., 20 Grat., 825; Com. v, Benuet, 2 Va. Cas., 235; 
Harman «. Com., 12 Serg. & R., 69. 

' The allegation "against her will" is essential unless the female is an in- 
fant under ten years of age. 2 Stark. Cr. PL, 409; 3 Chitty Cr. L., 815; 2 
Arch. C. P. & PL, 160; St*ite v. Jim., 1 Dev., 142. 

* At common law tlie word **feloniously" was essential. 3 Chitty Cr. L., 811 ; 
Hears v. Com, 2 Grant C, 385; Nevills v. State, 7 Cold., 78; contra, Com. v. 
Scannel, 11 Cush., 547. 

* The word "forcibly" should be inserted. To allege that it was done vio- 
lently will not be sufiicient State v, Blake, 39 Me., 332; contra, Harman «. 
Com., 12 Serg. & R., 69 ; Com. «. Fogarty, 8 Gray, 489. 

*• Under the English statute using the word "ravish" it was held necessary 
to use it in an indictment. 1 Hale, 628 ; 3 Chitty Cr. L., 812 ; Harman «. Com., 
12 Serg. & K, 69 ; Gonglemann 9. People, 3 Park. Cr. R., 15. 



BAPE. 597 

carnally know,^ contrary* to the fonn of the statute in such case made and 
provided (conclude cls inform on page 35). 

STATEMENT OF THE OFFENSE OF RAPE UPON A CHILD UNDER TEN TEARS OF 

AOE. 

(Commence as in form on page 35) that C. D. on, etc., at, etc., in the said 
county, then and there being a male person of the age of fourteen yeare and 
upwards, unlawfully and feloniously did make an assault in and upon one 
G. H., then and there being a female child under the age often years,' to ir»^., 
of the age of eight years, and her, the said G. H., then and tliere wickedly, 
unlawfhlly and feloniously,* did ravish and carnally know, contrary* to the 
form of the statute in such case made and provided (conclude oa inform on 
page 95). 

§433. Evidence — 1. There mast be a Penetration, or the parts 
of the male must be inserted in those of the female, which is 
an essential part of the offense and must be proved,* But a 
very slight penetration is sufficient,^ though it do not break 
the hymen or destroy the marks of virginity.* And in case 
of a child under ten years of age, or of an idiot, the fact of 

* The words "carnally know" are substantially in the statute, and should 
be inserted. 1 Hale, 637 ; 3 Chitty Cr. L., 812. 

' It is usual to conclude a^inst the form of the statute, etc., but as the of- 
fense was a felony at common law it has been thought to be unnecessary. 
Barb. Cr. L., 74; 3 Chitty Cr. L., 812; 1 East P. C, 448. 

' The allegation that the child is under ten years of age is necessary, un- 
less it is alleged that the act was done against her will. Com. v. Sullivan, 
6 Gray, 477 ; Caruth. v. Sugland, 4 Gray, 7 ; State v. Farmer, 4 I red., 224. 

* The words " against her wilP* are made unnecessary by statute. K. S., 
888, § 237 ; it was otherwise at common law. Barb. C. L., 75 ; Fizell o. State, 
25 Wis., 364. 

* The conclusion should be contrary to the form or the statute, for at com- 
mon law without force, it was not a felony. Barb. Cr. L. 75 ; People v, 
Enoch, 13 Wen., 159; ante page 37, note 1. 

* Hale P. C, 628; Rex t>. Jordon, 9 Car. & P., 118; Audley's Case, 3 How- 
ell, State Tr., 401; Fitzpatrick's C, 3 Howell, Slate Tr., 419; Robertson^s 
Case, 1 Swinton, 93. 

' 3 Inst, 59 ; 2 Arch. C. P. & PI., 162, 163 ; Reg. v. Hughes, 9 Car. & P., 752 ; 
State V. Le Blanc, 3 Brev., 839 ; 1 Tread., 354 ; Reg. v. Lines, 1 Car. & K., 398. 

* 1 East P. C. C„ 10, §3, 438; Reg. v. McRue, 8 Car. & P., 641; Reg. «. 
Moody, 190; Rex t>. Russen 1 East P. C, 438; Stroud v. Com., 11 Serg. & 
R, 177 ; contra, Rex «. Gammon, 5 C. & P., 321 ; Brauer v. State, 25 Wis^ 418. 



298 • SPECIFIC OFFENSES. 

penetration may be found by the jury from circumstances/ At 
common law there were some authorities holding that proof 
of emission in the body was necessary to complete the offense,^ 
but now by statute this proof is not necessary.' So that now 
it is presumed that evidence of penetration alone is sufficient 
even though the fact of emission be negatived by the evi- 
dence.* But this is not entirely clear, for though the statute 
dispenses with proof of emission it does not say, as the En- 
glish statute does, the offense is complete without emission.* 
§ 434. 2. It must be Proved that the Rape was Done by Force 
and Against the Will of the Woman upon whom it was Committed,^ 
except when committed on a female child under the age of 
ten years.' Where a man by fraud went to bed to a married 
woman, and she believing him to be her husband, allowed him 
to have connection with her, this was held not to be a rape.* 
So where tlie defendant obtained possession of the person of the 
prosecutrix by fraud and had used no force, it was lield that he 
could not be convicted of rape.® In our opinion it would be 
more in accordance with good morals and good sense for the 
courts to hold as they have held, that it is as much a rape when 
effected by a fraud or by stratagem as by force,'" though it must 

» Id. ; Stale V. Tarr, 28 Iowa, 807. 

• 2 Arch. 0. P. & PI., 164, 1(53; 12 Co., 36, 37; 3 Inst., 59; HilPs Case, 1 
East P. C, 439 ; Rex. v. Burrows, Russ. & Ry., 519 ; State v. Gray, 8 Jones 
N. C, 170; contra, 1 East P. C, 437; Robertson's Case, 93, 104; Com. «. 
Thomas, 1 Va. Cases, 307; State «. Sullivan, Add., 143. 

» R. S., 388, § 237. 

• 2 Rish. Cr. L., 1129. 

» Id.; Rex v. Russell, 1 Moody & R., 112. 

• 3 Chitty Cr. L., 810; People v. Morrison, 1 Park. Cr. R., 625; Woodin v. 
People, 1 Park. Cr. R., 464 ; Lewis v. State, 30 Ala., 54 ; Kelly «. Com., 1 Grant, 
Pa., 483. 

'R. 8., 388, §237. 

• Reg, V. Saunders, 8 Car. & P., 265; Reg. v. Williams, 8 Car. & P., 286; 
Rex V. Jackson, Russ. & Ry., 487 ; Reg. «. Clark, Dears., 397, 29 Eng. Com. 
L. & Eq.,542; Reg. v. Barrow, Law Rep. 1 C. C, 156; Wyatt v. State, 2 
Swan, Tenn., 394; Lewis v. State, 30 Ala.. 54; Com. v. Field, 4 Leigh, 648; 
eontray State v. Shephard, 7 Conn., 54 ; People v, Metcalf, Wheeler C. C, 881. 

• People V. Barton, 1 Wheeler, C. C, 378. 

" Moody V. People, 20 Ills., 319 ; State «. Shepard, 7 Conn., 54 



RAPE. 299 

be conceded that the weight of authority is the other way.* If 
a man has connection with a woman while she is laboring 
under a delirium,* or is intoxicated with liquor given to her 
by him,* or is insensible by drugs given to her for that pur- 
pose,* he is guilty of rape the same as if actual force had been 
used.* It is no mitigation whatever of the oifense that the 
woman at last yielded to the violence of the ravishcr if lier 
consent was forced by fear of death or duress.* ' Nor is it any 
defense that she consented after the act/ The notion that if 
a woman conceived it could not be rkpe, because in that case 
she must have consented appears to be quite exploded.* 

§ 435. What Resistence Essential — Presumption IVom Friendly 
Conversation, Marks, etc. — Opinion.— It ought to appear that there 
was the utmost reluctance and the utmost resistence on th6 
part of the woman.* For if she half-consents and half -resists, 
it is no rape,^* or as it has been said a mixed case will not do. 
The connection must be absolutely against her m411." At 
least she ought to defend her virtue with as much force and 
energy as she would her money. Nature has given her hands 
and feet with which she can strike and kick, teeth to bite and 
a voice to cry out — all these should be put in requisition in 

'SGreenl. Ev., §211. 

• Rex V. Charter, 13 Shaw J. P., 768. 

■ Reg. f>. Champlin, 1 Car. & K., 746; 1 Denis, C. C, 90. 

• 2 Arch. C. P.& PL, 177; Com. v, Beal, Phila. Q. 8., 1854; State v. Green, 
Whart. & Stil., Med. Jur., § 459. 

• 1 Whart. Cr. L., § 1146; 2 Bish. C. L., 1121. 

• 1 Hawks C, 41, § 7 ; Wright v. State, 4 Humph., 194; Pleasant t>. State, 8 
Eng., 360 ; Reg. v. Hallett, 9 Cr. & P., 748: Reg. v. Day, 9 Car. & P., 722. 

' 1 Hawk C, 41, § 7. 

• 1 Hale, 681 ; 1 Hawk C, § 8; U. S. v. Dickinson, 1 Hemp,, C. C. 1. 

• People c. Morrison, 1 Park. Cr. R.,625 ; Woodin v. People, 1 Park. Cr, R., 
464; eorUray Com. v. Michael, 110 Mass., 405; and see Croghan v. State, 22 
Wis., 444. 

»• People «j. Hulse, 3 Hill, 316; Reg. v. Hallett, 9 Car. & P., 748 ; State v. 
Murphy, 6 Ala,, 765 ; Pleasant v. State, 8 Engl., 860 ; Pollard v. State, 2 
Iowa, 567; Hull v. State, 22 Wis., 580. 

" People «. Abbott, 19 Wen., 195. 



800 SPEOIFIO OFFENSES. 

the defense of her chastity ^^ unless she is an idiot,' insane,' an 
infant too young to be expected to resist^ or is too feeble to 
be able to resist,* or is prevented from resisting by fear,^ or is 
imposed upon by fraud,^ or is insensible by sleep® or intoxi- 
cation,' or otherwise, or there is some other good excuse for 
not resisting,^® or the offense is not a rape. Where the pros- 
ecutrix made no outcry though her husband was within hear- 
ing, and she and her husband remained in a friendly conver- 
sation with the defendant for an hour and a half, after the al- 
leged commission of the offense it was held that these cir- 
cumstances raised a strong presumption that no rape was 
committed.^^ It should appear that there is evidently an ine- 
quality of strength between the parties;** for it would be al- 
most impossible for one person to rape another of equal 
strength.'* The opinion of a physician as to whether the de- 
fendant's health and strength was sufficient to have carnal con- 
nection with the woman against her will is incompetent, for 
the jury can judge as to that as well as the witness." It 
should appear that there were some marks of violence upon 
the person of the alleged ravished woman,** and her statement 

• People V. Morrison, 1 Park. C. K., 644 ; State v. Cross, 12 Iowa, 65. 

' People V. McGee, 1 Denio, 19; Rex v. Ryan, 2 Cox C. C, 115; McNam- 
ra*8 Case, Arkley, 521 ; State v. Crow, 10 West L. Jour., 501 ; eorUraj Cross- 
well !J. People, 13 Mich., 427; State v. Tarr, 28 Iowa, 397. 

» 2 Bish. Cr. L., §§ 1121, 1123. 

• Stephens v. State, 11 Ga., 225; Reg. v. Case, Temp. & M., 318; State «. 
Cross, 12 Iowa, 66; Hays v. People, 1 Hill, 351. 

» Stephens v. State, 11 Ga., 225. 

• 1 Hawks P. C. C, 41 ; Moody «. People, 20 Ills., 318 ; Pleasant v. State, 
8 Engl. Ark., 360; Wyatt v. State, 2 Swan, 394; Croghan v. State, 22 Wis., 

AAA 

' Reg. V. Case, 1 Eng. L. & Eq., 544; Rex v. Stanton, 1 Car. & K., 415. 

• 2 Arch. C. P. & PI., 177; Reg. v. Ryan, 2 Cox C. C, 115. 

• Com. V. Burke, 105 Mass., 376. 

»• 3 Greenl. Ev., § 211 ; Croghan v. State, 22 Wis., 444 

" Blimey v. People, 22 Ills., 160. 

" 1 Hale, 631 ; 1 Hawks C, 41, § 7. 

»• 2 Arch. Cr. P. & PL, 176. 

»« Woodin «. People, 1 Park. C. R., 464. 

** 1 Hale, 631 ; 1 Hawks C, 4; § 7 ; State v. Cross, 12 Iowa, 66. 



BAFB. 801 

is greatly strengthened if the marks are found to have been 
present and seen by others immediately after the commission 
of the offense.* 

§ 436. Examination of the Woman as to her Complaining — Of 
Other Witnesses. — It is asual in cases of rape to ask the 
woman if she made any complaint, and if so, when and to 
whom, and if she stated the name of the offender to the per- 
son to whom she complained, which question may be an- 
swered.* And if she mentions a person to whom she com- 
plained such person may be called to prove such fact for 
the purpose of sustaining and confirming such testimony 
given in court.* But neither the woman nor the person so 
called should be allowed to state the particulars of the com- 
plaint during the examination in chief."* As by giving the 
language used by the woman, alleged to have been ravished 
at the time she complained,* or the name of the offender 
mentioned by her in complaining." Upon this point, how- 
ever the authorities are not agreed, some of them holding 
that witnesses may be called to prove the details of the com- 
plaint made by the prosecutrix against the accused imme- 
diately after the commission of the offense, as a part of the 
re% gestcB^ and not as proof of the statement.^ But the weight 
of authority and reason is clearly opposed to allowing wit- 
nesses to state anything, but the woman complained to the 

> 2 Arch. C. P. & PL, 170. 

• Rex V, Clark, 2 Stark. N. P. C, 241; Rex u. Brazier, 1 East P. C, 44; 
State «. Richards, 33 Iowa, 420; Nugent ^ State, 18 Ala., 521. If there 
has been some delay in making the complaint this may be explained by 
showing good cause for the delay. 1 East P. C, 445 ; State v. Knapp, 4 N. 
H., 155. 

' PhiUips V. Bute, 9 Humph., 246 ; Rex 9. Stroner, 1 Car. & K., 650. 
« Stephen v. State, 11 Ga., 225 ; Reg. o. Megson, 9 Car. & P., 420 ; People v. 
McGee, 1 Denio, 19. 

• Reg. V. Walker, 2 M. & Rob., 212 ; State v. "Richards, 33 Iowa, 420. 

• 2 Arch. C. P. & PI., 170; Rex «. Osborne, C. & M., 622. 

"* State 9. Johnson, 28 Yt., 512; State v. Peter La. An., 521; McOombso. 
State, 8 Ohio S., 643 ; Johnson v. State, 17 Ohio, 593 ; Phillips v. 8tate» 9 
Humph., 246. 



302 SPECIFIC OFFENSES. 

person and named the offender/ leaving it for the counsel 
of the prisoner to call out what was said by the woman in 
complaining if he deems it advisable.* The corroborating ev- 
idence of the person to whom she says she complained, is not 
indispensably necessary to confirm her statement and entitle 
it to full credit." If, however, the person on whom the of- 
fense is charged to have been committed, is not competent to 
be a witness by reason of infancy,^ idiocy,* insanity or the 
like, or is dead,* or is not made a witness, no evidence of the 
assertions or declarations of such person descriptive of the of- 
fense or the offender or of the fact that she complained im- 
mediately after the offense was committed can be received in 
evidence.^ The court may in its discretion allow the prose- 
cutrix to be asked on cross-examination whether the treat- 
ment complained of was with her consent or against her 
will.-* 

§ 437. Wliat Evidence Admissible . as Tending to Show that the 
Woman Consented. — For the purpose of raising the presump- 
tion that the woman consented, it may be shown that she 
bore a notoriously bad character for want of chastity and com- 
mon decency;® that she was in fact a common prostitute;^® or 



» Pleasant v. State, 15 Ark., 624 ; Brogy v. Com., 10 Grat., 722^ Reg t>. Alex- 
ander, 2 Crawf. & Dix. C. C, 126; Reg. v. Manclean, 2 Crawf. & Dix. C. C, 
850; People v. McGee, 1 Denio, 19; State v. Knapp, 45 N. H., 148. 

• Roscoe Cr. Ev., 862; Keg. «. Walker, 2 M. & R., 212. 

■ Woodin V, People, 1 Park. Cr. R., 464; but see Rex v. Stroner, 1 Car. & 
K., 650. 

• Reg. V, Gutridge, 9 Car. & P., 471; Reg. v. Megson, 9 Car. & P., 428; 
contra^ Brazur*s Case, 1 East P. C, 448. 

• People V, McGee, 1 Denlo, 21. 

» Reg. V. Megson, 9 Car. & P., 428; Stephen v. State, 11 Ga., 225; Pleasant 
V. State, 15 Ark., 624. ■ 
' 2 Arch. C. P. & PL, 169-173. 
« Woodin V, People, 1 Park. Cr. R., 464. 

• 1 Phil. Ev., 762; Watery ©. Firber, 18 Wis., 600; Kelley v. Nelson, 6 
Wis., 680. 

»• 1 East P. C, 444, 445 ; Roscoe Cr. Ev., 708; People v, Abbott, 19 Wen., 
196 ; R. tJ. Barker, 3 Car. & P., 589 ; R. t>. Clark, 2 Car. & Z,, 246 ; R. t>. Gut- 
ridge, 9 Car. & P., 471 ; Com. t>. Regan, 105 Mass., 598. 



BAFE. 303 

was a street walker;^ or was the concubine of the ravisher;^ or 
had voluntarily had connection with him.' And the better 
opinion seems to be, though the authorities are numerous 
against and possibly the weight of authority is to the con- 
trary/ that the woman may be asked on cross-examination, 
whether she has had connection with other men, and that evi- 
dence may be given of particular acts indicating on her part a 
want of chastity, for a woman having consented to illicit in- 
tercourse with another man or with other men, or showing by 
her acts that she is inclined to be unchaste, would be much 
more likely to consent to have connection with the prisoner 
than a virtuous woman, who would look upon such an act 
with horror.* So evidence of familiarities by the prisoner and 
others tending to disprove the allegation of force is admissi- 
ble.* And it seems that the prosecutrix may be cross-exam- 
ined as to all these matters,' and in such case is not privileged 
from answering;® and if she deny any of these facts, the pris- 
oner may produce evidence to contradict her,® or he may call 

' Camp. D. State, 3 Ga., 419. 

* 1 Hawks C, 41, § 7 ; 1 East P. C, 445 ; 2 Arch. C. P. & PI., 158. 

"2 Stark Ev., 700; Rex v. Martin, 6 Car. & P., 562; Pleasant ©.State, 
15 Ark., 624; State v. Jeflferson, 6 Ired., 305; State v, Forshner, 43 N. H., 89; 
People V. Abbott, 19 Wen., 192. 

* 3 Greenl. ifv., § 214; 2 Bish. Cr. P., §965 and authorities there cited. Mc- 
Combs V. State, 8 Ohio S., 643 ; People v. Jackson, 3 Park. Cr. R., 399 ; Rex v, 
Hodgson, Russ. & Ry., 211 ; King v. Clark, 2 Stark. R., 241 ; State u. Jeffer- 
son, 6 Ired., 305: Reg. v. Cloys, 5 Cox, 146; Pleasant « State, 15 Ark., 624. 

* People V. Abbott, 19 Wen., J92; State v. Johnson, 28 Vt, 512; State v. 
Murray, '53 N. C, 31 ; Camp. v. State, 8 Kelley, 417 ; Rex v. Martin, 6 Car. & 
P., 562; E5late v. Jefferson, 6 Ired., 305; Reg. v, Robins, 2 M. & Rob., 512; 
Rex V. Robins, 2 Mo(Kly & R, 512; People v. Benson, 6 Cal., 221 ; Com. v. 
McDonald, 110 Mass., 406. 

• People V. Benson, 6 Cal., 221. 

^ People r. Abbott, 19 Wen., 192; Thomas «. Newton, 1 Moody & M., 48, 
n. b. ; Southard v. Rcxford, 6 Co wen, 264; Treat v. Brown, 4 Conn. R., 418; 
Reg. V. Robins, 2 Moody & R., 512. 

• People V, Abbott, 19 Wen., 192 ; Treat «. Browning, 4 Conn., 408 ; Thomas 
V. Newton, 1 Moody & M., 48, n, 6. ; Southard v. Rexford, 6 Cowen., 254; Rex 
«. Robbins, 2 Moody & R., 513; cofitra, R. v. Hodgson, Russ. & R., 211. 

• 2 Arch. C. P. & PL, 175 ; Rex v. Asplnwall, 8 Stark. Ev., 700, 952 ; eontra^ 
People V. Jackson, 3 Park. Cr. R., 891. 



804 SPECIFIC OFFENSES. 

witnesses to prove such facts though the woman has not pre- 
viously been interrogated on the subject.^ But upon these 
questions the authorities are very conflicting,* and it is im- 
possible to determine how the courts of this state will finally 
decide. 

§ 438. What not an Excuse — Partial Ckmaent Acqnits. — It is, 
however, no excuse for the party committing the offense of 
rape that the woman was a strumpet* or the concubine of the 
ravisher,* for she is still under the protection of the law and 
may not be forced. And it will be no excuse that she was 
first taken with her own consent if she were afterwards forced 
against her will.* If the non-resistence on the part of the 
woman alleged to have been ravished proceeded merely from 
her beiiig over-powered, or from her not being able to resist 
longer; or that from the number of persons attacking her she 
considered resistance dangerous and absolutely useless, the 
prisoner ought to be convicted. But if from the whole of the 
circuinst-ances it appears that although when the alleged 
ravished woman was laid hold of it was against her will, yet 
that she did not resist afterwards because she in some degree 
consented to what was afterwards done to her, the prisoner 
should be acquitted of the rape and convicted of an assault 
only.'* 

§439. Clreamstances Impairing or Strengthening' the Testimony 
of the Prosecutrix. — It is important to keep in view the dif- 
ference between the crime of rape and the sin of seduction, for 
unfortunately there are some females so frail as to actually 
seduce or encourage the alleged offender into the commis- 
sion of the sin of seduction, or allow themselves to be seduced 



» 1 Phil. Ev., 4th Ed., 762; R. «. Clark, 2 Stark. R., 244; R. t>. Aspinwall, 
Cit, 3 Stark. £v., 952; R v. Robins, 2 Moody & R., 512; People o. Benson, 
6Cal.,221. 

■ People tJ. Jackson, 3 Park. Cr. R, 339. 

' 1 Hale, 629; Pleasant v. State, 8 Engl. Ark., 389 ; 15 Ark., 624 ; Rex 9. 
Barker, 3 Car. & P., 689 . Wright©. State, 4 Humph., 194. 

• 1 Hawks P. C. C, 41, § 7; 1 East P. C, 445; 4 Black. Com., 213. 

• 1 Hawks P. C. C, 41, § 7 ; 1 East P. C, 444, 4 Black. Com., 218, 

• Barb. Cr. L., 73 ; Reg. «. Hallet, 9 Car. & P., 748, anU §485. 



BAFB. 805 

though keeping up a show of resistance by saying "no," and 
meaning yes, and by making such a feeble fight as was cal- 
culated to encourage rather then repel the attack, and then 
from a sense of shame arising from an apprehension of the 
consequences which may follow the illicit connection, or from 
the fact that the matter has already become known, or for 
some other purpose, arraign the supposed offender for the of- 
fense of rape. And as there was no express consent she is 
enabled to sw^ar without any great stretch of conscience as 
would be necessary when the whole story was a tissue of false- 
hood from beginning to end ;^ and possibly she may do so, really 
thinking she has actually been forced and raped, while in fact, 
under the impulse of the moment she substantially consented. 
It has been well said by Lord Hale,* and repeated by nearly 
all the elementary writers upon criminal law since' that, "the 
charge of rape is an accusation easily made but difficult to be 
disproved by the party accused, be he ever so innocent; and 
therefore, though the party ravished be a competent witness, 
yet the credibility of her testimony must be determined by 
the circumstances of the facts that concur with the testimony, 
if the witness be of good fame; if slie presently discovered the 
offense and made pursuit after the offender; if she showed 
circumstances and signs of injury whereof many are of that 
nature that only women are the proper examiners; if the place 
where the act was done was remote from inhabitants or pas- 
sengers; if the offender fled, these and the like are concurring 
circumstances which give greater probability to her evidence. 
On the other hand, if she be of evil fame and stand unsup- 
ported by other evidence; if she conceal the case for any con- 
siderable time after she had an opportunity to complain ex- 
cept from fear; if she continues on intimate and friendly terms 
with the alleged offender after the alleged commission of the 

> People V. Halse, 3 Hill, 316. 

' 1 Hale P. C, 633-635 ; State «. Tomlinson, 11 Iowa, 406. 
' 8 Oreenl. Ev., §312 ; Black. Com., 213; 1 East P. C, 445; 8 Chltty Cr. 
L.,812; 8 Stark. Ev., 1267, Roscoe Cr. Ev., 710; 2 Arch. Q.T.& PI., 169. 

20 



806 SPECIFIO OFFENSES. 

offense;' if the place where the act is supposed to have been 
committed was near to persons by whom it was probable that 
she might have been heard, and yet she made no outcry;* if 
she gave a wrong description of the j>lsicej or person f if she 
fixed on a place where it was improbable for a man to have 
access to her by reason of being in a different place or com- 
pany about that time, these and the like circumstances afford 
a strong but not conclusive presumption that the testimony 
is feigned." 

§ 440. The Husband Cannot be Guilty of Rape upon his own Wife 
for the matrimonial consent cannot be retracted, but he may 
be guilty as principal by assisting another person to commit 
a rape upon his wife.* 

14. Sodomy. 

§ 441. Provisions of the Statute — Punishment. — ^^ The infa- 
mous crime against nature, either with man or beast, shall 
subject the offender to be punished by imprisonment in the 
penitentiary for a term not more than ten years."* 

STATEMENT OF THE OFFENSE OF SODOMY WITH A MAN. 

(Oommsnce as in form on page 35) that C. D., on, etc., at, etc., in the said 
countj, anlawfully and feloniously did make an assault in and upon one 
G. U., and then and there feloniously, wickedly and against the order of 
nature had a venerial affair with the said G. H., and then and there felo. 
niously, carnally knew him* the said G. H., and then and there feloniously, 
wickedly and against the order of nature, did commit and perpetrate the 
detestable, abomnable, and infamous crime against nature of buggery, with 
the said G. H., then and there being a male person, contrary to the form of 
the statute in such case made and provided {(AmdudA a% inform onpctge 85). 

1 Barb. Cr. L., 72 ; Barney «. People, 22 Ills., 160; Austine «. People, 61 
Ills., 240. 

' State 9. Cone., 1 Jones N. C, 18 ; State 9. Cross, 12 Iowa, 66 ; People «. 
Morrison, 1 Park. Cr. R, 044. 

* Kennedy v. People, 44 Ills., 283. 

« 1 Hale P. C, 629 ; Rex v, Castlehaven, 1 St. Tr., 387. 
•R.S., 359, §47. 

* The allegation of carnal knowledge under the English statute was nec- 
essary. 1 Hawks P. C, 857. 



soDOMr. SOT 

STATEMENT OF THE OFFENSE OF SODOMY WITH A BEAST. 

{ponwMnM a$ inform an page 35) that C. D., on, etc., at, etc., in the said 
county, feloniously, wickedly, and against the order of nature had Venerial 
affair with a certain (eavo), and then and there feloniously, wickedly and 
against the order of nature did carnally know the said (eoto)^ and then and 
there feloniously, wickedly, and against the order of nature with the said 
(eaw)f did commit and perpetrate tlie abomnable, detestable and infamous 
crime against nature of buggery, contrary to the form of the statute in such 
case made and provided (eanelude as in form on p<tge 35). 

§442. Evidence. — ^The only evidence required is the proof of 
penetration as in rape.* It is not necessary to prove emis- 
sion to convict any person of the crime against nature.* A 
man and woman, husband and wife,' two men or a boy, and a 
man can commit this offense together.^ All aiding and abet- 
ting are guilty as principals.* To constitute the offense the 
act must be in that part where sodomy is committed; there- 
fore the act in a child's month does not constitute the offense.* 
An unnatural connection with an animal of the fowl kind is 
not a crime against nature, for the reason that a fowl is not 
a beast within the meaning of the statute.^ 

> 2 Arch. C. P. & PI., 185. 

•R.8., 359, §48. 

» Reg. c. Jellyman, 8 Car. & P., 604 

* Reg. «. Allen, 1 Den. C. C, 864; 3 Car. & BL, 869; Com. v. Snow, 111 
Mass., 411. 

* 1 Hale P. a, 670; 3 InsL, 59; 1 East P. C. C, 14, §2, 

* Rex 0. Jacobs, Russ. & Ry., 831. 
' 1 Russ. on C, 698. 



808 8PE0IFI0 OFFENSES. 



SECTION IV. 
Offenses Against Peopebtt. 

g 448. Provisions of the Statute as to Ai'son. ^ 

444 Burning to Defraud the Insurer. 

445. Burning Barrack Hay, etc. 

446. Attempting to Burn. 

447. Provisioas of the Statute as to Burning One's Own Property 

448. Indictment for Arson, etc. 

449. Evidence of Burn lug. 

450. Night Time — Presumption from Possession of Gk>od8 — Confet. 

sions — ^Threats — Building not Finished. 

451. Evidence of Property in Another, etc. 

452. Continued — Occupancy — Possession. 

453. Burning One's Own Building. 

454. Variance. 

455. Evidence that the Burning was Willful and Malicious. 

456. Evidence of Intent to Injure Insurer. 

457. Evidence of Attempts to Burn. 

458. Provisions of the Statute as to Burglary — Definition and Punishment* 

459. Attempts to Commit Burglary. 

460. Burglar Found in Building. 

461. Having Burglars' Tools. 

462. Evidence of Breaking and Entry in Night Time. 

468. Of Forcibly Breaking and Entering into the Building. 

464. Of the Entry. 

465. Of the Identity of the Building Described. 

466. Of Ownership. 

467. Burglars' Tools. 

468. Stolen Goods. 

469. Evidence of the Willful, Malicious and Felonious Intent 

470. View by Jury. 

471. Embezzlement when Larceny. 

472. By Officers of Corporations, etc. 

473. By Banker, Officer or Agent. 

474. Of a Railroad Ticket. 

475. By Commission Merchants and Others. 

476. By Attorneys and Other Officers. 

477. By a Public Officer or his Servant. 

478. By Officer in Loaning or Using Public FuntI 



OFFENSES AGAIKST PSOPBBTT 809 

§479. IndictmeDt for Embezzlement, etc. 

480. Evidence of Embezzlement 

481. Robbing Graves. 

482. Injuring Vaults, Tombs, Monuments, etc 

483. Larceny Defined. 

484. Punishment. 

485. Second Offense. 

486. By Bailee. 

487. Of Beasts and Birds of a Wild Nature. 

488. Horse Stealing. 

489. Of Lead Pipes, etc. 

490. News Papers, etc. 

491. Of Things Attached to the Realty. 

492. Larceny and Falsifying Public Records. 
498. Evidence of Taking, etc. 

494. Continued^What a Sufflcftsnt Taking, etc. 

495. Taking by an Innocent Agent. 

496. Taking by a Servant, Castodian, etc., or by one Getting the Proper^ 

into his Hands by Artifice, Stratagem, etc. 

497. Taking the Goods by the Husband or Wife. 

498. Taking One's Own Goods. 

499. Taking for Gain not Essential. 

600. Larceny of Lost Goods. 

601. Proof Property in the Alleged Owner. 

602. Larceny by a Bailee. 

603. Evidence that the Taking was Against the Will of the Owner. 

604. Evidence of the Felonious Intent 

605. Of time and Place. 

606. What the Subject of Larceny. 

607. Evidence of Value. 

608. Of Identity. 

609. Circumstances Tending to Show the Guilt of the Accused. 

610. Presumption from Possession, how Rebutted. 

611. Association with Thieves— Evidence of Other Lai'cenies — Poverty of 

Defendant — False Statements, etc. 

612. Evidence of Wealth or Poverty of the Accused Inadmissible. 

613. Production of Stolen Property in Court. 

614. What not a Defense. 

615. Malicious Mischief to Railroads. 

616. Combining to Injure Railroads. 

617. Obstraoting Trains Laden with Munitions of War, or Troops, etc. 

618. Attempting Injury to Railroads. 

619. Influencing Others to Injure Railroads. 

620. Malicious Mischief to Houses, etc 

621. To Papers, etc. 

622. To Jails. 

623. To Canals, etc. 



810 8PE0IFI0 0FFEKSE8. 

§ 624 To Rafts, Vessels, etc. 
525. Obstructing of Stream or Water Course. 

626. Malicious Mischief to Monuments, etc 

627. To Slirubs, Fences, etc. 

528. To Water, etc. 

529. To Domestic Animals, etc. 

680. Taking Horses, Vehicles, Boats, etc. 

531. The Common-Law Offense of Malicious Mischief. 

532. Malice— As to the Liability of a Wife. 

533. Altering and Defacing Marks and Brands with Intent to Steal, ece, 
634. Receiving Stolen Property. 

636. Second Offense. 

636. Procedure. 

637. Receiving Property of a Railroad Company. 

638. Restoring Stolen Goods. 

639. Evidence of Receiving Stolen Goods Required — Guilty Knowledge. 

640. Evidence of a Want of Guilty Knowledge. 

641. Evidence of Receipt of Goods for Gain, etc. 

642. Production of Goods in Court— Testimony of Thief or Accomplice- 

Accessory. 

643. Robbery — Definition and Punishment. 

544. Evidence of taking the Money, etc., of the Alleged Owner — ^Value-* 

Ownership. 

545. What a Sufficient Taking, etc. 

546. Taking by Intimidation. * 

547. Evidence of a Felonious and Violent Taking. 
648. Violent Taking by Force or Intimidation. 

549. The Degree of Force or Intimidation Required to Constitute Robbery. 

550. Evidence of Taking from the Person. 

661. Trespass upon Coal Minos, Manufactories, etc. 

662. Cutting Trees, etc. 

§ 443. I^rovisions of the Statute as to Arson. — " Every person 
wlio shall willfully and maliciously buru or cause to be burn- 
ed any dwelling-house, kitchen, office, shop, barn, stable, 
store-house, warehouse, malt-house, stilling-house, factory, 
mill, pottery or other building, the property of any other 
person, or any church, meeting-house, school-house, state- 
house, court-house, work-house, jail or other public building, 
or any boat or other watercraft, or any bridge of the value of 
fifty dollars, erected across any of the waters of this state, 
such person so offending shall be deemed guilty of arson, and 
npon conviction thereof shall be punished by imprispument 
in the penitentiary for a term not lets than one year nor more 



OFFENSES AGAINST PROPEJBTY. 811 

than twenty years; and should the life of any person be lost 
in consequence of any such burning, such offender shall be 
deemed guilty of murder and punished accordingly."* 

§ 444. To Deflraad Insurer. — " Whoever willfully and mali- 
ciously burns or sets fire to, or causes to be burned, or set on fire, 
any building, or any goods, wares, merchandise or other chat- 
tjels which are at the time insured against loss by fire, with in- 
tent to injure the insurer, whether such person is the owner 
of the property burned or not, shall be imprisoned in the 
penitentiary not less than one nor more than ten years."* 

§ 445. Of Other Property. — " Whoever willfully and mali- 
ciously burns or causes to be burned any barrack, cock, crib, 
rick, or stack of hay, corn, wheat, oats, barley, or other grain 
or vegetable product of any kind, or any pile of coal, wood or 
other fuel, or any pile of boards, plank, posts, rails or other 
lumber, or any personal property whatever of another, shall 
be imprisoned in the penitentiary not less than one nor more 
than six years.'" 

§446. Attempt to Commit. — "Whoever willfully or mali- 
ciously sets fire to, or attempts to set fire to, any of the build- 
ings or other property mentioned in section thirteen and fif- 
teen above,^ with intent to burn or destroy the same, shall be 
imprisoned in the penitentiary not exceeding two years, and 
fined not exceeding five thousand dollars."* 

§ 447. Of One's Own Property. — " If the owner or lessee or 
occupant of any of the buildings or property mentioned in 
sections thirteen and fifteen* of this act, sets fire or attempts 
to set fire to or burn the same, with intent to set fire or bum 
the building or property of another, he shall be deemed guilty 
as if the property so set on fire or attempted to be set fire 
to or burned, were owned or occupied by another,"^ 

» R 8., 354, § 18 ; 15 Wis., 14. 

• R 8., 854. § 14. 

• Id., 8 15. 
«^t«§g448,445. 

• R. 8., 854, § 16. 

• ^Into §§ 448, 445. 
» R 8., 354, § 17. 



812 8PE0IFI0 OFFENSES. 

§448. Indictment — " In any indictment for setting fire to 
or burning, or attempting to set fire to or bum any build- 
ing, if the building was occupied, it shall be sufficient to al- 
lege the building to be the property of the owner, lessee or 
occupant thereof; if unoccupied, to allege simply that such 
building was at the time unoccupied, giving a description 
thereof in general terms."* 

BTATEMENT OF THE OFFENSE OF ARSON.' 

{Commence as inform on page 35) that C. D., on, etc.,at, etc.,in the said county, 
feloniously, willfully and maliciously' did set fire to and* bum* {or *^ cause to 
he set fire to and burned'*) a certain dwelling-house of the value of — dollars,* 
then and there being the property of another person, to loit,, of the said A. B.,^ 

> R 8., 354, § 19. 

* For a form of an indictment in Iowa, see State «. Tennery, 9 Iowa, 486 ; 
State V. Johnson, 19 Iowa, 230. 

* The words " feloniously, willfully and maliciously" are indispensable, 
2 East P. C, 1033 ; 3 Greenl. Ev., § 51, n, 4; Com. v. Wade, 17 Pick., 395; 
Killenbeck v. State, 10 Md., 431; Jessee v. State, 2^ Missis., 100; Rex v. 
Reader, 4 Car. & P., 245 ; Rex v. Turner, 1 Moody, 239 ; although in one 
case it was held that the word " maliciously" was equivalent to the word 
** willfully" in the statute. Chapman v. Com., 5 Whart,, 427. 

* The words " set fire to and," are not in the statute, and probably may 
be omitted, tliough usually inserted. 2 Bish. Cr. P., §46. 

* The word " burn" is in the statute and must be used. Hesler v. State, 
17 Ga., 130; Cochrane v. State, 6 Md., 400; Howell v. Com., 5 Grat., 664; 
although in Maine it has been held that the words ** set fire to" were equiv. 
alent to the word " burn" in the statute. State v, Taylor, 45 Me., 322 ; contra^ 
Howell V. Com., 5 Grat., 664. 

* Under a former statute it was held that in an indictment for arson the 
value of the property burned must be stated. Clark v. People, 1 Scam., 117 ; 
Ritchie v. State, 7 Blackf., 168. 

' Formerly it was necessary that the ownership of the house should be 
correctly stated and proved as stated. 1 Bish. Cr. P., § 573 ; Martin v. State, 
28 Ala, 71; State v. Fish, 3 Dutcher, 823; Carters. State, 20 Wis., 648; Peo- 
ple V. Myers, 20 Cal., 761 ; so as to show it to be tlie house of another. 
And it was necessary to allege that it belonged to the person in possession 
in his own right. Richie v. State, 7 Blackf., 163; Rex v, Rickman, 2 East 
P. C, 1034; M^u•tha v. State, 2 Ala., 72; State v. Lyon, 12 Coun., 487; State 
c. Sandy, 3 Ired., 570; contra, Shepherd v. People, 19 N. Y., 537; and if it 
turned out to be in the possession of the tenant, the prisoner could not be 
convicted. People «. Gates, 15 Wen., 159 ; contra. Shepherd t. People, 19 N. 
Y., 537 ; for during the lease the house was deemed to be the property of 



OFFENSES AGAINST FBOPEBTT. 313 

there sitaate,' against the form of the statute in such case made and provi- 
ded' (c4>nelude as in form an page 85). 

STATEMENT OF THE OFFENSE OV BUKNING A SHOP WITH INTENT TO 

INJURE INSURER. 

(Commenes as in the form an page 35) that C. D., on, etc., at, etc., in 
the said coanty, feloniously, willfully and maliciou<«ly did set fire to and 
bum a certain building, to mt., a shop, the property of the said C. D., of the 
yalue of one thousand dollars, tliere situate, with the felonious and mali- 
cious intent, thereby then and there to injure and defraud a certain incor- 
porated insurance company called {insert the name of the company)^ thu said 
shop, then and there being insured' against loss by fire by the said com- 
pany, for the sum of one thousand dollars, contrary to the form of the stat- 
ute in such case made and provided {eoneliuie as in the farm on page 85). 

STATEMENT OF THE OFFENSE OF AN ATTEMPT TO COMMIT ARSON. 

(Commence as in the form an page 35) that C. D., on, etc., at, etc., in said 
county, feloniously, willfully and maliciously did set fire* to a certain build- 
ing, to wit.^ a certain barn of the said A. B., of tlie value of dollars, 

there situate, with intent thereby then and there feloniously, willfully and 
maliciously to burn and destroy the said bam,* contrary to the form of the 
statute in such case made and provided {conclude as in the form on page 35). 

§ 449. Evidence of Arson — 1. An Actual Burning must be 

the tenant. Foster, 115 ; 4 Black. Com., 221 ; but now this matter is changed 
somewhat by statute. R. 8., 854, § 19, anU § 448. 

* It has been held that the words ^ there situate*^ are necessary in an in- 
dictment and a sufficient statement of the venue. State o. Gaffrey, 4 Cliand., 
163, 165; State «. Reed, 20 Iowa, 417; contray Rex v. Napper, 1 Moody, 44; 
Com. «. Lamb, 1 Gray, 493 ; and see Com. «. Barney, 10 Cush., 480 ; State v. 
Price, 6 Halst., 203. 

* If the building was not a dwelling-house or an out-house the indict- 
ment must conclude against the statute, for in such case the offense was 
not a feloDy at common law. Chapman «. Com., 5 Whart., 427 ; State «. 
Ladd, 2 Swan Tcnn., 226. 

» It is necessary to allege that the property was insured. People t>. Hen- 
derson, 1 Park. Cr. R., 561 ; under the former statute this was not necessary. 
McDonald v. People, 47 Ills., 533. 

* The particular manner in which the attempt was made need not be al- 
leged. People 9. Bush, 4 Hill, 133; and it is not necessary to describe the 
combustible materials used for the purpose. Com. v, Flynn, 3 Cush., 529. 

* It is not necessary to negative the commission of the offense ; 2 Arch. 
C.P.&Pl,80;Cald.,400. 



81r( SPECIFIC QFFEKSES. 

Proved.' — But the burning and consuming any part of the 
building is sufficient, though the fire be afterwards extin- 
guished^ or go out itself.* As where upon an indictment for 
tliis ofifense it appeared that the wood of the floor had been 
charred in a trifling manner, and had been at a red heat but 
not in a blaze, this was held to be a sufficient burning within 
the statute.^ So the charring of the floor to the depth of half 
an inch was held to be a sufficient burning to complete the 
offense of arson ,^ or if any of the fibres of the wood are wasted 
by the fire the offense of arson is complete, and it is imma- 
terial how small a quantity is consumed .* It is not necessary 
that any flames should be visible^ But an attempt to set fire 
to a building by putting combustible materials and fire into 
it, though the combustibles themselves are consumed and the 
boards of the fioor are scorched black,* if no part of the build- 
ing is burned, is not arson either at common law or by our 
statute.* Whether a building has been so affected by fire as 
to constitute a burning, is a question of fact for the jury, to be 
determined by the evidence.*® 

§ 450. Night-Time — Pre9iunption from Possession of Goods — 
Confessions — Threats — Bniiding not Finished. — If the burning 
is charged to have been done in the night-time, the allegation 
is immaterial and need not be proved." Actual participation 
in the crime may be shown by the guilty possession of goods 



' 3 Inst, 66; 8 Chitty Or. L., 1120; People v, Cottelal, 18 John., 115. 

' 4 Black. Com., 232; Rex v. Stallion, R. & M., 397; Com. v, Shaack, 16 
Mass., 105; Peoples. Rose, 16 John., 203; Com. v. Beltjon, 5 Cush., 427; 
Hesler v. State, 17 Ga., 130; Com. v. Tucker, 110 Mass., 403. 

» 3 Inst, 66 ; 1 Hawks P. C. C, 39, §§ 16, 17 ; 1 Hale, 568, 669 ; Ck)m, v. 
Shaack, 16 Mass., 105. 

• Reg. t). Russel C. & M., 541 ; Reg. v. Parker, 9 Car. A P., 45. 

• State V. Sandy, 3 Ired., 570. 

• State V. Mitchel, 5 Ired., 350. 

' R «, Stallion, R. & M. C. C. R, 393. 

• Reg. V. Russel, C. &. M., 541 ; State v. Sandy, 3 Ired., 570. 

• 3 Inst, 66; 4 Black. Com., 222; 1 Hale P. C, 568; Com. v, Shaack, 
16 Mass., 105 ; People v. Butler, 16 John., 203. 

>• Com. V. Belton, 6 Cush., 427. 
i> Bex «. Minton, 2 East P. C, 1021. 



OFFENSES AGAINST PBOPERTY. 315 

proved to have been in the building at the time of the act done, 
even though such possession may amount to another felon3\* 
To prove the burning of the property, evidence of confessions* 
and threats' are admissible as in other cases. A building need 
not be completed to make it the subject of the offense of 
arson.^ 

§ 451. 2. The Bollding or Stmcture mast be Proved to be the Prop- 
erty of Another or to Belong to the Public.^ — Formerly a lessee 
from month to month* or for ever so short a time/ or a ten- 
ant at sufferance,' or an occupant having the legal right to 
the possession,' as a mortgagor in possession, though the 
mortgage divested him of his legal title^® or otherwise, could 
not be guilty of arson by burning the premises." But under 
our statute such lessee, or occupant it is presumed, will be 
held guilty of arson if he burns such building or structure 
with intent to burn the property of another, — that is of his les- 
sor or of the actual owner of the premises burned** or the pro- 
perty adjoining, owned by another.'' So if the owner of a 
building sets fire to it with intent to burn an adjoining house 



' Kex V. Hickman, 2 East P. C, 1034. 

• Com. V. Ingraham, 7 Gray, 46 ; Reg. v. Sleeman, Dears, 249 ; 6 Cox. C. C, 
245; Rex «. Long, 6 Car. & P., 179; Reg. «. Hearn, C. <& M., 109; Reg. v. 
Taylor, 8 Car. & P., 733 ; Sam v. State, 33 ; Missis., 847. 

• Com. V. Goodman, 14 Gray, 55. 

• Com. V. Squire, 1 Met., 258; eontra. Stale v. McGtovern, 20 Conn., 245. 

• R. S., 854, § 13; 1 Hale P. C, 568; 2 East P. C„ 1027; Rex «. Proberts, 
2 East P. C, 1030; Rex v. Spalding, 1 Leach, 218; People o. Henderson, 1 
Park. Cr. R,, 660 ; People «. Gates, 15 Wen., 159 ; Bloss «. Tobey, 2 Pick., 320. 

• Rex «. Pedley, 1 Leach, 242, Cald., 218 ; McNeal t). Woods, 3 Blackf., 
4&5; Rex. «. Holmes, Cro. Car., 376; 1 Hawks P. C, 136, § 710. 

' 2 Bish. Cr. L., g 13 ; 2 East P. C, 1029. 

• Sullivan v. State, 5 Stew. & P., 175 ; Rex ». Spaulding, 1 Leach, 218. 

• Rex «. Breeme, 1 Leach, 220; 2 East P. C, 1026. 

*• Rex «. Spaulding, 1 Leach, 218, 2 East P. C, 1023, 1025 ; Rex «, Holmes, 
Cro. Car., 876; Rex t>. Pedley, 1 Leach, 242; Rex t). Scholfleld, Cald., 397. 

" 2 Bish. Cr. L., J 13. 

»• R S., 854, §§ 17, 19; Shepherd ©. People, 19 N. Y., 537. 

» R S., 864, § 17 ; 1 Hale P. C, 568 ; People v. Henderson, 1 Park. Cr. R^ 
651 ; Rex «. Isaac, 2 East P. C, 1031 ; Rex «. Probert, 2 East P. C, 1080. 



816 8FE0IFI0 OFFSKSES. 

belonging to another, he is guilty of arson.* It has been held 
that the wife does not commit this offense by burning the 
building of her husband.* 

§ 452. Evidence of Property in Another. — Proof that another 
was in the actual occupancy and in the peaceable possession 
of the building burned at the time of the burning is sufficient 
evidence of the property in another, and it is not necessary 
that the reversionary interest should be in the occupant; for 
it is the right of present possession wliicli constitutes the 
ownership required by law. Therefore if the lessor being the 
general owner of the building, burns it wliile it is occupied 
by the lessee, he is guilty of arson.' So this crime may be 
committed by one entitled to dower in a building* which has 
not been assigned.* But a servant who merely dwells within 
the building while the legal possession remains in another, 
commits the offense when he maliciously burns it.* 

§ 453. Burning One's Own Building. — The burning one's own 
building, the owner being also the occupant and in possession, 
does not amount to the crime of arson ;^ unless with intent to 
set fire and bum the building or property of another,* though 
at common law it was a great misdemeanor, if it was so near 
to other houses as to create danger to them ;® and our statute 
makes it a criminal offense if done with intent to injure an 
insurer.^® 

» R. S., 354, § 17, 1 Hale P. C, 568 ; 2 East P. C, 1031 ; Gage «. Sheldon, 
8 Rich., 242. 
■ Rex V. March, 1 Moody, 182. 

• People V. Van Blarcum, 2 John., 105; State v. Lyon, 13 Conn., 487; Rex 
«. Wallis, 1 Moody C. C, 844; Ritchie v. State, 7 Blackf., 168; State «. 
Tool, 29 Conn., 342; Com. v. Dailey, 110 Mass., 503. 

• Rex V. Harris, Foster, 113-115; 2 East P. C, 1023; Sullivan v. State, 5 
Stew. & Por., 175 ; Sweetapple v. Jessee, 5 B. & Ald^ 27 ; Com. v, Erskine, 
8 Grat, 624. 

• Rex V. Harris, Poster, 113-115. 

• Rex V. Gowen, 2 East P. C, 1027; Rex v. Reckman, 2 East P. C, 1034. 
» Erskine v. Com., 8 Grat., 627; Bloss v. Tobey, 2 Pick., 320. 

• R. a, 354, § 17. 

• 1 Hale P. C, 567, 568: 4 Black. Com., 221; 2 East P. C, 1027, 1030; 
Bloss t). Tobey, 2 Pick., 325. 

" R. S., 354, § 14; McDonald v. People, 47 Ills., 533; State v. Elder, 21 La 
An., 157; People v. Schwartz, 32 Cal., 160; People v. Hughes, 29 Cal., 257. 



OFFENSES AGAINST PKOPEETT. 317 

§454. Variance. — The evidence of ownership must corres- 
pond with the allegation in the indictment, or the variance 
will be fatal,* except in the cases provided for by statute.* An 
allegation that the building burned was "called a barn" is 
sustained by proof that the structure burned, though but an 
out-building, used solely for sheltering cattle, was in fact 
called and known as a barn by the people in that vicinity.* 

§455. 3. It most be Proved that the Baming was Willful 
and Malicious.'^ — Therefore the accidental or negligent burn- 
ing of another's property, though it occur in doing an un- 
lawful act, as shooting at poultry or game, is not arson,* unless 
done in committing a felony, as if he intended to steal the 
poultry or game, for if the lirst intent be felonious, the party 
must abide all of the consequences.* The malice, however, in 
this case, as in many others, does not merely imply a design to 
injure the party who is eventually the sufferer, but an evil 
and malicious intention, however general, producing damage 
to individuals.^ So the willful and malicious burning need 
not correspond with the precise intent or design of the party.' 
For if a man design feloniously to burn one house, and by 
mistake or accident the flames destroy another instead of the 
one intended, he will be guilty of willfully and maliciously 



1 Rex V. Rickman, 2 East P. C, 1034; Rex v. Pedley, 2 East P. C, 1026; 
People V, Slater, 5 Hill, 401 ; CJom. «. Wade, 17 Pick., 895 ; State t>. Lyon, 12 
Ck)Qn., 487. 

* R. S., 854, § 19; and see Com. v. Harney, 10 Met., 422. 
■ State t>. Smith, 28 Iowa, 565. 

* 1 Hale P. C, 569; 3 Inst, 67; 4 Black. Com,, 222 ; 2 East P. C, 1088; 
Jesse «. State, 28 Missis., 100 ; State v, Johnson, 19 Iowa, 234. 

•8 Inst, 67; 2 East P. C, 1019; 4 Black. Com., 222 ; 1 Hale P. a,6e9; 
Stale f>. Mitchell, 5 Ired., 850. 

* Foster, 258, 259; 2 Arch. C. P. & PL, 724; 2 East P. C, 1019;.Brennan «. 
People, 15 Ills., 516. 

» 3 Chitty Cr. L., 1120. 

' 2 Arch. C. P. & PI., 724; 8 Inst, 67; 8 areenl. Ev., §56; 1 Hawks P. a 
C. 89, 8 19. 



318 SPEOIFIO OFFENSES. 

burning the latter,* even if the house intended escape.* So 
it has been held that if a person set fire to a stack, the fire 
from which is likely to communicate to a barn, and it does so, 
and the barn is burned, he is in point of law indictable for 
burning the barn.' But it has been held that if a prisoner in 
a jail sets fire to it, with a design of merely burning a hole 
through to effect his escape, and not of burning it down for 
that purpose, this is not arson.^ Malice will be inferred from 
the act of burning.* 

§ 456. Evidence of Intent to Iignre Insurer. — Under a former 
statute it was held that when the intent to injure the insurer 
existed, it was immaterial whether the policy on the build- 
ing attempted to be destroyed was valid or not;* but under 
the present statute, making the burning an offense only when 
the building is insured at the time, the courts will probably 
hold that it is necessary that there should be a valid policy of 
insurance on the building burned at the time of the burning.^ 
And it must appear that the defendant knew of the existence 
of the insurance, since this is a necessary ingredient in the 
offense.* 

§457. Evidence of Attempts to solicit another to commit 
the offense of arson, and especially to furnish him with ma- 
terials to perpetrate such an offense, though the one soliciting 
did not intend to be present, and the offense is not in fact 
committed is indictable as an attempt.* So is the burning of 
one's own house with intent thereby to consume the house of 
another, though the others be not in fact burned.'* Where an 

> McDonald v. People, 47 Ills., 533. 

* Rex V, Gilson, Russ. & Ry., 138. 

* Martin v. Btate, 28 Ala., 71 

* Hale P. C, 569 ; 1 Hawks P. C. C, 89, § 5 ; 3 Chitty Or. L., 113 ; 3 Sast P. 
0., 1019. 

•2Arch. C. P. &P1., 724. 

' 1 Hale, 569 ; 3 Inst, 67 ; 1 Hawks P. C. C, 3, § 19 ; Rex «. Ckwper, 6 Gar. 
& P., 553 ; Reg, v. Price, 9 Car. & P., 729. 
^ Peoples. Cotteral, 18 John., 115 ; Btate v. Mitchell, 5 Ired., 360. 

* Bex V. Farrington, Russ. & Ky«, 207. 

* People V. Bush., 4 Hill, 133; Reg. «. Clayton, 1 Car. A E., 128. 
** B. 9. Hohnes, Cro. Car., 876, W.Jones, 851. 



BUBGLABT. 319 

indictment alleges that the defendant attempted to set fire to 
a dwelling-house with intent to burn it by attempting to set 
fire to another building, the jury are authorized to infer the 
alleged intent from the evidence respecting the attempt to set 
fire to tlie other building.* 

2. BUBOLABY. 

§ 458. P^visions of the Statute — Definition and Punishment. — 

"Whoever in the night time, willfully and maliciously and 
forcibly breaks and enters, or willfully and maliciously with- 
out force (the doors or windows being open) enters into 
any dwelling-house, kitchen, office, shop, store, house, ware- 
house, malt-house, stilling-house, mill, pottery, factory, wa- 
ter-craft, freight or passenger railroad car, church, meeting- 
house, or any other building, with the intent to commit mur- 
der, robbery, rape, mayhem, larceny or other felony, shall be 
deemed guilty of burglary, and be imprisoned in the peniten- 
tiary for a term not less than one year nor more than twenty 
years. "^ 

§ 459. Attempt to Commit. — " Whoever shall attempt to 
break and enter in the night time, any building, ship, or ves- 
sel, with intent to commit the crime of murder, rape, rob- 
bery, larceny or other felony, shall be imprisoned in the pen- 
itentiary not less than one nor more than five years."* 

§460. Burglar Found In Building. — "Whoever is fotlnd in 
any building, ship or vessel, with intent to commit the crime 
of murder, rape, robbery, larceny or other felony, shall be im- 
prisoned in the penitentiary not less than one year nor more 
than five years. "^ 

§ 461. Having Burglars' Tools. — " Whoever is found having 
any pick-lock, crow, key, bit, or other instrument or tool, 
with intent to.J[)reak and enter any building, ship or vessel, 
with intent to commit the crime of murder, rape, robbery, 

* Com. V. Harney, 10 Met, 422. 

* R. a, 857, § 86; Bell v. State, 20 Wis., 699. 
•R 8., 857, §87. 

•IcL,g88. 



320 SPECIFIC OFFENSES. 

larceny or other felony, shall be imprisoned in the peniten- 
tiary not less than one nor more than two years."* 

STATEMENT OF THE OFFENSE OF BUBOLABY. 

(Commence as inform on page 35) that C. D., on the — day of — , A. D. 18 — j 
about the hour of eleven, in the night time of the same day,* at the town of 
in tlie said county of and state of Illinois, feloniously,* burglari- 
ously,^ willfully, maliciously, and forcibly* did break and enter* the dwelling^ 

' R. 8., 357, § 39. 

* The words '' in the night time*' are necessary. State o. Seymour, 86 Me., 
225; Lewis v. State, 16 Conn., 82; Slate o. G. S., 1 Tyler, 295; Com.o. Marks, 
4 Leigh, 053; Thjmp^on v. C.>m., 4 Leigh, 652; and in an indictment at 
common law it was necessary to state the hour of the nighL 1 Hale P. C, 
551 ; 2 East P. C, 513; 1 Ohitty Or. L, 218, 244 ; State f>. G. 8., 1 Tyler, 295; 
Rex D. Waddington, 2 East P. C, 513; contra, 1 Whart. Or. L., 270; Com. 
D. Williams, 2 Cush., 582; People v. Burgess, 35 Cal., 115; though it need 
not be proved as laid; 1 Hale P. C, 549; 2 Bish. Cr. P., 131. The words 
**' about Uie hour of eleven'* are a sufficient statement of the hour. State v. 
Seymour, 36 Me., 225 ; see State v. Mather, K. Chip, 32. 

•At common law the word "fehmiously" was necessary. 1 Hawks P. C, 
C, 38, %'6S] 2 Arch. C. P. & PI., 204; 1 Chitty Cr. L., 172; Stuart v. Com., 12 
Serg. & R , 177. 

* At co.nm )n law the word " burglariously" was necessary. 2 Arch. C. 
P. & PI., 204; 2 Hawks P. C, § 55; 2 Hale P. C, 184; 1 Hale P. C.,549, 550; 
4 Co., 396; 1 Chitty Cr. L., 242; contra, Tully v. Com., 4 Met, 857. 

* Tiij wjrJs *'wilirully, miliciouily and forcibly" are contained in the 
statute and should not be omitted. 

* The words *' bruak and enter" must both be inserted. 1 Hale P. C, 550. 
Unless it is alleged that the door or wmdow was open. R. S., 857, §36; 
then the word forcibly should be omitted. 

^ The word ** housj" w is formerly held insufficient without adding the 
word »*d welling." 4 Black. Com., 225; 1 Hale P. C, 550; 3 Chitty Cr. L., 
1109. But under our statute, making it burglary to enter any building, the 
word "house," omitting the word "dwelling," would probably be sufficient. 
It is sufficient to describe the building as a " mansion-house," which has 
been held to be a sufficient averment that it is a dwelling-house. Com. «. 
Pennock,3 Serg. & R., 199; and in New York, it has been held that tlie word 
"house" was a sufficient description of a dwelling-house. Thompson «. 
People, 8 Park. Cr. R., 208. As a general rule the same word should be 
used in an indictment to describe the building entered, as is employed In 
the statute defining the oS^nse. Com. v. Tuck. 20 Pick., 356 ; Larned «. 
Com., 12 Met., 240; Dcvoe v. Com., 8 Met., 316; Evans v. Com., 8 Met., 453; 
Phillips V, Com., 8 Met., 588. In the state of Wisconsin the words " the 
dwelling-house of A," were held a sufficient averment, that such building 



BURGLABY. 321 

house of the said A. B./ there situate,* with intent then and there' there- 
in feloniously* and burglariously to steal,* take and carry away divers 



was A's place of residence and that he occupied it as such at the time laid. 
Bell «. State, 20 Wis., 509. 

' It is necessary to aver and set out the name of the owner of the 
building if known, if not known, then it should be so stated. State v. Mor- 
rissey, 22 Iowa, 158, Com. c. Perris, 108 Mass., 1. An error in not stating 
the name of the owner to a common intent in an indictment would be fatal. 
Rex V. White, 1 Leach, 252; 2 East P. C, 513, 780; Reg. ©. Cranage, 1 Salk. 
885 ; R. «. Cole, Moor, -466. The allegation that the defendant broke and 
entered the city hall of Charlestown, sufficiently avers the ownership of 
the property. Com. «. Williams, 2 Cush., 582. It is enough if the per- 
son in possession and occupancy of the building is named as the owner. 
Markman v. State, 25 Ga., 52 ; People v. Van Blarcum, 2 John., 105 ; People 
V. Smith, 1 Park. Cr. R., 829; Ducher o. State, 18 Ohio, 308; Houston v. 
State, 38 Ga., 165; Com. v. Dailey, 110 Mass., 503. 

* According to the English decisions the particular town, vllle or ward 
must be laid correctly in an indictment. 2 Arch. C. P. & PI., 265. And it 
was held in the city of New York, that a variance in the number of the ward 
was fatal. People v. Carney, 3 City Hall Rec, 44 ; Norris House, 3 Greene 
Iowa, 513; but in Ohio it has been held that a description of the premises 
as " the warehouse of W. M., at Sciota county" was sufficient Spencer c. 
Stat€, 13 Ohio R., 401; State v. Reed, 20 Iowa, 418; State*©. Crogan, 8 
Iowa, 523. 

•The words "then and there" maybe omitted. Com. v. Doherty, 10 
Cush., 52; and see Jackson v. People, 18 Ills., 269. 

* Necessary. 1 Hale P. C, 559 ; 2 Leach, 717 ; 3 Cliitty Cr. L., 1113 ; Curt4s 
V. People, Bre., 197 ; 2d Ed., 256 ; 1 Scam., 285 ; Conolly v. Peoj^e, 3 Scam., 
474; argument in Clark v. People, 1 Scam., 118; contra. Com. v. Brown, 3 
Rawle, 207; Jones «. State, UN. H., 46; and see Perry v. People, 14 
Ills., 497. 

* The felonious intent and species of felony intended must be correctly 
stated and proved as alleged. 1 Hale, 561 ; 8 Chitty Cr. L., 1114; State v, 
Lockhart, 24 Ga., 420; Portwood v. State, 29 Texas, 47. And an allegation 
of an intent to commit one felony will not be supported by proof of an in- 
tent to commit another. 2 East P. C, 514; 1 Hale P. C, 561 ; Rex v. Ding- 
ley, 2 Leach, 840. But different intents maybe averred in different counts in 
the same indictment. Rex v, Thompson, 2 East P. C, 515 ; 3 Chitty Cr. L., 
1113; State v. Eaton, 8 Harring., 554. An averment of a general intent to 
steal. Joslyn v. Com., 9 Met., 236; contra^ People v. Murray, 8 Cal., 519, or 
"with intent to commit the crime of larceny." Id., State v. Jones, 10 Iowa, 
206 ; or conmiit a rape, Com. v, Doherty, 10 Cush., 52, has been held a 
sufficient allegation of intent, even in an indictment, without alleging the 
facts constituting the felony intended to be commlted in technical language. 

21 



822 SPECIFIC OFFENSES. 

goods and chattels* of the said A. B.,* then and there being in the said 
dwelling-house, (and the said C. D. then and there in the said dwelling- 
house, feloniously and burglariously did steal,' take and carry away one 
gold watch of the value of one hundred dollars, the goods and chattels of 
the said A. B./ then and there being found in the said dwelling-house) (eon- 
dxtde as inform on page 35). 

§ 462. Evidence. — 1. Both the Breaking and Entering mast be 
Proved to Have been Done in the Night-time; but it is not essential 
that both be done in the same night.* And it is night in the 
sense of the law when there is not daylight enough to dis- 

* The words " goods and chattels" imply a value. Spencer v. State, 13 
Ohio, 401 ; Com. v, Williams, 2 Cush., 583; Spears «. State, 2 Ohio N. S., 
683; and the statement of the kind or value of the goods is necessary; 
Hunter o. State, 39 Ind., 80; Spencer v. State, 13 Ohio, 401 ; contra^ People 
«. Murray, 8 Cal., 519; and is usually omitted;. 3 Chitty Cr. L., 1118; Con- 
oily ©. People, 3 Scam., 478. Proof of their value on the trial is not neces- 
sary. Spencer c. State, 13 Ohio, 401. 

* The ownership of the goods must be correctly stated as in larceny. 8 
Chitty Cr. L., 1118, n. c. And if the proof shows that the goods belonged 
to another, the defendant must be acquitted. Rex n. Jenks, 2 East P. C, 
514. But where an indictment alleged the intent to be generally the goods 
and chattels in the said dwelling-house, then and there being, to steal, and 
charged the defendant with stealing the goods of A therein, it was held to 
be satisfied by proof of a breaking into the house with intent to steal the 
goods there generally, though the goods actually stolen did not belong to 
A alone. Reg. v, Clark, 1 Car. & K., 421. 

•The statement that the larceny was actually committed, contained with- 
in the brackets, may be omitted, as the oiiense of burglary is complete 
without such statement 1 Hale P. C, 560 ; li. o. Furnival, Russ. & Ry., 445 ; 
Rex t>. Vandercomb, 2 East P. C, 514; K v. Watkins C. & M., 264; State u. 
Henley, 30 Mo., 509; and the addition of such sUitement does not make an 
indictment bad for duplicity. Com. ©. Tuck., 20 Pick., 356 ; State c. Bra- 
dy, 14 Vt, 353 ; Stoops v. Com., 7 Serg. & R., 491 ; State t>. Squires, UN. H., 
87 ; 12 K. H., 42 ; Com. ©. Hope, 22 Pick., 1 ; nor does it affect the validity 
of an indictment if on examination the allegati<m of larceny or other offense 
is found to be defective. Larned v. Com., 12 Met., 240. 

^ Where the indictment avers that the defendant broke and entered the 
dwelling-house of one person with intent to steal his goods, and having so 
entered then and there stole and carried away the goods of another person 
then and there being found, there is no misjoinder of offenses. State v. 
Brady, 14 Vt., 353. 

* R. S., 357, §36; Hale P. C, 551; 4 Black. Com., 226; Russ. on C, 417; 
8tate V. Whit, 4 Jones N. C, 349 ; State v. Bancroft, 10 N. H., 105 ; Rex «. 



• • 



^nsGLAST. 823 

cover a man's face.^ Tlie time of entry may be shown by cir- 
cumstancial evidence like other facts.^ Where the entry is 
through a brick wall into the vault of a bank, any breaking 
and entering at night is sufficient, though the entry was not 
fully consummated until after daylight.' 

§463. 2. It must be Proved that the Defendant Forcibly Broke 
and Entered the Building:^ unless the doors or windows were 
open.* Probably the word "forcibly" in the statute requires 
no more force to be used than was required at common law to 
commit a trespass.* Therefore, a forcible breaking may be by 
lifting a latch and opening the door;' picking, turning back or 
opening the lock with a false key or other instrument;' re- 
moving or breaking a pane of glass and inserting tlie hand or 
even, a finger;* pulling up or down any unfastened sash;'® re- 
movingthefasteningof a windowby inserting the hand through 
a broken pane;" cutting and tearing down a netting of twine 

Jordan, 7 Car. & P., 482; Reg. v. Bird, 9 Car. & P., 44; R. v. Smith, Russ. & 
Ry., 117 ; Rex v. Segar, Comb., 401 ; Lewis v. State, 16 Conn., 82 ; Reg. v. Pol. 
ley, 1 Car. & K., 77. 

» 3 Inst, 63; 3 Chitty Cr. L., 1105; 2 Arch. C. P. & PL, 308; State v. Ban- 
croft, 10 N. H., 105; Com. v, Clievalier, 7 Dana, 134; contra^ Thomas c. 
State, 5 How. Missis., 20. 

• State V. Bancroft, 10 N. H., 105. 

• Com. V. Glover, 111 Mass., 895. 

• Roscoe CV. Ev., 340; 8 Chitty Cr. L., 1106; 4 Black. Com., 226 ; Rex v. 
Hughes, 1 Leach, 406, 2 East P. C, 491; Anonymous, J. KoL, 67; Com. 
9. Shupney, 105 Mass., 5S8. 

• R S., 357, § 36. 

• Croff. tj. Ballinger, 18 Ills., 203; Smith v, Hoag, 45 Ills., 251 ; Reeder ©. 
Purdy, 41 Ills., 279; Ducher v. State, 18 Ohio, 808; corUra, People v. Bush., 
8 Park. Cr. R., 552; Com. v. Trimmer, 1 Mass., 476; Rex v. Paine, 7 Car. & 
P., 135. 

' 8 Greenl. Ev., § 76; 1 Hale P. C, 552; 2 East P. C, 487 ; 8 Chitty Cr. L., 
1093 ; 2 Bish. Cr. L., § 97 ; State c. Reid, 20 Iowa, 421 ; Curtis «. Hubbard, 
1 Hill, 238 ; Rex v. Gray, 1 Stra., 481 ; contra, People t>. Bush, 8 Park. Cr. 
R, 558; People v. Fralick, Hill & Denio, 68. 

• 1 Hale P. C.,552 ; Russ. on C, 78 J; Pugh v. Griffith, 7 Ad. & El., 827. 

• Rexc. Davis, Russ. & Ry., 499; Rex v. Perkins, 1 Car. & P., 800; Reg. 
«. Bird, 9 Car. & P., 44. 

** Rex V. Haines, Russ. & Ry., 451. 
" Bex V. Robinson, 1 Moody C. C, 327. 



824 SPECIFIC OFFENSES. 

nailed over an open window;* pushing open a window which 
moved on hinges and was fastened by a wedge ;^ thrusting him- 
self down chimney;' breaking open an inner door after hav- 
ing entered through an open door or window,* or by the like 
acts.* The breaking must be such as will afford the burglar 
an opportunity of entering so as to commit the intended 
felony.* Procuring the door to be opened by a fraud prac- 
ticed on the occupant/ is a breaking of the building within 
the meaning of the statute.* If a guest in a hotel leaves his 
own room and breaks into the room of another guest, for the 
purpose of committing a felony there, he commits burglary.* 

§ 464. Entry. — An entry is required as well as a breaking.** 
It is not necessary that the whole body should be introduced 
into the building to make the entry complete." Any the 
least entry, either with the whole or any part of the body," fin- 
ger," hand" or foot,'* or with any instrument** or weapon*^ 
introduced for the purpose of committing any of the crimes 

* Com. V. Stephenson, 8 Pick., 854; Hunter «. Com., 7 Grat., 641 

* Rex V. HaH, Russ. <& Ry., 855. 

* Donoho V. State, 86 Ala., 281 ; Reg. v. Brlce, Russ. & Ry., 450. 

« 2 Eaat P. C, 488; 1 Hale P. C, 524, 554 ; Rex v. Johnson, 2 East P. C, 
488; State 0. Wilson, Coxe, 489, 441. 
»2Bi8h, Cr. L., §91. 

* Barh. Cr. L., 97: Rex v. Hughes, 1 Leach. C. C, 406, 2 East P. C, 491. 

' Fisher 0. State, 48 Ala., 17; Rex v. Hughes, 1 Leach., 406, 2 East P. 
C, 491. 

* States. Johnson, Phillips, 186. 

"* 2 Hale P. C, 354 ; anonymous, 1 Hale P. C, 554, J Kel., 67 ; ftex v, John- 
eon, 2 East P. C, 488 ; State v. Clark, 42 Vt, 629. 

>*8Chitty Cr.L., 1108. 

" 8 Inst., 64; 4 Black. Com.,. 227; Rex v. Swallow, 2 Russ. C. & M., 10; 
State V, McCall, 4 Ala., 648. 

" 3 Chitly Cr. L., 1108. 

" Rex V. Davis, Russ. & R., 499. 

^* Gibhon's Case, Foster, 107; Anonymous, 1 Anderson, 115; Rex«.Perkes 
1 Car. & P., 800; Robert's Ca.se, 2 East P. C, 487; Rex v. Bailey, Russ. & 
R. 841, 1 Moody, 23. 

•• Barb. Cr. L., 98. 

<* Roscoe Cr. Ev., 346 ; 8 Inst., 64. 

" IHale P. C, 655; 1 Hawks P. C. C, 88, §11; 2 East P. C, 90. 



BUBGLARY 825 

enumerated in the statute^ or other felony, will be Bufficient.^ 
Ab by putting in the hand to take out a watch or other thing 
within reach.* So putting in a hook or other instrument to 
hook or reach out things, with intent to steal,' or a pistol with 
intent to kill, is a sufficient entry though the hand is not in.^ 
But if the instrument were inserted, not for the purpose of 
stealing or committing a felony, but for the purpose of com- 
pleting the breaking and thereby effecting an entrance to 
commit the intended felony, such insertion is not a sufficient 
entry to make the offense of burglary complete.* Shooting 
through the window with intent to commit the offense of 
mayhem or murder, is in all probability a sufficiently forcible 
entry to make the offense burglary.* And an entry down a 
chimney is a sufficient entry into a house.^ So if after break- 
ing open the building the thief sends in a child of tender age 
to bring out the goods, he is guilty of burglary.' So where 
several come to commit a burglary and some stand to watch 
in an adjacent place, and others enter and steal, the act of 
one is the act of all and all, are equally guilty of burglary.' 

§ 465. 8. It mast be Proved that the Defendant Broke and entered 
the Building Described in the Gompbunt or Indictment. — Formerly 
burglary could only be committed by breaking and entering 
another mansion or dwelling-house,'® or in a church;" but un- 
der the present statute the offense may be committed by 
breaking and entering any building. ** 

' 2 Whart. Cr. L., §§ 1549-1554. 

• Gibbon's Case, Foster, 107; 2 East P. C, 490. 

• Roscoe Cr. £v., 346 ; 2 Black. Com., 227 ; 8 Inst., 64 ; Annny moos, 1 
Hale P. C, 553. 

«Id.,2Bi8h. Cr. L., §92. 

• 3 Inst., 64 ; 1 Hawks P. C. C, 182, §§ 11, 12 ; Rex v. Haghes, 1 Leach, 406; 
2 East P. C, 491 ; Uex v. Uust., 1 Moody C. C, laS. 

• 2 Bish. Cr. L., §94; 8 Chitty Cr. L., 1108; 1 Hawks P. C. C, 88, § 11; 2 
East P. C, 490; canira, 1 Hale P. C, 555. 

' Rex V. Brice, Russ. & Ry., 450. 

• 1 Hale P. C, 555, 556. 

• 8 lust., 68 ; 2 East P. C, 486 ; 1 Hale P. C, 489. 
" 8 Greenl. Ev., § 79. 

^> 2 Bish. Cr. L., § 105 ; Beg. «. Baker, 8 Cox 0. 0., 581. 
" R. a, 857, § 86. 



826 SPECIFIC OFFENSES. 

§466. O^vnership. — The ownership of the building must bo 
proved as laid.* If alleged to belong to A. B. and C. D., 
partners, it is not sufficient to prove the ownership to be in 
B. and D. partners, but the Christian names of the partners 
must be shown.^ As a general rule the person in the actual 
possession and occupancy of the building as against a burglar 
will be deemed to be the owner,' and the tenure by which the 
occupier holds the premises will not be inquired into. It is 
enough that it was his actual dwelling at the time.* And 
though the possession is not lawful as against a person claim- 
ing title, still if the occupant is in actual and peaceable pos- 
session the ownership may be laid in him.* Formerly the 
husband was deemed to be the owner of the dwelling-house 
occupied by the wife, even though he did not live with or pro- 
vide for her,* but it is presumed that under the present law 
it would be sufficient in such case to lay the ownership of the 
house in the wife.^ Where the master occupies the building 
of his servant the ownership should be alleged to be in the 
master,* but if the servant occupies the building in his own 
right and not in the right of his master, the ownership should 
be alleged to be in the servant.* 

§ 467. Tools. — After proving that a burglary has been com- 
mitted, then evidence may be received connecting the prisoner 
with the burglarly and with the tools.^® For thps purpose it 

» Rex V. White, 1 Leach, 252; 2 East P. C, 513, 780; Reg. v. Carnage, 1 
Salk., 885. 

• Doan V. State, 26 Ind., 495. 

• Markliamv. State, 25 Qa., 52. 

• People V. Blarcum, 2 John., 105 ; People v. Smith, 1 Park. Cr. R, 329. 

• Houston V. State, 38 Ga., l(Jo. 

• Rex 13. Farre, J. Kel., 43 ; Boggett v. Frier, 11 East, 301 ; Rex v. Smyth, 
6 Car. & P., 201 ; Rex v. Frencli, Russ. & Ry., 491 ; Rex v. Wilford, Ruas. & 
Ry., 517; Com. v. Dailey, 110 Mass., 503. 

' Ducher v. State, 18 Ohio, 308. 

•Rex «. Stock, 2 Taunt., 339, 2 Leach, 1015, Russ. & Ry., 185; Rezv. 
Rawlins, 7 Car. & P., 150; Rex v. Picket, 2 East P. C, 501. 

• Rex tJ. Jarvis, 1 Moody, 7 ; Rex v. Smyth, 5 Car. & P., 201 ; Rex v. Job- 
ling, Russ. & Ry., 525; liex v. Camfleld, 1 Moody, 42. 

>• People t). Winters, 29 Cal., 658; State «. Reed, 30 Iowa, 420. 



BURQLAKY. 327 

18 competent to show that the implements used in committing 
the offense came from -the prisoner's home/ or that burgla- 
rious tools and implements were found iif the possession of the 
defendant at the time of his arrest.* And such tools and im- 
plements may be brought into court and exhibited to the jury, 
even though only a part of them were adapted to the commis- 
sion of the particular offense.' 

§468. Stolen Goods. — Evidence that goods stolen from the 
building at the time the burglary was committed were found 
in the possession of the defendant is pertinent.^ 

§ 469. 4. Both the Breaking^ and £ntry must be Shown to have 
been Bone Willfully and Mahciously and with the Felonious Intent 
Charged.* — These are usually proved by the circumstances 
connected with each case.* Evidence that the felonv was ac- 
tually committed raises a strong presumption that the entry 
was with the intent to commit such a felony;^ but this pre- 
sumption may be overcome by proof if it clearly appears that 
the entry was not for that but for some other purpose.' If 
no felony was committed, then the intent to commit the felony 
charged must be distinctly proved,' and it is not suflScient to 
prove another felony which would have made the offense com- 
plete if it had been charged.*® Evidence of the intoxication of 
the defendant at the time of the entry is admissible to be con- 

» People «. Lamed, 3 Seld., 445 ; State v, Harrold, 38 Mo., 496. 

« Com. V. Williams, 2 Cash., 582. 

•Id. 

♦ States. Reed, 20 Iowa, 420. 

* 2 East P. C, 551 ; 1 Hale P. C, 551 ; Rex v. Smith, Russ. & Rj., 417; 
Rex 9. Jordan, 7 Car. & P., 482. 

•Lewis Cr. L., 137; 3 Chitty Cr. L., 1108; State v. Bancroft, 10 N. H., 105; 
2 Park, Or. R., 583; People v. Marks, 4 Park. Cr. R., 153; Com. v. Dohcrty, 
10 Cush., 52; State v. Boon, 13 Ired., 244. 

^ 1 Hale P. C, 560 ; Roscoe Cr. Ev., 365 ; 3 Greenl. Ev., § 82 ; People v. 
Marks, 4 P. C, R., 153; Rex v. Locosl, J Kel., 80. 

■ 2 Arch. C. P. & PI., 809 ; 1 Hale P. C, 559, 561 ; Rex v. Knight, 2 East 
P. C, 510. 

• 3 Greenl. Ev., § 82; Roscoe Cr. Ev., 364. 

'• Rex V. Dobbs, 2 East P. C, 513 ; Rex v. Dingly, 2 Leach, 840, 841 ; 1 
Hale, 561; Rex. v. Knight, 2 East P. C, 510; Higgins v, Lee, 16 lUs., 501; 
Bex 9. Jenks, 2 East P. C, 514. 



828 8PECIFI0 OFFENSES. 

sidered by the jury in determining whether the entry waff 
with intent to commit a crime or not.' It is not necessary 
that the offense alleged and proved to have been intended to 
have been committed should be a felony at common law, for 
if it is made a felony by statute it is sufficient* If, however, 
the prisoner enters with the intent to commit a trespass or 
misdemeaner, it is no burglary.' As where the prisoner en- 
ters with the intent to beat some person in the building, even 
though killing or murder may be the consequence, yet if the 
primary intention was not to kill or commit a felony, it is no 
burglary.* It has been held that if there were facts unknown 
to the defendant, making it impossible for the defendant to 
commit the felony intended, there is no burglary,* but the cor- 
rectness of this doctrine has been questioned.* If the prose- 
cutor fails to prove the forcible breaking or entry, or that it 
was willful or malicious, or with the intent charged, still the 
prisoner may be convicted of larceny if he is charged with 
the actual commission of such offense. It would be otherwise 
if only an attempt to commit such offense is charged^. 

§470. View by Jury. — It has been held that in a suitable 
case the jury may have a view of the premises burned* or of a 
board from the burned building.* 

> State V. Bell, 20 Iowa, 816. 

• 8 Greenl. Ev., § 82 ; Rex v. Knight, 2 East P. C, 510 ; R. d. Gray Btr., 481. 

• Com. V. Newell, 7 Mass., 245; Rex «. Dingley, 1 Show, 53; Rex v. Knight, 
2 East P. C, 510; State v. Cooper, 16 Vt., 551; Anonymous, Dalison, 22; 
State V. Eaton, 8 Hairing. Del., 554; State v. Wilson, Cox, 439, 441. 

• 1 Hale P. C, 561 ; Rex ft. Knight, 2 East P. C, 509, 510. 

• Rex V. Jenks, 2 Leach, 774, 2 East P. C, 514; Rex v. Lyons, 2 East P. 
0., 497. 

• 2 Bish. Cr. L., § 114. 

» Reg. V. Clark, 1 Car. & K., 421 ; Anonymous, 31 Me., 592 ; Codl v. Hope, 
22 Pick., 1 ; People v. Snyder, 2 Park. Cr. R., 23 ; Slate v. Brady, 14 Vt, 853 ; 
State V. Cocker, 3 Harring. Del., 554 ; Rex v. Withal, 2 East P. C, 515, 517, 
1 Leach, 88. 

• Fleming v. State, 11 Ind., 234. 

• Com. V. Betton, 5 Cush., 427. 



embezzlement. 329 

3. Embezzlement. 

§471. When Larceny. — "Whoever embezzles or fraudu- 
lently converts to his own use or secretes, with intent to em- 
bezzle or fraudulently to convert to his own use, money, goods 
or property delivered to him, which may be the subject of 
larceny, or any part thereof, shall be deemed guilty of lar- 
ceny."* 

§ 472. By Officers of Corporations, etc. — *^If any officer, agent, 
clerk or servant of any incorporated company ; or if a clerk, 
agent, servant or apprentice of any person or co-partnership, 
or society, embezzles or fraudulently converts to his ojvu use, 
or takes and secretes with intent so to do, without the con- 
sent of his company, employer or master, any property of 
such company, employer, master, or another, which has come 
to his possession, or is under his care by virtue of such office 
or employment, he shall be deemed guilty of larceny."- 

§473. By Banker, Officer or Agent. — "If any .banker or 
broker, or his agent or servant, or any officer, agent or ser- 
vant of any banking company or incorporated bauk, fraudu- 
lently converts to his own use, or fraudulently takes and se- 
cretes with intent so to do, any bullion, money, note, bill, bond 
or other property belonging to and in the possession of such 
bank, banker, broker or banking company, or belonging to 
any person, and deposited therein or therewith, he shall, 
whether intrusted with the custody thereof or not, be deemed 
guilty of larceny."' 

§ 474. Of Railroad Ticket — " Whenever any person in the 
employ of any railroad company, whether such company is 
incorporated by this or any other state, shall fraudulently 

» R. S.,362, §74; see Zschocke v. People, 62 Ills., 127; White t>. State, 20 
Wis., 246; Ennis v. State, 3 Greene Iowa, 67; State v. Sioller, 38 Iowa, 82U 

• R S., 862, § 75 ; State v. Orwig, 24 Iowa, 103. The U. S. St. of 1864, c. 106, 
§ 55, making embezzlement of the funds of a national bank by one of its offi. 
cers a misdemeanor, does not interfere with the Jurisdiction of the state courts 
over larcenies committed upon the property of a national bank by one of 
its officers. Com. v. Barrey, 116 Mass., 1. 

• R. S., 862, § 76. 



330 SVECIFIC OFFENSES. 

neglect to cancel or return to the proper officer, company, or 
agent any coupon or other railroad ticket or pass, with the 
intent to permit the same to be used in fraud or injury of any 
such company, or if any person shall steal or embezzle any 
such coupon or other railroad ticket or pass, or shall fraudu- 
lently stamp or print or siga any such ticket, coupon or pass, 
or shall fraudulently sell or put in circulation any such ticket, 
coupon or pass, the person so offending shall be punished hy 
imprisonment in the penitentiary for the term of one year."^ 
§ 475. By Commission Merchants and Others. — " If any ware- 
houseman, storage, forwarding or commission merchant, or 
other person selliug on commission, or his agent, clerk or 
servant, shall convert to his own use any fruit, grain, flour, 
beef, pork, or other property, or the proceeds or avails thereof, 
without the consent of the owner thereof, or shall fail to pay 
over the avails or proceeds thereof, less his proper charges, on 
demand by the person eatitled to receive the same, or his 
duly authorized agent, he shall be fined not exceeding one 
thousand dollars, or confined in the county jail not exceeding 
one year, or both, and shall be liable to the person injured in 
double the value of the property or amount of the money so 
converted."^ 

§ 476. By Attorneys and Other Officers. — ''If any attorn ey-at- 
law, justice of the peace, constable, clerk of a court, or other 
person authorized by law to collect money, shall fail or refuse 
to pay over any money collected by him, less his proper 
charges, on demand by the person entitled to receive the 
same, or his agent duly authorized, he shall be fined not ex- 
ceeding double the amount retained by him, or confined in 
the county jail not exceeding one year, or both, and be re- 
moved from his ofiice, and thereafter he shall be ineligible to 
be elected or appointed to or hold any office under the con- 
stitution or laws of this state. And if such offender is an at- 



' R. 8., 863, § 77. 

* Id., g 78. An actual demand must be proved in order to secure a con- 
viction under this section. Wright v. People, 61 Ills., 382. 



SMBKZZLEMEIH'. 331 

tomey-at-law, he shall thereafter be forever prohibited from 
practicing his profession in this state."* 

§ 477. By a Public Officer or his Servant. — " If any state, 
county, township, city, town, village or other officer elected 
or appointed under the constitution or laws of this state, or 
any clerk, agent, servant or employe of any such officer, em- 
bezzles or fraudulently converts to his own use, or fraudu- 
lently takes or secretes with intent so to do, any money, 
bonds, mortgages, coupons, bank bills, notes, warrants, orders, 
funds or securities, books of record, or of accounts, or other 
property belonging to or in the possession of the state or such 
county, township, city, town, or village, or in the possession 
of such officer by virtue of his office, he shall be imprisoned 
in the penitentiary not less than one nor more than fifteen 
years."* 

§ 478. By Public Officer in Loaning or Using Public Funds. — 
"If any state, county, township, city, town, village or other 
officer elected or appointed under the constitution or laws of 
this state, master in chancery, commissioner or other officer 
of any court, or any clerk, agent, servant, or employe of any 
such officer, shall use by way of investment or loan for his 
own use, except as authorized by law, with or without inter- 
est, any portion of the money, bonds, mortgages, coupons, 
bank bills, notes, warrants, orders or other funds or securities 
intrusted to him for safe-keeping, disbursement, transfer or 
other purpose, if the sum or value of the property so used 
does not exceed one hundred dollars, he shall be fined not ex- 
ceeding two hundred dollars, or confined in the county jail 
not exceeding three months, or both, or if the sum or value 
of the property so used or loaned exceeds one hundred dol- 
lars, he shall be fined in double the amount so used or loan- 
ed, or confined in the county jail not exceeding one year, or 

both."' 

§ 479. Indictment. — " In prosecutions for the offense of embez' 

> R. S., 368, §79, People c. Palmer, 61 Ills., 255. 

• R 8., 363, § 80, State «. Orwig, 24 Iowa, 102. 

• R. 8., 863, 2 81. 



833 SPECIFIC OFFENSES. 

zling, fraudulently converting to one's own use, or fraudulenfly 
taking or secreting with intent so to embezzle and convert the 
bullion, money, notes, bank notes, checks, drafts, bills of ex- 
change, obligations or other securities for money, of any per- 
son, bank, incorporated company or copartnership, by a 
cashier or other oflScer, clerk, agent or servant of such person, 
bank, incorporated company, or copartnership, it shall be suf- 
ficient to allege generally in the indictment an embezzle- 
ment, fraudulent conversion, or taking with such intent, of 
funds of such person, bank, incorporated company or co- 
partnership to a certain value or amount, without specifying 
any particulars of such embezzlement, and on the trial evi- 
dence may be given of any such embezzlement, fraudulent 
conversion, or taking with such intent, and it shall be suffi- 
cient to maintain thecharge in the indictment, if it is proved 
that any bullion, money, note, bank note, check, draft, bill of 
exchange, or other security for money of such person, bank, 
incorporated company or copartnership, of whatever value or 
amount, was fraudulently embezzled, converted or taken with 
such intent, by such cashier or other officer, clerk, agent or 
servant.*'' 

STATEMENT OF THE OFFENSE OF EICBEZZLBMBNT. 

{Oommenee as inform an page 85) that C. D., on, etc., at, etc., in the said 
county, fraudulently and feloniously* did without then and there having 
the consent of the said A. B., embezzle a large sum of money,' to u>it.<t the 
sum of one hundred dollars, the goods and chattels of the said A. B., then 
and there delivered to the said C. D., by the said A. B.,^ which said money 

• 

' R 8., 864, § 82. 

* It was held to be sufficient to charge in conclusion that the prisoner 
"feloniously did steal," etc., omitting the word "feloniously" before the 
words "did embezzle." Rex. tj. Crighton, Russ. & Ry., 63. 

* It has been held that it was neces.sary to state what money was embez- 
zled, giving a description of the number, denomination of the coin or notes 
as in larceny. Rexu. Flower, 5 B. & C, 736, 8 D. & Ry., 512 ; Rex «. McGre- 
gor, 3 B. & P., 106, 109; 2 East P. C, 576; Rex v. Furmeaux, Russ. & Ry., 
835 ; State v. Stinson, 4 Zab., 9 ; but under our statute this is not necessary. 
R. S., 864, § 82; Rex v. Johnson, 8 M. & Sy., 539. 

* It is not necessary to state by whom the money was delivered. Rex«. 
Beacall, 1 Car. & P., 810; Rez«. Weliiogs, 1 Car. <& P., 454; ooiUro, People 
•. Bailey, 23 Ca]„ 577. 



EMBEZZLEMENT. 338 

was then and there the subject of larceny, and soothe said A. B., on his 
oath sa3r8, that the said C. D., then and there in the manner and form afore- 
said, the said money, the property of the said A. B., from the said A. B. 
feloniously did steal, take and carry away, contrary to the form of the stat- 
ute in such case made and provided {conclude as in form on page 35). 

STATSMEirr OF THE OFFENSE OF EMBEZZLEMENT BT AN OFFICER OF A 

CORPORATION.* 

{Commence as inform on page 35) that C. D., on, etc., at, etc., in the said 
county, then and tliere being an officer, to wiLy a cashier of an incorporated 
company called {insert the name of the corporation)^ fraudulently and feloni. 
ously did embezzle without then and there having the consent' of the said 
company, a certain sum of money, totoit.^ five ten-dollar legal tender notes of 
the United States, for the paj-^ment of ten dollars, each of the value of fifty 
dollars, the property of the said company, which said money; then and 
there came to the possession of the said 0. D. by virtue of the said office ; 
and so the said A. B. on his oath says, that the said C. D., then and there 
in manner and form aforesaid, the said money, the property of the said com- 
pany, from the said company feloniously did steal, take and carry away,* 
contrary to the form of the statute in such case made and provided {con- 
dude <M in form on pa^e 85). 

STATEMENT OF THE OFFENSE OF FRAUDULENTLY NEGLECTING TO CANCEL 

RAILROAD TICKET. 

{Commence as in form on page 85) that C. D., on, etc., at, etc., in the said 
county, then and there being in the employ of a certain railroad company, 
duly incorporated under the laws of this state of Illinois, called {insert the 

' It has been held that an indictment must set out the facts of embezzle- 
ment and then aver so the defendant committed the larceny. Com. 9. Simp- 
son, 9 Met, 188 ; Rex v, Johnson, 8 M. <& S., 589 ; Bex «. Crighton, Buss. «fe 
By., 63 ; emUra, Leftwich ©. Com., 20 Grat, 716. 

* There is a dicta of the court for saying that in case of embezzlement it is 
sufficient to charge the defendant with the stealing in the usual form. Bax- 
ter i». People, 8 Gilm., 88«^; Iieftwich t>. Com., 20 Grat., 716; contra^ Com. 
V. Simpson, 9 Met.. 187 ; Hex v. John., 3 M. <& S., 589 ; Rex v. Crighton, 
Buss. & Ry., 62; Fulton «. State, 8 £ngl., 168; and see People «. Allen, 5 
Denio, 76; Reg. nk Moah, 36 Bug. L., & Eq., 592. 

* 1 1 has been held necessary to allege in an indictment that the embezzle- 
ment or conversion was without the consent of his company, employer or 
master. State v. Foster, 11 Iowa, 29; but an indictment which avers the 
property embezzled to be the property of A. B., sufficiently negatives the 
consent of the owner by averring that it was without the consent of the said 
A. B. ; Com. v. Smith, 116 Mass., 40. 

* A count for larceny and embezzlement may be Joined. 2 Biah. Cr. 
L.,827. 



334r SPECIFIC OFFENSES. 

navM of the company) fraudulently and feloniously did neglect to cancel a 
certain railroad ticket of the said company, with intent then and there to 
permit the same to be used in fraud of the said company, contrary to the 
form of the statute in such case made and provided {condade as in form on 
page 85). 

STATEMENT OF THE OFFENSE OF FAILING TO PAY OVER PROCEEDS OF A 

SALE BY A COMMISSION MERCHANT.' 

{Gommmce od in form on page 35) that C. D., on, etc., at, etc., in the said 
count3% then and there being a commission merchant and selling grain on 
commission, sold for the said A. B.on commission a largequantity of grain, 
to wit.y one hundred bushels of wheat, tlie property of the said A. B. for the 
sum of one hundred and twenty-five dollars,which said sum the said 0. D. then 
and there received as the proceeds of the said sale; and the said C. D. after- 
wards, to wit.y on tlie day of , A D., 18 — , and while he was such 

commission merchant as aforesaid, at the said town of in said county, 

did unlawfully fail to pay over the said proceeds of the said sale less his 
proper charges, to wit.y the sum of five dollarsi on demand made therefor at 
the time and place last before mentioned, by the said A B., the said A B. 
then at the time and place last before-mentioned, being the person entitled 
to receive the said proceeds of the said sale, contrary to the form of the sta- 
tute in such case made and provided {eonduds a» in form on page 35). 



STATEMENT OP THE OFFENSE OP FAILING TO PAY OVER MONEY COL- 
LECTED BY AN ATTORNEY. 

{Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, then and there being an attomey-at-law, and authorized by law to 
collect money, unlawfully did fail and refuse to pay over a large sum of 
money, to mt,y the sum of five hundred dollars, then and tliere collected by 
the said C. D. as such attorney, for the said A. B., less C. D.*s pi'oper 
charges, to wit.y the sum of fifty dollars, for making the said collection on 
demand, then and there made therefor by the said A. B., then and there be- 
ing the person entitled to receive the said money so collected, contrary to 
the form of the statute in such case made and provided {conclude as in 
form on page 35). 

« 

STATEMENT OP THE OFFENSE OP EMBEZZLEMENT BY AN OFFICER. 

{Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 

county, then and there being treasurer of the said county of y duly 

elected, qualified and commissioned under the laws of this said state, frau- 
dulently and feloniously did embezzle a large sum of money, to toiLy the 
sum of five thousand dollars, then and there belonging to the said coimtj 

^ For a form of an indictment see Wrights. People, 61 Ills., 882. 



p 

BMBEZZLEMENT. 335 

of , and then and there being in the possession of the said C. D. by vir. 

tne of his said office, contrary to the form of the statute in such case made 
and provided (conclude as inform on page 35). 

8TATKMENT OF THE OFFENSE OF LOANING PUBLIC FUNDfi. 

(Commence as in the form on page 85) that C. D., on, etc., at, etc., in the 
said county, then and there being treasurer of the said state of Illinois, 
duly elected and qualified under the constitution and laws of the said 
state, unlawfully did loan, not being then and there authorized by law so 
to do, a portion of the money, to wit.^ the sum of five thousand dollars, 
then and there entrusted to him for safe keeping by virtue of his said office, 
contrary to the form of the statute in such case made and provided (con- 
dude as inform on page 35). 

§480. Evidence. — The law does not presume that because 
money has been entrusted to an individual, he has embezzled 
it or appropriated it to his own use.* Under a statute some- 
wliat similar to ours, it was held that where a cashier of a, 
bank, mistaking the sum due a depositor drawing his deposit, 
paid him a hundred dollars too much, and the depositor re- 
ceiving the money fraudulently converted to his own use this 
over pay, he did not thereby commit the offense defined in 
the statute, because the court deemed the statute applicable 
only where there was some sort of trust or confidence reposed 
in the person alleged to have committed the offense, which 
had been abused by him.* It has been held that the charge 
of embezzlement is not sustained by proof that the accused 
asked a little girl to lend him a small sum of money, that she 
thereupon handed him a large amount to count in her pres- 
ence, and that he refused to return her any and fled with the 
whole, because the conversion of the money to his own use 
was not on those facts embezzlement, but was larceny;* it 
would have been held otherwise if the indictment had alleged 
facts suflScient to constitute a larceny at common law.* Evi- \ 

> Thomas t>. Dunaway, 30 Ills., 378. 

" Com. «. Hays, 14 Gray, 63. 

*Com. 9. O'Mallery, 97 Mass., 587; Gutchens o. People, 21 Ills., 642; 
Nichols «. People, 17 N. Y., 114. 

« Beckwith «. People, 26 Ills., 500; Prmdeville «. People, 42 Ills., 217; 
Toe «. People, 49 Ills., 414. 



/ 



836 SPECIFIC OFFENSES. 

• 

dence of other acts of the same character previously commit- 
ted may be introduced against the defendant to show his in- 
tent.* Where the defendant, under any agreement between 
him and the prosecutor, received from the latter a watch 
which he was to trade for a wagon, and was to receive five 
dollars as a compensation for his services, it was held that 
this constituted such an employment as rendered the defend- 
ant guilty of embezzlement for converting the watch to hia 
own use.* 

4. GBi^VES, Graveyards and Cemetebiesl 

§ 481. Provisions of the Statute as to Robbing Graves. — "Who- 
ever willfully, and without authority, digs up, disenters, re- 
moves or conveys away from the place of sepulture or interment 
thereof, any human body or the remains thereof, or knowing- 
ly aids in such disinterment, removal or carrying away, and 
whoever is accessory thereto, either before or after the fact, 
shall be fined not less than one hundred, nor more than one 
thousand dollars, or be confined in the county jail not exceed- 
ing one yea,r or both."' 

STATEMENT OF THE OFFENSE OF ROBBING A GRAVE. 

{Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, willfully and without authority, did dig up, remove and carry 
away from the place of sepulture thereof, there situate, the human body of 
£. F./ deceased, contrary to the form of the statute in such case made and 
pi'ovided {conclude as inform on page 35). 

§ 482. Provisions of the Statute as to I^jariBg Monuments, etc. — 

"Whoever willfully and maliciously injures, defaces, removes 
or destroys any vault, tomb, monument, gravestone, or other 
memorial of the dead, or any fence or inclosure about the 

* Com. c. Tuckerman, 10 Gray, 173, 197. 

* State ». Poster, 37 Iowa, 403. 
■ K 8., 373, i 138. 

* The allegation that *" the defendant willfully and without authority did 
remove from its grave a certain deceased child of N. H. Burke, that had 
yet no name given it»*' etc., is sufficient Tate 9. State, 6 Blackf., 110. 



LABCENT. 837 

same, or about any cemetery or place of burial of the dead, 
or willfully cuts, breaks, removes or injures any tree, shrub 
or plant within any such inclosure, or about or upon any 
grave or tomb, or wantonly or maliciously disturbs the con- 
tents of any vault, tomb or grave, shall be fined not exceeding 
five hundred dollars, or confined in the county jail not ex- 
ceeding one year, or both."* 

STATEMSKT OF THE OFFENSE OF INJTJRINO A aBAVB-BTONB. 

{Commence as in form on page 35) that C. D., on, etc., at, etc., in the said 
county, wilAilly and maliciously did injure and deface a certain grave-stone, 
then and there erected as a memorial of E. F., deceased, upon his grave, con- 
trary to the form of the statute in such case made and provided {conclude 
ae in form on pagt 85). 

6. Larceny. 

§483. Defined. — "Larceny is the felonious stealing, taking 
and carrying, leading, riding or driving away the personal 
goods of another. Larceny shall embrace every theft which 
deprives another of his money or other personal property, or 
those means or muniments by which the right and title to 
property, real or personal, may be ascertained. Private steal- 
ing from the person of another and from a house in the day- 
time, shall be deemed larceny. Larceny may be committed 
by feloniously taking and carrying away any bond, bill, note, 
receipt or any instrument of writing of value to the owner. "^ 

§ 484. Panishmeiit. — " Every person convicted of larceny if 
the property stolen exceeds fifteen dollars, shall be imprison- 
ed in the penitentiary not less than one nor more than ten 
years; if the value of the property stolen is less than fifteen 
dollars, he shall be confined in the county jail not exceeding 
one year, and fined not exceeding one hundred dollars.'" 

§485. Second Offense. — *'In case of a second conviction of 
the offense of petty larceny by any person over the age of 

> R S., 878, § 189. 

* R. 8., 877, § 167 ; Schantz v. State, 17 W., 251. 

• R. 8., 877, § 168. 

22 



338 SPEGIFIO OFFENSES. 

eighteen years, the punishment shall be imprisonment in the 
penitentiary for a term not exceeding three years, and on the 
trial on an indictment for petty larceny, a duly certified copy 
of th^recordof a former conviction and judgment of any court 
of record in tliis stat§, for a h'ke oflense against the party in- 
dicted, shall he pinina facie evidence of such former conviction, 
and may be used in evidence against such party: Provided^ that 
.such former conviction and judgment shall be set forth in apt 
words in the indictment."* 

§ 486. By Bailee. — '.' If any bailee of any bank bill, note, 
money or other property, shall convert the same to his own 
•use with intent to steal the same, or secretes the same with 
intent so to do, he shall be deemed guilty of larceny."^ 

§ 487. Of Beasts and Birds of a Wild Nature. — " Whoever 
without the consent of the owner, and with a felonious intent, 
takes any beast or bird, ordinarily kept in a state of confine- 
ment, and not the subject of larceny at common law, shall be 
deemed guilty of larceny."* 

§ 488. Horse Stealing. — " Whoever feloniously takes or steals 
any horse, mule or ass, shall be imprisoned in the peniten- 
tiary not less than three nor more than twenty years. The 
words *'horse," "mule," "ass," shall include animals of both 
sexes and all ages."^ 

§489. Of Lead Pipe, etc. — "Every person who shall feloni- 
ously steal, take and carry away any lead pipe, faucet, or fau- 
cet and stop-cock, from any dwelling-house or other building, 
whether the same be attached to such house or building or 
not, or whether the same be laid in the ground separate from 
such house or building, shall be deemed guilty of larceny, 
and punished accordingly."* 

§490. Newspapers, etc. — "Whoever shall unlawfully and 

« R a, 877. § 169 ; State o. Riley, 28 Iowa, 547. 

' R. 8., § 170; Zschocke v. People, 62 Ills., 127; State v. Schingen, 20 Wis., 
74; State «. licDougal, 20 Wis., 507 ; Id., 234. 

• R. S., 877, g 171. 

• Id., 878, g 172. 

• Id, g 178. 



LAKCENY. -339 

feloniously steal, take and carry away any newspaper or peri- 
odical from the place where the same may be left for any other 
person, shall be deemed guilty of larceny, and punished ac- 
cordingly. It shall be suflScient to allege, in the indictment 
under this section property to be in the publisher, or in the 
person for whom the newspaper or periodical was left."* 

§491. Of Things Attached to the Realty. — "Whoever by a 
trespass, with inte